Yash Kulkarni

Yash has experience of a wide range of classes and types of insurance dispute, acting on behalf of insurers, brokers and assureds, involving a broad range of issues in the marine and non-marine sectors, including issues of construction, double insurance, contribution, insurable interest and non-disclosure.

Recent cases include:

Enron Metal & Commodity Corp v Navan Resources & others – acting on behalf of assured in a claim under a credit insurance policy whereby Enron insured itself against the risk of the parent company of a counterparty failing to be able to meet a guarantee provided by the parent company in respect of its subsidiary’s obligations concerning the supply of commodities under a sale contract.

• Re Walker’s Trusts – advising a large Jersey-based trust on their indemnity insurance arrangements in relation to the trustee companies and underlying companies within the trust structure.
• Andrew Johnson Knutzon Ltd v Markel Syndicate 3000 – 5 day trial. Claim under a business interruption policy for losses arising out of an alleged explosion within the terms of the policy.
• The Lantana- acting for assured on a claim under a hull and machinery policy arising out of the CTL of a vessel.
• Quail Travel Group SA v IC Scandinavia & others – advising on claim under a hull and machinery policy, raising issues of insurable interest and non-disclosure by co-assured.

Yash is currently instructed on a sizeable coverage dispute in respect of a marine insurance policy that is listed for a 10 day hearing in 2011.

Yash Kulkarni regularly advises and appears in a broad range of banking and finance disputes on behalf of and against banks, financial institutions and hedge funds. The areas in which he is instructed include asset financing, claims under guarantees, the trading of distressed debt, issues as to conformity and rejection of documents and the scope of duties of banks.  Cases in which he has been involved include:

• Pentland Ferries Ltd v Bank of Scotland plc – Commercial Court - ongoing
Claim by the beneficiary of a standby letter of credit against a collecting bank arising out of a failure by the collecting bank to provide necessary original documentation and/or for failing to check the accuracy of information being sent by it to the issuing bank, resulting in the claim under the standby letter of credit being rejected.

• Kaupthing Singer & Friedlander Ltd v Palladio SCI – Commercial Court – settled April 2010.
Claim by claimant bank in respect of repayment under loans in the sum of EUR 10m. Issues raised included whether the loans had been restructured such that the defendant was not in breach of the now-restructured agreement and/or whether the claimant bank could be said to have waived or be estopped from insisting on repayment within the alleged timescales.

• Sabah Shipyard (Pakistan) Ltd v Islamic Republic of Pakistan [2008] 1 Lloyd’s Rep 210, Christopher Clarke J.
Claim for US$18m against the Government of Pakistan under a guarantee in respect of the obligations of a state-owned electricity company which entered into a power purchasing agreement with the claimant in the 1990s; whether the guarantee was procured by fraudulent misrepresentation on the part of the claimant.

• Barbados Trust Company Ltd v (1) Bank of Zambia (2) Bank of America N.A. [2007] 1 Lloyd’s Rep 495 (Waller, Rix and Hooper L.J.J.); [2006] 1 Lloyd’s Rep 723, Langley J.
Dispute concerning whether a debt trader was entitled to recover a US$3.6m traded debt against the Bank of Zambia, the debtor under a syndicated bank loan facility, in circumstances where the facility contained a prohibition on assignment; and whether the use of a declaration of trust circumvented the prohibition on assignment.

• Shinhan Bank v (1) Siberian Tiger Investments (L) Ltd (2) Daewoo Securities (Europe) Ltd – Commercial Court – settled.
Claim by Korean trustee of an investment fund for payment under interest coupons and a guarantee in respect of an investment in Russian government bonds; whether the Russian Moratorium constituted a relevant event entitling the defendants to refuse further payment under the coupons or guarantee.

• Bombardier Capital UK Ltd v G E Commercial Distribution Finance Europe Ltd – Commercial Court.
Dispute concerning the purchase of yacht financing facilities as between two finance houses in circumstances where a number of the yachts in question had ceased to exist; whether the money paid by the claimant to the defendant was recoverable as money paid under a mistake of fact or on the ground that the defendant was a Quistclose trustee.

Yash is instructed in all manner of maritime and commodities disputes and is currently instructed in disputes involving, among other things, dangerous cargo claims, liability for stevedore damage, demurrage breach of nomination clauses in contracts of affreightment, claims for breach of performance warranties, safe port claims and cargo claims.

