What’s different about “change” in 2017? It certainly seems that we need to redefine what we mean when we consider the term itself.
Shipping historically has been a conservative industry, but its adaptability over the long haul has been proven time and time again. Some sectors of the industry will be coming to this year’s CMA Shipping 2017 conference with a more buoyant step than we have seen in recent memory, and for good reason. Only time will tell if the global markets will create the right environment for a strong economic recovery. With the Trump administration promising fiscal stimulus and interest rates still at low levels, however, there is a feeling of optimism in the room. Continue reading “A Note From the Chair”
As briefly described in my recent January Mainbrace article, ballast water management has been one of the most challenging and oftentimes frustrating regulatory issues of the past decade. The principal reason is that the international regime under the International Maritime Organization’s (“IMO”) Convention on the Control and Management of Ships’ Ballast Water and Sediments (“Convention”), and the U.S. regime under the National Invasive Species Act (“NISA”), are not quite in sync when it comes to approving equipment to meet the standards set forth in the Convention and the U.S. Coast Guard’s (“USCG”) NISA regulations.
A recent news article about an oil commodities transaction sparked considerable interest in the maritime transportation sector when worldwide commodities trader Mercuria announced it would employ “blockchain” technology to carry it out. Previously, blockchain technology served as the foundation to secure bitcoin transactions. Now, this technology promises to supersede hundreds of years of maritime commercial practice by replacing bills of lading and attendant transactional documents and substituting a secure online mechanism to buy and sell goods. IBM CEO Ginni Rometty, in an opinion piece in the Wall Street Journal on November 7, 2016, wrote that “[t]oday, blockchain—the technology behind the digital currency bitcoin—might seem like a trinket for computer geeks. But once widely adopted, it will transform the world.”
For the most part, the U.S. Bankruptcy Code formally and specifically deals with cross-border cases through chapter 15, a statute based on the Model Law on Cross-Border Insolvency promulgated by the United Nations Commission on International Trade Law (“UNCITRAL”) in 1997.1 The purpose of chapter 15 is to enhance cooperation between U.S. and foreign courts in connection with cross-border insolvencies to promote greater legal certainty for trade and investment, fairness, value optimization of a debtor’s assets, and the protection of investment and employment.2 Chapter 15 serves these goals by providing a foreign debtor’s representative with access to U.S. courts to assist a foreign main or non-main proceeding, which has been raised cross-border in a jurisdiction that is either the center of the debtor’s main interests or in which the debtor has an important facility.
Blank Rome has the distinction of representing the foreign representatives in two recent chapter 15 bankruptcy cases that broke new ground in U.S. law by being the first to recognize foreign insolvency proceedings under the newly revised insolvency law of Italy and a bank insolvency proceeding in Russia.
Revised Italian Insolvency Law (Concordato Preventivo)
Energy Coal is a petroleum coke and specialty fuel merchant and supplier based in Genova, Italy, with substantial business in the United States as well as a complex capital structure. When the Delaware Bankruptcy Court recognized Energy Coal’s concordato preventivo proceeding in Genoa, it was the first U.S. bankruptcy court to recognize a concordato preventivo since the recent amendments to the Italian Insolvency Law that were enacted to facilitate debt restructurings and distressed investing, while binding dissenting creditors to homologated arrangements.
Our clients regularly seek our assistance in recovering foreign arbitral awards and foreign judgments from debtors and/or their alleged alter egos in the United States. Each case has its unique facts that dictate the level of effort that we must make to bring about a successful outcome. For example, obtaining a recovery from an alleged alter ego may require a Rule B attachment followed by significant factual discovery, while obtaining a recovery from a debtor with assets and business connections in the United States may require less effort. Regardless of the facts that may be unique to each matter, the basic framework to seek a recovery, discussed herein below, is the same.
The United States has been a signatory of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) since 1970; however, it is not currently party to any international treaty for the recognition of foreign judgments. Unlike foreign arbitral awards, which are governed by the New York Convention, no treaty outlines the circumstances under which U.S. courts may recognize foreign judgments. In the United States, for instance, only the principle of comity, the common law, and individual states’ laws allow U.S. courts to recognize and enforce foreign judgments.
01n January 23, 2017, the U.S. Coast Guard published a Notice of Proposed Rulemaking (“NPRM”) that proposes to amend the monetary property damage threshold amounts for reporting a marine casualty and serious marine incident (“SMI”). Industry stakeholders should be aware of the significant changes in the NPRM, potentially easing the reporting burden.
When a marine pollution incident occurs in the United States, a vessel owner may find itself communicating with a myriad of federal and state response agencies, depending upon the size of the spill. If such an event occurs in Texas state waters, however, then one of the most important authorities that you will likely deal with is the Texas General Land Office (“TGLO”).
This article provides a brief overview of the TGLO to reinforce why this particular agency will be a critical component to any owner’s “Texas” marine pollution spill response plan. Keep in mind that obligations under Texas state law are in addition to obligations to abide by federal marine casualty and pollution response statutes and regulations.
Under U.S. law, personal jurisdiction is one of the fundamental aspects of a court’s ability to adjudicate a particular dispute, and it often plays a role in maritime cases, given the far-flung nature of the industry. In recent years, the trend in U.S. courts has been generally favorable to personal jurisdiction challenges. This is highlighted by two separate cases, Gulf Coast Int’l, L.L.C. v. The Research Corp. of the Univ. of Hawaii, 490 S.W.3d 577 (Tex. App.—Houston [1st Dist.] 2016, pet. denied), and Mitsui Sumimoto Insurance Co., Ltd. v. M/V DEFIANT, et al., civil action H-16-55 (S.D.Tex. Aug. 23, 2016) (Miller, G.), recently handled by Blank Rome’s Houston office in which dismissals were obtained for the Firm’s clients on the basis that the court in which the plaintiff had filed suit did not have personal jurisdiction over the companies being sued. Continue reading “Gulf Coast Update: Personal Jurisdiction Trend Continues to Favor the Defense”
The scenario is a familiar one to lawyers practicing in maritime and admiralty law—a frantic middle-of-thenight call, a shipboard emergency, and your client looking to you for answers in a high-stakes scenario that could amount to the beginning of a very bad day. It is in the critical moments that follow during which government and private counsel may come into contact with the other, and those moments may to some extent define the course of the investigation. Depending on the precise incident, private counsel may find themselves inundated with multiple federal or state agencies, dealing with a litany of acronyms and governmental procedures. On the other hand, government counsel may be called to interact directly with private counsel while not fully understanding the private attorney’s motivations in representing their client. Regardless of the incident, there is potential for a language and cultural barrier when parties interact while serving respective clients during a maritime investigation, and counsel are at a disadvantage if they have not taken initial steps to understand the other side’s driving factors and authoritative processes before the initial interaction.