The Draft Withdrawal Agreement and Shipping Law

 

They came, they argued, they agreed (but now minus Raab and McVey).

This evening the Cabinet signed up to the Draft Withdrawal Agreement, all 586 pages of it – and also the seven page outline of the Political Declaration on the future relationship between the United Kingdom and the European Union.

All eyes are now focussed on the special status of Northern Ireland in the ‘backstop’ in the Agreement and on the inability of the UK unilaterally to withdraw from that agreement in article 21 of the Northern Ireland Protocol.

Less controversial are the provisions of the Agreement on Jurisdiction, Applicable Law, and Insolvency that are to be found in Articles 66 and 67, as follows.

Applicable law.

ARTICLE 66

Applicable law in contractual and non-contractual matters

In the United Kingdom, the following acts shall apply as follows:

(a) Regulation (EC) No 593/2008 of the European Parliament and of the Council shall apply in respect of contracts concluded before the end of the transition period;

(b) Regulation (EC) No 864/2007 of the European Parliament and of the Council shall apply in respect of events giving rise to damage, where such events occurred before the end of the transition period.

Jurisdiction.

ARTICLE 67

Jurisdiction, recognition and enforcement of judicial decisions, and related cooperation between central authorities

  1. In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, in respect of legal proceedings instituted before the end of the transition period and in respect of proceedings or actions that are related to such legal proceedings pursuant to Articles 29, 30 and 31 of Regulation (EU) No 1215/2012 of the European Parliament …the following acts or provisions shall apply:

(a) the provisions regarding jurisdiction of Regulation (EU) No 1215/2012

Insolvency

Article 67

  1. In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, the following provisions shall apply as follows:

(c) Regulation (EU) 2015/848 of the European Parliament and of the Council shall apply to insolvency proceedings, and actions referred to in Article 6(1) of that Regulation, provided that the main proceedings were opened before the end of the transition period;

For financial service providers, the following statement on p2 of the Political Declaration is of interest.

 

“Commencement    of    equivalence    assessments    by    both    Parties    as    soon    as    possible    after    the    United     Kingdom’s     withdrawal     from     the     Union, endeavouring     to     conclude     these     assessments     before the    end    of    June 2020.”

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Back to the common law. Jurisdiction and judgments if there’s a ‘no deal’ Brexit.

 

 

On 13 Sept 2018 the UK government stated that in the event of a no-deal Brexit, it would repeal most of the existing civil judicial cooperation rules and instead use the domestic rules which each UK legal system currently applies in relation to non-EU countries. This is due to the lack of reciprocity from EU Member States that would pertain after ‘exit day’.

So, for the bin, would be:

The 2012 Brussels Regulation (Recast). Back to common law. The return of the anti-suit injunction to protect London arbitration agreements from suits commenced in EU states.

The Enforcement Order, Order for Payment and Small Claims Regulations: which establish EU procedures for dealing with, respectively, uncontested debts and claims worth less than EUR5,000

The EU/Denmark Agreement: which provides rules to decide where a case would be heard when it raises cross-border issues between Denmark and EU countries, and the recognition and enforcement of civil and commercial judgments between the EU and Denmark

The Lugano Convention: which is the basis of our civil judicial relationship with Norway, Iceland and Switzerland.

Most of the Insolvency Regulation, which covers the jurisdictional rules, applicable law and recognition of cross-border insolvency proceedings, although the EU rules that provide for the UK courts to have jurisdiction where a company or individual is based in the UK will be retained.

In addition, last year shipping minister John Hayes told members of the UK Major Ports Group that the hated 2017 Port Services Regulation will be “consigned to the dustbin” in the UK due to Brexit.

 

Staying out of the bin will be Rome I and Rome II on choice of law in contract and non-contractual matters. No reciprocity is involved with these regulations.

