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Supreme Court Clears the Air on ‘Force Majeure’ Clauses

The UK’s Supreme Court has issued an important judgment clarifying the extent to which parties are required to use reasonable endeavours to avoid force majeure.  Force majeure, or in layman’s terms ‘act of god’, is a specified, and generally unforeseen and disruptive, event which may mean that one or both parties to a contract are relieved from having to fulfil their obligations under it. In the present case, the underlying contract contained a force majeure clause, which included a provision requiring the party which was affected by the force majeure event to exercise reasonable endeavours to overcome it.

The relevant force majeure event took the form of US sanctions which effectively prevented payment by the charterer under an affreightment contract being made to a shipowner using US dollars.  The charterer instead offered to make payments in euros and to cover any losses arising to the shipowner through the conversion of those payments into US dollars. However, in what seems a somewhat counterintuitive decision, the Supreme Court unanimously found against the charterer, on the basis that the requirement on the shipowner to exercise reasonable endeavours to overcome the force majeure event did not mean that it had to accept performance that

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The Elusive ‘Anti-Anti-Arbitration Injunction’

The recent decision of the High Court in Euronav Shipping NV v Black Swan Petroleum DMCC [2024] EWHC 896 (Comm) illustrates when a party may be unable to enforce an arbitration agreement which is otherwise valid and enforceable. In the present case, Euronav succeeded in satisfying all of the elements of the test for an injunction which sought to restrain Black Swan Petroleum (BSP) from pursuing an anti-arbitration application before the Malaysian Courts. Nevertheless, in the exercising its discretion, the Court declined to award an injunction having regard to international comity and because it deemed that it would be vexatious and/or oppressive given the applicant’s earlier submission to Malaysian court jurisdiction. The case is a cautionary reminder of the need to pursue a carefully considered dispute resolution strategy.


The applicant, Euronav, a firm involved in ocean transportation and storage of oil, entered into a contract with a Malaysian registered company, Silk Straits SDN BHD (Silk Straits), by which it made available certain tanks on the Motor Tanker Oceania (the Vessell) for storage of oil. A first addendum to the agreement provided for English governing law and exclusive jurisdiction of the English High Court, and recorded Euronav’s consent to prospective assignment

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New Government Bill to Reverse Supreme Court’s Decision on Litigation Funding

The Litigation Funding Agreements (Enforceability) Bill was introduced to Parliament this week, following the UK government’s announcement earlier this month that it would introduce legislation that would reverse the outcome of the UK Supreme Court’s recent decision in R (on the application of PACCAR Inc and others) v Competition Appeal Tribunal and others.[1]

In PACCAR, a part of the well-known “Trucks” litigation in the Competition Appeal Tribunal (CAT), the Supreme Court held that litigation funding agreements (LFAs) that entitle funders to be paid a portion of any damages recovered (as opposed to a multiple of the investment made by the litigation funder) are “damages-based agreements” (DBAs), as defined in the Courts and Legal Services Act, and were therefore unenforceable unless they complied with the relevant regulatory regime (DBA Regulations 2013).

The ruling in PACCAR was set to have significant ramifications for litigation funders, claimants and claimant law firms in the UK which rely on third-party funding, potentially threatening the financial viability of swathes of the litigation funding industry. Typically, LFAs have been structured as the greater of a multiple of monies invested by the funder and a percentage of damages recovered. This percentage element is

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Provision to Curb “Torpedo Actions” also Applies to Asymmetrical Jurisdiction Agreements

In summer 2021, the German Federal Court of Justice ruled on a dispute between the insolvency administrator of the airline Air Berlin and its main shareholder Etihad Airways over millions in damages that had been going on for several years.

From a procedural point of view, the Federal Court’s findings on so-called “torpedo actions” are of particular importance, further limiting the scope of application of this litigation tactic.

A torpedo action is essentially an action that pre-empts an expected action by the other party in order to block it. A torpedo action is usually filed in a jurisdiction that promises either favorable case law or a particularly long duration of proceedings. This can considerably delay a legal dispute.

This is made possible by the principle of priority that applies to cross-border disputes and the jurisdiction of different courts. According to this principle, an action brought first before a competent court blocks all subsequent actions with identical subject matter before another court. If this torpedo action is brought in a less efficient jurisdiction with notoriously slow-working courts, the opponent’s action can be delayed by several years in some cases.

In order to put a stop to this abuse of rights, the

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