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attendance-note-set-aside-hearing.docx DOCUMENT Finance & Banking

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PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT

CALDERWOOD & HARKNESS LLP 45 Moorgate, London EC2R 6AR, United Kingdom

INTERNAL ATTENDANCE NOTE

Time Recording Note: Entries to be posted separately under the relevant matter phase code. Total estimated attendance time is approximately 5.5 hours per fee-earner (including pre-hearing preparation at court, the hearing itself, and post-hearing discussion with counsel). Individual breakdowns are set out in Section 10 below.

1. Nature of the Hearing

This note records the attendance at the hearing on 11 October 2024 of the application by Korinthian Maritime Holdings Ltd. ("KMH" or the "Applicant") to set aside LCIA Award No. 224718 dated 28 June 2024 (the "Award"). The application was dated 19 August 2024 and was brought under sections 68 and 69 of the Arbitration Act 1996 (the "Act").

The Award was rendered by the tribunal comprising Sir Malcolm Fenton-Clarke (Presiding Arbitrator), Professor Athena Drakopoulos, and Dr. Henrik Dalmqvist, with Fiona Beckett acting as Tribunal Secretary, in LCIA Arbitration No. 224718. The Award was made in favour of Thalassa Shipping & Logistics SA ("TSL" or the "Respondent" to the application) in the total amount of £96,450,000 in respect of the substantive claims, together with an award of costs in the sum of £12,150,000, yielding a grand total of £108,600,000.

Permission to enforce the Award as a judgment of the Commercial Court pursuant to section 66 of the Act had previously been granted by Mr. Justice Ashworth on 2 August 2024. A Worldwide Freezing Order ("WFO") had been obtained ex parte on 16 July 2024 and was continued with modifications at the return date hearing on 30 July 2024. The WFO remained in force at the time of today's hearing and continues in force as of the date of this note, restraining KMH from dealing with or diminishing the value of its assets worldwide up to the value of £108,600,000.

The hearing therefore concerned the last remaining procedural obstacle to the full enforceability of the Award in England and Wales.

2. Parties' Representation

The parties were represented at the hearing as follows:

For the Applicant (KMH):

Catherine Whitford, Partner, Harkness Whitford & Co. (SRA No. 614823), 12 Fetter Lane, London EC4A 1JP. Ms. Whitford attended with James Thornbury, Associate at the same firm. Ms. Whitford conducted all of the advocacy on behalf of KMH.

It should be noted that Richard Harkness, Senior Partner of Harkness Whitford & Co., was not present at the hearing. This is worthy of remark because Mr. Harkness has been the principal point of contact for KMH throughout the enforcement proceedings and was present at the return date hearing on 30 July 2024. His absence today was unexplained, and Ms. Whitford made no reference to it.

For the Respondent to the Application (TSL):

Samuel Eklund, Responsible Partner, Calderwood & Harkness LLP, 45 Moorgate, London EC2R 6AR. Mr. Eklund attended with Hannah Brinkley, Lead Associate, and Patrick Gallagher, Working Associate, both of this firm. Mr. Eklund conducted all of the advocacy on behalf of TSL.

3. Pre-Hearing Matters

The hearing had been listed for 10:30 a.m. in Court 8 of the Rolls Building and was estimated for one full day. The hearing commenced promptly at approximately 10:35 a.m., following a brief delay while the usher confirmed the readiness of both parties.

At the outset of the hearing, Mr. Justice Ashworth confirmed that he had pre-read the following materials:

(a) the skeleton arguments filed by both sides;

(b) the witness statement of Nikolaos Papadimitriou, Chairman and Chief Executive Officer of TSL, which had been filed in support of the earlier section 66 application and the WFO;

(c) the relevant sections of the LCIA Award, including the tribunal's findings on each of the three charter-party claims; and

(d) the key exhibited documents referenced in both skeleton arguments.

The judge noted that the hearing had been estimated for one full day but expressed the hope that it could be completed by mid-afternoon, given that the issues had been well-ventilated in the written materials. Neither party took issue with that indication.

There were no preliminary applications. The agreed running order, which had been confirmed in correspondence between the parties prior to the hearing, was as follows: KMH would make its submissions first, TSL would respond, and KMH would have a right of brief reply. The judge confirmed he was content with this order.

4. Summary of KMH's Submissions (Catherine Whitford for KMH)

Ms. Whitford addressed the court for approximately one hour and forty minutes. Her submissions were divided into two parts: the section 68 challenge (serious irregularity) and the section 69 challenge (appeal on a point of law).

4.1 Section 68 — Serious Irregularity

Ms. Whitford advanced three grounds of serious irregularity under section 68 of the Act.

Ground 1: Failure to deal with all issues put to the Tribunal (s. 68(2)(d))

Ms. Whitford submitted that the tribunal had failed to deal with all of the issues that had been put to it by KMH, in breach of section 68(2)(d) of the Act. Specifically, she argued that the tribunal had failed adequately to address KMH's defence regarding the off-hire periods on the M/V Volga Spirit (IMO 9756892), one of the three vessels at the centre of the dispute.

Ms. Whitford explained that KMH had raised detailed technical evidence in the arbitration concerning machinery breakdowns aboard the M/V Volga Spirit which, KMH said, justified off-hire deductions totalling approximately £2,740,000. This evidence included testimony from KMH's expert marine engineer, who had opined that the machinery breakdowns were genuine and the off-hire deductions were consistent with the charter-party terms. Ms. Whitford submitted that the tribunal's characterisation of these deductions as "fabricated" was reached without the tribunal having adequately engaged with or addressed KMH's expert evidence. She argued that the tribunal's treatment of the issue was so cursory as to constitute a failure to deal with a substantive issue within the meaning of section 68(2)(d).

Ms. Whitford took the court to the specific paragraphs of the Award dealing with the M/V Volga Spirit off-hire claim. She submitted that while the tribunal did devote several paragraphs to the topic, its analysis was focused almost exclusively on TSL's evidence and did not engage with the substance of KMH's expert report.

At this point, Mr. Justice Ashworth intervened to ask whether the tribunal had in fact summarised and then rejected KMH's evidence, or whether it had simply ignored it altogether. Ms. Whitford conceded that the tribunal had summarised KMH's evidence, including the expert report, but she maintained that the summary was inadequate and the rejection insufficiently reasoned. She submitted that there is a difference between merely reciting a party's case and genuinely dealing with it.

The judge indicated that he had noted the point but observed that the threshold under section 68 is a high one. He invited Ms. Whitford to move on to her second ground.

Ground 2: Tribunal exceeding its powers (s. 68(2)(b))

Ms. Whitford submitted that the tribunal had exceeded its powers within the meaning of section 68(2)(b) of the Act by awarding loss of profit and market differential damages in the total sum of £16,480,000 across all three charters (M/V Aegean Fortuna, M/V Crimson Horizon, and M/V Volga Spirit). She argued that this head of claim had not been adequately pleaded in TSL's Statement of Case in the arbitration and was not included within TSL's Requests for Relief in sufficiently specific terms.

Ms. Whitford submitted that the tribunal should have limited itself to the specific heads of damage that had been identified in the Requests for Relief and that, by awarding market differential damages that went beyond what had been pleaded, the tribunal acted outside its jurisdiction.

The judge asked Ms. Whitford to identify the specific paragraphs of TSL's Statement of Case where the loss of profit claim was or was not pleaded. Ms. Whitford referred the court to several passages of the Statement of Case. However, she acknowledged, in response to a further question from the judge, that TSL's submissions at the 10-day evidentiary hearing (which took place from 11 to 22 September 2023 at the International Dispute Resolution Centre ("IDRC") in London) had addressed the market differential point in considerable detail. She maintained nonetheless that the issue was not properly before the tribunal as a matter of pleading.

The judge observed that he would need to consider whether the issue had been argued before the tribunal in practice, regardless of the state of the formal pleadings.

Ground 3: Procedural unfairness (s. 68(2)(a))

Ms. Whitford's third ground under section 68 was procedural unfairness within the meaning of section 68(2)(a). She submitted that the tribunal had denied KMH a fair opportunity to address certain late-disclosed documents produced by TSL relating to the wrongful early redelivery of M/V Aegean Fortuna (IMO 9784521). The M/V Aegean Fortuna had been redelivered by KMH approximately 14 months early, on 18 June 2022, in what the tribunal found to be a wrongful repudiation of the charter-party.

