Maritime Arbitration Beyond the Award

The XXIII International Congress of Maritime Arbitrators (ICMA), held in Singapore from 22 to 27 March 2026, brought together maritime arbitrators, lawyers and industry practitioners from around the world.

Rather than attempting to summarise the Congress, I have selected several themes that particularly stood out to me. Taken together, they reflect a broader development in the way international maritime disputes need to be approached.

One of my principal takeaways from ICMA XXIII was that maritime arbitration can no longer be viewed simply as a process of establishing which party is legally right and obtaining an award. Contract drafting, jurisdiction, evidence, sanctions, procedural strategy and, ultimately, the ability to enforce an award increasingly form part of a single continuum.

Winning the legal argument and achieving the commercial result are not necessarily the same thing.

From merits to recovery

An arbitral award establishes the parties' legal rights and obligations. It does not, by itself, ensure recovery.

Between obtaining an award and receiving payment there may be considerable distance. Assets may be located in different jurisdictions, enforcement may encounter procedural obstacles, banking channels may be restricted, and sanctions may affect counterparties, assets or payments.

This changes the way an international maritime dispute should be approached. Enforcement should not necessarily be considered only after the award has been rendered. The location of assets, availability of security and realistic prospects of recovery may need to be considered at a much earlier stage.

In some transactions, these considerations properly begin before any dispute exists.

Jurisdiction begins with the contract

Another important subject discussed in Singapore was jurisdiction.

A strong case on the merits is of limited value if the tribunal ultimately has no jurisdiction to decide it.

This has particular significance in maritime business. Contracts are frequently concluded through fixture recaps, exchanges of emails, standard forms and incorporated terms. Bills of lading may incorporate charterparty provisions; contractual rights may be transferred; and questions may subsequently arise as to who is bound by an arbitration agreement and which disputes fall within its scope.

The practical lesson is straightforward:

The arbitration clause is not boilerplate.

Its wording, incorporation and relationship with the wider contractual structure may ultimately determine whether the substantive dispute can be heard at all.

Drafting as risk allocation

A contract records a commercial agreement. It also allocates risk.

A contract records a commercial agreement. It also allocates risk.

Currency of payment, sanctions clauses, force majeure provisions, governing law, arbitration agreements and mechanisms for performance may appear secondary while the parties are focused on concluding the transaction. Their significance often becomes apparent only when circumstances change.

Commercial agreements are not normally negotiated with a future dispute as their principal objective. The parties want to conclude a fixture, sell a vessel, transport cargo or perform another commercial transaction. Frequently, these commercial decisions are made without the involvement of either in-house or external lawyers.

That is entirely natural.

But when a dispute subsequently arises, words agreed for commercial purposes are examined with legal precision.

Good drafting cannot eliminate commercial risk. It can, however, make much clearer who agreed to bear it.

Force majeure: difficulty is not impossibility

Force majeure remains particularly important in an environment affected by geopolitical disruption, sanctions and changes in international trade.

An important distinction is that between performance becoming more difficult and performance becoming legally or contractually excused.

Increased cost, logistical complications or the need to consider an alternative means of performance do not, without more, release a party from its contractual obligations. Much depends upon the precise wording of the relevant clause, the event relied upon and the causal connection between that event and the alleged prevention or delay of performance.

The question is therefore rarely answered simply by identifying an external event.

The contractual test still has to be satisfied.

Sanctions: contractual obligation and regulatory risk

Sanctions were inevitably among the prominent subjects discussed in Singapore.

Their significance for maritime trade extends far beyond individual disputes. Sanctions may affect payments, insurance, financing, ownership structures, ports, cargoes and the ability of parties to perform otherwise valid contractual obligations.

What makes sanctions particularly difficult is that they do not invariably make performance objectively impossible. They may instead alter the legal and commercial risk surrounding performance.

A party may therefore find itself between its contractual obligation to perform and the regulatory consequences which it considers performance may entail.

Two English cases illustrate different aspects of that problem.

The Catalan Sea

At the time of ICMA XXIII, The Catalan Sea was particularly interesting for the High Court's consideration of an owner's reliance on a sanctions clause and the evidential basis required for assessing sanctions exposure.

The dispute concerned a voyage charter for the carriage of Russian-origin oil. The owners declined to load after sanctions screening raised concerns regarding the proposed shipper and its association with a sanctioned individual. The High Court concluded that, on the facts before it, the owners were not entitled to rely upon the sanctions clause.

The legal position subsequently developed.

On 22 May 2026, after ICMA XXIII, the Court of Appeal allowed the owners' appeal and dismissed the charterers' cross-appeal. The clause permitted the owners to refuse an order which, “in the reasonable judgment of the Owners”, would expose them or specified associated persons to sanctions.

Importantly, the Court of Appeal did not require the owners to establish that sanctions liability was more likely than not. The relevant question was whether their judgment that performance created a real risk of sanctions exposure was objectively reasonable. On the facts, the Court held that it was.

The decision gives substantial practical effect to a properly drafted sanctions risk-avoidance clause, while stopping short of giving owners an unrestricted right to refuse performance whenever sanctions concerns arise.

It also illustrates a wider point: sanctions risk can itself be allocated by contract. The precise wording of the clause may determine who is entitled to assess that risk, the standard by which that assessment is judged, and the contractual consequences that follow.

