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Commercial Disputes Weekly – Issue 4025 August 2020

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BITE SIZE KNOW HOW FROM THE ENGLISH COURTS

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"It may well be legitimate for the consent-provider to impose a condition intended to protect or compensate for a benefit it enjoyed under the contract which the course for which consent is sought would impair. However, that is obviously very different from imposing a condition which would impair a right which the party seeking consent enjoys under the contract."Apache North Sea Ltd v INEOS FPS Ltd

Contract
In an interesting decision on the interpretation of terms which provide that consent to contract amendments will not “be unreasonably withheld”, the Commercial Court has found that by imposing a condition on consent which would increase the tariffs payable under an agreement for the transportation of oil ashore from the North Sea, a consent-provider had acted unreasonably.
Apache North Sea Ltd v INEOS FPS Ltd

Finance
Confirming the importance of clarity, certainty and predictability in the interpretation of ISDA Master Agreements, the Court of Appeal has upheld a decision that over-the-counter FX transactions which were subject to the terms of a 2002 ISDA Master Agreement were not also subject to an obligation to comply with general “market practice” in circumstances where the “de-pegging” of the Swiss Franc from the Euro had led to a short period of extreme market volatility.
CFH Clearing Ltd v Merrill Lynch International

Maritime
The Commercial Court has rejected arguments that a contract to arrange the carriage of a sailing yacht was subject to the consumer protection provisions of the Brussels Recast Regulation, which would have enabled claims for the loss of the vessel to be brought in the consumer’s home court notwithstanding an English exclusive jurisdiction clause. The contract in question was a “contract of transport” and in any event the contract was entered into for a dual purpose, which included business usage that was more than negligible.
Weco Projects APS v Piana & Ors

Wasted costs
In a warning on the risks of failing to comply with procedural rules on the service of proceedings, the High Court has imposed an order for wasted costs in circumstances where the claims were served out of time and it was also clear that they should never have been brought in England in the first place.
Jovovic & Ors v The Serbian Orthodox Church – Serbian Patriarchy & Anr

FOR MORE INFORMATION

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