Ms. Whitford argued that TSL had been permitted by the tribunal to adduce additional market data at the evidentiary hearing without adequate notice to KMH, and that KMH had not been given sufficient time to respond to this late material. She submitted that the late evidence had been material to the tribunal's assessment of the market differential and, consequently, to its calculation of damages.

The judge noted from his pre-reading of the materials that the procedural history showed the tribunal had, in fact, offered KMH an adjournment of up to five days in order to address the new evidence, and that KMH had expressly declined that offer. The judge asked Ms. Whitford directly to address this point.

Ms. Whitford confirmed that KMH had declined the adjournment but submitted that the offer was insufficient in the circumstances. She argued that a five-day adjournment would not have been adequate for KMH's expert to respond properly to the late-disclosed market data, and that the appropriate remedy would have been for the tribunal to exclude the evidence altogether.

The judge indicated he had noted the submission but his expression suggested a degree of scepticism.

4.2 Section 69 — Appeal on a Point of Law

Turning to the section 69 challenge, Ms. Whitford advanced a single point of law.

Point of law: Calculation of damages for early redelivery

Ms. Whitford submitted that the tribunal had erred in its application of English law on the measure of damages for wrongful early redelivery of a time-chartered vessel. The submission related specifically to the M/V Aegean Fortuna claim. The tribunal had awarded £42,300,000 in damages for the wrongful early redelivery, calculated on the basis of the remaining 14 months of the charter at a rate of approximately £3,021,429 per month.

Ms. Whitford argued that the tribunal should have adopted a different methodology, giving credit for TSL's actual and reasonably available mitigation. She submitted that TSL had in fact re-chartered the M/V Aegean Fortuna at lower market rates following KMH's early redelivery, and that the tribunal had failed to give appropriate credit for this mitigation income in its calculation.

The judge intervened at this point to raise two threshold matters. First, he asked whether KMH had obtained permission to appeal under section 69(2) of the Act, or whether the present hearing was itself the application for permission. Ms. Whitford confirmed that this was the application for permission to appeal, which could be heard together with the substantive appeal if permission were granted. Second, the judge noted that section 69 requires the question of law to be one of general public importance or one which the tribunal was obviously wrong about. He asked Ms. Whitford to identify which limb she relied upon.

Ms. Whitford submitted that the threshold was met on the "obviously wrong" limb. She argued that the tribunal's approach to the damages calculation for early redelivery was plainly wrong as a matter of English law and that no reasonable tribunal, properly directing itself, could have arrived at the figure of £42,300,000 without giving fuller credit for mitigation.

The judge pressed Ms. Whitford further on whether this was truly a point of law at all, or whether it was, in substance, a challenge to the tribunal's findings of fact on the extent and value of TSL's mitigation efforts. Ms. Whitford maintained that it was a legal question about the correct measure of damages, not a factual dispute, and that the error was one of principle rather than quantum.

5. Summary of TSL's Submissions (Samuel Eklund for TSL)

Mr. Eklund addressed the court for approximately one hour and fifteen minutes. His submissions were structured to address each of KMH's grounds in turn, followed by submissions on costs.

5.1 Response to Section 68 Grounds

On Ground 1 (failure to deal with issues — M/V *Volga Spirit* off-hire):

Mr. Eklund submitted that the tribunal had addressed KMH's off-hire defence in considerable detail across multiple paragraphs of the Award. He took the judge to the relevant sections, demonstrating that the tribunal had summarised the competing expert evidence on the machinery breakdowns aboard the M/V Volga Spirit, had set out KMH's case, and had then made clear and reasoned factual findings. Specifically, the tribunal had found that the off-hire deductions of approximately £2,740,000 were unsupported by contemporaneous maintenance records produced by KMH during disclosure.

Mr. Eklund submitted that the tribunal's finding that the off-hire deductions were "fabricated" was based on its own forensic analysis of the vessel's log books and the chief engineer reports, which it found to be inconsistent with and contradictory to KMH's expert evidence. The tribunal had positively preferred TSL's evidence, which included contemporaneous documentation obtained from the vessel's crew, and had given detailed reasons for doing so.

Mr. Eklund argued that what KMH was really challenging under this ground was the weight given by the tribunal to the competing evidence — a challenge that is impermissible under section 68 of the Act. He referred the court to the well-established principle that section 68 is concerned with whether due process has been observed, not with whether the tribunal reached the right answer. The fact that the tribunal reached conclusions unfavourable to KMH does not mean it failed to deal with KMH's case.

The judge indicated at this stage that he agreed that the challenge appeared, on analysis, to be a challenge to the tribunal's assessment and evaluation of the evidence rather than a failure to deal with a discrete issue.

On Ground 2 (exceeding powers — loss of profit damages):

Mr. Eklund took the judge to TSL's Statement of Case in the arbitration and to the Request for Arbitration filed on 14 November 2022. He demonstrated that market differential damages were expressly claimed in the Request for Arbitration and that the Statement of Case contained specific paragraphs setting out TSL's case on loss of profit across all three charters.

Mr. Eklund further submitted that the loss of profit / market differential issue was extensively argued over the course of the 10-day evidentiary hearing from 11 to 22 September 2023 at the IDRC. He noted that KMH's own submissions to the tribunal — prepared and presented by Ms. Whitford, who also appeared before the tribunal — addressed the loss of profit claim at length. Moreover, Ms. Whitford had cross-examined TSL's witnesses, including the TSL's chartering manager and its expert witness on shipping markets, specifically on the question of market rates and the differential between the contractual hire rate and the prevailing market rate at the relevant times.

Mr. Eklund submitted that KMH could not now claim it was taken by surprise by an award of market differential damages of £16,480,000 when it had itself engaged fully with that head of claim throughout the arbitral proceedings. The award was well within the scope of the issues as the parties had actually defined and argued them, and there was no basis for finding that the tribunal exceeded its powers.

The judge asked Ms. Whitford, by way of intervention, whether she accepted that the loss of profit issue had been addressed at the hearing. Ms. Whitford conceded that the issue had been argued at the hearing but maintained her position that it was not properly pleaded in the formal Statement of Case. The judge indicated that he found it difficult to see how the tribunal could be said to have exceeded its powers in circumstances where both parties had in fact argued the issue before it.

On Ground 3 (procedural unfairness — late disclosure):

Mr. Eklund submitted that the tribunal, through Tribunal Secretary Fiona Beckett, had addressed the late disclosure issue in a procedural order during the evidentiary hearing. The tribunal had identified the issue, heard brief submissions from both sides, and then offered KMH an adjournment of up to five days to enable it to address the newly disclosed market data. KMH had expressly declined that offer through counsel, in a letter sent by Ms. Whitford during the hearing week. Mr. Eklund exhibited a copy of that letter.

Having declined the adjournment, KMH elected to proceed with its cross-examination of TSL's witnesses and its closing submissions, addressing the late-disclosed documents in the course of its case. Mr. Eklund submitted that a party which is offered a procedural remedy and declines it cannot then raise the same procedural complaint as a ground for setting aside the award. He referred the court to the applicable authorities on the principle that a party cannot waive a procedural objection during the arbitration and subsequently raise it in challenge proceedings.

Mr. Eklund submitted that KMH made a tactical decision at the time — presumably because it calculated that proceeding without an adjournment was more advantageous — and it must live with the consequences of that decision.

The judge indicated that he found this submission compelling and that it was difficult to see how procedural unfairness could be established in circumstances where the tribunal offered an adjournment and the complaining party declined it.

5.2 Response to Section 69 Ground

Turning to the section 69 challenge, Mr. Eklund submitted that KMH's application was, in substance, a challenge to the tribunal's findings of fact, impermissibly dressed up as a point of law.

Mr. Eklund submitted that the tribunal had applied the well-established principles of English law on damages for wrongful early redelivery of a time-chartered vessel, including the charterer's duty to mitigate and the corresponding obligation on the court or tribunal to give credit for actual or reasonably available mitigation. The tribunal's reasoning was orthodox and consistent with the leading authorities.

