Michael Tselentis QC

SC (South Africa), BA, LLB (Cape Town), BCL (Oxford), FCIArb, FSIArb, FAArb (SA), Chartered Arbitrator (UK)

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Michael Tselentis QC was called to the Bar of England and Wales by Gray's Inn in November 1995, and was appointed Queens' Counsel in 2003, and a Bencher of Gray's Inn in 2008. He practices as a Barrister and Arbitrator in a broad commercial field which includes complex contractual disputes, insurance, shipping, commodities and international trade, mining and energy, engineering and construction, banking and professional negligence.

He is also an Advocate of the High Court of South Africa (admitted to practice in 1978 and appointed Senior Counsel in 1989), and practised at the Johannesburg Bar where he was a leading commercial silk, from 1978 to 2000. In 1993-1994 he was the Chairman of the Johannesburg Bar. Although he no longer maintains chambers in Johannesburg, he remains a member of the Johannesburg Bar, and advises in London on all aspects of South African commercial, insurance, mining and construction law. He also accepts appointments as an expert witness on South African law in Court proceedings and arbitrations.

In addition to his practice as a Barrister, he regularly accepts arbitration appointments in international commercial disputes. He is a Chartered Arbitrator (UK), and a Fellow of the Chartered Institute of Arbitrators (UK), the Singapore Institute of Arbitrators, the Australian Centre for International Commercial Arbitration, the Association of Arbitrators (Southern Africa), and the Botswana Institute of Arbitrators. He is a member of the ICC (UK), the LCIA, ARIAS (UK) and a supporting member of the LMAA.

His panel memberships include the Singapore International Arbitration Centre, Dubai International Arbitration Centre, Chinese European Arbitrators' Centre, Arbitration Foundation of South Africa, Cairo Regional Centre for International Commercial Arbitration, Chicago International Dispute Resolution Association, British Columbia International Commercial Arbitration Centre, Mauritius Permanent Arbitration Court, Vancouver Maritime Arbitrators' Association, and the Piraeus Association for Maritime Arbitration.

Specialisations: 

  • International Arbitration
  • Commercial law
  • Shipping
  • Commodities/International Trade
  • Mining and Energy
  • Construction and Technical
  • Insurance
  • Contract and Unjustified Enrichment

Principal Cases: 

International Arbitration

An arbitration under UNCITRAL Rules before a London Tribunal between the operator of an oil and gas plant in Kazakhstan and a contractor, which raised issues relating to the proper performance of welding work on small-bore piping, quantification of loss and damage, and VAT liabilities under the laws of Kazakhstan.

An arbitration before a London Tribunal between the main contractor and a sub-contractor in respect of the design and installation of sub-sea flow-lines in an oil and gas field off the South African coast, the conversion of an oil tanker into an FPSO, and its installation on site.

Expert determination proceedings before an Australian QC under the laws of Western Australia between a leading mining house and commodity trader arising from an economic hardship clause in an iron ore supply contract and the collapse of the iron ore market in 2008.

An arbitration before a London Tribunal between the national shipping corporations of Iran and Azerbaijan, arising from a joint shipping venture in the Caspian Sea and the break-up of the Soviet Union.

Two arbitrations under ICC Rules before Singapore Tribunals on behalf of the Claimants, operators of pulp and paper and electricity generation plants in Thailand who sought substantial damages from the designers/suppliers of biomass-fuel fluidised bed power boilers on the grounds of defective design and negligent erection supervision.

Shipping

Current arbitration proceedings in Hong Kong between Owners and Time-Charterers of a bulk carrier which sank, allegedly as a result of a shifting fluorspar cargo.  

A recent LMAA shipbuilding arbitration, relating to the design of the tanktops of a bulk carrier.

Two arbitrations before LMAA Tribunals between disponent owners and charterers arising from sulphur corrosion damage to the holds of bulk carriers.

A number of arbitrations before LMAA Tribunals relating to disputes under demise, time, and voyage charters.

Seawind Tankers Corporation v Bayoil SA [1999] 1 Lloyd's Rep. 211 (CA): whether winding up proceedings competent on the basis of claims for freight and diversion expenses notwithstanding cross-claims for damages.

Macieo Shipping Ltd v. Clipper Shipping Lines Ltd ("The Clipper Sao Luis") [2000] 1 Lloyds Rep. 645: fire damage to cargo; liability for negligence of stevedores.

(As sole arbitrator) a tripartite dispute between disponent owners of a bulk carrier, the demise charterers, and the sellers of a cargo of coal, arising from the loading of hot coal and a consequent methane explosion on the vessel.

