В публикации поднимаются вопросы, связанные с экономическими и юридическими проблемами судостроения. В частности, рассматриваются влияние рынка в период экономического кризиса, разразившегося в 2008 году, коммерческие и платежные условия контрактов на строительство судов, а также риски и ответственность, которая может наступить при неисполнении или ненадлежащем исполнении таких контрактов. В заключение авторы замечают, что именно конкретная рыночная ситуация – это фактор, который решительно влияет на ключевые условия судостроительных контрактов.
The shipbuilding market has experienced both peaks and troughs during the past few years. A look back at the contracts that were executed during this period suggests that it is not only contract price that is affected by market conditions.
Shipbuilding contracts are typically entered into on standard contract forms, which may favour the yard or the buyer or attempt to achieve a balanced position between the parties. However, through negotiation, parties may be able to influence the balance and risk profile of a standard contract.
In the period leading up to 2008, the demand for new ships exceeded supply and shipbuilding contracts became increasingly yard friendly. Yards were able to dictate terms to buyers competing for berth space. The global financial crisis led to a period of distressed shipbuilding contracts and numerous cancellations. Already the re-sales of such projects began to redress the dominant yard-friendly scenario.
Market freight rates have suffered as a result of overcapacity in the shipping market. The year 2012 saw a 10-year low, with the fleet order book falling from 20% to 12% of the total fleet. There were exceptions – most notably, in liquefied natural gas and offshore markets – but for many shipyards the future is grim. However, for owners considering placing new orders, the future may appear somewhat brighter, as they may be able to negotiate terms that were unachievable in the pre-crisis era.
Payment terms and the requirement of performance guarantees are conditions typically affected by market conditions.
During the boom period, yards were in a position to demand documentation and guarantees to evidence buyers’ ability to pay for and take delivery of vessels. Now, guarantees are rarely required unless the buyer is a single-purpose company, in which case a parent company guarantee is often sufficient. Conversely, buyers can now demand parent guarantees in order to secure a yard’s performance.
Another buyer-friendly feature of the increase is the buyer’s ability to pay the majority of the purchase price on delivery of the vessel – in some cases up to 90%. This is a complete turnaround compared with the period leading up to 2008. Previously, buyers were forced to meet a yard’s demands for slot-reservation fees in order to commence contract negotiations with a fixed delivery date. In addition, buyers were also required to commit to significant down payments pre-delivery, often up to between 80% and 90%. Now, yards are willing to provide most of the pre-delivery funding themselves, and they frequently contribute to the post-delivery financing by granting sellers credits and, in some cases, by agreeing to take an equity share in the vessel.
Another feature of the pre-2008 boom was that yards could pass on the risk of main equipment prices and other fluctuating costs to buyers. The price of, for example, the hull works and/or main engine were given on an ‘as-quoted’ basis (basic price) and buyers were forced to take the risk on the final cost outcome. Today, the traditional principle of a fixed-price contract (albeit subject to variations) is seldom contested.
The turnkey principle has traditionally prevailed when considering the allocation of liability and risk under a shipbuilding contract. However, this principle was challenged in the years before the financial crisis. Yards sought to limit liability for design by incorporating the shipbuilding contract with the design contract. This represented an extensive carve out from the turnkey principle relating to main vessel characteristics (eg, speed, deadweight and consumption). Today, yards have reverted to taking full responsibility for design.
During the boom, yards were successful in limiting their liability for delay in delivery of main components. In today’s market, the reduced lead time for main equipment and buyers’ increased bargaining power have shifted this risk back to the yards.
A new feature, based on experiences from distress scenarios during 2009 and 2010, is for buyers to negotiate a right to suspend construction and postpone delivery against payment of an agreed fee. Such suspension clauses allow buyers to make alternative arrangements should their ability to take delivery be jeopardised during the construction period. Such clauses also give buyers time to avoid (an often unlimited) liability arising from a failure to pay for the vessel on delivery.
The issues touched on in this update demonstrate how market situation can affect key provisions – and consequently the overall balance – of shipbuilding contracts. When negotiating a contract, it is often difficult to assess the significance of such contract provisions. However, existing market practice should be taken into account when negotiating a shipbuilding contract. Given existing market conditions, buyers lose nothing by requesting a particular term or provision. While such an approach may not always be successful, buyers may be pleasantly surprised by the extent to which yards are prepared to meet their requests.
Авторы: Оyvind Axe, Оystein Meland (Wikborg Rein)
Источник: http://www.internationallawoffice.com/newsletters/detail.aspx?g=36906e37-53c6-40b3-a343-ead16c808e61