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Commercial Disputes Weekly – Issue 6323 February 2021

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BITE SIZE KNOW HOW FROM THE ENGLISH COURTS

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"The international character of the Collision Regulations and the safety of navigation mean that they must be capable of being understood and applied by mariners of all nationalities, of all types (professional and amateur), in a wide range of vessels and in worldwide waters."Evergreen Marine (UK) Limited v Nautical Challenge Ltd

Anti-suit injunctions
Emphasising that the English court will take strong action to ensure that parties comply with their contractual agreement, the Commercial Court has granted an “anti-anti-suit injunction”, requiring a defendant to discontinue foreign proceedings where, in breach of an arbitration agreement, it had obtained an order restraining the claimant from proceeding with a London seated arbitration.
Specialised Vessel Services Limited v MOP Marine Nigeria Limited

Arbitration
In a successful challenge to a tribunal’s jurisdiction under section 67 Arbitration Act 1996, the Commercial Court has rejected arguments that a GAFTA arbitration provision could be implied into a contract for the purchase of Ukrainian corn by trade custom, emphasising that it would have to be shown that all such trades invariably contained such a clause, and that evidence had not been provided.
Black Sea Commodities Ltd v Lemarc Agromond Pte Ltd

Arbitration
Rejecting arguments that an obligation in a dispute resolution provision to negotiate before arbitrating constituted an absolute bar to the earlier commencement of arbitration, the Commercial Court has commented that the issue of whether the case could be heard by the tribunal was a question of admissibility rather than jurisdiction, and so could not be challenged under section 67 Arbitration Act 1996.
Republic of Sierra Leone v SL Mining Ltd

Costs
In a decision which emphasises the utility of contractual provisions to pay legal costs, the High Court has found that a provision which entitled a landlord to recover expenses “properly incurred” in recovering arrears of service charges did not preclude it from recovering costs on the indemnity basis.
Criterion Buildings Ltd v McKinsey & Company Inc (United Kingdom) & Anr

Freezing orders
The Commercial Court has emphasised that where a judgment remains unsatisfied a freezing order may be more readily granted, given that it will be easier to infer a risk of dissipation and factors such as delay, the absence of assets in the jurisdiction or the presence of related proceedings in another jurisdiction will have less weight if judgment has already been obtained.
Griffin Underwriting Limited v Varouxakis

Jurisdiction
Emphasising the importance of observing proportionality in relation to the litigation of jurisdiction issues, the Supreme Court has overturned decisions that claimants had failed to show real prospects of success, noting that on an application to serve out the analytical focus should be on the particulars of claim and whether, on the basis that the facts there alleged are true, the cause of action asserted has a real prospect of success. It would not generally be appropriate for the defendant to dispute the facts alleged through evidence of its own.
Okpabi & Ors v Royal Dutch Shell Plc & Anr

Maritime
In the first appeal in a collision action to come before it, the Supreme Court has provided important guidance on the application of the “crossing rules” set out in the International Regulations for Preventing Collisions at Sea 1972, finding that it was not necessary for either vessel to be on a steady course for the rules to engage, and setting out the circumstances in which the “narrow channel” rules would apply instead of the crossing rules.
Evergreen Marine (UK) Limited v Nautical Challenge Ltd

Should you wish to discuss any of these cases in further detail, please speak with a member of our London dispute resolution team below, or your regular contact at Watson Farley & Williams:

Andrew WardRebecca Williams
Ryland AshCharles Buss
Dev DesaiMarcus Dodds
Andrew HutcheonRobert Fidoe
Mike Phillips

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