MUR Shipping BV v RTI Ltd

MUR Shipping approached sanctions-related contractual performance from another direction.

The contract required payment in US dollars. Following US sanctions imposed on RTI's parent company, RTI proposed payment in euros, undertaking to bear the costs of conversion so that MUR would receive the equivalent contractual amount.

The issue ultimately before the UK Supreme Court was whether a contractual obligation to exercise reasonable endeavours to overcome a force majeure event required MUR to accept that non-contractual method of performance.

The Supreme Court unanimously held that it did not. Reasonable endeavours were directed towards securing contractual performance; absent sufficiently clear wording, they did not require a party to give up its contractual right to performance in the agreed currency.

The significance of the decision extends beyond sanctions.

An obligation to take reasonable steps to overcome an impediment does not ordinarily require a party to surrender its contractual rights by accepting non-contractual performance.

Taken together, The Catalan Sea and MUR Shipping demonstrate the continuing importance of contractual wording when sanctions disrupt performance.

Commercial inconvenience, sanctions risk and legal impossibility are not interchangeable concepts.

The contract remains the starting point.

Sanctions as part of commercial risk

The discussions in Singapore also illustrated the wider consequences of sanctions for international shipping.

Restrictions imposed in one jurisdiction may interact with counter-sanctions, blocking measures or other regulatory requirements elsewhere. Banking, insurance and shipping arrangements may therefore expose parties to different — and occasionally conflicting — legal regimes.

Sanctions are no longer an exceptional issue relevant only to a narrow category of transactions. They have become part of the commercial environment in which international shipping operates.

The practical consequence is that sanctions should increasingly be considered not merely after a problem has arisen, but as part of contractual and transactional risk assessment.

AI: a tool, not a substitute for judgment

Artificial intelligence was another subject that generated considerable discussion.

Its practical use in legal work is no longer theoretical. AI can assist with document review, research, contract analysis, drafting and the processing of large volumes of information.

The benefits are obvious: speed and efficiency.

The risks are equally real. Incorrect authorities, inaccurate interpretation and fabricated references remain serious concerns. More fundamentally, excessive reliance upon AI can obscure the reasoning by which a legal conclusion has been reached.

My own takeaway is simple:

AI can assist professional judgment. It cannot replace it.

For arbitrators, this distinction is fundamental. Responsibility for understanding the evidence, applying the law and deciding the dispute entrusted to the tribunal remains personal.

Technology may change the tools. It does not transfer that responsibility.

Evidence, data and causation

Technological development is also changing the evidential landscape of maritime disputes.

Modern vessels and shipping operations generate substantial quantities of technical and operational data. Navigation records, machinery information and other digital evidence may allow events to be reconstructed with a degree of precision that would previously have been impossible.

But the opposite is equally important.

Where reliable evidence is unavailable, a tribunal may be unable to determine precisely what occurred. Questions concerning the burden of proof and causation may then become decisive.

This is particularly evident in marine insurance disputes, where the issue is often not simply whether an event occurred, but which event legally caused the loss and whether that cause falls within the cover provided.

The preservation and quality of evidence can therefore become important long before an arbitration begins.

Security and ship arrest

A successful claim has limited commercial value if there are no assets against which an eventual award can realistically be enforced.

In maritime disputes, ship arrest remains one of the most effective means of obtaining security. But arrest should not be considered in isolation merely as a procedural step.

The availability of a vessel, the jurisdiction in which she may be arrested, the nature of the maritime claim, ownership, competing creditors and the form of security available can all affect the practical value of an arrest.

Security therefore forms part of the broader strategy of a dispute.

Enforcement as part of the strategy

This brings the discussion back to where it began: enforcement.

ICMA XXIII included consideration of different routes by which arbitral awards may ultimately be recognised and enforced and of the interaction, in appropriate circumstances, between arbitral and court proceedings.

There is no universally preferable enforcement route. The appropriate strategy depends upon the award, the debtor, the location of assets and the jurisdictions concerned.

The broader point is nevertheless clear:

Enforcement strategy should not begin when the award arrives.

Where recovery may be difficult, it should form part of the analysis considerably earlier.

A broader view of maritime arbitration

My principal takeaway from ICMA XXIII is not that maritime arbitration has fundamentally changed its purpose.

Its essential purpose remains the fair and independent resolution of the dispute entrusted to the tribunal.

What has changed is the environment surrounding those disputes.

International shipping operates within an increasingly complex interaction of contractual obligations, regulation, sanctions, technology, evidence, insurance and cross-border enforcement. An arbitration cannot always be understood properly if those elements are considered separately.

For parties and their lawyers, this calls for a broader approach to dispute strategy — one that begins with the contract and the facts, considers evidence, security and enforcement sufficiently early, and does not lose sight of the ultimate commercial objective: obtaining an effective result.

For arbitrators, the essential responsibility is more fundamental:

to understand the dispute placed before them, to assess the evidence and the parties' arguments independently, and to resolve the dispute fairly in accordance with the parties' agreement and the applicable law.

That responsibility remains unchanged, irrespective of how the commercial, regulatory and technological environment surrounding maritime arbitration develops.