Commodities/International Trade

Marine Trade SA v Pioneer Freight Futures Co Ltd & Armada Singapore Pte Ltd [2009] EWHC 2656 (Comm)--derivatives (forward freight agreements) and construction issues relating to the 1992 ISDA Master Agreement.

An arbitration before a London Tribunal between a leading commodity trader and the governmental purchasing agency of a European country relating to alleged breach of contract and fraud in respect of 32 cargoes of crude oil.

North Sea Energy Holdings BV v Petroleum Authority of Thailand [1999] 1 Lloyd's Rep. 483 (CA): disputes under a crude oil supply agreement and claim for damages on the basis of a "loss of chance".

Toepfer v Societe Cargill [1998] 1 Lloyd's Rep. 379 (CA): anti-suit injunctions.

Savage and Lovemore Mining (Pty) Ltd v International Shipping Co (Pty) Ltd 1987 SA (2) SA 149 (W): conformity of shipping documents presented under CIF sales of steam coal and effect of contravention of statutory export control scheme on seller's right to recover the purchase price.

Fontana Holdings (Pty) Ltd v Chiavelli (South Africa, unreported): claim for commission moneys arising from the alleged supply of crude oil to the SA Govt in breach of UN sanctions.

Mining and Energy

 He advised extensively on precious metal and base mineral rights disputes while in practice in South Africa, and held general retainers from the Anglo American Corporation, De Beers Mining Corporation, and their subsidiary and associated companies.

He continues to advise on South African mining law issues in London, with particular reference to the implications and effect of the Mineral and Petroleum Resources Development Act, 2002, under South African and international law.

He was retained by the Claimants in Piero Foresti v The Government of the Republic of South Africa [BIT case under ICSID Rules, 2008-2010] as an expert witness on South African mining law.

He was the leading counsel for Impala Platinum in their high-profile dispute with the Royal Bafokeng Nation which challenged Impala's rights to mine platinum group metals in Bophuthatswana, in the period 1996-1999 (Bafokeng Tribe v Impala Platinum Ltd and Others 1999 (3) SA 517 (BH)). He was also a member of Impala Platinum's legal team in the 1988-1989 litigation with the Royal Bafokeng Nation (Bafokeng Tribe v Impala Platinum Limited and Others, High Court of Bophuthatswana Judgment delivered on 30 May 1989).

Vansa Vanadium v Registrar of Deeds 1997 (2) SA 784 (T): validity and registrability of prospecting contracts.

The Rand Water Board v The Far West Rand Dolomitic Water Association and Western Areas Gold Mining Company (unreported, 1991): liability for the consequences of dewatering underground dolomitic compartments and claim for compensation by the holder of the water rights.

Amcoal Collieries Ltd v Truter 1990 (1) SA 1 (AD): requirements for the valid exercise of an option to acquire coal rights.

National Union of Mineworkers v Govt Mining Engineer 1990 (2) SA 638 (W): judicial review of enquiry into a mining accident.

Kloof Gold Mining Co Ltd v Mining Commissioner, Johannesburg 1981 (4) SA 509 (T): conditions of grant of surface right permits.

Construction/Technical

See also under International Arbitration

Escom v Ove Arup and Futurus (Pty) Ltd (unreported, South Africa): claims for damages against the consulting engineers/designers and contractor of the Matla Power Station and the contractor arising from the collapse of a flue within a windshield, and the consequent demolition of the extraction tower.

A number of South African High Court trial actions (unreported) relating to the arson of commercial premises, hotel fires, and flooding of commercial premises as a result of road construction activities.

Insurance

Advised in a number of insurance disputes involving South African and UK insurers/insureds under both English and South African law, including asbestosis and silicosis claims.

Two arbitrations between the insured interests and underwriters of aircraft hull and liability policies arising from aircraft accidents.

Connolly v National Aviation Insurance Brokers (1983) (Pty) (Ltd) 1990 (1) SA 904 (W): insurance brokers' duties in respect of the on-payment of insurance premiums.

Incorporated General Insurance Ltd v Shooter t/a Shooter's Fisheries 1987 (1) SA 842 (AD): "arrest, restraints and detainments of all kings, princes and people" clause in a policy of marine insurance.

Bethlehem Exports Ltd v Incorporated General Insurance Ltd 1984 (3) SA 449 (W): burden of proof of loss under marine insurance cover.

HB Farming Estates (Pty) Ltd v Legal and General Assurance Society Ltd 1981 (3) SA 129 (T): principles of construction of policies of insurance.

Contract and Unjustified Enrichment

First National Bank v Lynn 1996 (2) SA 339 (AD): assignability of future and contingent rights.

