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The back to back terms provided for arbitration in London but there were two sets of arbitration terms which, in some respects, were inconsistent with each other. One set of terms (clause 75) provided for a tribunal of two arbitrators and an umpire in the event of disagreement, and another set of terms (the BIMCO arbitration clauses) provided for three arbitrators. Whilst clause 75 provided that if party A commenced arbitration and appointed an arbitrator but party B failed to appoint an arbitrator, then party A could appoint an arbitrator on behalf of party B, the BIMCO arbitration clauses provided that, in such an event, party A could appoint its arbitrator as sole arbitrator. Clause 75 also contained a substantive time bar (claims to be made within 13 months of redelivery) whilst the BIMCO arbitration clauses did not.
Following her release by the pirates, the Vessel was redelivered under all three charterparties on 18 January 2011. The parties then set about appointing arbitrators against one another to resolve the outstanding disputes. The time bar provided by clause 75 expired on 18 February 2012. In September 2012 Eleni gave notice to Transgrain that it was exercising its lien on sub-hires. In October 2012 Dieulemar was adjudged bankrupt in Italy. In March 2013 Dieulemar’s trustees in bankruptcy applied to the Companies Court in England for an order recognising the Italian bankruptcy proceedings as the foreign main proceedings pursuant to the Cross-Border Insolvency Regulations 2006. The recognition order was duly made on 11 April 2013.
In May 2013 Eleni issued an application in the sub-charter arbitration (between Deiulemar and Transgrain) seeking to be joined as a claimant in its capacity as equitable assignee (by virtue of the terms of the time-charter between it and Deiulemar) of Deiulemar's claims under the sub-charter. At the same time it claimed US$5.56m which it alleged was due from Transgrain by way of sub-charter hire in respect of the period during which the Vessel had been detained by the pirates. No such claim had previously been advanced by Deiulemar. In October 2013, Deiulemar executed a statutory assignment of Deiulemar's claims against Transgrain in favour of Eleni.
