Date of Birth: 1959Date of Call: 1983
Silk Date: 1999
General Information
Joint honours (1st class) in history and law at Magdalene College, Cambridge
Practice
Alistair Schaff QC practices as a barrister specialising in international commercial law, primarily as an advocate but also in an advisory capacity and (increasingly) as an arbitrator.
As an advocate, he has argued cases before the European Court of Justice, the House of Lords, the Privy Council and the Court of Appeal and makes frequent appearances in the Commercial Court and in commercial arbitrations, both in London and overseas, and whether in long complex trials or arbitrations involving lengthy cross-examination of factual witnesses or experts or in short interlocutory hearings involving difficult points of law.
At the pre-trial stage, he operates a very ‘hands-on’ approach to his cases. He believes that being an advocate is not just about presenting a case in court or in arbitration but is also about being involved in, and being on top of, a case from an early stage and about helping to shape its eventual outcome through the necessary tactical, procedural and evidential decisions on the way. He is both accessible and ‘user-friendly.’
He accepts appointments in all manner of commercial arbitrations, with increasing experience as an arbitrator in (re)insurance and shipping matters.
He has also acted as an expert on English law for use in foreign proceedings and has appeared as counsel before the Court of Final Appeal in Hong Kong and the Supreme Court of Gibraltar. He is a member of the Commercial Court Users Committee.
Selected Cases
Alistair Schaff QC has a very extensive insurance and reinsurance practice. In 2009, he was named the Chambers Bar Awards Insurance Silk of the Year. Two landmark victories were for the successful reinsurers in the leading case of Wasa v Lexington [2009] UKHL 40 in which the House of Lords considered the nature of a ‘back to back’ facultative reinsurance contract and held that reinsurers were not liable to indemnify the reassured in respect of an underlying liability for property damage which had occurred outside the policy period (see [2010] J.B.L. page 9 for an article which he has written on this case); and for Equitas in Equitas v R&Q [2009] EWHC 2787 (Comm) in which Gross J. upheld the use of actuarial models as a means of kick-starting the LMX spiral in the aftermath of the incorrect aggregation and/or settlement of KAC / BA and Exxon Valdez losses.
Alistair Schaff QC also has a major international arbitration practice. He has recently acted on behalf of a Middle East government in a major ICC arbitration involving the successful defence of a two billion dollar dispute concerning an oil production sharing agreement with oil majors, on behalf of political risk underwriters in an LCIA arbitration concerning energy business in Argentina, on behalf of Far Eastern hotel resorts in Singapore and Bangkok arbitrations arising out of business interruption losses consequent on the tsunami and on behalf of personal accident reinsurers in a London reinsurance arbitration concerning the personal accident spiral.
He has recently acted for Nationwide Building Society in a professional negligence action against insurance brokers in a case raising issues as to the extent of brokers’ duties, contributory negligence and causation of loss: Dunlop Haywards (DHL) Ltd v Barbon Insurance Group Ltd [2009] EWHC 2900 (Comm). Other professional negligence experience involves claims against solicitors and accountants / auditors.
In recent years, he acted for Glencore in the multi-party Metro litigation involving the misappropriation of over $200m worth of oil from floating storage off Fujairah. That litigation gave rise to complex issues of jurisdiction, conflict of laws, tracing and priorities, to anti-suit injunctions, to major issues of fact as to how the Glencore joint venture with Metro operated and to a very substantial claim on Glencore’s marine open cover insurance. The conflict of laws judgment is reported at [2001] 1 LLR 283. Glencore’s successful claim on its open cover is reported at [2004] 1 LLR 111.
