"Maritime arbitration is a central part of London's financial offering"
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We catch up with Clare Ambrose FCIArb about how London is a strong seat in maritime arbitration, and how disputes are arising in a variety of interesting areas.
Historically, London has been the centre of maritime arbitration and, despite competition, the UK’s capital still retains the crown. Indeed, maritime outnumbers non-maritime commercial arbitrations in the city[1]. In 2023, there were over 1,800 references under LMAA (The London Maritime Arbitrators Association) arbitration[2], which doesn’t include other shipping disputes that are arbitrated under institutional rules.
Clare Ambrose FCIArb
Clare Ambrose FCIArb
“It’s a very big area and it continues to be – those figures have been maintained under the last ten years or so. There are around 400 awards produced a year,” says Clare. The LMAA is well recognised, she explains. For example, TheCityUK, an industry-led body representing UK-based financial and related professional services, published a report on the contribution of legal services to the British economy.
The report noted that the LMAA continues to outperform counterparts on numbers of cases by a significant margin. It also revealed that 80% of the world’s maritime arbitrations are handled in London[3]. Clare says, “The report flagged the role of maritime arbitration in the British economy, citing it a central part of London’s financial offering.” As a result, the UK Law Commission and Parliamentary Special Public Bill Committee also consulted the LMAA on changes to the Arbitration Act.
80% of the world’s maritime arbitrations are handled in London
Clare notes that there are impressive specialists, experts, lawyers and judges in London. “Some of the judges in the commercial court dealing with cases have decades of experience, so they have a deep understanding of the sector. The integrity and impartiality of both arbitrators and the judiciary is important. We don’t have a significant ship building industry so there’s no protectionism. Parties can come to London and know it’s neutral. There’s a big pool of expertise on maritime arbitration in London: it’s a global centre, so the quality of the work is high,” explains Clare.
In a nutshell, the system works. She says, “London has a strong tradition in this area, and shipping cases are at the heart of English contract law. English law is the most sophisticated system of law for resolving shipping disputes.”
The LMAA terms are very user-friendly, the commercial court provides expert support, and can deliver what’s needed. “London remains competitive,” adds Clare. “The alternatives are expensive – LMAA arbitration tends to be more efficient than institutional arbitration because there are fewer overheads, and it’s quicker and cheaper. The competing seats like Singapore or Dubai tend not to offer an advantage on costs.”
[1] The Maritime Arbitration Universe in Numbers: London remains ever Dominant - Lexology
[2] London Retains its Crown in International Maritime Arbitration - LMAA
[3] legal-excellence-internationally-renowned-uk-legal-services-2023.pdf
Puzzles to solve
As a barrister in a commercial set of chambers, Clare began her career with a focus on shipping work. Shortly after qualifying, a senior colleague encouraged her and colleague Karen Maxwell to write a book. Michael Collett KC MCIArb later joined them and London Maritime Arbitration (4th edn, Informa 2017) is now required reading for the Ciarb Diploma in International Maritime Arbitration.
She says, “I enjoyed the research and becoming an expert. It gave me opportunities to do more work, including starting to get appointments as an arbitrator.” Since then, she has had over 300 appointments in international arbitrations, sitting as chair, sole and co-arbitrator.
“Parties want the right answer, and arbitration offers them commercial certainty"
Most shipping disputes go to arbitration because parties put in an arbitration clause in the standard form, explains Clare. “Parties want the right answer, and arbitration offers them commercial certainty. It’s quite a productive exercise, unlike a lot of litigation – you’re giving parties what they want and need.”
It means that interesting contractual issues commonly arise, which are exciting puzzles to solve, and often bring about disputes arising in a range of different contexts. “The facts on these cases are often varied - you might have a case about damaged soya beans, Russian sanctions, or looking at technical issues. I recently had a case that involved a deep dive into carrying liquefied natural gas (LNG) at cryogenic temperatures. There’s always something different.”
When it comes to diversity, there is still more to be done, says Clare. “If you look at the shipping law firms, chambers and P&I Clubs (protection and indemnity insurance), there’s a strong representation of women in roles from top to bottom. However, in terms of arbitration, there are now more women, but still not enough.”
"When it comes to diversity, there is still more to be done"
One area where there is an imbalance is within the pool of expert witnesses. She explains that a small proportion of women work on ships, and as in engineering, women aren’t very well represented in the industry. “It’s not something that can be fixed immediately,” she says, noting that technology may be the catalyst for change in this area as advances like crewless ships (which use sensors, radars and cameras to feed into AI, monitored from remote operational centres) are in the not too distant future. There’s room to be optimistic, as legal services has seen a big change – it can be done.
Advice for ADR professionals
Clare says that anyone considering maritime arbitration needs to be enthusiastic and keen to learn. “You’ve got to have a willingness to become familiar with different contracts and relationships in shipping – which can be quite complex. You need to like contract law and understand how commercial parties operate. Typically, a contract about getting stuff from A to B by ship involves a very complex set of arrangements, banks, insurers, charterers, managers, state organisations, and crew.”