Frank R Thorold (Pty) Ltd v Estate late Alfred Beit 1996 (4) SA 705 (AD): re-opening of bidding at public auctions.

Klein N.O. v SA Transport Services 1992 (3) SA 509 (W): requirements for unjustified enrichment claims under the condictio indebiti.

Standard Credit Corporation v Jot Motors 1986 (1) 223 (AD): unjustified enrichment and improvement liens.

Plaaslike Boeredienste v Chemfos: 1986 (1) SA 819 (AD): the effect of bribery on contractual obligations.

Hirshowitz v Moolman 1985 (3) SA 739 (AD): rights of pre-emption in respect of land.

Pilkington Brothers v Lillicrap Wassenaar and Partners 1985 (1) (SA) 475 (AD): concurrence of contractual and tortuous remedies for pure economic loss.

Other Commercial Cases

Cameroon Airlines v Transnet Ltd [2004] EWHC 1829 (Comm): Arbitration Act, 1996, Section 68.

Ex parte De Villiers: In Re Carbon Developments (Pty) Ltd 1993 (1) SA 493 (AD): schemes of arrangement under the South African Companies Act, subordination agreements and personal liability of company directors.

Incorporated General Insurance v Cement Distributors 1990 (1) SA 132 (AD): schemes of arrangement under the South African Companies Act.

Banco Commercial de Angola v Banco Popular de Angola (unreported, South Africa): recognition and effect in South Africa of Angolan legislation for the nationalization of Portuguese commercial enterprises, and continuity of legal personality notwithstanding changes in sovereignty.

Reiss Engineering Co v Insamcor 1983 (1) SA 1033 (W): requirements for the recognition and enforcement of foreign judgments.

Transvaal Alloys (Pty) (Ltd) v Polysius (Pty) (Ltd) 1982 (3) SA 630 (T): requirements for the stay of legal proceedings in favour of arbitration.

BS Beira v The Government of Bophuthatswana (unreported, South Africa): a claim for substantial damages against the Boputhatswana Government for breach of an alleged concession to establish a national airline and insurance company in Bophutatswana.

An arbitration between the trustees and beneficiaries of a family trust with substantial farming and horse-breeding assets arising from the alleged maladministration of the trust.

An arbitration and associated High Court proceedings between the shareholders of mining companies in Namibia, arising from disagreements as to the management of the companies and assets.

Other reported cases (South African Appellate Division)

Jowell v Bramwell-Jones 2000 (3) SA 274 (SCA): fiduciary duties of trustees and liability of advisors to trustees for professional negligence.

Cohen v Roetz 1992 (1) SA 629 (AD): inheritance rights of adopted children.

Langley Fox Building Partnership v De Valence 1991 (1) SA 1 (AD): vicarious liability for the negligence of independent contractors.

Dantex Investment Holdings v National Explosives 1990 (1) SA 736 (AD): the status of claims of assignees under factoring agreements on the insolvency of the assignor.

Barclays National Bank Ltd v Thompson 1985 (3) SA 778 (AD): the effect of Exchange Control Regulations on rights to sue.

Braun v Blann 1984 (2) SA 850 (AD): the validity of discretionary trusts.

Joint Liquidators of Glen Anil v Hill Samuel (SA) Ltd 1982 (1) SA 103 (AD): the concept of "debt" and the validity of preferences under South African insolvency legislation.

Skjelbreds Rederi A/S v Hartless (Pty) Ltd 1982 (2) SA 710 (AD): attachments to found jurisdiction on the strength of assigned claims.

Arbitration Appointments: LCIA

Sole arbitrator appointed by the LCIA: dispute relating to a crude oil supply contract and related agreements.

Sole arbitrator appointed by the LCIA: disputes relating to loan and guarantee agreements.

Party-appointed Tribunal member: dispute between Swiss and Indonesian interests relating to coal supply contracts.

LCIA-appointed Tribunal member: dispute between commodity traders and the Swaziland Sugar Corporation arising from contracts to supply ethyl alcohols.

Sole arbitrator appointed by the LCIA: dispute between a USA corporation and a Jordanian national of a Middle Eastern country in respect of a contract for the construction of water reticulation works in Jordan.

Sole arbitrator appointed by the LCIA: dispute under a distributorship agreement relating to medical diagnostic equipment between Netherlands and Kuwaiti interests.

Sole arbitrator appointed by the LCIA: dispute between South African and Israeli interests arising out of joint venture and shareholders' agreements for the manufacture of automotive components.

