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The EPS Sanctions Clause
The EPS Sanctions Clause
The EPS Sanctions Clause provided:
“(A) THE CHARTERERS HEREBY WARRANT AND REPRESENT TO THE OWNERS THAT NEITHER THE CHARTERERS NOR ANY PERSON OR ENTITY ON WHOSE BEHALF OR UNDER WHOSE DIRECTION THE CHARTERERS ACT OR ASSIST, OR WHO DIRECTLY OR INDIRECTLY OWNS OR CONTROLS THE CHARTERERS, NOR, TO THEIR KNOWLEDGE, ANY PERSON OR ENTITY AT ANY TIME HAVING AN INTEREST IN ANY OF CARGO CARRIED UNDER THIS CHARTERPARTY, ARE DESIGNATED OR SUBJECT TO ANY NATIONAL, INTERNATIONAL OR SUPRANATIONAL LAW OR REGULATION IMPOSING TRADE AND ECONOMIC SANCTIONS, PROHIBITIONS OR RESTRICTIONS ("SANCTIONS") AND THAT ENTRY INTO AND PERFORMANCE OF THIS CHARTERPARTY IS NOT AND WILL NOT BE PROHIBITED OR RESTRICTED BY, AND WILL NOT EXPOSE THE OWNERS, THE VESSEL OR ITS MANAGERS, CREW, THE VESSEL'S INSURERS OR RE-INSURERS TO SANCTIONS.
(B) THE OWNERS HEREBY WARRANT AND REPRESENT TO THE CHARTERERS THAT NEITHER THE OWNERS NOR ANY PERSON OR ENTITY ON WHOSE BEHALF OR UNDER WHOSE DIRECTION THE OWNERS ACT OR ASSIST, OR WHO DIRECTLY OR INDIRECTLY OWNS OR CONTROLS THE OWNERS, ARE SUBJECT TO SANCTIONS AND THAT ENTRY INTO AND PERFORMANCE OF THIS CHARTERPARTY IS NOT AND WILL NOT BE PROHIBITED OR RESTRICTED BY, AND WILL NOT EXPOSE THE CHARTERERS TO SANCTIONS.
(C) THE OWNERS SHALL NOT BE OBLIGED TO COMPLY WITH ANY ORDERS FOR THE EMPLOYMENT OF THE VESSEL IN ANY CARRIAGE, TRADE, VOYAGE, SHIP-TO-SHIP TRANSFER OPERATION OR OTHER SERVICE WHICH IN THE REASONABLE JUDGEMENT OF THE OWNERS, IS PROHIBITED BY SANCTIONS OR WILL EXPOSE THE OWNERS, THE VESSEL OR ITS MANAGERS, CREW, THE VESSEL'S INSURERS OR REINSURERS TO SANCTIONS. IN THE EVENT THAT SUCH RISK ARISES IN RELATION TO A VOYAGE THE VESSEL IS PERFORMING, THE OWNERS SHALL BE ENTITLED TO REFUSE FURTHER PERFORMANCE AND THE CHARTERERS SHALL BE OBLIGED TO PROVIDE ALTERNATIVE VOYAGE ORDERS” [emphasis added].
The parties made extensive written and oral submissions in relation to the proper construction of the EPS Sanctions Clause. I have considered them all carefully. I do not intend to set out all the points made in detail but summarise the principal ones below.
- Heading
- Mr ANDREW HOCHHAUSER KC
- The Hearing, representation and the evidence
- The Expert Evidence
- The Relevant Factual Background
- The Issues
- The EPS Sanctions Clause
- The Claimant’s submissions on the proper construction of the EPS Sanctions Clause
- The Claimant’s submissions on “reasonable judgment” and the burden of proof
- The Claimant’s submissions on the evidence that can be considered when determining reasonableness of the Claimant’s decision
- The Defendant’s submissions on the proper construction of the EPS Sanctions Clause
- The Defendant’s submissions on sub-clause (C) of the EPS Sanctions Clause
- The Defendant’s submissions on “reasonable judgment” and the burden of proof
- The Defendant’s submissions on the evidence that can be considered when determining reasonableness of the Claimant’s decision
- Discussion and conclusion in relation to the proper construction of the EPS Sanctions Clause and burden of proof
- Discussion and conclusion on the evidence that can be considered when determining reasonableness of the Claimant’s decision
- On the facts did the Claimant satisfy the provisions of sub-clause (C) of the EPS Sanctions Clause i.e. did the Claimant make an objectively reasonable judgment that there was an exposure to sanctions
- EU Sanctions Laws
- The EU Regulations
- The EU Best Practices Guidance
- The UK Sanctions Laws
- The UK provisions in relation to control
- The case law on control
- The Evidence
- The letter on Neftisa headed paper dated 16 November 2021
- The Kommersant Newspaper article dated 22 July 2021
- The Three Legal Opinions drafted by Herbert Smith and Baker and McKenzie which the Defendant provided to the Claimant in November 2021 (the “Legal Opinions”)
- Discussion and conclusion in relation to whether the Claimant made an objectively reasonable judgment that there was an exposure to sanctions, in that the listed persons were subject to the risk of sa
- The ECJ Decision
- Conclusion on the Claimant’s Claim
- Is the Claimant’s Claim time barred?
- The Claimants’ submissions on the Time Bar Clause
- The Defendant’s submissions on the Time Bar Clause
- Conclusions