Mr. Eklund further submitted that the tribunal had made detailed findings of fact on TSL's mitigation efforts. It found as a fact that TSL had taken reasonable steps to mitigate its loss by seeking to re-charter the M/V Aegean Fortuna following KMH's early redelivery. The tribunal gave appropriate credit for the mitigation income actually received by TSL. However, it found — as a matter of fact — that the market differential justified the total award of £42,300,000 for the early redelivery claim.

Mr. Eklund argued that this was the paradigmatic type of factual assessment that section 69 of the Act is not designed to review. The question was not whether the tribunal had applied the wrong legal test, but whether it had assessed the quantum correctly — which is a factual question. The challenge did not meet the threshold of "obviously wrong" and did not raise any question of general public importance.

The judge asked Mr. Eklund whether there was any prospect that a reasonable tribunal, properly directing itself on the applicable law, could have reached the figure of £42,300,000. Mr. Eklund confirmed that the tribunal's methodology was orthodox, that its calculation was fully supported by the evidence before it — including expert evidence from both parties' shipping market experts — and that the resulting figure was well within the range of reasonable outcomes. He submitted there was no basis upon which the court could interfere.

5.3 Costs Submissions

Mr. Eklund submitted that, in the event that the application was dismissed in its entirety (as TSL invited the court to do), costs should be awarded to TSL on the indemnity basis.

Mr. Eklund advanced the following reasons in support of the application for indemnity costs:

(a) KMH's application was brought unreasonably. The grounds were weak, as was apparent from the skeleton arguments, and the challenge was in substance a disguised appeal on the merits of the Award.

(b) The application appeared to have been designed to delay and obstruct the enforcement of a substantial arbitral award while KMH continued to dissipate its assets internationally, as evidenced by the material placed before the court in support of the WFO.

(c) The evidence of post-award asset dissipation was compelling. Mr. Eklund referred to the asset tracing reports prepared by Hartwell Pemberton LLP, which had been placed before the court in connection with the WFO application, and which demonstrated a pattern of systematic dissipation of KMH's assets following the publication of the Award.

(d) TSL had put KMH on notice in pre-action correspondence from Calderwood & Harkness LLP to Harkness Whitford & Co. that any meritless challenge to the Award would be met with an application for costs on the indemnity basis. KMH proceeded with the application notwithstanding that warning.

Mr. Eklund invited the court to make an order for costs on the indemnity basis, with a payment on account, and to direct a detailed assessment if the quantum could not be agreed between the parties.

6. KMH's Brief Reply

Ms. Whitford exercised KMH's right of brief reply. Her reply was short, lasting approximately ten minutes.

On costs, Ms. Whitford submitted that the challenge had been brought in good faith and on the basis of considered legal advice. She argued that the grounds had been taken seriously by KMH and that it was not unreasonable for a party faced with an award of this magnitude to seek to exercise its statutory rights of challenge. She submitted that, even if the application failed, costs should be assessed on the standard basis and that there was no proper basis for the court to depart from the normal rule.

On the section 69 point, Ms. Whitford reiterated her submission that the damages calculation for the wrongful early redelivery of M/V Aegean Fortuna involved a legal error, specifically in the methodology adopted by the tribunal, and that this was not merely a challenge to the tribunal's factual assessment.

At the conclusion of Ms. Whitford's reply, Mr. Justice Ashworth indicated that he had heard sufficient submissions and would give judgment.

7. The Ruling

7.1 Judgment Summary

Mr. Justice Ashworth delivered a short ex tempore judgment from the bench. The judgment lasted approximately 20 minutes and was delivered clearly and without hesitation. The judge's conclusions are summarised below.

On section 68 — All three grounds dismissed:

Ground 1 (failure to deal with issues — M/V *Volga Spirit* off-hire): The judge found that the tribunal had clearly addressed KMH's evidence on the off-hire deductions and had made detailed factual findings in relation to the approximately £2,740,000 in disputed deductions. The judge noted that the tribunal had summarised KMH's expert evidence, considered it, and then rejected it on the basis of its own analysis of the contemporaneous maintenance records, log books, and chief engineer reports. The tribunal was entitled to prefer TSL's evidence and to characterise the deductions as fabricated. The judge held that the challenge was, in substance, a challenge to the tribunal's evaluation and weighing of the evidence, which does not amount to serious irregularity under section 68 of the Act. The high threshold for relief under section 68 was not met. Ground 1 was accordingly dismissed.

Ground 2 (loss of profit / exceeding powers): The judge found that the loss of profit and market differential claim totalling £16,480,000 was within the scope of the issues as actually argued before the tribunal. The judge observed that the market differential damages had been claimed in TSL's Request for Arbitration, that the issue had been addressed in TSL's Statement of Case, and — crucially — that KMH's own counsel had engaged with the claim throughout the evidentiary hearing, including through cross-examination of TSL's witnesses on market rates. There was no basis for finding that the tribunal had exceeded its powers by awarding damages on a head of claim that both parties had argued. Ground 2 was accordingly dismissed.

Ground 3 (procedural unfairness): The judge noted that the tribunal had offered KMH an adjournment of up to five days to address the late-disclosed documents relating to the M/V Aegean Fortuna early redelivery, and that KMH had expressly declined that offer through counsel. Having elected to proceed without the adjournment, KMH could not now rely on the late disclosure as a ground of procedural unfairness. The judge described this ground as "wholly without merit" and stated that it was an impermissible attempt to reopen a tactical decision made during the arbitration. Ground 3 was accordingly dismissed.

On section 69 — Permission to appeal refused and application dismissed:

The judge found that the question raised by KMH was not, on its proper analysis, a question of law within the meaning of section 69 of the Act. It was in substance a challenge to the tribunal's factual findings on the measure of damages for wrongful early redelivery of the M/V Aegean Fortuna. The tribunal had found facts about TSL's mitigation efforts, the market rates, and the contractual rates, and had calculated the damages accordingly.

Even if the question were properly characterised as a question of law, the judge held that the tribunal's approach was not "obviously wrong." The tribunal had applied orthodox English law principles on charter-party damages and mitigation, and its reasoning was consistent with the established authorities. The question did not raise any issue of general public importance.

The judge observed that the tribunal's award of £42,300,000 in respect of the M/V Aegean Fortuna early redelivery, calculated on the basis of the remaining 14 months of the charter at approximately £3,021,429 per month less credit for mitigation, was well-supported by the evidence and was within the range of reasonable conclusions open to the tribunal. The section 69 application was accordingly dismissed.

7.2 Judge's Observations on the Tribunal's Reasoning

In the course of his judgment, Mr. Justice Ashworth made several favourable observations about the quality of the tribunal's reasoning throughout the Award. He described the Award as "thorough, well-structured, and clearly the product of a careful and experienced tribunal," referring to Sir Malcolm Fenton-Clarke, Professor Athena Drakopoulos, and Dr. Henrik Dalmqvist by name.

The judge noted that the 10-day evidentiary hearing held from 11 to 22 September 2023 at the IDRC had been extensive and thorough, and that the tribunal had plainly given both parties a full opportunity to present their cases, including through extensive witness evidence and expert testimony.

Significantly, the judge observed that the pattern of challenges brought by KMH was "more consistent with an attempt to delay enforcement than with a genuine challenge to the integrity of the arbitral process." This observation is noteworthy as it may be of assistance in the parallel enforcement proceedings in other jurisdictions, particularly if KMH attempts to resist enforcement on similar grounds.

7.3 Costs Order

Mr. Justice Ashworth awarded costs to TSL on the indemnity basis.

In support of this order, the judge found that KMH's application had been pursued unreasonably and that the grounds advanced were, on analysis, without substance. He noted in particular that Ground 3 (procedural unfairness) was "wholly without merit" given KMH's express waiver of the adjournment offered by the tribunal. The judge stated that the conduct of the losing party — including the combination of a weak challenge with compelling evidence of post-award asset dissipation (as detailed in the Hartwell Pemberton LLP asset tracing reports and the evidence supporting the WFO) — justified departure from the standard basis of assessment.

The judge ordered as follows:

(a) KMH shall pay TSL's costs of and incidental to the application on the indemnity basis, to be the subject of a detailed assessment if not agreed.