There’s a certain amount of jargon and acronyms, which she says takes a bit of time to become familiar with but isn’t that difficult.
In terms of training, she notes that Ciarb’s Diploma in International Maritime Arbitration is well-regarded. “But there’s nothing better than getting experience! Whether it’s with a P&I Club, a firm, or barristers in shipping disputes, they all give good experience.”
Clare is keen to encourage more people from the industry to get involved in arbitration. “People who are on the commercial and technical side have something valuable to offer – they would benefit from the Ciarb Diploma in International Maritime Arbitration as they have the practical expertise but need a legal understanding of the system.”
"The Diploma in International Maritime Arbitration is taught by some of the top professionals acting in this area and has provided me with much insight into a specialised area where you would otherwise not have access to...
I would recommend this course to anyone already practicing or interested in this area"
Timothy Lam FCIArb
Partner at Long An & Lam LLP"
Diploma in International Maritime Arbitration
The number of international maritime arbitrations has grown over the past few years and is expected to continue to increase.
The scale, diverse range and complexity of maritime arbitrations coupled with an increase in arbitral systems means that it is essential to have the right knowledge and skills to navigate this field.
Ciarb’s virtual Diploma in International Maritime Arbitration equips you with the relevant knowledge and skills to help you advance in this field.
It is ideal for professionals wishing to increase their knowledge and relevant skills in the field of international maritime arbitration. It also leads to eligibility for Ciarb Fellowship (FCIArb).
The thrill of the chase
Ciarb speaks to Captain Peter J McArthur MCIArb about developing niche specialisations, understanding how violent ship motions occur (causing damage to cargo, and injury to passengers), the demands involved in preparing expert evidence, and why active expert witnesses never stop learning.
Recently retired marine pilot Captain Peter J McArthur isn’t entirely comfortable with the accolade ‘expert’, as it’s a term that the courts determine at the end of the day – he prefers to be called a specialist. Peter says, “There are a lot of people trying to get into the expert side of maritime arbitration. I'm one of those career mariners who wandered into being an ‘expert’ in a particular field, only to discover that my wide skill-set had more general applications than I ever anticipated.”
Captain Peter at the helm of a ship
Captain Peter at the helm of a ship
He mentions that, so far as he is aware, “no one sets out to be an ‘expert witness’, as it’s not reliable as employment because appointments are only for a season, and last only as long as the particular appointment, or case, does.” Peter also cautions that “good experts will often find that their case ends suddenly and unexpectedly when it settles out of court. After that, you’re effectively unemployed again, unless you have another career running in the background – a reality that many appointing parties tend to forget”. Thus, it can be difficult for a party’s expert to suddenly drop everything at a moment’s notice, and attend to their needs. It may be frustrating for those appointing an expert, but it’s what gives their expert ‘specialist credibility’.
Peter attributes his journey towards becoming an expert witness to his maritime background, a personal interest in water, his subsequent research into hydrodynamic theory and, of course, his fascination for law and legal matters. Everything conspired to make him the "right person, in the right place, at the right time, and with all the necessary skill to address a particular problem." He explains, “There was a case in Singapore where one party thought the matter was a hydrodynamically explainable collision. However, opposing experts put it down to a steering failure. Within days of my academic work first being published, I got a phone call saying: ‘We read your paper, we think you may have the answer to a problem that we are trying to deal with. Would you care to look at the evidence for us?’ When I looked at it, I immediately realised that what the opposing experts, in that instance, were trying to assert was both incorrect, and provably flawed.”
Captain Peter McArthur with British broadcaster Jeremy Paxman
Captain Peter McArthur with British broadcaster Jeremy Paxman
However, despite developing ground-breaking theories (including one that predicted the ‘Ever Given’ incident in the Suez Canal), Peter knew he had to educate himself further. “My learning never stops,” he admits. Peter realised that it was one thing to have a credible opinion, but another to have the skill to stand up and present it. “Based on my career knowledge, my limited (but developing) legal experience, and a wide and very varied industry practice, I knew I had a uniquely specialised grasp of many marine issues, but the one thing I lacked was practical experience of being able to deliver that evidence in front of an arbitration tribunal, or a court of law. What I needed, was the practical experience of having stood up and delivered my expert opinion with confidence. This is a very valuable, and underrated skill,” he says.
Peter points out that criminal, civil, and commercial cases, are very different disciplines, each having their own demands. “The skills, the knowledge, the practice, and the preparation for a civil case is quite different from that of a criminal case. There is an awful lot more work goes into preparing for criminal cases, as minutiae and detail requirements are often worlds apart,” he says.
Training
The more training that you can do, the better, says Peter. “Going into an arbitration as an expert witness isn't something that anyone should approach lightly. It can be stressful as there is an awful lot of preparatory work involved, and you really do need to have your wits about you.”
He felt the best way to go about it was to learn about the practice as an arbitrator because he was likely to spend much more time in front of arbitrators and felt compelled learn about the process. He completed the Global Diploma in International Commercial Arbitration at Ciarb – intent on becoming an arbitrator. “For obvious reasons, the industry decided that I was better suited to providing the evidence. But my knowledge as a qualified lawyer and a trained arbitrator helped me to understand the full gamut of what was required.”
