Shipping / Transportation Law

Refund Guarantees

By Mark Davis
Informa Law April 2015

Specifications

ISBN-13
9780415833677
Publisher
Informa Law
Publication
April 2015
Format
Hardback , 201 pages
Jurisdiction
U.K. ? Countri(es) for reference only

Details

A refund guarantee is an essential component of almost every shipbuilding project, without which the buyer will be unwilling or unable to proceed.

There is no standard form of refund guarantee in universal usage, and both the form and substance of refund guarantee instruments vary widely from case to case. The ambiguity or uncertainty of the meaning of refund guarantee instruments, against a backdrop of a sharp downturn in the shipping markets, has led to numerous disputes in recent years concerning refund guarantees, which have been the subject of a number of important decisions of the English Courts.

This is the first English law text book dedicated to the subject of refund guarantees. It provides essential guidance as to the issues arising and the pitfalls to be avoided. It analyses the specimen form of guarantee annexed to Bimco’s NEWBUILDCON form, and covers topics such as the circumstances in which the liability of the guarantor may be discharged, and when a builder may be entitled to obtain an injunction to restrain payment under a refund guarantee.

It will be an essential and practical guide for those engaged in the shipbuilding industry, including shipbuilders, shipowners, banks and insurance companies, P&I clubs, and those advising them.

Table of Contents

Introduction
Definitions and characteristics
Contractual and statutory requirements
Construction
Aids to construction of demand instruments and guarantees
Presumption against the imposition of primary liability
Authority of signatory
Local approvals
The BIMCO NEWBUILDCON – Standard Newbuilding Contract – Part II, Annex A (iii) Refund Guarantee
Introduction
Clause 1 Definitions
Clause 2 Guarantor’s Obligation
Clause 3 Indulgence, delay, amendment or variation
Clause 4 Duration
Clause 5 Dispute
Clause 6 No counterclaim or set-off
Clause 7 Currency
Clause 8 Assignment
Clause 9 Governing law and jurisdiction
Clause 10 Notices
Clause 11 Immunity
Clause 12 - 14 Approvals and authorisations
Guarantees issued on behalf of the buyer
Guarantees issued on behalf of the builder
Parent guarantees and letters of comfort
Assignment and novation
Material variation of the underlying contract
Anti-discharge provisions
Discharge of the surety
Vitiating elements in the contract of suretyship
Making demand
Restraining payment
Enforceability of an English Court judgment / London arbitration award

About the Author

Mark Davis is the author of Bareboat Charters, and has over 25 years’ experience as a solicitor in private practice specialising in shipping law.

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