The Government intends the UK to accede to the 2005 Hague Convention on Choice of Court Agreements in its own right and anticipates that the convention would come into force across the UK by 1 April 2019. This is somewhat of a surprise as article 31 (a) provides the convention to come into effect for each state ratifying it on the first day of the month following the expiration of three months after the deposit of its instrument of ratification, acceptance, approval or accession. So, 1 July 2019.

The Convention does not apply to: consumer or employment contracts; insolvency; carriage of passengers or goods; maritime pollution; anti-trust/competition; rights in rem in immovable property, and tenancies of immovable property; the validity, nullity or dissolution of legal persons, and the validity of decisions of their organs; various matters concerning the validity or infringement of intellectual property rights; the validity of entries in public registers; arbitration and related proceedings

 

 

 

When does a shipowner have to start the approach voyage under a voyage charter?

Yesterday the Court of Appeal upheld the first instance decision in CSSA Chartering and Shipping Services SA v Mitsui OSK Lines Ltd (The Pacific Voyager) [2018] EWCA Civ 2413 which we noted in this blog on 24 October 2017. The case involved a voyage charter on Shellvoy 5 form which contained no ‘estimated ready to load’ statement. Instead Part 1(b) contained estimated times of arrival for the itinerary on the previous charter. When did the owner’s absolute obligation to begin the approach voyage to the load port commence? Popplewell J held that the obligation began within a reasonable time of the completion of discharge at the final port in the previous charter as specified in the estimated itinerary for that voyage. The owners were in breach of that obligation and charterers were entitled to substantial damages.

The Court of Appeal have upheld this decision. Longmore LJ stated that this meant that there was no need to deal with charterer’s alternative argument that the cancellation date provided a further indication of the time at which it would be reasonable to say that the obligation of utmost despatch arises.  “If, for any reason, it were impermissible to rely on the expected date of arrival of 25th January at the last discharge port under the previous charter, I would have difficulty in saying that the cancellation date would do instead.  It would be necessary to know why it was that 25th January could not be relied on and, if it were because there was no ETA Rotterdam, that might apply equally to any argument about the cancelling date. If, however, there had been no itinerary given and the only guide was the cancelling date, that might be a different matter.  That can (and should) be left to another day for the (perhaps somewhat surprising) terms of such a charterparty to be considered.”

Insurer’s ‘exposure’ to risk of US sanctions.

 

 

In Mamancochet Mining Ltd v Aegis Managing Agency Ltd [2018] EWHC 2643 (Comm).  the effect of the on-off-on again of US sanctions against Iran which are due to kick in again this Sunday 4 November at 1159 pm EST came under consideration. A claim under the marine insurance policy was made in respect of the theft of cargo carried from Russia to Iran in 2012, under a bill of lading naming an Iranian national was the consignee. The US sanctions regime came into effect in 2013, was lifted in 2016, and is reimposed this Sunday. The policy provided ““to the extent that …payment of such claim …would expose that insurer to any sanction, prohibition or restriction under …the trade or economic sanctions, laws, or regulations…” and the issue was whether the insurer could refuse to pay out on the ground that payment would ‘expose’ it to US and/or EU sanctions within the meaning of the policy clause.

 

Teare J held that the present clause referred to a payment which “would expose” the insurer “to any sanction, prohibition or restriction”, rather than being “exposed” to the risk of being sanctioned (in the sense of being subject to the risk of a sanction).  Before a sanction can lawfully be applied there must be conduct which is prohibited. It was not enough that that the regulatory agency in question might conclude that there was prohibited conduct (when in law there was not or may not be) and so impose a sanction. Accordingly, the clause provided that the insurer was not liable to pay a claim where payment would be prohibited under one of the named systems of law and thus “would expose” the Defendants to a sanction. Nor did the sanctions clause extinguish liability under the policy when sanctions against Iran were previously imposed in 2013.

 

The claimants had also argued that the EU Blocking Regulation[1] would preclude the claimants from refusing to pay out under the policy. In the light of the construction of the sanctions clause, this issue did not fall to be decided but Teare J saw “[c]onsiderable force in the Defendants’ “short answer” to the point, namely that the Blocking Regulation is not engaged where the insurer’s liability to pay a claim is suspended under a sanctions clause such as the one in the Policy. In such a case, the insurer is not “complying” with a third country’s prohibition but is simply relying upon the terms of the policy to resist payment.”