(b) KMH shall make a payment on account of TSL's costs within 28 days of the date of the order.

(c) The quantum of the payment on account is to be addressed in written submissions to be filed within 14 days of the date of the order, in the event that the parties are unable to agree the figure.

8. Post-Hearing Discussion and Next Steps

Following the conclusion of the hearing at approximately 2:45 p.m., Samuel Eklund, Hannah Brinkley, and Patrick Gallagher convened in the Rolls Building consultation room at approximately 3:00 p.m. to discuss the outcome and agree upon immediate next steps. The discussion lasted approximately 30 minutes, concluding at approximately 3:30 p.m. The following action items were identified and assigned:

Client Notification:

Hannah Brinkley is to prepare a letter to the client, TSL, addressed to Ioanna Christodoulou (General Counsel) and Nikolaos Papadimitriou (Chairman and Chief Executive Officer), confirming the successful outcome of the hearing. The letter should confirm that KMH's application to set aside the Award has been dismissed in its entirety on all grounds, that the Award stands fully enforceable in England and Wales, and that costs have been awarded to TSL on the indemnity basis. The letter should be dispatched by close of business on Monday, 14 October 2024.

Costs:

Patrick Gallagher is to prepare a detailed schedule of costs for the purposes of agreement with Harkness Whitford & Co. or, failing agreement, for the detailed assessment. The costs submissions filed in connection with today's hearing are to be updated to reflect the actual time spent and disbursements incurred in relation to the application. The parties' respective costs positions should be communicated to Harkness Whitford & Co. promptly with a view to reaching agreement on the payment on account within the 14-day window set by the court.

Enforcement Continuation in England:

The dismissal of KMH's set-aside application removes the last obstacle to enforcement in England and Wales. It is noted that the final third-party debt order against Meridian Trust Bank Ltd. (50 Lombard Street, London EC3V 9EA) was completed on 3 September 2024, resulting in the recovery of £18,720,000 from KMH's accounts held at that bank. No further England-specific enforcement steps are required beyond the recovery of costs under the indemnity costs order.

Cross-Jurisdictional Impact:

The dismissal of the set-aside application on all grounds materially reinforces TSL's position in the parallel enforcement proceedings in the following jurisdictions:

(a) Cyprus: Case No. 2247/2024, Nicosia District Court. An enforcement order was granted on 30 September 2024. The dismissal of the English challenge strengthens the finality of the Award for the purposes of Cypriot enforcement proceedings.

(b) Singapore: OS 872/2024, Singapore High Court. Leave to enforce the Award was granted on 6 September 2024. The M/V Crimson Horizon was arrested on 20 August 2024 and remains under arrest pending the outcome of the Singapore enforcement proceedings. The English court's dismissal of the set-aside application will be of significant evidential value if KMH challenges the Singapore enforcement.

(c) United Arab Emirates: Case No. 1893/2024, Dubai Court of First Instance. A precautionary attachment order was granted on 28 August 2024. An enforcement order remains pending. The English court's judgment — particularly Mr. Justice Ashworth's observation that KMH's challenges appeared designed to delay enforcement rather than to challenge the integrity of the arbitral process — should be placed before the Dubai court.

Worldwide Freezing Order:

The WFO remains in force in the sum of up to £108,600,000 pending further recoveries. The WFO is to be reviewed and adjusted as amounts are collected across the various jurisdictions. Consideration to be given to whether a variation application is necessary in light of the £18,720,000 already recovered through the third-party debt order and any amounts recovered in the overseas proceedings.

Instructions to Local Counsel:

Hannah Brinkley is to instruct the following local counsel of today's outcome, with a copy of the judge's order (when available) and a summary of the ex tempore judgment:

(a) Kyprianos Makrides & Partners (Nicosia, Cyprus) — in relation to the Cyprus enforcement proceedings;

(b) Straits Meridian LLP (Singapore) — in relation to the Singapore enforcement proceedings and the arrest of the M/V Crimson Horizon; and

(c) Al-Rashid Hatem & Associates (Dubai, UAE) — in relation to the UAE enforcement proceedings and the precautionary attachment.

Each firm is to be advised to deploy the English court's dismissal of the set-aside application in any local proceedings where KMH attempts to resist enforcement on similar or related grounds.

9. Documents Referred to at the Hearing

The following documents were referred to or relied upon by the parties during the course of the hearing:

1. LCIA Award No. 224718, dated 28 June 2024 (Tribunal: Sir Malcolm Fenton-Clarke (Presiding Arbitrator), Professor Athena Drakopoulos, and Dr. Henrik Dalmqvist; Tribunal Secretary: Fiona Beckett).

2. KMH's application notice dated 19 August 2024, seeking to set aside the Award under sections 68 and 69 of the Arbitration Act 1996.

3. Skeleton argument of Harkness Whitford & Co. on behalf of KMH in support of the set-aside application.

4. Calderwood & Harkness LLP skeleton argument on behalf of TSL opposing the set-aside application.

5. First witness statement of Nikolaos Papadimitriou, Chairman and Chief Executive Officer of TSL, filed in support of the section 66 application and the Worldwide Freezing Order.

6. TSL's Request for Arbitration dated 14 November 2022 in LCIA No. 224718.

7. TSL's Statement of Case in LCIA Arbitration No. 224718.

8. The three charter-party agreements:

(a) Charter-party for the M/V Aegean Fortuna, signed 15 March 2019;

(b) Charter-party for the M/V Crimson Horizon, signed 22 January 2020; and

9. Procedural orders of the tribunal in LCIA Arbitration No. 224718.

10. Correspondence between counsel during the evidentiary hearing week (11–22 September 2023) regarding the tribunal's adjournment offer and KMH's declination thereof.

11. Hartwell Pemberton LLP asset tracing report, referenced in connection with the evidence of post-award dissipation supporting the Worldwide Freezing Order.

10. Attendance Details

Hearing duration: Approximately 10:35 a.m. to 2:45 p.m. The hearing included a short mid-morning break of approximately 10 minutes (taken at approximately 11:50 a.m.) and a 45-minute lunch adjournment (approximately 12:55 p.m. to 1:40 p.m.).

Post-hearing conference: Approximately 3:00 p.m. to 3:30 p.m. in the Rolls Building consultation room.

Time recording: Entries to be posted separately under the appropriate matter phase code. The total estimated attendance time is approximately 17.5 hours across all three fee-earners.

11. Signature / Approval

Prepared by:

________________________________________

Hannah Brinkley Lead Associate, Litigation (General) Calderwood & Harkness LLP

Date: 11 October 2024

Reviewed and Approved by:

________________________________________

Samuel Eklund Responsible Partner Calderwood & Harkness LLP

Date: 11 October 2024

File Reference: C&H/TSL-KMH/Enforcement/CL-2024-000487/Attendance Notes

This attendance note is prepared for internal use only and is subject to legal professional privilege and/or attorney work product protection. It is not to be disclosed to any person outside Calderwood & Harkness LLP without the prior written authority of the Responsible Partner. Distribution is limited to the individuals identified on the first page of this note.

