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Michael Ashcroft QC

BA, BCL (Oxon)

Michael graduated from Oxford with a first in jurisprudence and a first on the BCL. He has 20 years' experience as a barrister, including over 5 years as silk.

He was delighted to be named "International Arbitration Silk of the Year 2016" by Chambers & Partners.    

He has also twice been nominated as "Shipping Silk of the Year" (in 2014 and 2016) by Chambers & Partners.

He is recommended as a leading silk in the Legal 500 UK, the Legal 500 (Asia Pacific) and Chambers & Partners in the following areas:

  • International Arbitration
  • Commercial
  • Energy
  • Shipping
  • Commodities

Recent quotes in the leading directories about him include:

  • "A superb advocate, and very thorough”
  • “An outstanding lawyer and advocate; he works extremely hard and clients love him"
  • "He has a very clear, succinct way of putting the case in a way that's understated but extremely powerful"
  •  "He is a brain on legs who has a very succinct way of putting things."
  • "A highly intelligent and consistently excellent advocate with a superb grasp of detail."
  • "Respected for his knowledge of civil fraud issues."
  • "Devastatingly good."

Michael specialises in advocacy and advisory work in a wide range of general commercial law disputes. The majority of his work falls within four main areas: general commercial litigation/arbitration (including share and asset sales and mortgage securities); energy (including oil, gas and renewables); shipping and ship/off-shore construction (including shipbuilding and ship sale disputes) and commodities; and insurance/reinsurance. He has been, and continues to be, involved in many cases that involve civil fraud.  He has excellent experience in relation to jurisdictional disputes and injunctive relief, including freezing injunctions, anti-suit injunctions and quia timet relief.

Michael appears regularly in the High Court, the Court of Appeal, and the Supreme Court. He also has a wide range of experience preparing and presenting cases before, and on appeal from, various arbitration tribunals in various jurisdictions (including Singapore, Hong Kong and New York).

Michael considers himself a 'team player' and very much enjoys working as part of a large team with other counsel and solicitors. He has considerable experience leading large teams of counsel in very heavy cases, including a recent arbitration in which he led a team including four other barristers in a five weeks hearing, and working as co-counsel with lawyers qualified in other jurisdictions (most recently New York).

Michael has significant experience of mediation processes and is regularly involved in assisting with the preparation of position statements for use in mediation.

Michael enjoys sitting as an arbitrator, either alone or as part of a panel. He is happy to accept appointments as an arbitrator both in London and abroad. From time to time, he acts as an expert on English law in foreign proceedings.

Specialisations: 

  • Commercial arbitration
  • General commercial litigation
  • Insurance/reinsurance
  • Shipping
  • Commodities
  • International trade
  • Jurisdictional disputes
  • Civil fraud
  • Offshore/Energy
  • Financial derivatives
  • Ship sale contracts
  • Shipbuilding contracts and other construction contracts
  • Investment disputes
  • Super yacht disputes
  • Mining
  • Oil rig/drilling disputes

Specialisations: 

Commercial Arbitration

Michael has vast experience of general commercial arbitration (primarily as an advocate, but also as an arbitrator) under ad hoc and institutional rules, in numerous jurisdictions, including London, Singapore, Hong Kong, Malaysia and New York.  He is comfortable dealing with any commercial contractual disputes and his recent work has included share and asset sale disputes, investment joint ventures, finance leases, gas supply contracts, oil rig disputes, and construction disputes (from superyacths to windfarms). His preeminence in this area has been recognised by his nomination as 2016 Chambers & Partners “Silk of the Year” for International Arbitration.

Recent examples of work

Acted for an English PLC in relation to a US$2bn dispute in LCIA arbitration against Indonesian interests arising out of the sale of shares in various mining companies.

Acted for UAE financers in relation to a finance lease concerning a ship.  The case gave rise to a question of general importance as to whether the hirer of a chattel progressively acquires a beneficial proprietary interest in it as a result of hire payments made.

Acting in an ICC arbitration concerning the construction of a windfarm off the English coast.

