This post first appeared in May 2012 Asdem Newsletter. To see this Newsletter please go to www.asdem.co.uk and look for the ‘Newsletters’ tab
Argy-bargy is an old term for a wrangling argument or verbal dispute derived from an old Scottish word argle, which is assumed to be a derivative of the word argue. I think this is a good word to describe ARA barge disputes. These disputes often take the characteristics of a debate in the pub where a lot of points are thrown in by both sides but at closing time both parties go home having not resolved the issue. Next week I present a paper at the European Oil Barge Conference “Suggested procedures for nominations, time bars and dispute resolution” where I will propose a low cost dispute resolution service which will be provided under the Asdem umbrella.
Last year when I ran the barge demurrage workshops I was intrigued by the number of different agreements involved in this business. I was not able to find any significant disputes that had been heard in any European Courts for the barge business, although I was not surprised when one considers the legal costs and, I suspect because of this, most disputes are resolved on a commercial basis. When trying to find this information I pondered what jurisdiction would apply. Let’s take a London charterer, a German barge operator, loading in Rotterdam in the Netherlands and discharging Antwerp in Belgium. If there was a dispute should this be heard under English, German, Dutch or Belgian law? I would hope that the contract between the Owner and the Charterer would have a jurisdiction clause and this may be found in the carrier’s standard terms and conditions but it would be a headache if it wasn’t specified.
Is there much difference between the laws in these countries? I assume there is much more alignment between German, Dutch and Belgian law than between those jurisdictions and English law because most European countries use a system of codified law which entails the law being written down in much more detail. English Law has a lot of law written on its statute books but there is also a reliance on common law which is the law handed down over the years by the English courts. Does it really matter? I have come across one interesting difference which may be just a myth or folklore: in German law I am told that if a contract requires something to be put in writing, then it must be handwriting – typed text does not meet the requirements.
Coming back to the argy-bargies in the barge market, most of these disputes arise from the trading of the oil which, in the majority of cases, is governed by English law. Most General Terms and Conditions used by the oil companies and traders in Europe use English Law, as do the likes of ICE and Platts. If you are attending the Barge Conference next week (there is still time to book!), I look forward to sharing with you our proposal to resolve your disputes and giving you my opinion on what should change in the world of nominations and time bars for barges. Perhaps together we can consign the word argy-bargy to history! If you have any views or comments on this please share them here.