Ben Olbourne

Year of call:
2003
Email:
ben.olbourne@39essex.com

Clerks:
Singapore +(65) 6634 1336
London:+44 (0)20 7832 1111

“A strategic thinker, who is well suited to complex international disputes.”
Legal 500 UK 2016

Ben Olbourne provides advisory and advocacy services across a broad range of international commercial disputes, in England and other jurisdictions, in relation to both court and arbitration proceedings. He has acted as sole or junior counsel before courts at all levels in England and in arbitrations under many different governing laws and subject to a range of arbitral rules including ICC, SIAC, LMAA, LCIA, UNCITRAL, SCMA, ICSID, GAFTA, FOSFA, and RSA. He has particular experience working in Asia and for Asian clients having lived and worked in the region for a number of years. He currently holds a License to Practise Foreign Law in Singapore.

His recent work has been principally in the general commercial, international trade and commodities, construction, insurance/reinsurance, energy, natural resources, and shipping/carriage of goods sectors. That work has comprised substantive hearings as well as applications for interim and post-judgment relief including jurisdictional challenges, challenges to awards, domestic and worldwide freezing orders, anti-suit injunctions, orders for preservation of property, asset disclosure, appointment of receivers, and registration of judgments and awards under the New York Convention and domestic law. Much of that work is of a multi- or cross-jurisdictional nature involving questions of private international law and/or disputes governed by foreign laws. He has also provided expert opinions on English law for use in foreign proceedings on a range of substantive and procedural legal issues.

Ben is recommended in the leading directories for commodities (Legal 500 UK, 2013-2016), international arbitration (Chambers & Partners Global and Asia-Pacific 2014-2017, Legal 500 Asia-Pacific 2016-2017), construction and infrastructure (Chambers Asia-Pacific 2017), energy/oil & gas (Legal 500 Asia-Pacific 2016-2017, Chambers Asia-Pacific 2016-2017), and shipping (Legal 500 Asia-Pacific 2016-2017, Chambers Asia-Pacific 2016-2017). The editors have reported that “he is developing a significant reputation as an arbitration counsel”, is “well suited to complex international disputes” and is a “key name to note” in Singapore. Sources “are impressed by his abilities” and consider him to be “very thorough, has great skill as an advocate and is very impressive at cross-examination.”

Ben also practises in public international law and human rights and has advised and been involved in domestic and international proceedings in fields including investment law, treaty interpretation, immunities, sanctions, humanitarian law, human rights and refugee rights and obligations.

Ben accepts appointments as an arbitrator and has sat over the last two years in a number of cases under ICC, LCIA, LMAA and SIAC Rules and in ad hoc proceedings. He is a Fellow of the Chartered Institute of Arbitrators and is on the panel of arbitrators of ACICA, AMTAC, SIAC (Reserve Panel), KLRCA and THAC. He is also recommended as an arbitrator in the leading directories.

Ben was previously admitted in New South Wales (Australia) in 1999 and was an Associate (Legal Assistant) to Chief Justice Gleeson of the High Court of Australia in 1999-2000. He was a Junior Counsel to the Crown (C Panel) in 2008-2013.

Ben completed the Bar Council (England & Wales) Public Access Course in July 2014 and is certified to accept public access instructions including for international work.

Commercial


Ben’s practice encompasses a wide range of general commercial matters, mostly with an international focus or multi-jurisdictional features, including in the fields of construction, company sale and purchase, agency, banking, joint ventures, share holder disputes, insurance and re-insurance, competition, and oil, gas and other resources.