Led a team including 4 other counsel (including a junior silk) in a 3 days preliminary issue hearing and then 5 weeks substantive hearing, involving over 20 factual and expert witnesses, concerning a $500m+ dispute arising out of the construction and delivery of semi-submersible drilling rigs from Chinese to Brazilian interests.

Acted for BVI interests in a substantial ICC arbitration dispute with Peruvian interests relating to gas supply contracts.

Acted for a high profile Bulgarian individual in a substantial LCIA arbitration relating to claims under an investment/joint-venture agreement.   The arbitration involved allegations of fraud, breach of fiduciary duty, the taking of secret profits and questions as to proprietary remedies arising out of an agreement to transfer shares.

Commercial Litigation/Dispute Resolution

Michael has considerable experience dealing with general commercial disputes in a wide variety of areas, including share and asset sales, options, joint ventures, performance bonds, finance/investment agreements, (bank and other) guarantees, agency relationships, letters of credit, indemnities, mortgage securities and mining agreements. He is very familiar with the ISDA Master Agreement terms.

 

Michael is also very familiar with jurisdictional disputes, which arise in many of the cases that he deals with. He recently acted in the Court of Appeal and Supreme Court in hotly contested multi-party litigation concerning the lis pendens provisions of the Judgments Regulation. He has acted regularly in anti-suit injunction cases.

Recent examples of work

Alexander v. West Bromwich Mortgage Company Ltd [2016] EWCA Civ 496.    Acted for a very large group of landlords in a successful appeal to the Court of Appeal concerning tracker mortgages.   The case is of considerable general importance.   It established that the West Bromwich’s standard terms and conditions did not permit it to vary interest rates otherwise than strictly in accordance with base rate movements and did not permit termination of mortgages on a mere one month’s notice, absent any default or other circumstances justifying termination.  

The Alexandros T [2014] 1 Lloyd's Rep. 223, [2013] 1 Lloyd's Rep. 217. Acted with Iain Milligan QC and Luke Pearce in this heavy, multi-party, commercial litigation dispute before the Court of Appeal and the Supreme Court. The case involved points of fundamental importance concerning the lis pendens provisions of the Judgment Regulation, which apply in all civil and commercial matters that involve a European element. The case is the leading authority on the proper interpretation of Arts 27 and 28 of the Judgments Regulation.

Quadra Commodities v. Various Insurers & Filhet-Allard Maritime. Acted for Filhet-Allard Maritime (French insurance brokers) in two substantial ($10m+ each) multi-party disputes arising out of insurance policies relating to soybeans. The claims against FAM were for professional negligence and/or breach of mandate. The cases involved complex issues of English and French law. Both cases proceeded very close to trial, but were successfully settled following a substantial mediation. Michael took the lead in preparing the clients' written mediation statement and advised before and during the mediation itself.

EFT Holdings Inc v. Marinteknik Shipbuilders (before the Singapore High Court and Court of Appeal) [2014] 1 SLR 860. Acted for the Respondents in $20m+ claims for unlawful means conspiracy. Advised generally and prepared written opening, closing and appeal submissions for use in the Singapore proceedings. All claims were defeated. One of the leading Commonwealth cases on the requirements of the tort of conspiracy by unlawful means.

CIMC Raffles Offshore (Singapore) Ltd v Schahin Holding SA [2013] 2 Lloyd's Rep. 575, [2012] EWHC 1758. Acted for the Claimants in the Commercial Court and Court of Appeal in relation to claims under a guarantee issued by a holding company of Brazilian interests that had purchased semi-submersible oil rigs. The Court of Appeal case is the leading judgment on the scope of the Triodos Bank (or 'purview') doctrine and an important case so far as concerns anti-discharge/anti-avoidance provisions in guarantees generally.

Seraphim Capital LP v Dietzen and others. Acted for the Respondents in Commercial Court proceedings that were closely related to Californian proceedings. Disputes arose out of share sales and investment agreements. Complex jurisdictional issues and complicated questions relating to recoverability of alleged losses and reflective loss. The case was settled as part of a global settlement.