Recent cases include the following:

• Kangqi Oil Pte Ltd v Melinda Holdings SA – LMAA arbitration – successfully resisted application by charterers to challenge commencement of arbitration proceedings.

• The “Salamanca”; – LMAA arbitration concerning extent of damages to which owners were entitled following late redelivery under a time charter, following the Achilleas decision in the House of Lords.

• The “Stella Azzura”; – ICC arbitration – concerned the quality of doping works carried out to a cargo of gas oil and the damages that might properly be recoverable in the event of contractually negligent services.

• The “Song Tien”; ­– Sugar arbitration – dispute concerning the quality of sugar supplied and the concept of “fair average quality”;.

• Thomas Mawer Ltd v Feedimpex BV – GAFTA arbitration – quality dispute concerning a cargo of alfalfa pellets.

• The “Aconcagua”; (Commercial Court, Simon J.) – successful application for anti-suit injunction restraining proceedings in China.

• The “MSC Panama”; (Commercial Court, Morison J.) – successful application for an anti-suit injunction restraining proceedings against a maritime agent in Colombia.

• Cadre SA v Astra Asigurari[2006] 1 Lloyd’s Law Rep 560, Morison J. Successful application for an anti-suit injunction restraining proceedings in Romania.

• The “Sybille”; [2006] 1 Lloyd’s Law Rep 82, Andrew Smith J, Successfully resisted application to set aside extensions of time for service of claim form under CPR 23.10.

Yash is instructed in a wide range of substantial construction and energy disputes. He has advised and appeared in disputes between employers and contractors, contractors and their sub-contractors and disputes involving architects/engineers, project managers, costs consultants and surveyors. He is familiar and comfortable with disputes arising under the usual standard form contracts in the construction industry e.g. JCT, NEC, ACE and RIBA. Recently, he has been involved in a great deal of adjudication and adjudication enforcement work under the HGCRA 1996.
Recent cases include:

• AMEC Civil Engineering Ltd v Secretary of State for Transport. Acting on behalf of the Secretary of State in a £35m delay and disruption claim by AMEC concerning the construction of the A249 dual carriageway in Kent.

• Phillips Petroleum Co UK Ltd v Snamprogetti Ltd– Court of Appeal. Dispute concerning alleged defective engineering design and procurement work in respect of a project designed to increase gas production on Phillips Petroleum’s Hewett platform in the North Sea.

• Bluewater Terminals v Harland & Wolff. Acted on behalf of defendant shipyard in a defects dispute involving the conversion of a bulk carrying vessel into a FPSO.

• Melville Dunbar Associates (UK) Ltd v Martin. RIBA arbitration concerning claim by architect for fees and quality of design work.

• AEA Technology v Hunting-Brae Ltd. Claim for sums arising out of the termination of a contract for the decommissioning of the MoD’s atomic weapons establishment at Aldermaston.

• The “Solitaire”arbitration: long running dispute involving the conversion of a bulk carrying vessel into a dynamically positioned pipelaying vessel.

Yash Kulkarni is instructed in a wide range of substantial commercial disputes and is often instructed as part of a team on substantial and complicated commercial cases.

Recent cases include:

De Beers v Atos Origin[2010] EWHC 3276 (TCC), Edwards-Stuart J.A four week trial in October/November 2010 concerning a successful claim by De Beers, the leading diamond trading company, against its IT suppliers in relation to the renunciation of a software development contract.

The Fesco Angara [2010] EWCA Civ 150, Rix & Gross LJ, Peter Smith J. Whether an anti-suit injunction restraining proceedings in Louisiana ought to have been granted at first instance in the Commercial Court by Simon J. Involved construction of an exclusive jurisdiction clause and analysis of the Judge’s exercise of discretion.

Lantic Sugar Ltd v Baffin Investments Ltd [2010] 2 Lloyds Rep 141, Gross J. Issues of agency and apparent authority in the context of service of an arbitration claim form.

FG Hawkes Ltd v Beli Shipping [2010] 1 Lloyds Rep 449, Gross J. The circumstances under which extensions of time should and should not be given in relation to the service of claim forms on parties outside the jurisdiction.

Angara Maritime v Oceanconnect UK Ltd [2010] 1 Lloyds Rep Plus 101, HHJ Mackie QC. A three day trial concerning whether the claimant vessel owners had acquired title to bunkers pursuant to s.25 of the Sale of Goods Act where the bunkers had been delivered by the supplier to charterers, in circumstances where charterers had not paid the supplier before going into liquidation.