Significant recent and current work includes:

  • Bao Xiang International Garment Centre v British Airways plc (English High Court, Chancery Division) (follow-on damages claims by Chinese exporters in respect of cartel in relation to air freight services; proceedings involved questions of authority to act, maintenance and champerty, and abuse of process) (junior counsel)
  • JSC BTA Bank v Mukhtar Ablyazov (various English High Court proceedings) (claims by Kazakhstan National Bank against former owner and chairman for fraud, misappropriation of c. US$6b, and breach of banking regulations) (junior counsel)
  • Islamic Republic of Iran Shipping Lines v Steamship Mutual Underwriting Association (Bermuda) Limited; Her Majesty’s Treasury Intervening [2011] 1 Lloyd’s Rep 195 (frustration of insurance contract and severability of frustrated terms) (junior counsel for the Treasury)
  • Masri v Consolidated Contractors [2009] QB 450; (2009) 2 WLR 621; [2008] 2 Lloyd’s Rep 128 (CA) (post- judgment relief: receivership, freezing order, affidavit of assets, jurisdiction under English, European and international rules) (junior counsel)
  • Masri v Consolidated Contractors [2009] EWCA 194 (proceedings arising out of application for examination of officer as to corporate judgment debtor’s assets) (junior counsel)
  • Masri v Consolidated Contractors [2008] EWHC 1159 (Comm); [2009] EWCA Civ 36 (interpretation of English receivership order and effect of foreign court order) (junior counsel)
  • PT Berlian Laju Tanker TBK v Nuse Shipping Ltd (The “Aktor”) [2008] 2 Lloyd’s Rep 246 (requirements for rectification of contract) (junior counsel)
  • Swift Fortune Ltd v Magnifica Marine SA (The “Capaz Duckling”) [2008] 1 Lloyd’s Rep 54 (application for worldwide-freezing injunction from the English court following discharge of similar injunction initially granted by the Singapore courts) (junior counsel)
  • acted in an English High Court claim for US$70m under a performance guarantee (junior counsel)
  • acted for agent in US$10m claim for commission arising out of sale of Nigerian oil and gas license involving, in particular, allegations of breach of fiduciary duty (junior counsel)
  • provided advice on English law (specifically in relation to the valuation of unperformed terms of repudiated contracts) to Judicial Administrator in Singapore following entry into voluntary administration of a major international trading house (sole counsel)
  • advised leading UK IT services provider on its rights after termination of its £30m sub- contract under £800m public sector contact (sole counsel)
  • appointed as Independent Adjudicator pursuant to a Singapore court-ordered administration process to adjudicate on the values of claims filed by creditors against a Singaporean company
  • advised the Singapore HQ of a European bank on the construction of a repayment guarantee (sole counsel)

 

 

International trade / commodities


Regularly instructed by sellers, buyers, insurers, financial institutions, and other parties in relation to international sale and purchase contracts on FOB, CIF, DES and other terms, for single or multiple shipments, in respect of all types of commodities including oil and gas, steel, ore, coal, cement, grains, other foodstuffs, and chemicals.  Work includes disputes under payment mechanisms (e.g. letters of credit) and security instruments (e.g. payment guarantees).

Directories:

  • recommended for commodities in Legal 500 (UK) 2013-2016
  • a strategic thinker, who is well suited to complex international disputes” (Legal 500 (UK) 2016)
  • provides well-rounded strategy, and has impressive advocacy skills (Legal 500 (UK) 2015)
  • He is frequently instructed on arbitrations concerning international trade and commodities, where his straightforward approach is seen to give him a special advantage.” (Chambers & Partners Asia-Pacific, 2014)

Recent/current work includes:

  • Milan Nigeria Ltd v Angeliki B Maritime Co [2011] EWHC 892 (Comm) (cargo claim under Hague-Visby Rules, burden of proof, title to sue, currency of account) (sole counsel)
  • acted for global trading house in arbitral proceedings relating to dispute with Chinese purchaser of palm oil (sole counsel)
  • acted for Middle Eastern seller in arbitral proceedings arising from sale of blast furnace pellet feed to Singapore/Chinese company (sole counsel)
  • acted for Indonesian coal supplier in arbitral proceedings following wrongful termination of contract by Asian subsidiary of leading global cement manufacturer (sole counsel)
  • advised a global trading house in respect of purchases of oil from North Sudan when faced with claims by the Republic of South Sudan that that oil had been misappropriated (junior counsel)
  • acted for a coal trader against a leading European energy company in an ad hoc arbitration involving US$50m claims of fraud, misrepresentation, supply of off-spec fuel, force majeure and repudiatory breach in relation to a five-year contract for supply of thermal coal for electricity generation (junior counsel)
  • assisted in Early Neutral Evaluation in US$120m dispute over long-term supply contract between Australian iron ore producer and leading Chinese refinery (junior counsel)
  • acted in LCIA arbitration claim for US$5m arising out of repudiation of steel scrap contract (sole counsel)
  • acted for HK company in SIAC proceedings against Chinese SOE arising out of sale of iron ore fines (sole counsel) (contract subject to Australian law)
  • acted for Indian grain importing company in fast-track SIAC proceedings (sole counsel)
  • acted in LCIA arbitration (Singapore seat) involving claims/counterclaims for non- performance of coal sale and purchase agreement (on SCoTA terms) (sole counsel)
  • acted in 5-day HKIAC arbitration arising out of contract for carriage of iron ore fines from Indonesia to China (involving issues of shippers’ obligations, risk of liquefaction, fraud) (sole counsel)

