A broker should be familiar with the various types of dispute resolution so as to be in a position to advise a principal accordingly.

An arbitration hearing or mediation may take place some months or even years after the event and this emphasises the importance of having on file documents and electronic records relating to a fixture. A broker who has written contemporaneous evidence of events is at an immediate advantage. When a dispute arises, there is a variety of means available to resolve it. Some of those means are mutually exclusive, at least until each has run its course.

Protection of Baltic Exchange Members

Baltic Exchange Members may approach the Baltic Exchange for assistance with disputes involving unpaid fees, commissions or hire. Any Member requesting such assistance must provide clear documentary evidence of the unpaid debt owed, and of prior efforts made by the Member to recover such debt.

The Baltic Exchange may, at its sole discretion and with the assistance of the Membership Council, consent to provide assistance in cases where there is a clear and undisputed debt owed. The Baltic will NOT accept a case if there is any ongoing litigation, arbitration or other legal proceedings between the parties. If a case is accepted, the Baltic Exchange will contact the parties for information and establish the facts of the case. If, following such queries, it is determined that the counter-party disputes the existence or quantum of the debt, the Baltic Exchange will not act further, and will encourage parties to resolve such dispute between themselves.

If the dispute is between Members, the Membership Council may ultimately suspend or expel a Member whose behaviour is considered a breach of the Baltic Code or the Baltic Rules. For Members and non-Members of the Baltic the ultimate sanction is a posting on the Baltic website which is a warning to Members of the risks of doing business with the counterparty concerned.

The Baltic may also assist with disputes brought to it by a Member company where the counterparty is not a Member. In these cases, upon successful resolution of the dispute, a charge of 15% of the recovered money (capped at £15,000) is charged by the Baltic.

Maritime Arbitration

It is common for Charterparties to specify that in the event of a dispute then the matter will be referred to arbitration. Such a clause does not prevent attempts to resolve the dispute by negotiation or mediation. Indeed, even after the arbitration clause has been invoked negotiation towards a settlement is customary.

The form of the arbitration clause in the Charterparty is subject to the agreement of the parties and printed clauses are frequently amended to comply with their wishes, particularly as to the composition of the tribunal and the forum. However, a Charterparty clause is not essential to invoke arbitration; written evidence that the parties have agreed to submit disputes to arbitration is all that is required. It is open to either party to invoke the arbitration procedure.

In addition to the comments on choice of law made earlier, in the case of arbitration it is useful to make use of a standard arbitration clause which can clarify many issues, including the location of the arbitration and the process for appointing the tribunal. It is also in the contracting parties’ interests that the procedure for the conduct of the arbitration be set out in the relevant arbitration clause.

BIMCO and the LMAA have produced a printed comprehensive arbitration clause, the Singapore Chamber of Maritime Arbitration (SCMA) and BIMCO have also produced an arbitration clause. These can be included in Charterparties.

In appointing an arbitrator, a party is choosing a judge who, either in their capacity of sole arbitrator or together with their co-arbitrator(s), will decide the matter fairly and impartially without unnecessary delay or expense to the best of their or their ability either on the basis of written evidence and submissions made by each of the parties or pursuant to an oral attended hearing. Depending upon the form of the arbitration clause, if the arbitrators appointed by each side cannot agree then either an umpire or a third arbitrator can be appointed.

If a formal hearing is required, submissions may be made by the parties themselves or through representatives, for example, solicitors and perhaps counsel. The tribunal’s award is final unless challenged on the grounds of serious irregularity affecting the tribunal, the proceedings or the award. The tribunal’s award is also final as to the facts of the case, as well as to law unless appealed to the Courts under the very restrictive conditions of the Arbitration Act 1996. Such leave to appeal shall only be given if the court is inter-alia satisfied that on the basis of findings of fact in the tribunal’s award, the decision of the tribunal is obviously wrong in law OR that the question that has arisen is one of general public importance AND the decision of the tribunal is at least open to serious doubt.

