Arb London / English law. Or is there rather more to it

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2 Arb London / English law Or is there rather more to it

3 Drafting the Arbitration Agreement Some drafting tips Points to be aware of Operating the Clause Some practical advice Traps for the unwary 3

4 Separate agreement within a contract Arbitration must be agreed cannot be unilaterally imposed Can be agreed at the contracting stage or later Must be in writing to be enforceable under the NYC

5 Make sure you have a complete clause Seat / place - London arbitration Governing Law - English law Procedural Rules - LMAA Terms & Procedures N.B. Seat / place v venue

6 Avoid uncertainty Check for duplication of clauses Ideally delete competing clauses At least ensure consistency Check for certainty mandatory reference of disputes to arbitration all disputes SHALL be referred to arbitration

7 BIMCO Dispute Resolution Clause 2016 Options : London Arbitration / English Law / LMAA Terms New York Arbitration / US Maritime Code / SMA Rules Singapore Arbitration / Singapore Law / SCMA Rules Singapore Arbitration / English Law / SCMA Rules

8 Singapore Arbitration / English law OR Hong Kong / English law 1. Appointment of the Tribunal 2. Arbitration Procedure 3. Status of the Award

9 Provision for Sole Arbitrator Recourse to Appointing Authority SIAC / HKIAC International Arbitration Institutions Involves time, costs, generic body Lose the benefits of the ad hoc arbitration system with which commercial trade and shipping parties are familiar

10 Institution-appointed arbitrator Far more likely to follow the institutional style arbitration used to Far more likely to require at least one or more hearings Again risk losing the benefits intended

11 Position under Model Law Final and Binding Position under English Law Right of Appeal Limited point of law Not automatic must be granted Safety net Law of seat v procedural law

12 Specific criteria for arbitrators Specific mechanisms for specific disputes Provisions for mediation / negotiation Specific notice provisions

13 NOTICES OF ARBITRATION Any and all notices and communications in relation to any arbitration proceedings arising in connection with this contract (including any communications giving notice of the commencement of such proceedings and/or appointment of an arbitrator) shall be treated as effectively served if sent by to the addresses as provided for in this clause (it is recommended that at least one individual, together with their individual address, is named for service purposes but a general address may also be included or used in the alternative): address for Owners [insert] address for Charterers [insert] Either party shall be entitled to change and/or add to the addresses to which notices and communications may be sent for purposes of this clause by sending notice of change to the other party at the address provided for in this clause. Any notice and communication sent by pursuant to this clause shall be deemed to have been served, and become effective, from the date and time the was sent. If a party retains solicitors or other legal advisors with authority to accept service of notices and communications in relation to arbitration proceedings, the other party should be advised of the appointment and new service details in accordance with the terms of this clause; future service and communications should then be sent to the nominated solicitors or legal advisors only (unless otherwise directed). In the event the solicitors or other legal advisors cease to act and notice is given of this to the other party, the provisions contained herein will re-apply. 13

14 The importance of getting an arbitration off to a good start cannot be emphasised highly enough. Failure to do so may : Allow opponents to delay progress in the reference and increase costs Invalidate the entire proceedings and require you to start over In the worst case cause a claim to become time barred so that it cannot be validly pursued at all. There is no point in having a good claim which cannot be pursued 14

15 Provisions for mediation / negotiation Is the provision valid and enforceable? If yes, has it been complied with? Can you Pass Go?

16 Please, please Follow the Clause!

17 What is required, by whom and when Appointment of the arbitrator Notification of the appointment Mechanism where default

18 Accurately identify the Counterparty Makes sure the Counterparty receives notice AND that you can establish service Operate express notice provision (if available) Otherwise matter of authority to accept service

19 Who to send notice to? Can you serve the P&I Club? NO a P&I Club will not generally have authority, actual or ostensible, to accept service on behalf of a member, even if it has authority to deal with a wide range of matters including e.g. settlement negotiations

20 Who to send notice to? Can you serve the solicitor? NO The position of a P&I Club is broadly analogous to that of solicitors, where again even a wide general authority to deal with a case on behalf of a client will not (without more) translate into authority to accept service of originating process

21 Who to send notice to? Your contracting party? As per notice clause YES At registered office YES. and By YES but BEWARE

22 The Eastern Navigator (2006) Notice served on listed in maritime directory and on company s website The Amity (2018) Notice served on florian.oosterman@glencore.com operations department contact point throughout fixture

23 individual - even where an employee or agent has a wide general authority to act on behalf of his employer/principal, such authority does not (without more) generally include an authority to accept service of notice of arbitration generic group - reasonable to expect that recipients of s to that address are authorised internally to deal with their contents where the subject matter falls within the scope of the business activity which the generic address indicates.

24 Phone a friend - Ask your contact point whether they are authorised to accept service and, if they are not, ask who is? Ask the audience - ask the brokers who is authorised to accept service Reduce your risk of failure serve notice of all addresses, electronic and physical which you know of and can find publicly advertised

25 NOTICES OF ARBITRATION Any and all notices and communications in relation to any arbitration proceedings arising in connection with this contract (including any communications giving notice of the commencement of such proceedings and/or appointment of an arbitrator) shall be treated as effectively served if sent by to the addresses as provided for in this clause (it is recommended that at least one individual, together with their individual address, is named for service purposes but a general address may also be included or used in the alternative): address for Owners [insert] address for Charterers [insert] Either party shall be entitled to change and/or add to the addresses to which notices and communications may be sent for purposes of this clause by sending notice of change to the other party at the address provided for in this clause. Any notice and communication sent by pursuant to this clause shall be deemed to have been served, and become effective, from the date and time the was sent. If a party retains solicitors or other legal advisors with authority to accept service of notices and communications in relation to arbitration proceedings, the other party should be advised of the appointment and new service details in accordance with the terms of this clause; future service and communications should then be sent to the nominated solicitors or legal advisors only (unless otherwise directed). In the event the solicitors or other legal advisors cease to act and notice is given of this to the other party, the provisions contained herein will re-apply. 25

26 Drafting the Arbitration Agreement Complete clause Without duplication or conflict Tailored to your needs but not too specific Be aware of ramifications of hybrid clause Operating the Clause Comply with multi-tier provisions Appoint AND notify following the clause Ensure valid service 26

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