International Arbitration


International arbitration law and practice (counsel)

Regularly instructed in matters covering all aspects of arbitral practice including:

  • substantive arbitrations under various arbitral rules (see above), principally with seats in London and now Singapore, but also France, Greece, the Middle East, and Hong Kong
  • challenges to awards made in England, on grounds of want of substantive jurisdiction, procedural error and error of law (under sections 67-69 of the English Arbitration Act 1996)
  • ancillary arbitration-related matters, including applications for appointment and removal of arbitrators, for extensions of time to commence arbitration, for orders for taking of and/or preservation of evidence, and for registration of and challenges to registration of foreign awards
  • third party funding of arbitral proceedings

Directories:

  • “particularly well known for his handling of oil and gas, shipping and, increasingly, construction and infrastructure cases. … a ‘pragmatic, down-to-earth’ advocate with a ‘good tenacious style’ and a formidable cross-examination capability – qualities which are identified as key reasons for his success (Chambers & Partners Global 2017: Dispute Resolution: Arbitration: The English Bar – Singapore)
  • “an excellent reputation for his advocacy and advisory work on shipping and oil and gas-related arbitrations” (Chambers & Partners Asia Pacific 2016, Singapore, Dispute Resolution: Arbitration: The English Bar)
  • recommended for commercial, energy and shipping arbitration (Legal 500 Asia-Pacific 2016)
  • “very thorough, has great skill as an advocate and is very impressive at cross-examination” and “he’s responsive, the advice is clear, and I’m impressed by his work ethic” (Chambers & Partners Asia Pacific 2015, Singapore, Dispute Resolution: Arbitration: The English Bar)
  • “developing a significant reputation as an arbitration counsel” (Chambers & Partners Asia Pacific 2014, Singapore, Dispute Resolution: Arbitration: The English Bar)
  • “Eloquent, very up to date on the law and able to play up the strengths of a case to best advantage”  and “practical, tactical and a rare example of a barrister who can speak plain English and avoid the legal jargon that can baffle clients” (Chambers & Partners Asia Pacific 2014, Singapore, Dispute Resolution: Arbitration: The English Bar)

 

Recent/current work (further examples are under the sector/industry headings above and below):