If a Charterparty does not contain an arbitration clause then it is open to the parties subsequently (ad-hoc) to agree a suitable wording should a dispute arise (e.g. the BIMCO/LMAA Arbitration Clause or the BIMCO/SCMA Arbitration Clause). The parties may also agree to vary the wording of an existing clause, for example, to appoint a sole arbitrator in place of three arbitrators or to appoint a third arbitrator instead of an umpire.

“The LMAA Terms”, last revised in 2017, provide, in a clear and convenient form, guidelines aimed at making for greater efficiency and despatch in the conduct of London arbitration. The LMAA also publishes a “Small Claims Procedure and Commentary”, last revised in 2017, which was introduced to provide a simplified, quick and inexpensive procedure for the resolution of small claims. Additionally, “The LMAA Intermediate Claims Procedure” was last updated in 2017 for the expedited and less costly resolution of medium size claims. The LMAA and the SCMA also publish a Small Claims guidance.

Relevant documentation and guidance provided by the LMAA and the SCMA can be found at www.lmaa.org.uk and www.scma.org.sg

SCMA Baltic Members

The Singapore Chamber of Maritime Arbitration (SCMA) is a specialist arbitration institution for the resolution of maritime and international trade disputes. SCMA offers the Asia-Pacific and international maritime and trade communities a neutral, cost-effective and flexible framework to resolve their disputes in a fair and expeditious manner. It is guided by its principal aim of providing a comprehensive set of non-administered arbitration rules with optional features through the SCMA Arbitration Rules. SCMA hosts a panel of experienced maritime arbitrators across jurisdictions and nationalities.

28 Maxwell Road
#03-09 Maxwell Chambers Suites
Singapore 069120
Tel: +65 6324 0552
Fax: +65 6324 1565
Email: [email protected] 
Contact: Dennis Chan [email protected]

 

SCMA Members

Karina

Albers

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Clive

Aston, MA (Cantab)

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Charles

Baker, MA (Cantab), FCIArb

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Julian

Brown, Capt., LL.M (Int Transport & Maritime Law), Master Mariner

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Lindsay

Gordon, Ceng, FIMarEST, FRINAt

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Trevor

Harrison, LLB, MCIArb

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Jonathan

Lux

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Tim

Marshall, MA (Oxon), FCIArbt

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David

Martin Clark, BA (Hons)(Oxon), FCIArb  

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Alan

Oakley, FCIArb, FICS

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Patrick

O'Donovan, MA (Cantab), FCIArb]

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John

Tsatsas, FICS, FCIArb, FCILT, FCMI, Chartered Arbitrator

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LMAA Baltic Members

The following arbitrators are members of both the Baltic Exchange and London Maritime Arbitrators Association and are available for appointment internationally.

 

Full LMAA Members

Clive

Aston, MA (Cantab)

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Clare Ambrose View profile
Charles Baker, MA (Cantab), FCIArb View profile

Michael

Baker-Harber

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Elizabeth Birch Vew profile
Arthur Bowring MH View profile

Graham

Clark, FICS, FCIArb

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David

Farrington, LLB, FCIArb

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Robert

Gaisford, LLB

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Simon

Gault, LLB

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Ian

Gaunt, MA (Cantab), FCIArb, DiplCArbt

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Lindsay

Gordon, Ceng, FIMarEST, FRINAt

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Mark

Hamsher, BCL, MA(Oxon), ACIArb

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Trevor

Harrison, LLB, MCIArb

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Daniella Horton View profile

Sarra

Kay, LLB Hons, LLM Cantab, MCIArb

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Tim

Marshall, MA (Oxon), FCIArbt

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David

Martin Clark, BA (Hons)(Oxon), FCIArb  

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Edward

Mocatta, MA (Oxon)

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Christopher

Moss, MA (Oxon)

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Alan

Oakley, FCIArb, FICS

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Patrick

O'Donovan, MA (Cantab), FCIArb]

