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Vol 23 No 5 May/June 2018

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Drafting Commercial Agreements

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Refund Guarantees

ISBN13: 9780415833677
Published: April 2015
Publisher: Informa Law from Routledge
Country of Publication: UK
Format: Hardback
Price: £260.00

In stock.

A refund guarantee is an essential component of almost every shipbuilding project, without which the buyer will be unwilling or unable to proceed.

There is no standard form of refund guarantee in universal usage, and both the form and substance of refund guarantee instruments vary widely from case to case. The ambiguity or uncertainty of the meaning of refund guarantee instruments, against a backdrop of a sharp downturn in the shipping markets, has led to numerous disputes in recent years concerning refund guarantees, which have been the subject of a number of important decisions of the English Courts.

This is the first English law text book dedicated to the subject of refund guarantees. It provides essential guidance as to the issues arising and the pitfalls to be avoided. It analyses the specimen form of guarantee annexed to Bimco’s NEWBUILDCON form, and covers topics such as the circumstances in which the liability of the guarantor may be discharged, and when a builder may be entitled to obtain an injunction to restrain payment under a refund guarantee.

It will be an essential and practical guide for those engaged in the shipbuilding industry, including shipbuilders, shipowners, banks and insurance companies, P&I clubs, and those advising them.

Shipping, Transport and Maritime Law
2.Definitions and characteristics
3.Contractual and statutory requirements
5.Aids to construction of demand instruments and guarantees
6.Presumption against the imposition of primary liability
7.Authority of signatory
8.Local approvals
9.The BIMCO NEWBUILDCON – Standard Newbuilding Contract –
Part II, Annex A (iii) Refund Guarantee
b.Clause 1 Definitions
c.Clause 2 Guarantor’s Obligation
d.Clause 3 Indulgence, delay, amendment or variation
e.Clause 4 Duration
f.Clause 5 Dispute
g.Clause 6 No counterclaim or set-off
h.Clause 7 Currency
i.Clause 8 Assignment
j.Clause 9 Governing law and jurisdiction
k.Clause 10 Notices
l.Clause 11 Immunity
m.Clause 12 - 14 Approvals and authorisations

10.Guarantees issued on behalf of the buyer
11.Guarantees issued on behalf of the builder
12.Parent guarantees and letters of comfort
13.Assignment and novation
14.Material variation of the underlying contract
15.Anti-discharge provisions
16.Discharge of the surety
17.Vitiating elements in the contract of suretyship
18.Making demand
19.Restraining payment
20.Enforceability of an English Court judgment / London arbitration award.