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TEN TIPS FOR ARBITRATING CLAIMS IN BAD MARKET TIMES

TEN TIPS FOR ARBITRATING CLAIMS IN BAD MARKET TIMES. by CLIVE ASTON LMAA Arbitrator Naples 2012. CLIVE ASTON - LMAA ARBITRATOR. 1. KNOW YOUR TIME BAR. A good claim has no value if it is time barred LMAA Terms do NOT impose time bar English law – 6 years Contract: -

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TEN TIPS FOR ARBITRATING CLAIMS IN BAD MARKET TIMES

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  1. TEN TIPS FOR ARBITRATING CLAIMS IN BAD MARKET TIMES by CLIVE ASTON LMAA Arbitrator Naples 2012

  2. CLIVE ASTON - LMAA ARBITRATOR 1. KNOW YOUR TIME BAR • A good claim has no value if it is time barred • LMAA Terms do NOT impose time bar • English law – 6 years • Contract: - • Time to submit documents • Specified period • Clause Paramount

  3. CLIVE ASTON - LMAA ARBITRATOR 2. HAVE A GOOD ARBITRATION CLAUSE • Number of arbitrators – 1, 2 or 3 • Days to appoint – Default (21 days), 14 or 7 • Tanker charter issues: • Asbatankvoy – claimant has pays for 3 arbitrators • Arbitration in London, English law to apply

  4. 3. STATE THE LAW TO APPLY • Including a London arbitration clause does not mean that English law will apply to the contract • Include some reference like “English law shall apply to this contract” CLIVE ASTON - LMAA ARBITRATOR

  5. CLIVE ASTON - LMAA ARBITRATOR 4. NO IMMEDIATE NEED TO APPOINT FULL TRIBUNAL • Deferring the appointment of a third arbitrator or umpire saves cost and makes eventual choice of third arbitrator more appropriate

  6. 5. SOLE ARBITRATOR NEED NOT BE BAD NEWS • Will still be impartial • May help to increase speed and reduce cost of arbitration, particularly for the more modest size claims CLIVE ASTON - LMAA ARBITRATOR

  7. CLIVE ASTON - LMAA ARBITRATOR 6. NOTICE OF ARBITRATION • Check arbitration clause requirements • Who to give notice to (P&I Clubs and brokers may not have authority to receive notices) • What to include • State who appointed and contact details • Make clear opponents required to appoint arbitrator • Number of notices required? • Specified in contract • One 14 day notice followed by one 7 day notice

  8. CLIVE ASTON - LMAA ARBITRATOR 7. SECURITY FOR COSTS Arbitrators: - • Cannot order security for claim • Can order a claimant (or counterclaimant) to provide security for costs where need for such security shown

  9. 8. ORAL HEARING • Most cases decided on documents alone • Oral hearing • personal evidence • expert evidence • complex legal or factual issues involved CLIVE ASTON - LMAA ARBITRATOR

  10. CLIVE ASTON - LMAA ARBITRATOR 9. COSTS • Usually costs follow the event • Discreet costs orders • Winner may not recover all

  11. CLIVE ASTON - LMAA ARBITRATOR 10. CONDUCT OF ARBITRATION • Limit involvement of arbitrators • Avoid speculative arguments • Admit facts • Personal contact • Consider settlement and review regularly • Stay rational

  12. “IF WE KNEW WHAT THE OWNERS MEANT BY THEIR FAX WE WOULD RESPOND…. BUT AS WE DON’T WE CAN’T…. BUT IN ANY EVENT, WE DENY IT”

  13. “DEALING WITH THESE CHARTERERS IS LIKE PLAYING CHESS WITH A GORILLA”

  14. “PLEASE WOULD THE CHARTERERS’ SOLICITORS ADVISE US OF THE IDENTITY OF THE CASE HANDLER AT THEIR OFFICE SO THAT WE CAN PHONE THEM TO TELL THEM WHAT WE REALLY THINK OF THEIR MESSAGE”

  15. “WE SHOULD BE GRATEFUL IF THE TRIBUNAL COULD EXPLAIN ITS THINKING….. IF INDEED IT IS THINKING”

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