Document Type:	Internal Attendance Note — Privileged and Confidential / Attorney Work Product
Firm:	Calderwood & Harkness LLP, 45 Moorgate, London EC2R 6AR, United Kingdom
Matter:	Thalassa Shipping & Logistics SA v. Korinthian Maritime Holdings Ltd.
Matter Reference:	Enforcement of LCIA Award No. 224718
Court Reference:	Commercial Court, Claim No. CL-2024-000487
Date of Hearing:	11 October 2024
Court:	Commercial Court, Rolls Building, London
Before:	Mr. Justice Ashworth
Prepared by:	Hannah Brinkley, Lead Associate, Litigation (General)
Date of Note:	11 October 2024
Distribution:	Samuel Eklund (Responsible Partner), Linda Osei (Billing Partner), Patrick Gallagher (Working Associate) — Internal distribution only
Attendee	Role	Time
Samuel Eklund	Responsible Partner	5.5 hours
Hannah Brinkley	Lead Associate	6.0 hours (including travel and note preparation)
Patrick Gallagher	Working Associate	6.0 hours (including travel and note preparation)

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
CALDERWOOD & HARKNESS LLP 45 Moorgate, London EC2R 6AR, United Kingdom
INTERNAL ATTENDANCE NOTE
Time Recording Note: Entries to be posted separately under the relevant matter phase code. Total estimated attendance time is approximately 5.5 hours per fee-earner (including pre-hearing preparation at court, the hearing itself, and post-hearing discussion with counsel). Individual breakdowns are set out in Section 10 below.
1. Nature of the Hearing
This note records the attendance at the hearing on 11 October 2024 of the application by Korinthian Maritime Holdings Ltd. ("KMH" or the "Applicant") to set aside LCIA Award No. 224718 dated 28 June 2024 (the "Award"). The application was dated 19 August 2024 and was brought under sections 68 and 69 of the Arbitration Act 1996 (the "Act").
The Award was rendered by the tribunal comprising Sir Malcolm Fenton-Clarke (Presiding Arbitrator), Professor Athena Drakopoulos, and Dr. Henrik Dalmqvist, with Fiona Beckett acting as Tribunal Secretary, in LCIA Arbitration No. 224718. The Award was made in favour of Thalassa Shipping & Logistics SA ("TSL" or the "Respondent" to the application) in the total amount of £96,450,000 in respect of the substantive claims, together with an award of costs in the sum of £12,150,000, yielding a grand total of £108,600,000.
Permission to enforce the Award as a judgment of the Commercial Court pursuant to section 66 of the Act had previously been granted by Mr. Justice Ashworth on 2 August 2024. A Worldwide Freezing Order ("WFO") had been obtained ex parte on 16 July 2024 and was continued with modifications at the return date hearing on 30 July 2024. The WFO remained in force at the time of today's hearing and continues in force as of the date of this note, restraining KMH from dealing with or diminishing the value of its assets worldwide up to the value of £108,600,000.
The hearing therefore concerned the last remaining procedural obstacle to the full enforceability of the Award in England and Wales.
2. Parties' Representation
The parties were represented at the hearing as follows:
For the Applicant (KMH):
Catherine Whitford, Partner, Harkness Whitford & Co. (SRA No. 614823), 12 Fetter Lane, London EC4A 1JP. Ms. Whitford attended with James Thornbury, Associate at the same firm. Ms. Whitford conducted all of the advocacy on behalf of KMH.
It should be noted that Richard Harkness, Senior Partner of Harkness Whitford & Co., was not present at the hearing. This is worthy of remark because Mr. Harkness has been the principal point of contact for KMH throughout the enforcement proceedings and was present at the return date hearing on 30 July 2024. His absence today was unexplained, and Ms. Whitford made no reference to it.
For the Respondent to the Application (TSL):
Samuel Eklund, Responsible Partner, Calderwood & Harkness LLP, 45 Moorgate, London EC2R 6AR. Mr. Eklund attended with Hannah Brinkley, Lead Associate, and Patrick Gallagher, Working Associate, both of this firm. Mr. Eklund conducted all of the advocacy on behalf of TSL.
3. Pre-Hearing Matters
The hearing had been listed for 10:30 a.m. in Court 8 of the Rolls Building and was estimated for one full day. The hearing commenced promptly at approximately 10:35 a.m., following a brief delay while the usher confirmed the readiness of both parties.
At the outset of the hearing, Mr. Justice Ashworth confirmed that he had pre-read the following materials:
(a) the skeleton arguments filed by both sides;
(b) the witness statement of Nikolaos Papadimitriou, Chairman and Chief Executive Officer of TSL, which had been filed in support of the earlier section 66 application and the WFO;
(c) the relevant sections of the LCIA Award, including the tribunal's findings on each of the three charter-party claims; and
(d) the key exhibited documents referenced in both skeleton arguments.
The judge noted that the hearing had been estimated for one full day but expressed the hope that it could be completed by mid-afternoon, given that the issues had been well-ventilated in the written materials. Neither party took issue with that indication.
There were no preliminary applications. The agreed running order, which had been confirmed in correspondence between the parties prior to the hearing, was as follows: KMH would make its submissions first, TSL would respond, and KMH would have a right of brief reply. The judge confirmed he was content with this order.
4. Summary of KMH's Submissions (Catherine Whitford for KMH)
Ms. Whitford addressed the court for approximately one hour and forty minutes. Her submissions were divided into two parts: the section 68 challenge (serious irregularity) and the section 69 challenge (appeal on a point of law).
4.1 Section 68 — Serious Irregularity
Ms. Whitford advanced three grounds of serious irregularity under section 68 of the Act.
Ground 1: Failure to deal with all issues put to the Tribunal (s. 68(2)(d))
Ms. Whitford submitted that the tribunal had failed to deal with all of the issues that had been put to it by KMH, in breach of section 68(2)(d) of the Act. Specifically, she argued that the tribunal had failed adequately to address KMH's defence regarding the off-hire periods on the M/V Volga Spirit (IMO 9756892), one of the three vessels at the centre of the dispute.
Ms. Whitford explained that KMH had raised detailed technical evidence in the arbitration concerning machinery breakdowns aboard the M/V Volga Spirit which, KMH said, justified off-hire deductions totalling approximately £2,740,000. This evidence included testimony from KMH's expert marine engineer, who had opined that the machinery breakdowns were genuine and the off-hire deductions were consistent with the charter-party terms. Ms. Whitford submitted that the tribunal's characterisation of these deductions as "fabricated" was reached without the tribunal having adequately engaged with or addressed KMH's expert evidence. She argued that the tribunal's treatment of the issue was so cursory as to constitute a failure to deal with a substantive issue within the meaning of section 68(2)(d).
Ms. Whitford took the court to the specific paragraphs of the Award dealing with the M/V Volga Spirit off-hire claim. She submitted that while the tribunal did devote several paragraphs to the topic, its analysis was focused almost exclusively on TSL's evidence and did not engage with the substance of KMH's expert report.
At this point, Mr. Justice Ashworth intervened to ask whether the tribunal had in fact summarised and then rejected KMH's evidence, or whether it had simply ignored it altogether. Ms. Whitford conceded that the tribunal had summarised KMH's evidence, including the expert report, but she maintained that the summary was inadequate and the rejection insufficiently reasoned. She submitted that there is a difference between merely reciting a party's case and genuinely dealing with it.
The judge indicated that he had noted the point but observed that the threshold under section 68 is a high one. He invited Ms. Whitford to move on to her second ground.
Ground 2: Tribunal exceeding its powers (s. 68(2)(b))
Ms. Whitford submitted that the tribunal had exceeded its powers within the meaning of section 68(2)(b) of the Act by awarding loss of profit and market differential damages in the total sum of £16,480,000 across all three charters (M/V Aegean Fortuna, M/V Crimson Horizon, and M/V Volga Spirit). She argued that this head of claim had not been adequately pleaded in TSL's Statement of Case in the arbitration and was not included within TSL's Requests for Relief in sufficiently specific terms.
Ms. Whitford submitted that the tribunal should have limited itself to the specific heads of damage that had been identified in the Requests for Relief and that, by awarding market differential damages that went beyond what had been pleaded, the tribunal acted outside its jurisdiction.
The judge asked Ms. Whitford to identify the specific paragraphs of TSL's Statement of Case where the loss of profit claim was or was not pleaded. Ms. Whitford referred the court to several passages of the Statement of Case. However, she acknowledged, in response to a further question from the judge, that TSL's submissions at the 10-day evidentiary hearing (which took place from 11 to 22 September 2023 at the International Dispute Resolution Centre ("IDRC") in London) had addressed the market differential point in considerable detail. She maintained nonetheless that the issue was not properly before the tribunal as a matter of pleading.
The judge observed that he would need to consider whether the issue had been argued before the tribunal in practice, regardless of the state of the formal pleadings.
Ground 3: Procedural unfairness (s. 68(2)(a))
