Andrew Baker QC

MA (Oxon), PGDipL (City)

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Andrew Baker's principal areas of practice are shipping, international sale of goods, commodities, insurance and re-insurance, conflicts of laws, arbitration and international banking/derivatives.

Andrew appears in the High Court, Court of Appeal and the Supreme Court, and before legal and commercial arbitrators. He has accepted appointment as arbitrator since 1995, is a member of the SIAC Panel, the SCMA Panel of Arbitrators and the KLRCA Panel of Aribtrators and is a CEDR Accredited Mediator. He is also registered as a practitioner with rights of audience before the DIFC Courts.

He has been in practice since 1989 and took silk in 2006.

Specialisations: 

  • Shipping
  • International sale of goods
  • Commodities
  • Insurance and re-insurance
  • Conflicts of laws
  • International banking/derivatives
  • Arbitration and Mediation

Principal Cases: 

Arbitration

The Skier Star, Verity Shipping S.A. v NV Norexa [2008] 1 Lloyd's Rep. 652, Commercial Court, permission to appeal granted by Court of Appeal, but case settled on eve of appeal hearing - anti-suit injunction in support of London arbitration - whether material delay in bringing application - whether fact of third party claim in Antwerp proceedings by applicant for anti-suit injunction a sufficient reason to refuse injunction.

The Vigour, Icon Navigation Corp v Sinochem International Petroleum [2003] 1 AER (Comm) 405, Commercial Court - procedure for raising contingent objection to Award, if appeal were to succeed.

The Ivan Zagubanski, Navigation Maritime Bulgare v Rustal Trading [2002] 1 Lloyd's Rep. 106, Commercial Court - bill of lading arbitration clause / anti-suit injunction - scope of Article 1(4) of Brussels Convention [now Article 1(2)(d) of Brussels Regulation].

Rustal Trading Ltd v Gill & Duffus S.A. [2000] 1 Lloyd's Rep. 14, Commercial Court - allegation of appearance of bias - whether well-founded - whether right to challenge award lost under section 73 of 1996 Act.

Al Midani v Al Midani The Trade Nomad [1999] 1 Lloyd's Rep. 923 , Commercial Court - "Judgment" of Shari'a Council of Great Britain - whether an arbitration award / whether creating binding legal obligations. [1998] 1 Lloyd's Rep. 57, Commercial Court - Shelltime 4 time charter, Clause 41, whether agreement in advance in contract itself sufficient consent to avoid requirement for leave to appeal from arbitration award.

The Angelic Grace [1994] 1 Lloyd's Rep. 168, [1995] 1 Lloyd's Rep. 87, Commercial Court, Court of Appeal - injunction to enforce arbitration agreement.

Banking/Derivatives

Britannia Bulk plc vs. Pioneer Navigation Ltd & Bulk Trading S.A. [2011] EWHC 692 (Comm), Commercial Court - FFAs (forward freight agreements) on basis of 1992 ISDA Master and 2007 FFABA Terms - Automatic Early Termination upon Brit Bulk's insolvency, Pioneer and Bulk Trading "out of the money" - preliminary issue ruling (Flaux J.) on whether 1992 ISDA Loss definition required Pioneer and Bulk Trading to assume that had there been no Early Termination, Brit Bulk would never have been affected by any Event of Default

Cassa di Risparmio Della Repubblica di San Marino SpA (CRSM) v Barclays Bank plc [2011] EWHC 484 (Comm) - Commercial Court trial (Hamblen J.) of claims alleging misselling of structured notes referencing synthetic credit derivatives (CDO²s), in particular because of references to AAA ratings - all claims dismissed, held in particular no inconsistency between AAA rating and Barclays' large "mark to market" profits from the transaction.  

Marine Trade S.A. v Pioneer Freight Futures Co Ltd [2009] EWHC 2656 (Comm), [2010] 1 Lloyd's Rep 631, Commercial Court, appeal by PFF to Court of Appeal withdrawn - forward freight agreements (FFAs) governed by 1992 ISDA Master Agreement - availability of netting to counterparty affected by Event of Default - relevance of Event of Default occurring after due date for performing obligations - obiter whether non-fulfilment of condition precedent suspends performance of obligation or prevents obligation from coming into existence - whether payment made under protest would have been paid absent doubt as to lack of liability to pay - obiter what degree of doubt as to liability to pay precludes a claim for restitution based on mistake.

