Quadrant Chambers Commodities Event

We held our Quadrant Chambers Commodities Event on Tuesday 12 June at Quadrant House.

We were delighted to have The Rt Hon Lord Justice Hamblen to chair this event. Our speakers included Simon Rainey QC, John Russell QC, Caroline Pounds and David Semark. They looked at current trends in hedging arguments; how the Fiona Trust presumption operates where an umbrella, and individual sales contract have different jurisdiction provisions; the circumstances in which a sub-sale may be relevant to the assessment of damages and challenging contracts for uncertainty. A full programme is included below. If you would like to recieve a copy of the handout, please contact a member of the Marketing Team.

 

Programme

Current Trends in Hedging Arguments in Commodities Cases - Simon Rainey QC

The potential effect of hedging to augment or to reduce a claim in damages is now well settled. It brings with it however difficulties of proof for claimants and novel attempts by defendants to extend the scope of enquiry raising questions of far can one go: Simon considers two recent cases which exemplify these issues and asks ‘where next?

Under the umbrella? - Eurochem v Dreymoor - John Russell QC

Under the umbrella?  How the Fiona Trust presumption operates where an umbrella, and individual, sales contract have different jurisdiction provisions.

Sub-sales, assessing damages and the Slater v Hoyle and Bence Graphics v Fasson debate: Clarification at last? - Caroline Pounds

Caroline discusses the forthcoming Court of Appeal decision in Euro-Asian Oil SA v Credit Suisse AG(first instance: [2016] EWHC 3340 (Comm) (Cranston J)).  She considers the debate surrounding the decisions in Slater v Hoyle and Bence Graphics v Fasson and whether one should expect clarification from the Court of Appeal as to the circumstances in which a sub-sale may be relevant to the assessment of damages.

Challenging contracts for uncertainty. A hopeless task? - David Semark

Notwithstanding Lord Wright's despairing remark in Hillas & Co. Ltd v. Arcos Ltd that "Business men often record the most important agreements in crude and summary fashion", it remains common for binding commodities contracts to be concluded on the basis of an informal exchange of messages. Nevertheless, where one party later seeks to avoid such a contract on the basis that its terms are too uncertain to be enforceable, the English Courts have traditionally been reluctant to find that no binding contract has been concluded. In this talk David examines the recent re-iteration of the applicable principles governing such challenges by the Commercial Court and the Chancery Division in Astor Management AG v. Atalaya Mining Plc, and Associated British Ports v. Tata Steel UK Ltd.

 

Profiles

The Rt Hon Lord Justice Hamblen

Sir Nicholas Hamblen was called to the Bar (Lincoln’s Inn) in 1981 and practised at the Commercial Bar from 1982-2008.

He was appointed Queens Counsel in 1997, an Assistant Recorder in 1999 and a Recorder in 2000.

He was appointed to sit as a Justice in the High Court in November 2008 and was a nominated Commercial Court Judge.

In February 2016 he was appointed a Lord Justice of Appeal.

Simon Rainey QC

Simon Rainey QC is one of the best-known and most highly regarded practitioners at the Commercial Bar with a high reputation for his intellect, advocacy skills, commercial pragmatism and commitment to client care. He has established a broad commercial advisory and advocacy practice spanning substantial commercial contractual disputes, international trade and commodities, shipping and maritime law in all its aspects, energy and natural resources and insurance and reinsurance, appearing regularly in the Commercial Court and Court of Appeal and also the Supreme Court. He has extensive experience of arbitration, regularly appearing before all of the main domestic and international arbitral bodies and trade associations. He particularly relishes complicated legal disputes and also cross-examination, especially in cases involving heavy expert evidence, of both technical disciplines and foreign law. He is well-known as a cheerful and easy to work with team player who rolls his sleeves up in long and complex trials and arbitrations. He also sits as a Recorder in the Crown Court and as a Deputy High Court Judge (Queen’s Bench and Commercial Court).

Simon regularly acts in ground-breaking cases including NYK Bulkship (Atlantic) NV v Cargill International SA (The Global Santosh) [2016] UKSC 20 where Simon was brought in to argue the case in the Supreme Court and represented the successful appellants, Cargill. The decision is a landmark one in relation to a contracting party’s responsibility for the vicarious or delegated performance by a third party of its contractual obligations, both in the common charterparty and international sale of goods contexts and more generally. In Bunge SA v Nidera SA [2015] UKSC 43 Simon successfully represented Bunge in a landmark decision by the Supreme Court on GAFTA Default Clause and sale of goods damages after The Golden Victory on points which had been lost at every stage below. He has recently been instructed to represent the Owners in the forthcoming Supreme Court appeal in Volcafe v CSAV [2016] EWCA Civ 1103, now the leading case on the incidence and effect of the burden of proof in cargo claims under the Hague / Hague-Visby Rules.