Rainy Sky v. Kookmin Bank [2012] 1 Lloyd's Rep. 34. Acted for the successful appellants before the Supreme Court in relation to this important case concerning refund guarantees. The judgment of Lord Clarke JSC provides important guidance as to the construction of commercial contracts generally, in particular as to the extent to which judges should take into account business common sense when choosing between rival interpretations.

Civil Fraud

Michael has received recent praise in legal directories for his knowledge of civil fraud issues.  Many of his cases involve civil fraud, directly or indirectly.

Recent examples of work

Acting for charterers of a vessel in a $60m London arbitration where one of the main defences is that the Owners were in fundamental breach of an implied term of the contract to act honestly, in such serious a way as to repudiate the relationship between the parties and justify termination of the contract.

Pablo Chiriboga, Jaime Chiriboga and Jaya Sudhir v. Intervisatrade SA. Acting in a substantial Commercial Court dispute arising out of the sale of shares in a power-generating plant. The case involves allegations of fraudulent misrepresentation and breach of warranty. 

EFT Holdings Inc v. Marinteknik Shipbuilders (before the Singapore High Court and Court of Appeal) [2014] 1 SLR 860. Acted for the Respondents in US$20m+ claims for unlawful means conspiracy. Advised generally and prepared written opening, closing and appeal submissions for use in the Singapore proceedings. All claims were defeated. One of the leading Commonwealth cases on the requirements of the tort of conspiracy by unlawful means.

Acted successfully for the builders of semi-submersible drilling rigs in a $500m dispute in which one of the central allegations (although not ultimately pursued at the hearing) was that the builders fraudulently misrepresented their capability to perform the contract, giving rise to liability in deceit.

Acted successfully for a high profile Bulgarian individual in a substantial LCIA arbitration relating to claims under an investment/joint venture agreement. The arbitration involved allegations of fraud, breach of fiduciary duty, the taking of secret profits and questions as to proprietary remedies arising out of an agreement to transfer shares.

 

Shipping & Commodities

Michael deals with all aspects of the law relating to shipping and commodities and, in addition to being ranked as a leading silk in Band 1 (the highest) by Chambers & Partners, he was  nominated as "Silk of the Year" (2014) in this category, and has again been nominated for this award in 2016. He has great experience of shipbuilding and ship sale disputes of all types, including offshore supply vessels, cargo ships, passenger ferries, chemical tankers, VLCCs, and mega-yachts. His construction related experience extends to offshore structures of various kinds, including oil rigs and their constituent parts, tower wishbone systems and SBMs. Many of these cases involve very complex structures and highly technical issues. Michael enjoys technical disputes and is very comfortable dealing with cases in which substantial expert evidence is required. He thoroughly enjoys commodities disputes of all types and has vast experience dealing with all sorts of sale of goods cases.  Michael is privileged to be one of the authors of Voyage Charters, one of the leading shipping law textbooks.

Recent examples of work

Acted in arbitration proceedings for the Owners of a Suezmax tanker that grounded in the Suez canal, closing it to all traffic for 3 days.   Defeated very substantial claims arising out of the incident.

Classic Maritime v. Lion Holdings. Acting for Classic in a substantial commercial court dispute concerning a contract of affreightment relating to iron ore pellets in which the charterers are alleging that force majeure (arising out of the well-publicised Samarco tailings dam burst) excused the performance of numerous shipments.

Sea Powerful v. Oldendorff. Acting for head owners in a substantial claim in the commercial court arising out of the arrest of their vessel in China on account of the discharge/delivery of cargo without the original bill of lading.

Mercuria Trading v. Esso. Acted for Esso in this important Commercial Court case concerning fuel oil cargo. It gave rise to issues concerning the certification of cargoes, and the point at which "quality" may become final under sale contracts, which are of general importance.

The Valle di Cordoba [2015] 1 Lloyd’s Rep. 529, [2014] 1 Lloyd's Rep. 550. Acted for shipowners in a novel case concerning an in-transit loss clause. Charterers contended that the clause imposed strict liability for cargo loss (exceeding US$5m), even though this was caused by pirates high-jacking the vessel and requiring the master at gunpoint to discharge the premium motor spirit cargo into lighters. Won the case in front of Andrew Smith J and in the Court of Appeal.

