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Malcolm Jarvis

MA, LLM (Cantab), LLD (Groningen)

Malcolm Jarvis specialises in commercial and EU law.

He is recommended by the Legal 500 as a leading junior for commercial litigation, energy and commodities and by Chambers UK as a leading junior for energy and natural resources. He is described as being "charming and unflappable" (The Legal 500 UK 2015 (Commercial Litigation)) and as having "a measured style of advocacy, which judges appreciate" (The Legal 500 UK 2014 (Commercial Litigation). He is "extremely diligent and focused; a first port of call for instructing solicitors" (The Legal 500 UK 2015 (Energy)), noted for being "both really clever and a delightful person to work with" (Chambers UK Bar 2016 (Energy & Natural Resources)). He is "experienced in complex upstream, midstream and downstream disputes" (The Legal 500 UK 2016 (Energy)). 

After reading law at the University of Cambridge, where he was awarded a first class Master of Laws degree, he obtained a doctorate (Cum Laude) from the University of Groningen in the Netherlands.

He was called to the Bar of England and Wales in 1998 (Middle Temple) and has been in practice at 20 Essex Street since October 1999.

Specialisations: 

  • Energy & natural resources
  • EU and Competition
  • Private International Law
  • Shipping
  • Banking & derivatives
  • Sale of goods & commodities
  • Insurance & reinsurance
  • Arbitration and Mediation
  • General Commercial

Principal Cases: 

Energy & Natural Resources:

Assuranceforeningen Gard Gjensidig v The International Oil Pollution Fund [2014] EWHC 3369 (Comm): Existence of legally binding agreement for funding interim compensation payments for oil pollution damage; intention to create legal relations; whether IOPC Fund is immune from suit under the terms of a Headquarters Agreement with the UK Government incorporated into English law by an Order in Council made under the International Organisations Act 1968.

Assuranceforeningen Gard Gjensidig v International Oil Pollution Compensation Fund [2014] 2 Lloyd's Rep. 219: Freezing order in support of claims arising out of an oil spill in Venezuela; whether IOPC Fund enjoys immunity from freezing order relief; dissipation of assets in advance of winding up.

Petromec Inc v Petroleo Brasileiro S.A. Petrobras and Others : Complex litigation arising out of the upgrade and then sinking of the oil rig, "Petrobras-36" off the coast of Brazil in 2001. The Petrobras-36 was the world's largest offshore production platform and this litigation has been aptly described as "the world's largest oil platform dispute" (The Times).

  • Court of Appeal [2013] EWCA Civ 150: Construction and effect of deviations to the specification for upgrade of oil rig (relating to the gas compression system and risers).
  • Commercial Court [2006] EWHC 1443 (Comm), [2007] 1 Lloyd's Rep. 629: Claims for fraudulent and negligent misrepresentation.
  • Commercial Court [2007] EWHC 1589 (Comm) and Court of Appeal [2007] EWCA Civ 1371, [2008] 1 Lloyd's Rep. 305: 'Global' claims for damages; necessity to plead and prove causal nexus.
  • Court of Appeal [2004] EWCA Civ 156, [2004] 1 Lloyd's Rep. 629: Loss payment due following actual total loss of semi-submersible production platform; proper construction of agreement for sale and purchase of semi-submersible production platform and of security agreements.
  • Commercial Court [2004] All ER (D) 10 (Feb) and Court of Appeal [2005] EWCA Civ 89, [2006] 1 Lloyd's Rep. 121: Claims arising out of upgrade of semi-submersible production platform; dispute in relation to finality of sums paid pursuant to Variation Orders; enforceability of contractual obligation to negotiate in good faith.
  • Commercial Court [2004] EWHC 1180 (Comm), [2005] 1 Lloyd's Rep. 219 and Court of Appeal [2005] EWCA Civ 89, [2006] 1 Lloyd's Rep. 121: Claims in relation to entitlement to insurance proceeds following loss of the rig; whether company appointed to upgrade platform retained title to materials and equipment; passing of property in a contract for work and materials.
  •  

Ardila Investments NV v ENRC NV [2015] EWHC 1667 (Comm); [2015] 2 B.C.L.C. 560: various interlocutory applications (anti-suit injunctions; attachment orders; summary judgment, security for costs and stay of execution) arising out of SPA in relation to iron ore mine in Brazil.

Various arbitrations concerning Production Sharing Contract and JOAs (2011), a long-term coal off-take agreement (on Standard Coal Trading Agreement (SCoTA) form) (2016) and the transport and sale of condensate (2011).

EU and Competition:

W.H. Newson Holding Limited and others v IMI plc and others v Sanha GmbH & Co KG and others (2014): Follow-on claims for damages and for contribution in Chancery Division (copper fittings).

Jersey Produce Marketing Organisation Limited v The States of Jersey (Case C-293/02) [2005] ECR 1-9543, [2006] 1 CMLR 29: European Court of Justice: Legislation on the export of Jersey Royal potatoes from Jersey to the United Kingdom; Whether a measure that applies only to trade within an EU Member State is subject to the free movement of goods rules; Protocol No. 3 to the Act of Accession of the United Kingdom.