He has been cited for many years as a Leading Silk in the areas of Shipping, Commodities, Commercial Litigation and Dispute Resolution, International Arbitration, Energy and Natural Resources, and Insurance and Reinsurance by Chambers & Partners and/ or Legal 500. He has been ranked as the “Star Individual” in Shipping and Commodities by Chambers UK in 2015, 2016, 2017 and now again in 2018. He was ranked as Shipping Silk of the Year 2017 by both Chambers UK and Legal 500 UK Awards and as one of the Top Ten Maritime Lawyers 2017 by Lloyd’s List. 

“An absolute star, who is commercial, bright and always provides clear advice.” Legal 500 2017 Commodities

“ He has strong credentials in the oil trading field, combined with an agile mind, and is not afraid to push the boundaries of the law.” Chambers 2018 Energy and Natural resources

> view Simon's full profile

John Russell QC

John is an experienced and determined advocate and has acted as lead Counsel in numerous Commercial Court trials, international and marine arbitrations and appellate cases. He relishes both detailed legal argument and cross-examination of lay and expert witnesses. He will always ensure that a client’s case is presented in the most persuasive manner possible, both in writing and orally.
John provides advice to a wide range of clients. He combines first rate technical legal analysis with a pragmatic, commercial, problem solving approach to cases and accepts instructions in many fields of commercial dispute resolution with a particular focus on shipping, commodities, international trade and marine insurance. John has recently obtained permission to appeal to the Supreme Court in the important case of Volcafe v CSAV.

John has a very strong commodities practice.  He has extensive experience of FOSFA and GAFTA arbitrations, including appeals from Board of Appeal Awards to court. A recent highlight was securing an award of US$45million in a dispute involving Chilean iron ore.  John has also been involved in numerous GAFTA cases arising out of the prohibition / quota system in respect of grain exports from Ukraine in 2010.  

"He’s incredibly impressive, and is someone who always comes up with points that are insightful. He’s incredibly impressive, excellent on his feet and a joy to work with." (Chambers UK, 2018)
"...Particularly highly rated, he has a sharp mind and provides clear advice...." (Legal 500, 2017)
"The kind of barrister you would want to have on your side. He's not afraid to challenge anyone on anything." "He's bright, commercial, user-friendly and he delivers when you need it." (Chambers & Partners UK 2017)

> view John's full profile 

Caroline Pounds

Caroline’s practice encompasses the broad range of general commercial litigation and arbitration.  Her particular areas of specialism include shipping, carriage of goods, shipbuilding, energy and commodities.  She undertakes drafting and advisory work in all areas of her practice and regularly appears in the Commercial Court and in arbitration, both as sole counsel and as junior. She is a sought after junior and enjoys a significant amount of led work. Caroline undertakes a variety of work in the commodities field and has experience of a broad range of commodities disputes.  

‘Shipping Junior of the Year' at the Chambers UK Bar Awards 2015 and recognised as one of Legal Week's 'Stars at the Bar' in 2013 ("Her attention to detail and analysis are first class and advocacy skills are excellent"), Caroline is further praised by Chambers UK for being ""First-class. Has a very quick turnaround and operates at a very high level." ..."Capable, responsive and commercially minded.".

  • ..."She is incredibly thorough and immerses herself in the detail of a complex case"... (Legal 500, 2017)
  • "First-class. Has a very quick turnaround and operates at a very high level." ..."Capable, responsive and commercially minded." (Chambers UK, 2018)
  • ...” Preferred junior on very big and complex cases”… (Chambers UK, 2017)
  • …”She works hard and clients love her”…”Has a very clear, persuasive style, and is very hard working and committed”… (Chambers Global, 2016)

> view Caroline's full profile

David Semark

David ‘Produces excellent work and represents exceptional value for an experienced litigator.’ (Legal 500 2015). A former army officer David also previously trained in the Shipping Department of one of South Africa's leading maritime and international trade firms, before joining and later becoming a partner at what is now known as Reed Smith. He retrained as a barrister and became a member of Quadrant in 2010.

David specialises in commercial law, with a particular emphasis on shipping and maritime law (especially dry shipping disputes), international trade and commodities, jurisdictional disputes and insurance. Although his practice is primarily as an advocate, he is also an LCIA arbitrator.

David has a strong commodities practice and has a close understanding of the various trading houses. He has worked on cases involving action for damages, failure to supply, misrepresentation, breach of contract, force majeure, conflicts of law, letters of credit, scope of “certificate final” and validity of quantum assessment. He also acts in trade arbitrations (GAFTA, FOSFA, RSA, LME). 

> view David's full profile