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Duncan Quinan  View profile

Richard

Rayfield, BSc, MNI, FCIArb]

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Timothy

Rayment, JP

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John

Schofield, MA (Business law)

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Alexandra Sheppard, PHD, FCIArb LLB, LL.M, CIArb, ADRg View profile

John

Tsatsas, FICS, FCIArb, FCILT, FCMI, Chartered Arbitrator

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Brian Williamson, BSCc (Tech) (Hons), QDR, Carb, FCIArb, FEI,
FNI, FSAScot,  AFRIN, AFRMetS, Master Mariner
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Aspiring LMAA Members
Karina Albers View profile

David

Aikman, ACII (Marine)

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Julian

Brown, Capt., LL.M (Int Transport & Maritime Law), Master Mariner

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Guy Campbell View profile

Donald

Chard, FICS, FCIArb

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Jonathan Elvey View profile
Benjamin Goss View profile

Lambros

Hilas, LLB (Hons), MA (Business Law)

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McLean

Ken

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Jonathan Lux View profile
Sliwa Michael, Capt. View profile
Steffen  Pedersen View profile

Mediation

What is Mediation?

Mediation is the intervention of a neutral third party as an intermediary between two or more parties in dispute with a view to helping them find an amicable solution to their differences.

It is non-binding and can provide an alternative to litigation or arbitration.

In its classic form, mediation requires the personal attendance of the parties before the mediator with the individuals attending being decision makers with authority to settle.

The mediator will normally hold an opening session at which the parties are present and in turn set out their case and explain why they consider that they are right.

After the first joint session, the mediator then meets each party in turn in caucus to discuss various aspects of their case with them and try to encourage them to: 

  • (i) see for themselves the relative strengths and weaknesses of their case, 
  • (ii) make known any matters which, although not directly relevant to the merits of the case, may have a bearing on the parties' willingness to settle and 
  • (iii) assess the alternatives to not achieving a negotiated settlement.  These caucuses are confidential and the mediator will only disclose documents or information to the other party if authorised to do so. By means of this 'shuttle diplomacy' the intention is for the parties to gradually move together until they reach a point at which a settlement is in sight. If he considers that there is no prospect of settlement the mediator will draw the mediation to a conclusion.  

Where, however, the parties reach, or are in sight of an agreement, he may call them back for a further joint session to see whether a final agreement can be reached.

If it is achieved, this will be recorded in writing and signed by the parties, binding them both. If, however, no agreement can be achieved, the session is brought to a conclusion.

As the entire mediation is conducted without prejudice, nothing that is said or done by the parties during the course of the mediation may be referred to in any later legal proceedings.

Mediation has the advantage of being able to bring about a resolution by involving issues which may strictly bear no relation to the dispute.

Quite often, disputes in mediation are resolved by a negotiated compromise which could not be achieved in arbitration or litigation or, for example, by an agreement to do future business at a discounted rate.  

The process allows for creativity in resolving disputes. Another great advantage is the ability to include several different parties in the process in order to achieve a global resolution of a problem.

Mediation hearings are not limited to taking place in London and may be arranged wherever convenient to the parties, while an innovative element of the LMAA/Baltic Exchange mediation service is adoption of 'virtual' phone, fax and e-mail mediation where the sums involved may not justify the time and expense of an attended hearing.

Baltic Expert Witness Association

Looking for an expert witness for your arbitration or court hearing?

The Baltic Expert Witness Association is made up of shipping professionals who are available for appointment to provide independent expert opinion for a wide range of maritime disputes. 

For shipping market, commercial and charter party matters, the membership includes shipbrokers, (both wet and dry chartering and sale & purchase), chartering managers, freight derivative traders, consultants and financiers. For technical and practical matters, the membership includes master mariners, marine surveyors and engineers, many with sea-going experience.

See www.balticexpertwitness.com for further details and searchable database.