Acting for the charterers of a vessel in a $60m arbitration dispute with owners. Issues arise as to whether the vessel that was tendered for delivery was properly the subject matter of the contract.

Acted for the buyers of anchor handling tugs in four LCIA arbitration disputes with the builders. The references gave rise to interesting and complicated issues concerning rights of termination due to insolvency, critical delays and the proper approach to listing and dealing with construction defects.

Acted for the claimants in two arbitrations relating to the proposed sale of a fleet of tankers and barges.

Acting (or recently acted) in numerous arbitrations in London, Singapore and Hong Kong concerning diverse shipping law issues arising out of charterparties, bills of lading, construction contracts, sale contracts and related agreements. Vast recent experience of shipbuilding disputes and MOA disputes.

Acted in a substantial ICC arbitration relating to a long-term contract for the supply of gas from Peruvian fields.

Acting in a substantial LCIA arbitration relating to the sale of iron ore fines. Interesting points arise to whether the product complied with the contract description and in relation to damages, including the extent to which one party's hedging position may increase or reduce the overall loss.

Acted successfully for German sellers of bio-diesel in a substantial LCIA arbitration with Romanian interests. There were major disputes as to whether the product complied with the contract and as to whether it was fit/suitable for importation into Romania given the provisions of Romanian customs law.

 

Energy & Natural Resources

Michael has great experience of issues relating to the transportation of various types of energy products. He has worked frequently on cases involving concessions and joint venture agreements in this context. He has recently led a team including 4 other counsel in a very large arbitration relating to contracts to supply semi-submersible oil rigs for ultra-deep water drilling in Brazil. He has just finished a substantial LCIA arbitration concerning gas supply contracts.   He has very good knowledge of drilling, mining and other natural resource exploration/exploitation contracts.

Recent examples of work

Acted for an English PLC in a US$2bn LCIA arbitration relating to the sale of shares in various (gold, and other precious metal) mining companies. The case raised numerous interesting points of construction of the sale & purchase agreements, which are in fairly standard form, and of mining joint venture agreements, and various questions of Indonesian law.

Successfully led a team including 4 other counsel (including a junior silk) in a 3 days preliminary issue hearing and then 5 weeks substantive hearing, involving over 20 factual and expert witnesses, concerning a $500m+ dispute arising out of the construction and delivery of semi-submersible drilling rigs from Chinese to Brazilian interests. Difficult questions arose as to whether, and if so on what basis, the buyers could claim massive losses allegedly suffered under drilling contracts by reason of late delivery.

Acted for the buyers in a substantial ICC arbitration relating to a long-term contract for the supply of gas from Peruvian fields.

Acting in a very substantial, accelerated, $500m+ arbitration dispute concerning the cancellation of oil rig drilling and construction contracts.

Acting in a $100m ICC dispute relating to the construction of a windfarm of the English Coast.

Insurance

Michael has significant recent experience in relation to marine and cargo insurance. He has recently acted successfully for assureds in the Commercial Court and Court of Appeal following total loss of ships, and won an important recent case concerning "follow clauses", which is of significance to the insurance markets generally.  He is very familiar with coverage disputes and issues relating to non-disclosure and misrepresentation. He acted recently for brokers in two complex multiparty litigation cases arising out of cargo insurance policies, giving rise to numerous coverage issues, allegations of non-disclosure and aspects of French insurance law.  He has acted in several insurance claims arising out of the loss of superyachts.  He is currently advising an oil major in relation to $1bn claims in the commercial court under CAR policies relating to a MOPUstor project on the Norwegian Continental Shelf.

Recent examples of work

"The Renos" [2016] Lloyd’s Rep. Plus 59.  Acting for various insurers in a substantial marine insurance case ($17m claim) arising out of the alleged constructive total loss of a ship. The case gives rise to fundamentally important questions relating to the proper meaning and effect of various provisions of the Marine Insurance Act, which are of general application in relation to any marine insurance dispute, including as to whether costs incurred prior to service of a notice of abandonment and/or SCOPIC salvage costs can rank towards a CTL. Michael is currently seeking permission to take this important case to the Court of Appeal.