 

[1] Regulation (EC) 2271/96 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom, as amended by Commission Delegated Regulation (EU) 2018/1100, amending the Blocking Regulation with effect from 7 August 2018 by including the various US sanctions against Iran

Slow steam ahead on Greenhouse gas reduction in IMO?

 

 

Earlier this year, as we reported in this blog, the IMO agreed to cut greenhouse gas emissions 50% by 2050. Hopes that concrete measures might emerge from MEPC 73 which concluded on  Friday have been disappointed. Two proposals were put forward which would make an immediate impact on reducing shipping’s GHG emissions – capping ship speeds and higher efficiency standards for new build container ships from 2022 – but neither was approved. Further work on this issue will continue next year in MEPC 74.

Other issues considered in MEPC 73 were a proposed ban on use of heavy fuels in the Arctic from by the end of 2021 which will be further developed by the Pollution Prevention and Response subcommittee at its meeting in February 2019.

The IMO has also had its ‘Blue Planet’ moment by developing an action plan to address marine plastic litter from ships, and ship based activities. The plan identifies a number of actions, which will be reviewed at MEPC 74 prior to further work being undertaken, including a proposed study on marine plastic litter from ships and looking into the availability and adequacy of port reception facilities

Brexit leaks boost the pound

 

Two pieces of leaked news regarding Brexit have seen the pound rise to US $1.32 today.  The first, reported in yesterday’s Times, was that agreement had been reached by the EU and the UK on financial services after Brexit. Nice, when it happens but of no immediate relevance. Any future relationship between the UK and the EU will have to be negotiated after Brexit. For now, the urgency is about the terms on which the UK leaves the EU and its position during the transition period after exit day while the new trade treaty is being negotiated with the EU. The withdrawal agreement covers: the position of EU citizens in the UK on exit day and the position of UK citizens in EU member states on exit day; the ‘divorce’ settlement to be paid by the UK; the avoidance of a hard border on the island of Ireland; the role of the CJEU in supervising the withdrawal treaty. It is the third of these that is proving most problematic.

Today’s news that the EU may be prepared to compromise on this issue is certainly of immediate relevance. The Financial Times reports that the E.U. is ready to offer the UK a “bare-bones” U.K.-wide customs union with the E.U. in the event of the Irish backstop being triggered.

But getting a withdrawal treaty agreed with the EU is one thing. Getting it through the UK Parliament is another.

Trump, the IMO and scrubbers

 

US President Trump’s plans last week for delaying the 0.5%  sulphur cap were defeated in the IMO who have introduced a supplementary measure about banning carriage of non compliant fuels unless the ship is fitted with scrubbers, to come into effect on 1 March 2020.

One method of ensuring compliance with the sulphur cap which comes into effect on 1 January 2020 would be the fitting of scrubber systems which though costly initially may prove more economical than the use of low sulphur diesel. Maersk has recently outlined its plans to go down the scrubber route, backtracking from its earlier position not to fit them to its fleet.

An article in todays ‘Guardian’ claims that the use of open-loop scrubbers which discharge wash water into the sea will simply transfer pollution from air to sea. Such discharges would have to comply with IMO regulations but there may still be a risk of some pollution involved. A 2015 study by UBA, a German environment agency, concluded that “wet scrubbers influence the marine environment through ph decrease, temperature increase, pollutant discharges and possibly through the use of active substances. Open scrubbers in particular have a greater environmental impact than closed or dry scrubbers due to their high water consumption and significantly larger amounts of generated washwater…The discharges of large amounts of washwater with partially persistent substances, lower ph and elevated temperature, however, are not compatible with the precautionary principles of [the EU’s] waste framework directive and Marine Strategy Framework Directive.”