“There are other alternative dispute resolution disciplines”, he says, “And I thought it prudent to cover the full spectrum, so qualified as a Civil and Commercial Mediator and an Expert Determiner. However, the industry, yet again, deemed that I was better suited to providing and delivering evidence, but the skills associated with these ADR disciplines have proven valuable assets in both my career and social life.”
He believes it’s necessary for experts to maintain their knowledge and refresh their practice within the industry. “In my case, regular consultancy, teaching, mentoring, and networking have been invaluable. Indeed, most of my appointments come through word of mouth and following presentations on my research” he reflects. “There have been fallow years, but equally, and with experience, there were years when, even working as a pilot, I spent more time doing expert witness work than I did moving ships.” This taught Peter another valuable lesson – those who would present as experts, also need an aptitude for managing their work and leisure time.
Captain Peter McArthur and his wife outside Buckingham Palace, London
Captain Peter McArthur and his wife outside Buckingham Palace, London
"Going into an arbitration as an expert witness isn't something that anyone should approach lightly."
Captain Peter McArthur accepting his Master Mariner certificate
Captain Peter McArthur accepting his Master Mariner certificate
Shipping Disputes
There is a growing number of containers being lost from ships when they tip over, resulting in numerous disputes regarding cargo damage and loss - something of a specialist topic for Peter. He was involved in preparing and providing training in this subject area, particularly following dramatic media reports of distressed cruise ship passengers, a number of whom were injured.
“Apart from underlying ship stability issues, which can be a problem in its own right,” he says, “‘Synchronous’ and ‘parametric’ motions can cause a ship to roll, or heel, over to large angles. If you've got stacked (and improperly, or inadequately, secured) containers, these motions can be real problem. When ships move violently, containers can start to fall off. Container securings and lashings haven't changed much in the last 40 years. There are thousands of lost containers afloat in the oceans and it’s now a problem,” says Peter.
“The two motions [synchronous and parametric] may manifest in a similar way, but their causes are quite different and understanding that causal difference is crucial when it comes to disputes. Very simply, ‘synchronous motion’ occurs when a ship’s rolling period coincides with the incoming wave period - each successive wave rolls the ship over to a greater angle."
"There are thousands of lost containers afloat in the oceans and it’s now a problem"
‘Parametric motion’ arises when the ship is unevenly supported [along its length] by the waves and the ship suddenly loses stability. If this situation is allowed to persist, it can be extremely dangerous, explains Peter. "It is possible for both synchronisms to occur at the same time – an extremely dangerous and frightening situation that, in extremes, can lead to both cargo and ship loss."
Maritime arbitration encompasses a lot more than groundings, ship collisions, personnel injuries, offshore energy industry problems, or insurance and cargo claims - the latter of which can often be traced back vessel-motion issues. Peter has dealt with all of these matters at one time or another and notes that “they seem to occur in cycles – until the industry re-learns the lessons of the past.”
A few years ago, Peter found himself working on multiple cases that involved serious damage to subsea cables. “These are critical elements of our offshore energy industry, and our global communication networks,” he says. "There were a lot of incidents involving fishing trawlers running over subsea internet and power cables and pipelines, dragging them up, causing significant communication problems and damage to offshore industry pipelines.” His knowledge of satellite navigation and GPS tracking meant he could track down, and eventually identify the culprits. The spate of subsea incidents eventually tailed off, but the specialism has came to the fore again in recent years, as his established skills facilitate tracking sanctioned vessels.
Keeping Current
“A lot of my maritime career, supported by my legal studies, plus my personal research (originally a hobby) and, of course, my expert witness practice is mutually supporting. The beauty of that is, those things that always interest me, each contribute to keeping my industry and practical knowledge current. This, then, develops other specialisations,” he says.
He notes, “Expert witness work has changed a lot over the last few years. It is now imperative that practitioners are up-to-date on the latest tech in their sector. There’s a huge drive for technological innovation within all industries and nowhere is that drive greater than in the maritime and legal sectors. Practising as a consultant keeps me relevant. Delivering training, and honing my latest theories keep me at the forefront of what's going on. I just need to find time to write-up, and hopefully publish, my research.”
Peter notes that establishing their credibility is often one of the first questions that expert witnesses meet as they start to give testimony: “How relevant is your experience?” An expert witness’s experience should be no more than a year or two old. He recalls, “One cross-examination began with: ‘And when did you last handle a ship of any size?’ ‘I got off a ship at six o’clock yesterday evening’, was probably an acceptable reply.”
For Peter, being an expert witness is all about the thrill of the chase. “I love solving puzzles, and the more complex the puzzle, the greater the challenge. Once you get into something and you’re following a thread, you can lose all concept of time. It's absolutely fascinating – so long as it doesn’t run up the client’s bill.”
He muses, “The curse of an expert is probably the same as the curse of education. The more you know, the more you know you don’t know. Each new realisation can lead you down another rabbit hole. That’s why experts must hold to their specialist discipline and not be tempted to stray”.
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