Ms. Whitford's third ground under section 68 was procedural unfairness within the meaning of section 68(2)(a). She submitted that the tribunal had denied KMH a fair opportunity to address certain late-disclosed documents produced by TSL relating to the wrongful early redelivery of M/V Aegean Fortuna (IMO 9784521). The M/V Aegean Fortuna had been redelivered by KMH approximately 14 months early, on 18 June 2022, in what the tribunal found to be a wrongful repudiation of the charter-party.
Ms. Whitford argued that TSL had been permitted by the tribunal to adduce additional market data at the evidentiary hearing without adequate notice to KMH, and that KMH had not been given sufficient time to respond to this late material. She submitted that the late evidence had been material to the tribunal's assessment of the market differential and, consequently, to its calculation of damages.
The judge noted from his pre-reading of the materials that the procedural history showed the tribunal had, in fact, offered KMH an adjournment of up to five days in order to address the new evidence, and that KMH had expressly declined that offer. The judge asked Ms. Whitford directly to address this point.
Ms. Whitford confirmed that KMH had declined the adjournment but submitted that the offer was insufficient in the circumstances. She argued that a five-day adjournment would not have been adequate for KMH's expert to respond properly to the late-disclosed market data, and that the appropriate remedy would have been for the tribunal to exclude the evidence altogether.
The judge indicated he had noted the submission but his expression suggested a degree of scepticism.
4.2 Section 69 — Appeal on a Point of Law
Turning to the section 69 challenge, Ms. Whitford advanced a single point of law.
Point of law: Calculation of damages for early redelivery
Ms. Whitford submitted that the tribunal had erred in its application of English law on the measure of damages for wrongful early redelivery of a time-chartered vessel. The submission related specifically to the M/V Aegean Fortuna claim. The tribunal had awarded £42,300,000 in damages for the wrongful early redelivery, calculated on the basis of the remaining 14 months of the charter at a rate of approximately £3,021,429 per month.
Ms. Whitford argued that the tribunal should have adopted a different methodology, giving credit for TSL's actual and reasonably available mitigation. She submitted that TSL had in fact re-chartered the M/V Aegean Fortuna at lower market rates following KMH's early redelivery, and that the tribunal had failed to give appropriate credit for this mitigation income in its calculation.
The judge intervened at this point to raise two threshold matters. First, he asked whether KMH had obtained permission to appeal under section 69(2) of the Act, or whether the present hearing was itself the application for permission. Ms. Whitford confirmed that this was the application for permission to appeal, which could be heard together with the substantive appeal if permission were granted. Second, the judge noted that section 69 requires the question of law to be one of general public importance or one which the tribunal was obviously wrong about. He asked Ms. Whitford to identify which limb she relied upon.
Ms. Whitford submitted that the threshold was met on the "obviously wrong" limb. She argued that the tribunal's approach to the damages calculation for early redelivery was plainly wrong as a matter of English law and that no reasonable tribunal, properly directing itself, could have arrived at the figure of £42,300,000 without giving fuller credit for mitigation.
The judge pressed Ms. Whitford further on whether this was truly a point of law at all, or whether it was, in substance, a challenge to the tribunal's findings of fact on the extent and value of TSL's mitigation efforts. Ms. Whitford maintained that it was a legal question about the correct measure of damages, not a factual dispute, and that the error was one of principle rather than quantum.
5. Summary of TSL's Submissions (Samuel Eklund for TSL)
Mr. Eklund addressed the court for approximately one hour and fifteen minutes. His submissions were structured to address each of KMH's grounds in turn, followed by submissions on costs.
5.1 Response to Section 68 Grounds
On Ground 1 (failure to deal with issues — M/V *Volga Spirit* off-hire):
Mr. Eklund submitted that the tribunal had addressed KMH's off-hire defence in considerable detail across multiple paragraphs of the Award. He took the judge to the relevant sections, demonstrating that the tribunal had summarised the competing expert evidence on the machinery breakdowns aboard the M/V Volga Spirit, had set out KMH's case, and had then made clear and reasoned factual findings. Specifically, the tribunal had found that the off-hire deductions of approximately £2,740,000 were unsupported by contemporaneous maintenance records produced by KMH during disclosure.
Mr. Eklund submitted that the tribunal's finding that the off-hire deductions were "fabricated" was based on its own forensic analysis of the vessel's log books and the chief engineer reports, which it found to be inconsistent with and contradictory to KMH's expert evidence. The tribunal had positively preferred TSL's evidence, which included contemporaneous documentation obtained from the vessel's crew, and had given detailed reasons for doing so.
Mr. Eklund argued that what KMH was really challenging under this ground was the weight given by the tribunal to the competing evidence — a challenge that is impermissible under section 68 of the Act. He referred the court to the well-established principle that section 68 is concerned with whether due process has been observed, not with whether the tribunal reached the right answer. The fact that the tribunal reached conclusions unfavourable to KMH does not mean it failed to deal with KMH's case.
The judge indicated at this stage that he agreed that the challenge appeared, on analysis, to be a challenge to the tribunal's assessment and evaluation of the evidence rather than a failure to deal with a discrete issue.
On Ground 2 (exceeding powers — loss of profit damages):
Mr. Eklund took the judge to TSL's Statement of Case in the arbitration and to the Request for Arbitration filed on 14 November 2022. He demonstrated that market differential damages were expressly claimed in the Request for Arbitration and that the Statement of Case contained specific paragraphs setting out TSL's case on loss of profit across all three charters.
Mr. Eklund further submitted that the loss of profit / market differential issue was extensively argued over the course of the 10-day evidentiary hearing from 11 to 22 September 2023 at the IDRC. He noted that KMH's own submissions to the tribunal — prepared and presented by Ms. Whitford, who also appeared before the tribunal — addressed the loss of profit claim at length. Moreover, Ms. Whitford had cross-examined TSL's witnesses, including the TSL's chartering manager and its expert witness on shipping markets, specifically on the question of market rates and the differential between the contractual hire rate and the prevailing market rate at the relevant times.
Mr. Eklund submitted that KMH could not now claim it was taken by surprise by an award of market differential damages of £16,480,000 when it had itself engaged fully with that head of claim throughout the arbitral proceedings. The award was well within the scope of the issues as the parties had actually defined and argued them, and there was no basis for finding that the tribunal exceeded its powers.
The judge asked Ms. Whitford, by way of intervention, whether she accepted that the loss of profit issue had been addressed at the hearing. Ms. Whitford conceded that the issue had been argued at the hearing but maintained her position that it was not properly pleaded in the formal Statement of Case. The judge indicated that he found it difficult to see how the tribunal could be said to have exceeded its powers in circumstances where both parties had in fact argued the issue before it.
On Ground 3 (procedural unfairness — late disclosure):
Mr. Eklund submitted that the tribunal, through Tribunal Secretary Fiona Beckett, had addressed the late disclosure issue in a procedural order during the evidentiary hearing. The tribunal had identified the issue, heard brief submissions from both sides, and then offered KMH an adjournment of up to five days to enable it to address the newly disclosed market data. KMH had expressly declined that offer through counsel, in a letter sent by Ms. Whitford during the hearing week. Mr. Eklund exhibited a copy of that letter.
Having declined the adjournment, KMH elected to proceed with its cross-examination of TSL's witnesses and its closing submissions, addressing the late-disclosed documents in the course of its case. Mr. Eklund submitted that a party which is offered a procedural remedy and declines it cannot then raise the same procedural complaint as a ground for setting aside the award. He referred the court to the applicable authorities on the principle that a party cannot waive a procedural objection during the arbitration and subsequently raise it in challenge proceedings.
Mr. Eklund submitted that KMH made a tactical decision at the time — presumably because it calculated that proceeding without an adjournment was more advantageous — and it must live with the consequences of that decision.
The judge indicated that he found this submission compelling and that it was difficult to see how procedural unfairness could be established in circumstances where the tribunal offered an adjournment and the complaining party declined it.
