INTERNATIONAL TRADE (COMMODITIES) KEEPING TIME ON YOUR SIDE

Transcription

1 RODYK & DAVIDSON LLP INTERNATIONAL TRADE (COMMODITIES) KEEPING TIME ON YOUR SIDE IAIN SHARP PARTNER LITIGATION & ARBITRATION 5 NOVEMBER

2 INTRODUCTION 2

3 OVERVIEW > What is a limitation period? > When do limitation periods apply? > Limitation periods in international trade contracts and under trade association rules > Case studies > How to keep time on your side some tips 3

4 WHAT IS A LIMITATION PERIOD? > The period of time within which court or arbitration periods must be commenced > Every legal claim will be subject to a limitation period imposed either by: the governing law; or the applicable contractual terms 4

5 WHAT IS A LIMITATION PERIOD? > Contractual time limits may also apply to govern the time within which claims must be notified to another party 5

6 WHEN DO LIMITATION PERIODS APPLY? > Time limits English law > Limitation Act 1980 applies to both litigation and arbitration > Two key limitation periods: 6 years for actions arising out of contracts 12 years for actions arising out of deeds 6

7 WHEN DO LIMITATION PERIODS APPLY? > Time begins to run from the date on which the relevant cause of action accrued NOT > The date on which the damage is suffered > Limitation Act time-bars may not always apply 7

8 CONTRACTUAL TIME LIMIT AN EXAMPLE > Shell International Trading and Shipping Company Limited, General Terms & Conditions for Sales and Purchases of Products 2010 edition > Claims in respect of quality and/or quantity 8

9 CONTRACTUAL TIME LIMIT AN EXAMPLE 31.2 Claims in respect of quality and/or quantity Any complaint in respect of deficiency of quantity or of variation of quality must be notified in writing by the claiming party within: (a) (b) In the case of FOB, CFR, CIF and DES deliveries: 60 days of the completion of discharge date. In the case of all other delivery types: 60 days of completion of delivery. Following such notification, the claiming party shall provide a fully documented claim within 90 days of the completion of discharge/delivery date. If the claiming party fails to give such notice or submit a fully documented claim within the aforesaid time limits, the claim shall be deemed to have been waived, and any liability on the part of the non-claiming party shall be extinguished. [emphasis added] 9

10 CONTRACTUAL TIME LIMIT AN EXAMPLE > Presented, notified or commenced? > Some contractual time limits have the effect of barring claims which have not been: properly presented; or notified in time 10

11 WHEN DO LIMITATION PERIODS APPLY? > Time limits Singapore law > Limitation Act Cap 163 > Similar to English law for claims arising out of contracts 11

12 DIFFERENT CLAIMS DIFFERENT TIME LIMITS > Important to analyse and assess the type of claim > Different time limits can apply to different types of claims > Example quality and/or condition claims under GAFTA/FOSFA terms 12

13 FOSFA RULES OF ARBITRATION > CIF, C&F and similar 120 consecutive days after expiry of the shipment period or the date of completion of final discharge, whichever is later Rule 2(b)(i)(1) > FOB 120 consecutive days after the expiry of the contract period of shipment Rule 2(b)(i)(2) 13

14 FOSFA RULES OF ARBITRATION > Any other terms 120 consecutive days after the last day of the contractual delivery period Rule 2(b)(i)(3) > Claims for monies due 60 consecutive days after the dispute has arisen Rule 2(b)(ii) 14

15 GAFTA ARBITRATION RULES 125 > CIF, C&F and similar 1 year after (i) the date of the last bill of lading or (ii) the expiry of the contract period for delivery (including extension if any) whichever is earlier Rule 2.2(a) > FOB 1 year after (i) the date of the last bill of lading or (ii) the expiry of the contract period for delivery (including extension if any) whichever is earlier Rule 2.2(b) 15

16 GAFTA ARBITRATION RULES 125 > Any other terms 1 year after the last day of the contractual delivery, collection or arrival period Rule 2.2(c) > Non-payment of amounts payable 60 consecutive days from the notice that a dispute has arisen (as provided for in the payment clause in the contract) Rule 2.2(d) 16

17 PORAM RULES OF ARBITRATION > Quality dispute 21 calendar days from date of receipt of goods at the place at which quality is deemed to be final in accordance with the contract Rule 2(i) > Any other dispute 120 calendar days after the expiry of the shipment period or the Bill of Lading date, whichever is later Rule 2(iii) 17

18 CASE STUDIES Marc Rich Agriculture Trading SA v Agrimex Limited [2000] > Contract for Ukrainian feed wheat > Incorporated GAFTA Rules 49 and

19 CASE STUDIES SOS Corporación Alimentaria SA and Mataluni SPA v Inerco Trade SA [2010] > Contracts for Ukrainian sunflower seed oil > Incorporated standard form FOSFA 54 > Incorporated Rule 2 of FOSFA Rules 19

20 TALES FROM THE TRIBUNALS > When is a dispute a dispute? > Party conduct and the exercise of discretion > Setting deadlines 20

21 WHAT YOU WANT TO AVOID 21

22 HOW TO KEEP TIME ON YOUR SIDE SOME TIPS > Understand the intricacies of trade association rules > Manage risk/manage third parties > Notify, present or commence? > Contract operations legal/claims > Know thy time limits! 22

23 INTERNATIONAL TRADE (COMMODITIES) KEEPING TIME ON YOUR SIDE THANK YOU RODYK & DAVIDSON LLP SINGAPORE 80 Raffles Place IAIN SHARP PARTNER LITIGATION & ARBITRATION This presentation is for general information purposes only. Its contents are not intended to be legal or professional advice and are not a substitute for specific advice relating to particular circumstances. Rodyk & Davidson LLP does not accept responsibility for any loss or damage arising from any reliance on the contents of this presentation. If you require specific advice or have any questions, please contact our presenter or any Rodyk partner. Rodyk & Davidson LLP Limited Liability Partnership Registration No. T07LL0439G #33-00 UOB Plaza 1 Singapore Tel Fax mail@rodyk.com SHANGHAI Unit Ocean Towers No. 550 Yan An East Road Shanghai , China Tel +86 (21) Fax +86 (21) shanghai.mail@rodyk.com 23