Rainy Sky S.A. et al. v Kookmin Bank [2009] EWHC 2624 (Comm), Commercial Court - Refund Guarantees in connection with pre-delivery instalments under shipbuilding contracts - whether "on demand" guarantees payable against honest demand irrespective of dispute by shipyard over buyers' entitlement to refund - ibid and [2010] EWCA Civ 582, [2011] 1 Lloyd's Rep. 233, Court of Apeal - whether Refund Guarantees extended to claimed refund entitlement under provision of shipbuilding contract relating to shipyard's solvency not entitling buyer to terminate contract - application for permission to appeal to Supreme Court pending.

Lehman Brothers - member of Counsel team advising Joint Administrators of Lehman Brothers International (Europe) variously since October 2008.

JP Morgan Chase Bank v Springwell Navigation Corp. [2008] EWHC 1186 (Comm), [2008] EWHC 1793 (Comm), Commercial Court, [2010] EWCA Civ 1221, Court of Appeal- claims for bad investment advice and/or mis-selling in relation to substantial emerging market investment portfolio (including derivatives) - claims for performance and/or damages in respect of GKO-linked Notes

UBS v Tenaga Nasional Berhad, trial 2005, Commercial Court (settled after openings) - derivatives (put options) part of a synthetic 30 put 10 Yankee bond issue by Tenaga arranged by UBS - claims for rectification and payment of termination value under ISDA Confirmations, counterclaims for negligent misstatement and/or negligent drafting.

Peregrine Fixed Income Ltd v Robinson Department Store plc [2000] Lloyd's Rep. Bank. 304, Commercial Court - derivatives (swap transaction under 1992 ISDA Master form) - proper construction of ISDA Master re "Market Quotation" and "Loss".

Britten Norman Ltd (in Liquidation) v State Ownership Fund of Romania [2000] Lloyd's Rep. Bank. 315, Chancery Division - place of payment under bank guarantee.

Kitchen v HSBC Bank plc [2000] Lloyd's Rep. Bank. 173, Court of Appeal - business loan secured by mortgage - interpretation of interest provisions - whether bank had overcharged interest.

UBS AG v Omni Holding (In liquidation), [2000] 1 WLR 916, Chancery Division - syndicated loan, questions of construction arising, whether London proceedings proper and appropriate, given Swiss insolvency.

Credit Suisse First Boston (Europe) Ltd v Seagate Trading Co Ltd [1999] 1 Lloyd's Rep. 784, Commercial Court - allegations of mis-selling of GKO-linked Notes; losses suffered in Russian financial crisis of 1998/1999.

Den Danske Bank v Skipton Building Society [1998] 1 EGLR 155, Commercial Court - commercial mortgage loans advanced by Skipton BS, funded by Kleinwort Benson, securitisation Den Danske Bank and others - claims by purchasing syndicate following borrower defaults and shortfalls on enforcement of securities.

Meespierson NV v Gill & Duffus SA , unreported, Commercial Court - syndicated bank loan, powers/rights of majority and minority banks.

Morgan Stanley v Denver, unreported (settled during trial), Commercial Court and Morgan Stanley v Puglisi, [1998] CLC 481, Commercial Court - foreign exchange trading/derivatives - Morgan Stanley "PERLS" product (Principal Exchange Rate Linked Security).

Commercial Law

Marine Trade v Pioneer - restitution (see Banking/Derivatives, above).

Abu Dhabi Investment Company v H Clarkson & Co Ltd , trial 2006, Commercial Court (claims against Clarksons settled during trial) - claim for allegedly negligent shipping market report in connection with proposal for novel fast container ships fleet.

Cable & Wireless/Pender v Valentine et al., trial 2005, Commercial Court (settled prior to completion of trial) - claims concerning allegedly improper scheme by which employees of C&W's Insurance Department benefited personally from the C&W/Pender insurance facility for utilities businesses.

The Kastor Too, Kastor Navigation Co Ltd v AGF MAT [2003] EWHC 472 (Comm), [2004] 2 Lloyd's Rep. 119, Commercial Court, Court of Appeal - costs - claim succeeded but claimant lost the major factual issue at trial (whether sinking caused by fire) - whether costs order should be "issues based" / relevance of fact that claimant succeeded overall.

Deepak Fertilisers and Petrochemicals Corporation v Davy McKee (London) Ltd [2002] EWCA Civ 1396, TCC, Court of Appeal - liability of design engineers for failure to communicate improvements - causation - whether judge entitled to find against unchallenged factual evidence.

Deepak Fertilisers and Petrochemicals Corporation v ICI Chemicals & Polymers Ltd and Others [1999] 1 Lloyd's Rep. 387, Commercial Court, Court of Appeal - Limitations and exclusions of liability and indemnities - effect on claims for breach of contract, breach of collateral warranties and common law negligence - Contract with Davy McKee for design of methanol plant in India / provision of know-how by ICI.