George Moundreas & Company SA v Samsung Heavy Industries Co Ltd: Commercial Court claim concerning the application of the Commercial Agents Regulations to an agency agreement between a shipbroker in Greece and a yard in Korea.

Commission v Atlantic Energy Ltd (Case T-182/08): Court of First Instance: Contract for financial assistance concluded under a specific Community programme in the field of non-nuclear energy; reimbursement of sums advanced; statutory set off; procedure for judgment by default.

R (on the application of Angliss (UK) Ltd) v London Port Health Authority, Administrative Court [2002] EWHC 1106 (Admin); [2002] All ER (D) 159 (Apr): European Community; free movement of goods; judicial review of Defendant authority's notice to re-dispatch or destroy meat products; EC Directives 64/433 and 97/78.

Confidential Early Neutral Evaluation in Commercial Court arising out of alleged State aid to the defence sector.

Advising on impact of EU requirements for the reduction of the sulphur content of liquid fuels (Directive 2005/33) on four shipbuilding contracts.

Advising on challenges to tender process by an NHS Trust under the Public Contracts Regulations 2006 and by the Scottish Executive under the Maritime Cabotage Regulation.

Private International Law:

Lehman Brothers Finance AG v Klaus Tschira Stiftung GmbH [2014] EWHC 2782 (Ch): Stay of proceedings pursuant to Article 27 of Lugano Convention 2007; whether the initiation of conciliation proceedings by the lodging of a written request for conciliation constitutes "proceedings" before a "court" within the meaning of Articles 27 and 30 of the Lugano Convention 2007.

Wright v Deccan Chargers, High Court 2010: Challenge to jurisidiction, forum conveniens, mandatory jurisdiction under Article 18 of Brussels Regulation.

Onstream International Ltd v Actebis Computer Deutschland GmbH, High Court (QBD) (HQ02X01443): challenge to jurisdiction of English Courts under Brussels Regulation; whether English Courts have special jurisdiction under Article 5(1)(b) of Regulation in a contract relating for the sale of goods.

Shipping:

Taokas Navigation SA v Komrowski Bulk Shipping KG (GmbH & Co) (PAIWAN WISDOM) [2012] 2 Lloyd's Rep 416: Construction of CONWARTIME 2004 clause to justify refusal to proceed on a voyage to Kenya if no material change in the risk between date of charterparty and date of order; whether the owners had, by the terms of the charterparty, construed in their factual context, accepted the risk of trading to Kenya.

Zodiac Maritime Agencies Ltd v Fortescue Metals Group (KILDARE), Commerical Court, [2011] 2 Lloyd's Rep. 360: Repudiation of a five year consecutive voyage charter for carriage of iron ore from Australia to China; measure of damages; whether available market for a subsitute period charter. Damages awarded c. $80 million.

Golden Fleece Maritime Inc v ST Shipping (ELLI and FRIXOS), Commercial Court, [2008] 1 Lloyd's Rep. 262 and Court of Appeal, [2008] 2 Lloyd's Rep. 119: Shelltime 4 charter; change in international regulations (MARPOL) rendering carriage of fuel oil by vessel unlawful without flag exemption certificate; whether owners in breach of charter by not modifying vessel to comply with new regulations.

Banking & derivatives:

Fortis Bank SA/NV v Indian Overseas Bank, Commercial Court [2010] 1 Lloyd's Rep 227 and Court of Appeal [2011] 2 Lloyd's Rep. 33: Letters of credit, documentary discrepancies, definition of confirming bank under UCP 600; preclusion from relying on discrepanices.

Marine Trade SA v Pioneer Freight Futures Co Ltd BVI, Commercial Court [2010] 1 Lloyd's Rep 631: ISDA Master Agreement, forward freight agreements (FFAs), bankruptcy event of default, availability of netting, mistake, restitution.

Sale of goods & commodities:

Soufflet Negoce SA v Fedcominvest Europe SARL, Commercial Court [2014] 2 Lloyd's Rep. 537: Proper construction of the "Notices clause" in GAFTA Contract No. 64. Whether provision that notice received after 16:00 hours is deemed served on following business day applies in all cases or only in the case of resales or repurchases.

Bunge SA v. Nibulon Trading BV, Commercial Court [2014] 1 Lloyd's Rep. 393: Whether claim admitted for determination by the first-tier GAFTA tribunal so that Board of Appeal obliged to consider it on the merits. Interplay between the respective discretion of first-tier tribunals and boards of appeal to admit claims that are time barred under the GAFTA arbitration rules.

Fortis Bank SA/NV v Indian Overseas Bank, Commercial Court [2011] 2 Lloyd's Rep. 190: Claim for damages in respect of port storage costs and container demurrage as a result of failure to honour letter of credit.

Arbitrations concerning long-term agreement for sale of coal on SCOTA terms (2010) and (2016).