  • Viscous Global Investment Ltd v Palladium Navigation Corp [2014] EWHC 2014 (Comm) (application under s. 32 of Arbitration Act 1996 for determination of question as to Tribunal’s jurisdiction) (sole counsel)
  • Central Trading & Exports Ltd v Fioralba Shipping Co [2014] EWHC 2397 (Comm) (application for admission of further evidence for use in challenge to substantive jurisdiction of tribunal under s. 67 of Arbitration Act 1996) (sole counsel)
  • Milan Nigeria Ltd v Angeliki B Maritime Co [2011] EWHC 892 (Comm) (successfully appealed from an award on a point of law; successfully resisted challenges on procedural grounds and cross-appeal on a point of law) (sole counsel)
  • Lantic Sugar Ltd v Baffin Investments Ltd, The “Lake Michigan” [2010] 2 Lloyd’s Rep 141 (successful applications for declaration as to when arbitral proceedings commenced and extension of time for commencement of proceedings) (sole counsel)
  • Flame S.A. v Glory Wealth (applications to tribunal for further reasons and challenges to court on procedural and substantive grounds) (junior counsel)
  • PT Berlian Laju Tanker TBK v Nuse Shipping Ltd (The “Aktor”) [2008] 2 Lloyd’s Rep 246 (successfully resisted appeal on a point of law) (junior counsel)
  • five-day UNCITRAL arbitration involving long-term coal sale and carriage contract (sole counsel)
  • three-day ICC arbitration in relation to on-shore oil exploration contract
  • acted for respondent in arbitration where it was alleged that a party had entered into an arbitration agreement as agent for undisclosed principal and that the claimant was barred from suing as it had already obtained final judgment against the alleged agent (sole counsel)
  • provided expert opinion for use in Singapore court proceedings on requirements of s. 32 of the Arbitration Act 1996
  • acted for global trading house in arbitral proceedings relating to dispute with Chinese purchaser of palm oil (sole counsel)
  • acted for Middle Eastern seller in arbitral proceedings arising from sale of blast furnace pellet feed to Singapore/Chinese company (sole counsel)
  • acted for Indonesian coal supplier in arbitral proceedings following wrongful termination of contract by Asian subsidiary of leading global cement manufacturer (sole counsel)
  • acted for Singaporean company and insurers in respect of claims for negligence/gross negligence and delay in the installation of an anchor mooring system for a FSPO

Arbitral appointments

Ben accepts appointments as an arbitrator in international commercial matters and, in particular, in the areas referred to above and below. He is a Fellow of the Chartered Institute of Arbitrators, a Fellow of the Australian Centre for International Commercial Arbitration, a Panel Member of the Australian Maritime and Trade Arbitration Commission, the Kuala Lumpur Regional Centre for Arbitration, and the Thailand Arbitration Commission, and he is a member of the Reserve Panel of the Singapore International Arbitration Centre. Since 2014, he has been appointed in approximately 20 arbitrations, by arbitral institutions and by parties, and under the rules of the ICC, LCIA, SIAC, and LMAA and in ad hoc arbitrations under UNCITRAL Rules.

Directories:

  • a respected arbitrator” (Chambers & Partners Asia Pacific 2016, Singapore, Dispute Resolution: Arbitration: The English Bar)
  • a key name to note, practising as both counsel and as arbitrator” (Legal 500 Asia-Pacific 2016: Shipping (International Arbitration)

Examples of recent appointments:

  • sole arbitrator under LCIA Rules in respect of claim for damage and loss due to unsatisfactory warehousing in Indonesia of consumer goods
  • sole arbitrator under SIAC Rules in three consolidated references arising out of contracts for sale and delivery of Chinese steel to Indonesia and involving claims of frustration due to import prohibitions, variation, collateral contract, and repudiation
  • party appointed arbitrator under LCIA Rules in respect of dispute over tax liabilities involved in sale of hotel in SE Asia
  • sole arbitrator under ICC Rules in dispute between contractor and PSU in India for additional works performed in relation to contract for the construction of a blast furnace
  • sole arbitrator under ICC Rules in price-variation claim between contractor and PSU in India under contract for the construction of a blast furnace
  • sole arbitrator under LCIA Rules in respect of claim for unpaid agency fees under a contract to assist the procurement of contracts for the laying of shallow and deep sea pipeline cables
  • sole arbitrator under ICC Rules in respect of claim for unpaid agency fees under a contract to assist in the procurement and performance of shipping contracts
  • sole arbitrator under SIAC Rules in respect of claim for non-performance of contract for the supply of a multi-purpose support vessel for a project of the coast of Thailand
  • sole arbitrator under ICC Rules in respect of claim under agency agreement for provision of maritime services

Construction


Regularly instructed, principally in arbitrations but also in the English courts, in relation to large-scale international construction disputes across a variety of sectors including energy (e.g. power plants, pipelines), maritime (commercial vessels, off-shore vessels, rigs, and platforms, yachts, and other recreational craft), and infrastructure. Issues arising include legal issues (e.g. as to construction of contracts, liability of guarantors, etc.), professional negligence, technical and engineering disputes, compliance with international standards, and extensions of time, delay and liquidated damages claims.

