Don’t be late. Arbitrate.

We are all familiar with the ‘Italian Torpedo’ where a party to a contract containing an arbitration clause commences proceedings in a jurisdiction which will not recognise its effect. The Africa Reefer [2015] EWHC 1950 (Comm), provides a salutary lesson against overconfidence that one’s chosen court will, indeed, determine that arbitration does not apply.

Pears were carried from Argentina to Antwerp under a bill of lading incorporating a charterparty subject to London arbitration. The bill of lading was subject to the Hague-Visby Rules and a one year time limit. The claimants commenced proceedings in Belgium and the parties awaited the final report of the court surveyor. After this was produced the defendant, in November 2012, served a defence objecting to the jurisdiction of the Belgian courts on the grounds that the dispute was subject to London arbitration. The claimants took no steps to commence arbitration, confident that it would succeed on this point under article 96 of the Belgian Private International Code and article 91 of the Belgian Maritime Law. Much to their surprise, in 2014 the Belgian court found for the defendant.

In 2015 the claimants sought an extension of time of three years and eight months for commencing arbitration relying on s.12(3) (b) of the Arbitration Act 1996 which provides for the court to order that an extension be given where: “the conduct of one party makes it unjust to hold the other party to the strict terms of the provision in question”. Burton J declined to grant the requested extension. There was no conduct by the defendants upon which the claimants could rely which made it unjust to hold the claimants to the one year time limit. The defendants had been entitled under Belgian law to participate in the Belgian proceedings up until the time when they raised the jurisdiction objection in November 2012, and it was common ground that by doing so the defendants had not waived their right to claim arbitration. Thereafter, the claimants took no steps to commence arbitration until their rude awakening in 2014 when the Belgian court found for the defendant.

Get your skates on for an anti-suit injunction

The English courts may be very willing on principle to give you an anti-suit injunction against someone who sues elsewhere while putting up two fingers to a binding London arbitration clause. But you must play your part and act quickly. You can’t lackadaisically ask the foreign court to decline jurisdiction and then seek to injunct the other guy in London several months later when it’s apparent that it won’t. A hapless shipowner found this out on his unlucky Friday 13. For details see Essar Shipping Ltd v Bank of China Ltd [2015] EWHC 3266 (Comm) (13 November 2015), available on BAILII.

AT

The Chartered Institute of Arbitrators (CIArb) Awards Department of Shipping and Trade Law with Recognised Course Provider Status

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The International Commercial Arbitration module offered by the Department of Shipping and Trade Law, College of Law, Swansea University is recognised by the Chartered Institute of Arbitrators as equivalent to member-level education (module 2) offered by the CIArb.

This effectively means that starting from the 2015-2016 academic year, LLM students at the Department of Shipping and Trade Law who manage to successfully complete the International Commercial Arbitration module will be eligible to apply for exemption from level 2 education requirements of CIArb membership, allowing them to apply to be awarded the level of Member of the Institute or MCIArb.

The CIArb, with 13,000 members active in various form of alternative dispute resolution in 120 countries, is the foremost professional institution working for global promotion, facilitation and development of all forms of private dispute resolution through an international network of 37 branches. Membership of the CIArb is available at three levels of Associate, Member and Fellow.

The module co-ordinators of the International Commercial Arbitration module, Drs. Leloudas and Tabari, were very pleased with the decision of the Chartered Institute of Arbitrators to afford this opportunity to LLM students at Swansea. This is yet another illustration of the reputation that Swansea LLM degrees enjoy. There is no doubt that this development will make the International Commercial Arbitration module even more popular among students in the years to come.