Credit Suisse First Boston (Europe) Ltd v Seagate Trading Co Ltd [1999] 1 Lloyd's Rep. 784, Commercial Court - Construction of English jurisdiction clause (Whether exclusive or not), whether to grant anti-suit injunction when jurisdiction clause itself "impeached".

Elf Enterprise v Inland Revenue [1994] STC 785, Chancery Division - petroleum revenue tax.

Morgan Stanley v Brauch, unreported, Commercial Court, Conflict of laws - injunction to restrain vexatious Californian proceedings.

Banque Paribas v Cargill, [1992] 1 Lloyd's Rep. 96, [1992] 2 Lloyd's Rep. 19, Commercial Court, Court of Appeal - conflict of laws, proper law of contract, place of performance, forum non conveniens (Order 11).

Commodities / Sale of Goods

Glencore Energy UK Ltd v Transworld Oil Ltd [2010] EWHC 141 (Comm), Commercial Court - non-performance of contract for sale of Ukpokiti crude oil on f.o.b. terms - whether f.o.b. contract open for performance after agreed shipment period - whether contract "mutually affirmed" - assessment of damages (no available market): basis for valuing cargo that should have been delivered; whether reduction in loss on hedges due to early close-out to be taken into account (reducing damages).

Cereal Investments Co (CIC) S.A. v ED&F Man Sugar Ltd [2008] 1 Lloyd's Rep. 355, Commercial Court - f.o.b. contract containing NoR deadline, but no shipment deadline - whether sellers entitled to reject letter of credit requiring shipment by NoR deadline.

TOTSA Total Oil Trading S.A. v Bharat Petroleum Corp Ltd [2005] EWHC 1641, Commercial Court - crude oil f.o.b. - whether buyers bound to pay for water - effect of clause fixing price payable "for invoicing purposes" - whether set-off excluded - summary judgment.

South Caribbean Trading Ltd v Trafigura Beheer BV [2005] 1 Lloyd's Rep. 128, Commercial Court - contract for blended fuel oil - proper construction of contract (whether restricted to blend produced from products previously supplied by buyers) - whether delivery date varied - effectiveness of conditional notices of termination.

Kronos Worldwide Ltd v Sempra Oil Trading Sarl [2004] 1 Lloyd's Rep. 260, Commercial Court, Court of Appeal - f.o.b. sale contract - late provision of letter of credit, not causing delay to loading - whether laytime runs prior to provision of letter of credit.

Fleming & Wendeln GmbH v Sanofi S.A. [2003] 2 Lloyd's Rep. 473, Commercial Court - GAFTA default clause - date for assessing damages for non-delivery.

Galaxy Energy International Ltd (BVI) v Eurobunker SpA [2001] 2 Lloyd's Rep. 725, Commercial Court - low sulphur fuel oil sold with guaranteed specification at disport - whether certificate final.

Marc Rich Agriculture Trading S.A. v Agrimex Ltd [2001] CLC 756, Commercial Court - GAFTA contract, when dispute arose, whether claim time barred.

Soules CAF v Louis Dreyfus Negoce S.A. [2000] 2 Lloyd's Rep. 307, Commercial Court - certificate final regime - GAFTA 100 & 124 - whether mean of initial analyses binding absent timely call for third analysis.

SK Shipping Co Ltd v BB Energy ( Asia) Pte Ltd [2000] 1 AER (Comm) 820, Commercial Court - gasoil f.o.b. Nakhodka - liability for delays at loadport.

Grains & Fourrages S.A. v Huyton S.A. [1997] 1 Lloyd's Rep. 628, Commercial Court - c.i.f. sale (cotton extractions and cotton expellers) - confusion over analysis certificates - rectification of agreement reached by the parties in that regard.

Nissho Iwai v Cargill [1993] 1 Lloyd's Rep. 80, Commercial Court - Brent oil trading f.o.b., "5 o'clocking", obligation to receive nominations.

The Honam Jade, [1991] 1 Lloyd's Rep. 38, Court of Appeal - Dubai crude f.o.b., repudiation, requirement for "terminal acceptance" of nominations.

Insurance & Re-insurance

Cable & Wireless/Pender v Valentine et al., trial 2005, Commercial Court (see under Commercial Law above).

The Victoria, Mora Shipping Inc v Axa Corporate Solutions Assurance S.A. [2005] 2 Lloyd's Rep. 769, Commercial Court - General Average guarantee - place of payment.