Recent matters include:

  • acted for designer, constructor and operator of natural gas facility in West Africa
  • acted for re-design contractor of major oil pipeline in North Asia/Eastern Europe
  • acted/acting for and against Asian shipyards in many cases involving delay, liquidated damages, negligence and financing disputes for ocean-going and off-shore vessels
  • acting for Singaporean shipyard in dispute over design and construction of specialised science and research vessel
  • acted for surveyor of a RIB (rigid inflatable boat) in duty of care/negligence dispute (sole counsel)
  • acted in dispute arising from claim of force majeure by power plant operator alleging inability to use fuel it had contracted to purchase following changes in European and local environmental regulations

Public International Law / Human Rights


Instructed as junior counsel in proceedings before international courts and tribunals including the International Court of Justice, World Trade Organisation, European Court of Human Rights, and investment arbitration tribunals. Also instructed as junior and sole counsel to advise governments (both UK and foreign), state entities and private parties on a range of international law subjects including treaty interpretation, sanctions, humanitarian law, refugee rights and obligations, diplomatic and state immunity, and international trade and investment.

Significant cases include:

  • Carson & Ors v United Kingdom (App No. 42184/05) (Chamber judgment of 4 Nov 2008; Grand Chamber judgment of 16 March 2010) (lawfulness of United Kingdom’s failure to uprate state pensions payable to British pensioners resident in Canada, Australia, South Africa and a number of other countries; alleged violations of Articles 8 and 14 ECHR and Article 1 of Protocol 1) (junior counsel)
  • Bechtel & GE v Government of India (ad hoc ICC Arbitration under UNCITRAL Rules concerning investment in the Dabhol power station; claims for US$5b settled shortly before trial) (junior counsel)
  • Nuclear Information Service v Secretary of State for Defence and Foreign & Commonwealth Office (domestic judicial review proceedings concerning lawfulness of UK’s renewal of its nuclear weapon capability) (junior counsel)
  • Clarkson v SSD (domestic judicial review proceedings concerning lawfulness of the UK’s retention and use of cluster munitions) (sole counsel)
  • Al-Jedda v SSD [2009] EWHC 397 (Underhill J), [2010] EWCA Civ 758 (claims of false imprisonment by UK forces in Iraq and breach of Article 5 ECHR; defences of non- justiciability, act of state and public policy) (junior counsel)
  • Al-Saadoon v SSD and FCO (domestic judicial review proceedings; claims arising out of detention of Iraqi nationals by UK forces in Iraq and their transfer to Iraqi authorities in order to stand trial in Iraq; allegations concerning scope of Article 1 ECHR and breach of Article 5) (Divisional Court and House of Lords) (junior counsel)
  • Kammash & Ors v SSD (domestic judicial review proceedings; claims arising out of detention by UK forces in Iraq; allegations concerning scope of Article 1 ECHR and breach of Articles 3 and 5; allegations of breach of UN Convention Against Torture) (junior counsel)

Energy / natural resources / oil & gas


Acts for wide range of interests in both upstream and downstream sectors.  (For downstream, see “International trade/commodities).

Directorties:

  • “an excellent reputation for his advocacy and advisory work on shipping and oil and gas-related arbitrations” (Chambers & Partners Asia Pacific 2016, Singapore, Dispute Resolution: Arbitration: The English Bar)
  • His arguments are sound and his advocacy skills are impressive” (Legal 500 Asia Pacific 2016: Energy (International Arbitration))

Recent and current up-stream work includes:

  • acted for a coal trader against a leading European energy company in a US$50m ad hoc arbitration of a dispute involving technical aspects of operation of a coal-burning power station, electricity generation, pollution abatement, and compliance with local, national and European regulatory regimes (junior counsel)
  • acting for a European energy company in a c. US$9 billion claim against a west African government for breach of a contract for the construction and operation of a natural gas facility (sole counsel)
  • acting for Indonesian affiliate of Canadian oil company in ICC arbitration in respect of claims arising out of shore-based oil drilling programme (sole counsel)
  • acted for respondents resisting orders arising from judgment on a claim for share of proceeds from exploitation of oil concession in Yemen operated under JOAs, PSCs, and farm-out agreements (junior counsel)
  • acted for manufacturer and supplier of wind turbines in respect of claims for physical damage following transport from Asia to South America (sole counsel)

