Libya cruise ship set aside request sinks in UK court
The English High Court has declined to set aside an ICC award in favour of France’s leading builder of cruise ships, which resold a vessel ordered by the regime of Libya’s former leader Muanmar Gadaffi following the outbreak of the Arab Spring and Libyan Civil War.
In a judgment handed down on 22 April, Mr Justice Blair –the brother of the UK’s former Prime Minister Tony Blair – upheld the award issued by an ICC panel chaired by Belgium’s Filip De Ly in favour of STX in 2014. The award was against Libya’s national maritime transportation company GNMTC.
The court said that the tribunal had not acted unfairly in refusing to let GNMTC see un-redacted contractual documents related to the resale of the ship and therefore declined to overturn the award on the grounds of serious irregularity.
GNMTC ordered the 1,751-cabin cruise ship while it was still being built in 2011, after Gaddafi’s fourth son Hannibal suggested the €565 million acquisition could kickstart a luxury cruising industry in the country. On completion, the vessel would boast four swimming pools, 26 lifts, a bowling alley and 21 bars across 18 decks.
The Libyan maritime company made an initial down-payment of US$53 million, but did not pay the second installment owed. Gaddafi was overthrown and killed in October 2011 after eight months fighting rebels who had followed Tunisia and Egypt in seeking to oust him.
STX cancelled the order in 2012 and resold the ship to Italy’s Mediterranean Shipping Company. GNMTC then filed for ICC arbitration in London to recover its initial downpayment, arguing that STX had “abusively rescinded the contract”.
In 2015 the ICC tribunal, which also included Swiss arbitrator and law professor François Dessemontet and English arbitrator Julian Lew QC, rejected GNMTC’s claim and granted STX’s counterclaim for US$13million.
The tribunal found a defence of frustration under English law was not supported by the facts and a force majeure clause in the contract operated only in the interest of STX as the supplier of the ship. It accepted that had STX not sought an alternative buyer it would have had to stop building the ship, leading to the termination of subcontracts and job losses.
GNMTC asked the High Court to set the award aside under section 68 of England’s 1996 Arbitration Act, accusing the tribunal of failing to act ‘fairly and impartially’ when it denied the Libyan entity the opportunity to view the un-redacted contractual documents. The company alleged the documents would show that the resale to MSC was for €550 million – far higher than the €508 million that STX had claimed.
In his judgment, Blair J said that the redaction of commercially sensitive documents was “common practice” in commercial arbitration and that the tribunal dealt with the issue “perfectly properly”.
On the resale price, Blair J said there were “no real grounds” for supposing it was any more than the €508 million STX had claimed.
“In the end, the tribunal was entitled to accept that the resale price was as the defendant stated. This did not depend on the resale contract, which was confirmatory in this regard”, he ruled.
GNMTC was represented in the ICC proceeding by Sefrioui Law Firm in Paris. The firm also acted for Libya in an ICC arbitration with US-based defence contractor GeneralDynamics , over a supply contract disrupted during the Arab Spring. General Dynamics recently applied to a US district court to enforce its US$26 million award.
In court, GNMTC was represented by Anthony Connerty of 4-5 Gray’s Inn Square, who also sits as an arbitrator.
STC was represented in the arbitration by a team from Jones Day in Paris led by partners Michael Bühler and Sophie Chevalier. In court, it relied on Khawar Quereshi QC of Serle Court Chambers.
Blair J, who is three years older than Tony, was a QC specialising in banking law before he was appointed to the High Court bench eight years ago. In 2007, Tony Blair’s last year in office and his last as a barrister, The Guardian described him as “brainier, better paid and a much better lawyer than his younger brother”.
Tony Blair’s own short career at the bar included an unsuccessful attempt to set aside interest on a maritime arbitration award in a charterparty dispute called La Pintada, with his pupil master Derry Irvine (later his Lord Chancellor). His wife Cherie runs law firm Omnia Strategy, which advises states in international arbitrations.
In the High Court
Counsel to GNMTC
- Anthony Connerty of 4-5 Gray’s Inn Square
Counsel to STX
- Khawar Qureshi QC of Serle Court Chambers
In the ICC arbitration
- Filip De Ly (Belgium) (Chair)
- François Dessemontet (Swiss) (appointed by GNMTC)
- Julian Lew QC (appointed by STX)
Counsel to GNMTC
- Chairman of the Libyan Litigation Department
- Sefrioui law firm
Partners Anne Sefrioui, Dr Abderrazak Balou and Kamel Sefrioui in Paris
Counsel to STX
Partners Michael Bühler and Sophie Chevalier, with associates Adam Leventhal* and Cherine Foty in Paris
GAR News firstname.lastname@example.org
9 June 2016
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