The use of open-loop scrubbers is effectively banned in German and Belgian waters. However, the use of low sulphur diesel fuel in ports will contribute to other forms of air-borne pollution, such as from Nitrogen Dioxide emissions.

This could be the last time? Clocks go back in the UK. Brexit Update (5).

 

On September 12, 2018, the European Commission issued a draft directive which proposes the abolition of seasonal clock changes in the European Union. Each Member State would have to decide whether they want to stay on summer time or not, and then stick to it. If the directive is approved the last clock change in the EU will be on Sunday, March 31, 2019, two days after ‘exit day’. Will this affect the UK? That depends on whether there is a hard Brexit or not.

 

The UK and the EU are currently negotiating a treaty of withdrawal to cover the period after ‘exit day’ during which the future relationship between the parties will be negotiated.  During this period, which is scheduled to end at the end of 2020 (although it now seems possible there may be a further extension to this time) the UK would remain subject to EU law, including new legislation coming into effect in the transition period, but would not participate in the EU institutions. The UK would continue to benefit from the free trade agreements negotiated by the EU with third party states but would be free to start negotiating its own such agreements, although these could not come into effect until the end of the transition period. At this stage a new agreement should come into effect between the UK and the EU – or maybe not. Politically it is highly uncertain whether a withdrawal agreement will be capable of conclusion in which case the UK will leave the EU on ‘exit day’ in a ‘cliff-edge’ deal.

 

Prime Minister Theresa May has stated that the agreement is 95% concluded – but it is the 5% that is the sticking point. That is the ‘Irish Question’ which did for Gladstone. The question now is how to avoid a hard border between Northern Ireland, which as part of the UK will no longer be in the EU, and the Republic of Ireland, a member state of the EU. An open border is a fundamental part of the 1998 Good Friday Agreement which brought an end to the troubles. The UK and the EU have very different views on the meaning of article 49 of which states.

The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all island economy and the protection of the 1998 Agreement.”

This is the so-called ‘backstop’ which the EU would want to be permanent, and the UK would wish to be limited in time. The EU contemplates a customs union applying within Northern Ireland which would be politically unacceptable to the Democratic Unionist Party, on whose support Theresa May’s is dependent – the metaphorical border in the Irish Sea. Accordingly, the prospects of a cliff-edge Brexit look increasingly likely.[1]

However, an abrupt exit would not have to lead to a hard border on the island of Ireland. The EU will insist that the Republic erects such a border but that would be politically impossible for the Republic. Chancellor Philip Hammond has said that the UK would be required under WTO Rules to erect such a border. Up to a point, Chancellor. There is no WTO institution policing compliance with its rules. It is up to individual members to bring proceedings for violation of WTO rules. In the case of border between the North and the South that would lead to potential suits by non-EU states for violation of the principle of ‘most favoured nation’. However, the UK would be able to raise as a defence the security principle in Art. XXI of GATT, recently invoked by President Trump to justify imposed tariffs on imported steel and aluminum and threatened ones on imported cars. In any event it could just decide not to comply with any WTO award against it – as the EU has done for 20 years in relation to its ban on the import of hormone treated beef from Canada, the US– and take the consequences of trade sanctions from the other party.

For Banks and Insurers a cliff-edge Brexit would mean the immediate loss of ‘passporting’ rights – hence the rush of P&I Clubs setting up subsidiaries in EU states, such as Ireland, the Netherlands, Cyprus. There is even talk that national regulators in EU states may feel required to prevent payments being made out under policies with UK insurers that were written before ‘exit day’ although this would very probably constitute a breach of art 1, Protocol 1 of the ECHR as amounting to an expropriation of contractual rights which constitute ‘possessions’. [2]

 

[1] As of 26 October 2018 a leading bookmaker is offering odds of 8/11 that the withdrawal agreement will be approved by the Council of the EU and the UK Parliament before ‘exit day’ and evens that it won’t. Odd of 4/11 for Theresa May still to be PM on 1 April 2019, 5/6 for the UK to rejoin the EU by 2027, 15/8 for a second referendum to be held by the end of 2019 in the UK.

