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The separability principle, as set out at section 7 of the Arbitration Act 1996, essentially provides that an arbitration agreement is, or must be treated as, a contract which is separate from the main contract of which it forms part. In DHL Project & Chartering Ltd v Gemini Ocean Shipping Ltd (the “Newcastle Express”) [2022] EWCA Civ 1555 the Court of Appeal considered the application of the separability principle in determining whether there was a binding arbitration agreement where the proposed charterparty recap expressly contained a subject and that subject had not been ‘lifted’. 

The historic doctrines of champerty and maintenance, which essentially prohibit third-party litigation and arbitration funding, have been amended and/or phased out in a number of jurisdictions, including England and Wales.  Hong Kong has recently taken steps to relax its laws by amending the existing legislation to permit contingency based fee arrangements in the majority of arbitration proceedings (except those relating to criminal or family matters).

The CII regulations come into force on 1st January, 2023 and will rate ships A, B, C, D or E on the basis of the intensity of their carbon emissions. The way that a ship is operated (speed, amount of cargo, number of voyages etc) will of course have a large impact on a ship’s carbon intensity, so owners and time charterers have for some time been grappling with how to allocate risk and responsibility for this issue. To assist with the issue, BIMCO has published its CII Operations Clause for Time Charter Parties 2022. The clause is long, some four and half pages, but the basic structure of rights and responsibilities is reasonably clear. However, there remain several outstanding issues, primarily relating to sub-clauses (g) and (i) which we consider further in this insight.

In time charterparties, it is common to find a clause along the following lines: “Vessel’s holds on arrival at first load port(s) to be clean, dry, free of rust and/or scale and cargo residues and ready in all respects to load any/all permissible cargoes under the charterparty to the satisfaction of charterers’ nominated surveyor. If the vessel is not approved by the surveyor, the vessel is to be placed off-hire from the time of that failure until the vessel has passed a subsequent survey” In other words, this is a “period off-hire clause” placing the ship off-hire from the time of a failed inspection until a successful re-inspection, regardless of whether or not there is a net loss of time to the service required of the ship (i.e. loading) because of the failed inspection. Such a clause was recently considered in London Arbitration 9/22.

On 6th October, 2022 the EU adopted an eighth package of sanctions against Russia. The relevant legislation can be found here.  In particular, Council Regulation (EU) 2022/1904 (“the Regulation”) amending Regulation (EU) No 833/2014, includes a number of additional restrictive measures.


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