5.2 Response to Section 69 Ground
Turning to the section 69 challenge, Mr. Eklund submitted that KMH's application was, in substance, a challenge to the tribunal's findings of fact, impermissibly dressed up as a point of law.
Mr. Eklund submitted that the tribunal had applied the well-established principles of English law on damages for wrongful early redelivery of a time-chartered vessel, including the charterer's duty to mitigate and the corresponding obligation on the court or tribunal to give credit for actual or reasonably available mitigation. The tribunal's reasoning was orthodox and consistent with the leading authorities.
Mr. Eklund further submitted that the tribunal had made detailed findings of fact on TSL's mitigation efforts. It found as a fact that TSL had taken reasonable steps to mitigate its loss by seeking to re-charter the M/V Aegean Fortuna following KMH's early redelivery. The tribunal gave appropriate credit for the mitigation income actually received by TSL. However, it found — as a matter of fact — that the market differential justified the total award of £42,300,000 for the early redelivery claim.
Mr. Eklund argued that this was the paradigmatic type of factual assessment that section 69 of the Act is not designed to review. The question was not whether the tribunal had applied the wrong legal test, but whether it had assessed the quantum correctly — which is a factual question. The challenge did not meet the threshold of "obviously wrong" and did not raise any question of general public importance.
The judge asked Mr. Eklund whether there was any prospect that a reasonable tribunal, properly directing itself on the applicable law, could have reached the figure of £42,300,000. Mr. Eklund confirmed that the tribunal's methodology was orthodox, that its calculation was fully supported by the evidence before it — including expert evidence from both parties' shipping market experts — and that the resulting figure was well within the range of reasonable outcomes. He submitted there was no basis upon which the court could interfere.
5.3 Costs Submissions
Mr. Eklund submitted that, in the event that the application was dismissed in its entirety (as TSL invited the court to do), costs should be awarded to TSL on the indemnity basis.
Mr. Eklund advanced the following reasons in support of the application for indemnity costs:
(a) KMH's application was brought unreasonably. The grounds were weak, as was apparent from the skeleton arguments, and the challenge was in substance a disguised appeal on the merits of the Award.
(b) The application appeared to have been designed to delay and obstruct the enforcement of a substantial arbitral award while KMH continued to dissipate its assets internationally, as evidenced by the material placed before the court in support of the WFO.
(c) The evidence of post-award asset dissipation was compelling. Mr. Eklund referred to the asset tracing reports prepared by Hartwell Pemberton LLP, which had been placed before the court in connection with the WFO application, and which demonstrated a pattern of systematic dissipation of KMH's assets following the publication of the Award.
(d) TSL had put KMH on notice in pre-action correspondence from Calderwood & Harkness LLP to Harkness Whitford & Co. that any meritless challenge to the Award would be met with an application for costs on the indemnity basis. KMH proceeded with the application notwithstanding that warning.
Mr. Eklund invited the court to make an order for costs on the indemnity basis, with a payment on account, and to direct a detailed assessment if the quantum could not be agreed between the parties.
6. KMH's Brief Reply
Ms. Whitford exercised KMH's right of brief reply. Her reply was short, lasting approximately ten minutes.
On costs, Ms. Whitford submitted that the challenge had been brought in good faith and on the basis of considered legal advice. She argued that the grounds had been taken seriously by KMH and that it was not unreasonable for a party faced with an award of this magnitude to seek to exercise its statutory rights of challenge. She submitted that, even if the application failed, costs should be assessed on the standard basis and that there was no proper basis for the court to depart from the normal rule.
On the section 69 point, Ms. Whitford reiterated her submission that the damages calculation for the wrongful early redelivery of M/V Aegean Fortuna involved a legal error, specifically in the methodology adopted by the tribunal, and that this was not merely a challenge to the tribunal's factual assessment.
At the conclusion of Ms. Whitford's reply, Mr. Justice Ashworth indicated that he had heard sufficient submissions and would give judgment.
7. The Ruling
7.1 Judgment Summary
Mr. Justice Ashworth delivered a short ex tempore judgment from the bench. The judgment lasted approximately 20 minutes and was delivered clearly and without hesitation. The judge's conclusions are summarised below.
On section 68 — All three grounds dismissed:
Ground 1 (failure to deal with issues — M/V *Volga Spirit* off-hire): The judge found that the tribunal had clearly addressed KMH's evidence on the off-hire deductions and had made detailed factual findings in relation to the approximately £2,740,000 in disputed deductions. The judge noted that the tribunal had summarised KMH's expert evidence, considered it, and then rejected it on the basis of its own analysis of the contemporaneous maintenance records, log books, and chief engineer reports. The tribunal was entitled to prefer TSL's evidence and to characterise the deductions as fabricated. The judge held that the challenge was, in substance, a challenge to the tribunal's evaluation and weighing of the evidence, which does not amount to serious irregularity under section 68 of the Act. The high threshold for relief under section 68 was not met. Ground 1 was accordingly dismissed.
Ground 2 (loss of profit / exceeding powers): The judge found that the loss of profit and market differential claim totalling £16,480,000 was within the scope of the issues as actually argued before the tribunal. The judge observed that the market differential damages had been claimed in TSL's Request for Arbitration, that the issue had been addressed in TSL's Statement of Case, and — crucially — that KMH's own counsel had engaged with the claim throughout the evidentiary hearing, including through cross-examination of TSL's witnesses on market rates. There was no basis for finding that the tribunal had exceeded its powers by awarding damages on a head of claim that both parties had argued. Ground 2 was accordingly dismissed.
Ground 3 (procedural unfairness): The judge noted that the tribunal had offered KMH an adjournment of up to five days to address the late-disclosed documents relating to the M/V Aegean Fortuna early redelivery, and that KMH had expressly declined that offer through counsel. Having elected to proceed without the adjournment, KMH could not now rely on the late disclosure as a ground of procedural unfairness. The judge described this ground as "wholly without merit" and stated that it was an impermissible attempt to reopen a tactical decision made during the arbitration. Ground 3 was accordingly dismissed.
On section 69 — Permission to appeal refused and application dismissed:
The judge found that the question raised by KMH was not, on its proper analysis, a question of law within the meaning of section 69 of the Act. It was in substance a challenge to the tribunal's factual findings on the measure of damages for wrongful early redelivery of the M/V Aegean Fortuna. The tribunal had found facts about TSL's mitigation efforts, the market rates, and the contractual rates, and had calculated the damages accordingly.
Even if the question were properly characterised as a question of law, the judge held that the tribunal's approach was not "obviously wrong." The tribunal had applied orthodox English law principles on charter-party damages and mitigation, and its reasoning was consistent with the established authorities. The question did not raise any issue of general public importance.
The judge observed that the tribunal's award of £42,300,000 in respect of the M/V Aegean Fortuna early redelivery, calculated on the basis of the remaining 14 months of the charter at approximately £3,021,429 per month less credit for mitigation, was well-supported by the evidence and was within the range of reasonable conclusions open to the tribunal. The section 69 application was accordingly dismissed.
7.2 Judge's Observations on the Tribunal's Reasoning
In the course of his judgment, Mr. Justice Ashworth made several favourable observations about the quality of the tribunal's reasoning throughout the Award. He described the Award as "thorough, well-structured, and clearly the product of a careful and experienced tribunal," referring to Sir Malcolm Fenton-Clarke, Professor Athena Drakopoulos, and Dr. Henrik Dalmqvist by name.
The judge noted that the 10-day evidentiary hearing held from 11 to 22 September 2023 at the IDRC had been extensive and thorough, and that the tribunal had plainly given both parties a full opportunity to present their cases, including through extensive witness evidence and expert testimony.
Significantly, the judge observed that the pattern of challenges brought by KMH was "more consistent with an attempt to delay enforcement than with a genuine challenge to the integrity of the arbitral process." This observation is noteworthy as it may be of assistance in the parallel enforcement proceedings in other jurisdictions, particularly if KMH attempts to resist enforcement on similar grounds.
7.3 Costs Order