 

[2] This provides that “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

 

Must do better. Dutch Court of Appeal’s verdict on the Netherlands State’s efforts on climate change.

 

 

An interesting contrast to the UK climate change case in Plan B recently noted in this blog. On 9 Oct, the day after the IPCC released its report setting out why global warming must not exceed 1.5 C over pre industrial levels, and how challenging achieving that is going to be, the Amsterdam Court of Appeal gave its decision in State of Netherlands v Urgenda Foundation, (Case number : 200.178.245/01 – English translation available at ). Urgenda had brought a class action seeking an order that that the Netherlands State be ordered to achieve a reduction so that the cumulative volume of Netherlands greenhouse gas emissions would be reduced by 40%, or at least by 25%, by end-2020, relative to 1990 levels. The Netherlands had initially set a 30% relative target but after 2011 the target was reduced to 20% to align it with the EU’s target in the Emissions Trading Scheme Directive 2003/87, as subsequently amended.

 

The District Court ordered the State to reduce to 25% . The Court of Appeal has now rejected the State’s appeal. The State had acted unlawfully under Book 6 Section162 of the Dutch Civil Code and also under two articles of the ECHR, which has direct affect in the Netherlands: article 2 which sets out the right to life and also under art 8. Class actions could not be brought before the Court in Strasbourg, but could be brought before the Dutch Courts. Although the 25% target exceeded the EU’s 20% target the State was not precluded from taking more ambitious measures, providing this did not interfere with the EU’s ETS system, which it would not. Of particular interest is the Court of Appeal’s reference to the role of negative emissions technologies in combatting global warming.

 

[49] In the report of the European Academies Science Advisory Council (‘Negative emission technologies: What role in meeting Paris Agreement targets?’), entered into evidence by Urgenda as Exhibit 164, the following is noted about negative emissions:
“(…)We conclude that these technologies [Court: negative emission technologies, or NETs] offer only limited realistic potential to remove carbon from the atmosphere and not at the scale envisaged in some climate scenarios (…)” (p. 1)“Figure 1 shows not only the dramatic reductions required, but also that there remains the challenge of reducing sources that are particularly difficult to avoid (these include air and marine transport, and continued emissions from agriculture). Many scenarios to achieve Paris Agreement targets have thus had to hypothesise that there will be future technologies which are capable of removing CO2 from the atmosphere.” (p. 5)
(…) the inclusion of CDR [Court: removal of CO2 from the atmosphere] in scenarios is merely a projection of what would happen if such technologies existed. It does not imply that such technologies would either be available, or would work at the levels assumed in the scenario calculations. As such, it is easy to misinterpret these scenarios as including some judgment on the likelihood of such technologies being available in the future.” (p. 5)
The State has failed to contest this by not providing adequate substantiation. Therefore, the Court assumes that the option to remove CO2 from the atmosphere with certain technologies in the future is highly uncertain and that the climate scenarios based on such technologies are not very realistic considering the current state of affairs.

 

In the UK Plan B decision the Court referred to the Committee on Climate Change’s view that the UK’s planned reduction would be challenging but would be accelerated after 2030 by, inter alia, carbon capture. Plan B have lodged an appeal against the court’s refusal to grant judicial review. The reference to the challenge of reducing greenhouse gas emissions from marine transport is also interesting in the light of what is currently happening in the IMO, as noted in our blog.

Trumped at the pump? US seeks delay to IMO 0.5 sulphur cap.

 

The US and several flag states are launching a last minute initiative in the IMO to delay the implementation of the 0.5 sulphur cap that will come into effect on 1 January 2020 with the addition of “an experience-building phase”. The Trump administration is concerned at the rise in oil prices to $80 per barrel – the result in part of its renewed sanctions on Iran – and is concerned that the forthcoming cap will drive fuel prices up further. The matter is under discussion at the IMO.

Whatever happens in the IMO, the EU’s Sulphur cap is coming into effect on 1 January 2020.