The Kastor Too, Kastor Navigation Co Ltd v AGF MAT [2003] 1 Lloyd's Rep. 296, [2004] 2 Lloyd's Rep. 119, Commercial Court, Court of Appeal - constructive total loss by fire followed by actual total loss by sinking - whether fire caused sinking - if not, whether valid claim for CTL when cause of ATL unproved.

The Kleovoulos of Rhodes, Sunport Shipping Ltd v Tryg Baltica International (UK) Ltd [2002] 2 Lloyd's Rep. 277, [2003] 1 Lloyd's Rep. 138, Commercial Court, Court of Appeal - constructive total loss by lengthy detention following discovery of cocaine planted on vessel - whether excluded peril of "detainment ... by reason of infringement of any customs or trading regulations" - meaning/scope of "customs regulations".

Bullen v Manufacturers Mutual Insurance Ltd [1999] CLC 292, Commercial Court - parties to reinsurance treaty, whether correct party sued, whether any mistake capable of correction despite time bar.

Roar Marine v Bimeh Iran, [1998] 1 Lloyd's Rep. 423, Commercial Court - following market's obligation to "follow the leader" on settlements, whether leader has implied obligation to enter only proper and businesslike settlements.

Kleinwort Benson and First Mortgage Services - various work (advisory and litigious) arising out of mortgage indemnity insurance and mortgage portfolio "securitisation", in particular Den Danske Bank et al. v Skipton Building Society et al. [1998] 1 EGLR 155, Commercial Court (referred to under Banking, above).

Barber v Imperio, unreported, Commercial Court, Court of Appeal - reinsurance, avoidance, affirmation.

PNB v de Boinville [1992] 1 WLR 1138, [1992] 1 Lloyd's Rep. 7, Commercial Court, Court of Appeal - duty of care - insurance brokers.

Shipping

"Saldanha" (Cosco Bulk Carrier Co Ltd v Team-Up Owning Co Ltd) [2010] EWCH 1340 (Comm), [2011] 1 Lloyd's Rep. 187, Commercial Court - whether capture and detention of ship by Somali pirates puts her off hire under New York Produce form, Clause 15.

"Kildare" (Zodiac Maritime Agencies Ltd v Fortescue Metals Group Ltd) [2010] EWHC 903 (Comm), Commercial Court - performance of 5-year consecutive voyage by FMG ceased following market collapse in late 2008 - frustration defence abandoned - whether FMG guilty of wrongful repudiation - assessment of damages: whether available market when contract terminated; whether, if not, later available market relevant.

"Elbrus" (Dalwood Marine Co v Nordana Lines A/S) [2009] EWHC 3394 (Comm), (2010) LMLN 786, Commercial Court - measure of damages for wrongful repudiation (early redelivery) of time charter trip - whether earnings after end of "overlap" period to be taken into account - appeal to Commercial Court December 2009.

Marine Trade v Pioneer - FFAs (see Banking/Derivatives, above).

Rainy Sky et al. v Kookmin Bank - Refund Guarantees (shipbuilding contracts) (see Banking/Derivatives, above).

Claims against Fortescue Metals Group for alleged repudiation of long-term carriage contracts: Classic v FMG (long-term COAs - arbitration June 2009, settled); "Anangel Splendour" (5-year time charter - arbitration September 2009, settled); "Kildare" (long-term consecutive voyage charter; see above).

"Paragon" (Lansat Shipping Co Ltd v Glencore Grain B.V.) [2009] EWCA Civ 855, [2009] 2 LLoyd's Rep. 688, Court of Appeal - provision entitling owner to market rate of hire for last 30 days of maximum charter period and any overrun if illegitimate last voyage - whether enforceable or a penalty.

"Kos" (E.N.E. Kos v Petroleo Brasileiro S.A.) [2009] EWHC 1843 (Comm), [2010] 1 Lloyd's Rep. 87, Commercial Court, [2010] EWCA Civ 772, Court of Appeal - rights and obligations of parties to time charter after valid withdrawal by owners with part-laden cargo on board - whether bank fees and commissions charged for providing security for claim recoverable as costs in subsequent litigation.

"Bremen Max" - acting for shipowner during 2009 in litigation arising out of alleged mis-delivery and letters of indemnity for delivery without production of bills of lading - settled.

The Antiparos, Antiparos ENE v SK Shipping Co Ltd [2008] 2 Lloyd's Rep. 237, Commercial Court - Asbatankvoy form, clause 4(c) - claim for increased bunker costs due to rearrangement of itinerary to accommodate change of loadport orders - whether charterers entitled to change orders, whether claimed cost increase recoverable.