Insurance & reinsurance:

Arbitration concerning disputes arising out of the US PA and Workers' Compensation market, acting for retrocessionaires.

Arbitration and Mediation:

Enercon GmbH v Enercon (India) Ltd, Commercial Court [2012] 1 Lloyd's Rep. 519: Determination of seat of arbitration; stay of proceedings; discharge of anti-suit and freezing injunctions.

Reliance Industries Ltd v Enron Oil and Gas India Ltd, Commercial Court [2002] 1 Lloyd's Rep. 645: Statutory criteria for grant of permission to appeal against arbitration award; contract governed by law of India; parties agreed that Indian law the same as English law; whether appeal raises 'question of law of England or Wales' under s 82(1) Arbitration Act 1996.

General Commercial:

Ardila Investments NV v ENRC NV [2015] EWHC 1667 (Comm); [2015] 2 B.C.L.C. 560: Anti-suit injunctions; Attachment orders; Contracts of sale; Debts; Due process; Loan agreements; Offsetting; Security for costs; Stay of execution; Summary judgments.

Koch Shipping Inc v Richards Butler (a firm), Commercial Court, [2002] Lloyds Rep. PN 201, Court of Appeal [2002] EWCA Civ 1280, [2002] 2 All ER (Comm) 957, The Times, 21 Aug 2002: injunction to prevent breach of duty of confidentiality to former client; arbitration.

Petromec Inc v Petroleo Brasileiro S.A. Petrobras and Others, Commercial Court, [2005] EWHC 2430 (Comm), Court of Appeal [2006] EWCA Civ 1038 : Circumstances in which a non-party may be ordered to pay costs of proceedings under s.51 Supreme Court Act 1981; whether non-party controlling, funding and having interest in proceedings.

Intertrade Lines SA v Mohammad Shafiq, Commercial Court [2005] EWHC 3150 (QB): application to discharge freezing order; applicable principles when considering successive applications for similar relief, allegation of non-disclosure.

Education and Career: 

University of Cambridge - MA and LLM degree (First Class); University of Groningen (The Netherlands) - LLD degree (Cum Laude)

Publications: 

April 2016 20 Essex Street Bulletin: 'Liability for 'spread costs' excluded by consequential loss clause' - Transocean Drilling UK Ltd v Providence Resources PLC  [2016] EWCA Civ 372

October 2015 20 Essex Street Bulletin - Article discussing shutdown of North Sea oil & gas field: some contractual consequences - Scottish Power UK Plc v BP Exploration Operating Company Limited & others [2015] EWHC 2658 (Comm) Judgment of English High Court (Leggatt J), 25 September 2015.

"The Proportionality Test: Constructive Dialogue between the English and Scottish Courts" in Exceptions from EU Free Movement Law (Hart, 2016)

Oliver on "Free Movement of Goods in the European Union" (5th Ed, 2010) Hart Publishing

"Application of EC Law by National Courts: The Free Movement of Goods" (Oxford University Press, 1998)

Appointments and Society Memberships: 

  • COMBAR
  • Bar European Group
  • United Kingdom Association of European Law
  • Association of International Petroleum Negotiators (AIPN)
  • LMAA Supporting Member

 

Quotes: 

"Very user friendly, hugely approachable, and highly intelligent, he delivers a high-quality product on time." Chambers UK Bar 2017 (Energy & Natural Resources)

"Experienced in complex upstream, midstream and downstream disputes." The Legal 500 UK 2016 (Energy)

"A practical and bright advocate, who is willing to work hard to get the best result." The Legal 500 UK 2016 (Commodities)

"Highly experienced in commodities-related disputes." The Legal 500 UK 2016 (Commercial Litigation)

"Both really clever and a delightful person to work with." Chambers UK Bar 2016 (Energy) 

"Extremely diligent and focused; a first port of call for instructing solicitors." The Legal 500 UK 2015 (Energy) 

"A charming and unflappable barrister who works extremely well with leading counsel." The Legal 500 UK 2015 (Commercial Litigation) 

"He has a measured style of advocacy, which judges appreciate." The Legal 500 UK 2014 (Commercial Litigation)

"A popular choice for GAFTA appeals." The Legal 500 UK 2014 (Commodities)

"He is charming and unflappable." The Legal 500 UK 2014 (Energy)

"A junior noted for his acuity and work ethic. Handles large cases with ease." Chambers UK 2014 (Energy & Natural Resources)

"Very responsive and user-friendly" Legal 500 2013 (Commodities)

"Sources note that he 'has real attention to detail'." Chambers UK 2013 (Energy & Natural Resources)

"Malcolm Jarvis is 'very well versed in conflict of law situations, and is a very bright and capable barrister with excellent client skills and superb response times'" Legal 500 2012 (Commercial Litigation)

"Malcolm Jarvis is 'very quick and willing to master complex details, and his formulation of written arguments is excellent'." Legal 500 2011 (Commercial Litigation)