Mr. Justice Ashworth awarded costs to TSL on the indemnity basis.
In support of this order, the judge found that KMH's application had been pursued unreasonably and that the grounds advanced were, on analysis, without substance. He noted in particular that Ground 3 (procedural unfairness) was "wholly without merit" given KMH's express waiver of the adjournment offered by the tribunal. The judge stated that the conduct of the losing party — including the combination of a weak challenge with compelling evidence of post-award asset dissipation (as detailed in the Hartwell Pemberton LLP asset tracing reports and the evidence supporting the WFO) — justified departure from the standard basis of assessment.
The judge ordered as follows:
(a) KMH shall pay TSL's costs of and incidental to the application on the indemnity basis, to be the subject of a detailed assessment if not agreed.
(b) KMH shall make a payment on account of TSL's costs within 28 days of the date of the order.
(c) The quantum of the payment on account is to be addressed in written submissions to be filed within 14 days of the date of the order, in the event that the parties are unable to agree the figure.
8. Post-Hearing Discussion and Next Steps
Following the conclusion of the hearing at approximately 2:45 p.m., Samuel Eklund, Hannah Brinkley, and Patrick Gallagher convened in the Rolls Building consultation room at approximately 3:00 p.m. to discuss the outcome and agree upon immediate next steps. The discussion lasted approximately 30 minutes, concluding at approximately 3:30 p.m. The following action items were identified and assigned:
Client Notification:
Hannah Brinkley is to prepare a letter to the client, TSL, addressed to Ioanna Christodoulou (General Counsel) and Nikolaos Papadimitriou (Chairman and Chief Executive Officer), confirming the successful outcome of the hearing. The letter should confirm that KMH's application to set aside the Award has been dismissed in its entirety on all grounds, that the Award stands fully enforceable in England and Wales, and that costs have been awarded to TSL on the indemnity basis. The letter should be dispatched by close of business on Monday, 14 October 2024.
Costs:
Patrick Gallagher is to prepare a detailed schedule of costs for the purposes of agreement with Harkness Whitford & Co. or, failing agreement, for the detailed assessment. The costs submissions filed in connection with today's hearing are to be updated to reflect the actual time spent and disbursements incurred in relation to the application. The parties' respective costs positions should be communicated to Harkness Whitford & Co. promptly with a view to reaching agreement on the payment on account within the 14-day window set by the court.
Enforcement Continuation in England:
The dismissal of KMH's set-aside application removes the last obstacle to enforcement in England and Wales. It is noted that the final third-party debt order against Meridian Trust Bank Ltd. (50 Lombard Street, London EC3V 9EA) was completed on 3 September 2024, resulting in the recovery of £18,720,000 from KMH's accounts held at that bank. No further England-specific enforcement steps are required beyond the recovery of costs under the indemnity costs order.
Cross-Jurisdictional Impact:
The dismissal of the set-aside application on all grounds materially reinforces TSL's position in the parallel enforcement proceedings in the following jurisdictions:
(a) Cyprus: Case No. 2247/2024, Nicosia District Court. An enforcement order was granted on 30 September 2024. The dismissal of the English challenge strengthens the finality of the Award for the purposes of Cypriot enforcement proceedings.
(b) Singapore: OS 872/2024, Singapore High Court. Leave to enforce the Award was granted on 6 September 2024. The M/V Crimson Horizon was arrested on 20 August 2024 and remains under arrest pending the outcome of the Singapore enforcement proceedings. The English court's dismissal of the set-aside application will be of significant evidential value if KMH challenges the Singapore enforcement.
(c) United Arab Emirates: Case No. 1893/2024, Dubai Court of First Instance. A precautionary attachment order was granted on 28 August 2024. An enforcement order remains pending. The English court's judgment — particularly Mr. Justice Ashworth's observation that KMH's challenges appeared designed to delay enforcement rather than to challenge the integrity of the arbitral process — should be placed before the Dubai court.
Worldwide Freezing Order:
The WFO remains in force in the sum of up to £108,600,000 pending further recoveries. The WFO is to be reviewed and adjusted as amounts are collected across the various jurisdictions. Consideration to be given to whether a variation application is necessary in light of the £18,720,000 already recovered through the third-party debt order and any amounts recovered in the overseas proceedings.
Instructions to Local Counsel:
Hannah Brinkley is to instruct the following local counsel of today's outcome, with a copy of the judge's order (when available) and a summary of the ex tempore judgment:
(a) Kyprianos Makrides & Partners (Nicosia, Cyprus) — in relation to the Cyprus enforcement proceedings;
(b) Straits Meridian LLP (Singapore) — in relation to the Singapore enforcement proceedings and the arrest of the M/V Crimson Horizon; and
(c) Al-Rashid Hatem & Associates (Dubai, UAE) — in relation to the UAE enforcement proceedings and the precautionary attachment.
Each firm is to be advised to deploy the English court's dismissal of the set-aside application in any local proceedings where KMH attempts to resist enforcement on similar or related grounds.
9. Documents Referred to at the Hearing
The following documents were referred to or relied upon by the parties during the course of the hearing:
1.  LCIA Award No. 224718, dated 28 June 2024 (Tribunal: Sir Malcolm Fenton-Clarke (Presiding Arbitrator), Professor Athena Drakopoulos, and Dr. Henrik Dalmqvist; Tribunal Secretary: Fiona Beckett).
2.  KMH's application notice dated 19 August 2024, seeking to set aside the Award under sections 68 and 69 of the Arbitration Act 1996.
3.  Skeleton argument of Harkness Whitford & Co. on behalf of KMH in support of the set-aside application.
4.  Calderwood & Harkness LLP skeleton argument on behalf of TSL opposing the set-aside application.
5.  First witness statement of Nikolaos Papadimitriou, Chairman and Chief Executive Officer of TSL, filed in support of the section 66 application and the Worldwide Freezing Order.
6.  TSL's Request for Arbitration dated 14 November 2022 in LCIA No. 224718.
7.  TSL's Statement of Case in LCIA Arbitration No. 224718.
8.  The three charter-party agreements:
(a) Charter-party for the M/V Aegean Fortuna, signed 15 March 2019;
(b) Charter-party for the M/V Crimson Horizon, signed 22 January 2020; and
(c) Charter-party for the M/V Volga Spirit, signed 10 June 2021.
9.  Procedural orders of the tribunal in LCIA Arbitration No. 224718.
10.  Correspondence between counsel during the evidentiary hearing week (11–22 September 2023) regarding the tribunal's adjournment offer and KMH's declination thereof.
11.  Hartwell Pemberton LLP asset tracing report, referenced in connection with the evidence of post-award dissipation supporting the Worldwide Freezing Order.
10. Attendance Details
Hearing duration: Approximately 10:35 a.m. to 2:45 p.m. The hearing included a short mid-morning break of approximately 10 minutes (taken at approximately 11:50 a.m.) and a 45-minute lunch adjournment (approximately 12:55 p.m. to 1:40 p.m.).
Post-hearing conference: Approximately 3:00 p.m. to 3:30 p.m. in the Rolls Building consultation room.
Time recording: Entries to be posted separately under the appropriate matter phase code. The total estimated attendance time is approximately 17.5 hours across all three fee-earners.
11. Signature / Approval
Prepared by:
________________________________________
Hannah Brinkley Lead Associate, Litigation (General) Calderwood & Harkness LLP
Date: 11 October 2024
Reviewed and Approved by:
________________________________________
Samuel Eklund Responsible Partner Calderwood & Harkness LLP
Date: 11 October 2024
File Reference: C&H/TSL-KMH/Enforcement/CL-2024-000487/Attendance Notes
This attendance note is prepared for internal use only and is subject to legal professional privilege and/or attorney work product protection. It is not to be disclosed to any person outside Calderwood & Harkness LLP without the prior written authority of the Responsible Partner. Distribution is limited to the individuals identified on the first page of this note.
Document Type: | Internal Attendance Note — Privileged and Confidential / Attorney Work Product
Firm: | Calderwood & Harkness LLP, 45 Moorgate, London EC2R 6AR, United Kingdom
Matter: | Thalassa Shipping & Logistics SA v. Korinthian Maritime Holdings Ltd.
Matter Reference: | Enforcement of LCIA Award No. 224718
Court Reference: | Commercial Court, Claim No. CL-2024-000487
Date of Hearing: | 11 October 2024
Court: | Commercial Court, Rolls Building, London
Before: | Mr. Justice Ashworth
Prepared by: | Hannah Brinkley, Lead Associate, Litigation (General)
Date of Note: | 11 October 2024
Distribution: | Samuel Eklund (Responsible Partner), Linda Osei (Billing Partner), Patrick Gallagher (Working Associate) — Internal distribution only
Attendee | Role | Time
Samuel Eklund | Responsible Partner | 5.5 hours
Hannah Brinkley | Lead Associate | 6.0 hours (including travel and note preparation)
Patrick Gallagher | Working Associate | 6.0 hours (including travel and note preparation)

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT

INTERNAL ATTENDANCE NOTE

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