Abu Dhabi Investment Company v H Clarkson & Co Ltd, trial 2006, Commercial Court (see under Commercial Law above).

The Stolt Spur, Stolt Tankers Inc. v Landmark Chemicals S.A. [2002] 1 Lloyd's Rep. 786, Commercial Court - Demurrage - whether time counts during which vessel engaged in operations for other interests, not causing delay to charterers' operations.

The Ivan Zagubanski, Navigation Maritime Bulgare v Rustal Trading [2002] 1 Lloyd's Rep 106, Commercial Court - bill of lading / arbitration clause / anti-suit injunction.

The Elpa, Transpacific Discovery v Cargill International S.A. [2001] 2 Lloyd's Rep. 596, Commercial Court - InterClub Agreement and underlying third party claim alleging unseaworthiness - pre-conditions to apportionment under InterClub Agreement - relevance of ante-dating of bills of lading.

The AMA Ulgen, Galaxy Energy International Ltd v Bayoil SA [2001] 1 Lloyd's Rep. 512, Commercial Court - Sale of Goods (CIF) - Demurrage recoverable to the extent it "can be recovered" from another party - proper construction and application to the facts of that provision.

Mira Oil Resources of Tortola v Bocimar N.V., [1999] 2 Lloyd's Rep. 101, Commercial Court - Charter-party (Voyage) - Demurrage time bar - "Signed copy of charterparty" required to be presented - Construction.

The Flecha, Fetim B.V. and Others v Oceanspeed Shipping Ltd [1999] 1 Lloyd's Rep. 612, Admiralty Court - whether bills of lading were owners' or time charterers' bills.

The Trade Nomad, [1998] 1 Lloyd's Rep. 57, [1999] 1 Lloyd's Rep. 723, Commercial Court, Court of Appeal - Shelltime 4 time charter, "off hire" Clause 3(i), whether applicable to defects in vessel existing at time of delivery; application of "from a position no less favourable" provision in Clause 21.

The Ivybank, ED&F Man Cocoa Ltd v Scaflon Marine Ltd, unreported, Commercial Court - fire in cargo hold due to negligent welding - whether all cargo damaged by fire or smoke - whether damages recoverable in tort for lost value of any cargo not so damaged.

The Atlas, [1996] 1 Lloyd's Rep. 642, Commercial Court - Hague Rules, "weight unknown" bills of lading - time charterer's authority to issue bills of lading.

The Nicholas H [1996] AC 211, [1995] 2 Lloyd's Rep. 299, House of Lords - duty of care, Classification Societies.

The Orjula [1995] 2 Lloyd's Rep. 395, Commercial Court - duty of care - "damage" in tort - dangerous cargo.

The Berthea, unreported, Commercial Court, Court of Appeal - time charter liability for oil pollution insurance costs.

The Achille Lauro, Conflict of laws - advising on jurisdiction and application of Athens Convention in relation to passenger claims resulting from fire and sinking of vessel.

The QE2, unreported, Commercial Court - subsequently settled before Court of Appeal - dispute with Blohm & Voss shipyard - summary judgment.

Education and Career: 

Merton College, Oxford: BA (Maths) 1986,MA 1990

The City University, London: PGDipLaw 1987

Inn's of Court School of Law: Bar Finals 1988

Hardwicke, Wolfson & Kennedy Scholar of Lincoln's Inn

Pupillage 1988-1989: 1 Essex Court & 3 Essex Court (now 20 Essex Street)

In practice at 3 Essex Court/20 Essex Street since 1989.

Publications: 

Series Editor since July 2009 of the Lloyd's Shipping Law Library.

Co-author, with Terence Coghlin, Julian Kenny and John Kimball, of "Time Charters" 6th Edition (Informa, 2008).

Appointments and Society Memberships: 

  • Queen's Counsel 2006
  • CEDR Accredited Mediator 2008
  • Member of the Admiralty & Commercial Court Users Committee
  • Member of COMBAR
  • Supporting Member of the London Maritime Arbitrators' Association
  • Member of the Panel of Arbitrators of the Singapore International Arbitration Centre
  • Member, and Member of the Panel of Arbitrators, of the Singapore Chamber of Maritime Arbitration
  • Member of the Panel of Aribtrators of the Kuala Lumpur Regional Centre for Arbitration
  • Registered as a practitioner with rights of audience before the DIFC Courts 2011

Lectures and Teaching: 

During pupillage Andrew was a tutor in the Law of International Trade at the Inns of Court School of Law.

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