Alder Gill Associates v Saxman Ltd, (June 2010) HHJ Kaye QC sitting as a Judge in the Chancery Division. A five day trial concerning breach of a contract for software development services by a contractor, involving issues of breach of confidence and copyright.

Builders Steel v Caparo Steel; Hangzhou Steel v Caparo Steel; Kaptan v Caparo Steel. Acting on behalf of Caparo Steel in relation to a series of disputes in different jurisdictions arising out of the insolvency of one of Caparo’s suppliers, affecting Caparo’s ability to meet its obligations to customers.

Sabah Shipyard (Pakistan) Ltd v Islamic Republic of Pakistan [2008] 1 Lloyd’s Rep 210 (Christopher Clarke J.) Claim for US$18m against the Government of Pakistan under a guarantee in respect of the obligations of a state-owned electricity company which entered into a power purchasing agreement with the claimant in the 1990s; whether the guarantee was procured by fraudulent mispresentation on the part of the claimant.

Barbados Trust Company Ltd v (1) Bank of Zambia (2) Bank of America N.A. [2007] 1 Lloyd’s Rep 495 (Waller, Rix and Hooper L.J.J.); [2006] 1 Lloyd’s Rep 723 (Langley J.) Dispute concerning whether a debt trader was entitled to recover a US$3.6m traded debt against the Bank of Zambia, the debtor under a syndicated bank loan facility, in circumstances where the facility contained a prohibition on assignment; and whether the use of a declaration of trust circumvented the prohibition on assignment.

Westbrook Resources Ltd v Globe Metallurgical Inc [2008] EWHC 241 (Comm) (quantum); [2007] EWHC 2353 (Comm) (liability), Tomlinson J. Acted for successful claimant in a dispute between metal traders as to the sale of $3m worth of manganese ore for the production of SiMn. Currently due to be heard by the Court of Appeal in March 2009.

Shaw v API (Manchester District Registry). Three week trial in 2008 concerning claim for c.£3m in respect of alleged misuse of confidential information in the context of commercial negotiations for the purchase of a subsidiary company from a plc.

Chittenden v Clayton [2007] EWHC 2271 (QB). Acted for claimant in successful claim for fraudulent misrepresentation against the defendant. Concerned an investment by the claimant into an SPV allegedly created to market a new insurance product.

Wincor Nixdorf Ltd v Triversity Inc – Technology and Construction Court. Settled. Instructed on behalf of defendant software supplier in the context of an £8m claim for the provision of allegedly defective software for use in an EPOS system for B&Q.

Shinhan Bank v (1) Siberian Tiger Investments (L) Ltd (2) Daewoo Securities (Europe) Ltd – Commercial Court. Settled. Claim by Korean trustee of an investment fund for payment under interest coupons and a guarantee in respect of an investment in Russian government bonds; whether the Russian Moratorium constituted a relevant event entitling the defendants to refuse further payment under the coupons or guarantee.

Fahem & Co v Republic of Yemen – Commercial Court. Settled. Claim to enforce a Yemeni arbitration award for $12m in England. Raised issues of state immunity and whether the award had been compromised by earlier settlement agreements.

Bombardier Capital UK Ltd v G E Commercial Distribution Finance Europe Ltd – Commercial Court, HHJ Chambers Q.C. Dispute concerning the purchase of yacht financing facilities as between two finance houses in circumstances where a number of the yachts in question had ceased to exist; whether the money paid by the claimant to the defendant was recoverable as money paid under a mistake of fact or on the ground that the defendant was aQuistclose trustee.

Yash is regularly instructed in arbitrations under ICC, LCIA, LMAA, FOSFA and GAFTA rules.

Recent instructions include the following:

• Kangqi Oil Pte Ltd v Melinda Holdings SA – LMAA arbitration – successfully resisted application by charterers to challenge commencement of arbitration proceedings.

• The “Salamanca”; – LMAA arbitration concerning extent of damages to which owners were entitled following late redelivery under a time charter, following the Achilleas decision in the House of Lords.

• The “Stella Azzura”; – ICC arbitration – concerned the quality of doping works carried out to a cargo of gas oil and the damages that might properly be recoverable in the event of contractually negligent services.

• The “Song Tien”; ­– Sugar arbitration – dispute concerning the quality of sugar supplied and the concept of “fair average quality”;.

• Thomas Mawer Ltd v Feedimpex BV – GAFTA arbitration – quality dispute concerning a cargo of alfalfa pellets.

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