Resolving Unresolved Relationship problems – the case of Cross Border Insolvency and Pending Arbitrations

The relationship between arbitration and insolvency in a cross border context is fraught with difficulties which can blight transnational insolvency practice. This article is concerned with the judicial constructs applied (in the EU, civil law and common law traditions) to resolve the conflict between a pending arbitration in one country and forthcoming insolvency proceedings in another. Should the arbitration be allowed to continue and what law should be used to determine the issue? In the EU, it might be said that the question is largely determined by the EU Insolvency Regulation. A comparative law and teleological discussion would highlight the different imperatives adopted in the different judicial approaches to the problem. The debate has sometimes been reduced to a pro or anti arbitration dispute. This article is less concerned with that direct confrontation. Instead, it is interested in the debate about the public interest which is claimed to be maintained when arbitration is allowed or disallowed to proceed in the light of impending insolvency. It thus draws on case examples from different jurisdictions to examine the perceived judicial role to protect the public interest by controlling arbitrations in this context

Renegotiating shipping contracts and contractual remedies in times of economic hardship

There is no doubt that the economic crisis has led to an increased number of shipping and trade cases before the courts which raise the issue of economic hardship as an excuse for non-performance of the contract. As a legal concept, even in western legal systems, the cultural and normative differences pose a serious challenge for judicial and arbitral tribunals to find the right solution. The two extremes are either that hardship does not excuse performance or that it requires the contract to be modified, either judicially or by the parties. This article highlights some of these differences between the legal systems and emphasises that commercial people can and should be trusted to find solutions to the disruptive effects to contractual relations. However, commercial arrangements or solutions are only as successful as the legal system on which they are founded. This article thus aims to study the developments in European commercial law thinking which might be said to support or hinder commercial creativity and innovation. From an English law point of view, it will be demonstrated that these developments could not be said to be doctrinal developments per se, but merely a more pragmatic, as consistent with the heritage of the common law, application of the current doctrinal rules. The doctrinal challenges however could impede these pragmatic solutions as would be argued. Shipping contracts provide a useful backdrop because of their globalised and transnational nature. Of course, shipping contracts are often seen as a pure version of contracts given the presumed equal bargaining positions of both parties

Renegotiating shipping contracts in turbulent economic times

This chapter considers the legal circumstances impacting on the feasibility of the relevant parties coming together to renegotiate their shipping contracts – notably large scale contracts such as charterparties – in times of economic hardship. The imperatives of insolvency law and shipping law are not always the same. Insolvency law is pivoted on a state imposed belief that corporate assets should be protected at times of insolvency. This work attempts to prove that shipping relationships and realities do not always render the continuation of a shipping contractual relationship worth preserving and so shows and tests the tension between insolvency law and party autonomy in that regard

Money Laundering Considerations in Blockchain based International Commerce

There is much to be welcomed concerning the role blockchain technology can play to modernise and enhance international trade and create a more level playing field and reduce costs. However, it goes without say that the technology also brings with it the prospect of abuse leading to trade based money laundering. This chapter explores how the anti money laundering (AML) legislation should respond to the use of blockchain technology in shipping and trade. Drawing on tried and tested forms of blockchain technology based trade transactions, the work examines the fault lines in the current regulatory system and questions how best these gaps should be remedied. It also stresses that even states that have banned the issue and trade of cryptoassets, such as the People’s Republic of China (PRC), would not be immune to the new challenges

Forward Planning – Regulation of Artificial Intelligence and Maritime Trade

This chapter, in concluding this very timely book, evaluates the continuing regulatory challenges for maritime trade in the light of rapid technological changes. The scope of the subject is indeed so wide that a single, discrete chapter would not be able to do it proper justice. There is already much ink spilt on the various technological developments to commercial shipping – from the 1990s issues of electronic bills of lading and dematerialisation of shipping documents to the early 2000s when electronic financial solutions were introduced to supply chains, trade financing and warehousing, and then onwards to more recent times, when autonomous shipping and blockchains became the flavour of the month. This chapter chooses to focus on the emerging influence of artificial intelligence (AI) in shipping and international commerce. AI solutions are incrementally designed for use in shipping – an obvious application is in autonomous ships, but in truth, there are far more “disruptive” applications being developed to optimise business processes, voyage and cargo planning and vessel maintenance. The continuing impact of AI on maritime trade is undeniable. Parallel to this technological momentum in the maritime business, governments, including those from the US, EU, UK and PRC, have been quick to respond with proposals for policy and/or regulatory intervention