 

Shipping / Maritime


Regularly instructed:

  • by owners, charterers, cargo interests, P&I Clubs and other insurers and financial institutions in respect of all aspects of “dry” shipping including disputes under charterparties (time, voyage, bareboat, contracts of affreightment), bills of lading, and payment and security instruments (e.g. letters of credit, performance guarantees)
  • by service providers in the maritime sector (e.g. bunker providers, ship repairers, and ship managers)
  • in “wet” shipping work, including collisions, groundings, and on-board incidents
  • in marine insurance and general average claims
  • by yards, buyers/owners, financial institutions, and other parties in respect of construction and conversion disputes, including claims for negligence, delay, repudiation, and under security instruments (e.g. refund and payment guarantees)
  • by buyers and sellers in ship sale and purchase disputes
  • in admiralty actions including arrest of vessels and exercise of rights over bunkers, cargo etc. (e.g. liens)

Directories:

  • “an excellent reputation for his advocacy and advisory work on shipping and oil and gas-related arbitrations” (Chambers & Partners Asia Pacific 2016, Singapore, Dispute Resolution: Arbitration: The English Bar)
  • down to earth, but still has the technical expertise and depth of knowledge”; “a key name to note, practising as both counsel and as arbitrator” (Legal 500 Asia-Pacific 2016: Shipping (International Arbitration))

Significant recent and current matters include:

  • Islamic Republic of Iran Shipping Lines v Steamship Mutual Underwriting Association (Bermuda) Limited; Her Majesty’s Treasury intervening [2011] 1 Lloyd’s Rep 195 (acting for HMT) (construction and application of Order made under Counter-Terrorism Act and effect on policy of marine insurance for bunker pollution liability; interpretation of P&I Club Rules) (junior counsel)
  • Club Cruise Entertainment v Department of Transport (2009) 1 Lloyd’s Rep 201 (claim for damages for conversion and detention in respect of vessel detained by port authorities following outbreak of norovirus) (junior counsel)
  • Nicolle v Saunders Morgan Harris Ltd [2009] PNLR 8 (3-day trial, Technology and Construction Court) (professional negligence action in relation to design and manufacture of RIB vessel) (sole counsel)
  • PT Berlian Laju Tanker TBK v Nuse Shipping Ltd (The “Aktor”) [2008] 2 Lloyd’s Rep 246 (ship sale and purchase, construction and rectification of contract on the Norwegian Sale Form (junior counsel)
  • Swift Fortune Ltd v Magnifica Marine SA (The “Capaz Duckling”) [2008] 1 Lloyd’s Rep. 54 (worldwide-freezing injunction to retain deposit after failure of completion of ship sale and purchase) (junior counsel)
  • 5-day arbitration involving US$10m claim for repudiation by buyer of ship- building contract with Korean yard (junior counsel)
  • 3-day arbitration involving US$20m claim for repudiation by Chinese yard of two- ship building contracts (junior counsel)
  • advising Singapore subsidiary of Japanese conglomerate in relation to bunker supply contract (sole counsel)
  • acted for yacht owner in English High Court proceedings in respect of USD10m claim against brokers and insurers (junior counsel)
  • acting for claimant ship owner in SIAC proceedings involving carriage of naptha from Iran to India in potential breach of sanctions (sole counsel)
  • acted for Indonesian charterer of off-shore supply vessel in SIAC proceedings (sole counsel)
  • acting for vessel owner in US$10m claim in LMAA proceedings brought under 10-year bareboat charter and ship management agreement (sole counsel)
  • acting for charterer in US$8m claim following detention of vessel in Indonesia for 14 months (sole counsel)
  • acting for Singaporean shipyard in US$35 million dispute over design and construction of specialised science and research vessel (contract subject to Australian law) (sole counsel)

Call +44 (0)20 7832 1111 for more information

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