Arbitration Appointments: ICC

Tribunal Chairman appointed by the ICC: disputes under a regional distribution agreement for computer software.

Party-appointed tribunal member: dispute relating to a diesel supply contract.

Party-appointed tribunal member: dispute between USA and South African interests relating to intellectual property rights in military equipment.

Party-nominated tribunal member: dispute between SABMiller and Heineken Group under a trademark licence agreement relating to the production of Amstel lager in Southern Africa.

Party-nominated tribunal member: dispute between Romanian and South African interests under a contract governed by French law for the manufacture and marketing of motor vehicles.

Sole arbitrator appointed by the ICC: dispute between Israeli and Dutch interests arising from a commercial venture in Eastern Europe.

ICC-appointed Tribunal member: dispute between a UK corporation and the government of an African country under an agreement to render pre-shipment customs inspection verification services.

Arbitration Appointments: LMAA

Chairman: shipbuilding dispute between USA and Singaporean interests.

Sole arbitrator: tripartite dispute between disponent owners of a bulk carrier, the demise charterers, and the sellers of a cargo of coal, arising from the loading of hot coal and a consequent methane explosion on the vessel.

Arbitration Appointments: ad hoc/other

Sole arbitrator appointed by the parties: ad hoc arbitration between UK and Canadian interests arising from contractual, accounting and tax disputes under a contract for the sale of shares in a platinum group metals processing venture.

Sole arbitrator appointed by the parties to determine disputes between the SA oil and gas parastatal, Sasol, and the major petroleum companies operating in the SA market arising out of agreements for the manufacture and marketing of petroleum products.

Sole arbitrator appointed by the parties: dispute between South African and Botswana interests relating to the exploitation of forestry reserves.

Sole arbitrator appointed by the London Commercial Court under the Arbitration Act, 1996 in two arbitrations (heard concurrently) between the government of a West African country and a Korean corporation relating to contracts for the supply of heavy equipment.

Member of an Arbitration Society of South Africa Appeal Panel in a dispute under special risks insurance arising from forest fires.

Sole arbitrator appointed by the parties: dispute adjudicated under Arbitration Society of South Africa rules relating to the preparation and implementation of closing date accounts in respect of the sale of a South African supermarket group.

Education and Career: 

BA (distinction), LLB (first class honours) (University of Cape Town), 1971. Rhodes Scholar, 1973. BCL (first class) (Magdalen College, Oxford University), 1975. Lecturer in law at South African Universities, 1972-3, 1975. Advocate of the SA High Court, 1978. Senior Counsel, South Africa, 1989. Acting Judge, SA High Court, 1992. SA Rules Board for Courts of Law, 1989-1992. Johannesburg Bar Council, 1991-1995; Chairman, 1993-4. SA Bar Examination Board 1992-4. Called to the Bar of England and Wales by Gray's Inn, 1995. Queen's Counsel, 2003. Bencher of Grays Inn, 2008. Chartered Arbitrator, 2008.

Appointments and Society Memberships: 

  • Commercial Bar Association (COMBAR)
  • Technology and Construction Bar Association (TECBAR)
  • London Maritime Arbitrators' Association (LMAA) (supporting member)
  • British Insurance Law Association (BILA)
  • South African Maritime Law Association
  • Chinese-European Legal Association (CELA)
  • Witwatersrand Society of Advocates
  • ARIAS ( UK)

Lectures and Teaching: 

Recent publications and conference papers:

Singapore Chapter in "Arbitration World", 3rd Edition, (2010) (co-author)

"International Commercial Arbitration and the Southern African Development Community" Advocate, August 2009.

"Adapting the UNCITRAL Rules of Arbitration for Regional Needs-Problems and Solutions" (Conference held in Mauritius in April 2007 under the auspices of the Mauritius Chamber of Commerce and the Arbitration Foundation of South Africa).

"Criteria for Investment, with Particular Reference to Dispute Resolution" (ibid).

"Post-Contractual Good Faith" (20 Essex Street Insurance Law Conference, May 2007).

Quotes: 

Recommended as a QC in Energy by The Legal 500 which comments that "he is praised for the breadth of his knowledge in this field"; Energy and Natural Resources by Legal Experts; Energy and Natural Resources by Chambers and Partners (2010) which comments that "he is lauded for his incredible eye for detail and astonishing levels of analysis"; and International Arbitration by Chambers and Partners (2003-2007), which comments that "he has carved out a reputation for excelling in highly technical cases, whether in insurance, shipping, commodities, international trade or construction and engineering sectors. He has a South African background and is particularly knowledgable in all aspects of commercial law for that jurisdiction" (2005 edition).

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