"The St Efrem" [2014] 2 Lloyd's Rep. 265. Acted successfully for the assured in a case concerning the proper interpretation of a "follow clause" in an insurance policy. The decision of Teare J is of wide importance and will apply in relation to any insurance contracts (not only marine insurance contracts) that contain a "follow the settlements" or "follow the leader clause".  

The Alexandros T [2014] 1 Lloyd's Rep. 223, [2013] 1 Lloyd's Rep. 217. Acted with Iain Milligan QC and Luke Pearce in this heavy, multi-party, insurance dispute before the Court of Appeal and the Supreme Court. The case involved points of fundamental importance concerning the lis pendens provisions of the Judgment Regulation, which apply in all civil and commercial matters that involve a European element. The case is the leading authority on the proper interpretation of Arts 27 and 28 of the Judgments Regulation. It also involved important questions as to the scope of jurisdiction clauses in the underlying insurance contracts and the proper interpretation and true effect of the settlement agreement that was concluded between some, but not all, of the parties involved.

Quadra Commodities v. Various Insurers & Filhet-Allard Maritime. Acted for Filhet-Allard Maritime (French insurance brokers) in two substantial ($10m+ each) multi-party disputes arising out of cargo insurance policies relating to soybeans that suffered damage or were misappropriated in Indonesia. The claims against my clients were for professional negligence and/or breach of mandate. The cases involved complex issues of English and French insurance law. Both cases proceeded very close to trial, but were eventually settled on very favourable terms for my clients following a substantial mediation.  

Garnat Shipping & Trading Ltd v Baominh Insurance Corporation [2011] 2 Lloyd's Rep. 492 (Court of Appeal)  [2011] 1 Lloyd's Rep. 589 (Clarke J).  Acted successfully for the assured in this substantial dispute relating to the total loss of a floating dock due to an encounter with a tropical storm while under towage to Vietnam. The dispute concerned numerous allegations of breach of warranty and alleged non-disclosure of material facts, all of which were rebutted.

Michael has been involved in several confidential arbitrations relating to various different types of insurance/reinsurance, including marine (hull and cargo) liability, property, financial and political risks.

Education and Career: 

Magdalen College, Oxford University - BA, BCL Senior MacKinnon Scholar.

Gray's Inn, major scholarship.

Appointments and Society Memberships: 

  • COMBAR
  • Member of the MOOGAS Panel of International Arbitrators and Mediators

Quotes: 

"A creative, determined and laterally thinking advocate". Legal 500 2016 (Energy)

 "An outstanding lawyer and advocate; he works extremely hard and clients love him." Legal 500 2016 (International Arbitration)

He is always very well prepared and presents arguments in a clear and understandable way.’ Legal 500 2016 (Shipping)

A technically proficient and highly esteemed silk with a huge following in shipping law.” Chambers 2016 (Shipping and Commodities)

"He has a very clear, succinct way of putting the case in a way that's understated but extremely powerful." Chambers 2016 (Shipping and Commodities)   

A highly intelligent and consistently excellent advocate with a superb grasp of detail.” Legal 500 2015 (Commodities)

Very bright, hardworking and good under pressure, with a natural style of advocacy.” Legal 500 2015 (International Arbitration)

Devastatingly good.” Legal 500 2015 (Shipping)

Respected for his knowledge of civil fraud issues.” Legal 500 Asia Pacific 2016 (International Commercial Arbitration)

"He is a brain on legs who has a very succinct way of putting things." "He gets into the detail and masters the papers impeccably." Chambers UK Bar 2015

"One of the leading lights in complex commodities disputes." "Meticulous" "A very bright barrister, who works exceptionally hard." Legal 500 2014

"He is hard-working, has excellent drafting skills, and is persuasive." "A young QC with a very sharp mind and a good reputation." "He is good under time pressure and very easy to work with." Chambers UK Bar 2014