In the field of insurance, he acted for the successful insurers on an appeal from the Court of Appeal of Trinidad and Tobago to the Privy Council in Super Chem Products Ltd v American Life & General Insurance Co. Ltd [2004] Lloyd’s Rep. IR 446, a case which upheld the insurers’ right to rely on timebar and claims co-operation conditions to deny liability for a claim on fire policies. He acted for the insurers in a case involving residual value motor insurance which settled shortly before coming on to trial in February 2004. He has been involved in several film finance disputes, including acting for the successful claimant in the case of GE Re v New Hampshire / Willis in which the Claimant’s declining of liability on grounds of breach of warranty was upheld: [2004] Lloyd’s Rep. IR 404. Other previous cases include Jan de Nul v Royale Belge [2002] 1 LLR 583 (CA) in which he acted for the successful insured who claimed under a third party liability policy in respect of liabilities for negligence and nuisance; Royal Boskalis Westminster v Mountain [1997] 2 All ER 929 (CA) in which he acted for the successful insurers in a claim involving illegality and duress arising out of the first Gulf War; and (in the marine insurance context) Fraser v Colton [1997] 1 LLR 586 (total loss) and The State of the Netherlands v Youell [1998] 1 LLR 236 (sue and labour).
In the field of reinsurance, he has been involved in countless arbitrations. Four reinsurance cases which reached the Commercial Court were Kingscroft v Nissan [1999] Lloyds’ Rep. IR 603, in which he acted for the successful Weavers stamp companies in their claim against their quota share reinsurers in a case which raised important issues as to how underwriting pools operated; Enterprise v Strand [2006] 1 LLR 500 in which he acted for the successful reinsurers in litigation involving the liability section of an energy policy; CGU v Astrazeneca [2006] Lloyd’s Rep. IR 409 which once again involved the scope of a ‘back to back’ reinsurance; and Mopani Copper Mines v Millennium [2009] Lloyd’s Rep IR 158, which involved principles of construction concerning the admissibility of deleted words.
In the shipping context, he has also been involved in countless arbitrations, many of which historically have reached the courts. He successfully represented the cargo claimants in MacWilliam v Mediterranean Shipping Company in what is now the leading case on the status of ‘straight’ bills of lading made out to a named consignee without the addition of the words ‘to order.’ Overturning the first instance judge (who, in turn, had upheld the decision of the arbitrators), the Court of Appeal held in [2004] QB 702 that ‘straight’ bills of lading are nonetheless ‘bills of lading’ for the purposes of the Hague-Visby Rules. The House of Lords upheld the Court of Appeal’s decision: [2005] 2 AC 423. He has just successfully represented the cargo claimants before the Court of Final Appeal in Hong Kong in Carewins v Bright Fortune (FACV no 13 of 2008) in a decision which not only reaffirms the presentation rule for ‘straight’ bills of lading but holds that an exceptions clause which excludes liability for the consequences of ‘misdelivery’ is not to be construed as protecting the carrier for breaching the presentation rule. In a previous shipping case which went to the House of Lords, Effort Shipping v Linden [1998] AC 605, he acted for the successful shipowners in the leading case on dangerous cargoes.
He has considerable experience in all manner of maritime and international trade disputes, ranging from letters of credit disputes (Mannesmann v Kaunlaren [1993 1 LLR 89), international sale of goods disputes (Huyton v Cremer [1999] 1 LLR 620) and offshore oil and gas platform disputes. In the latter context, he acted for the operators of the ‘Piper Alpha’ platform in respect of negligence actions involving the ‘Piper Alpha’ explosions: McFarlane v Caledonian [1994] 1 LLR 16 and Hegarty v Caledonian [1997] 2 LLR 259. He also acted for Amoco in a major Commercial Court trial concerning defective wellhead seals which settled in October 2000.
On a more general commercial level, in Great North Eastern Railway v Railcare (judgment July 2003), he acted for the successful claimant in its claim for substantial damages for negligence against a supplier of rail parts arising out of a derailment, vindicating a very substantial claim of approximately £3m in the face of an unsuccessful plea of contributory negligence.
Finally, he has always enjoyed and is experienced in handling difficult jurisdictional issues. Jurisdictional issues arose in the Metro litigation (see, by way of example, [1999] 2 LLR 724) and in Equitas v Allstate [2009] Lloyd’s Rep. IR 227. More historically, he acted for the claimants in The “Tatry” / “Maciej Rataj” [1999] 2 WLR 181, appearing before the European Court of Justice in the leading case involving Articles 21 and 22 of the Brussels Convention. Surzur v Koros [1999] 2 LLR 611 (a Court of Appeal decision on conspiracy by unlawful means) arose in a jurisdictional context, as did Ocarina v Marcard Stein [1994] 2 LLR 524, the latter then proceeding into a major trial between the bank and its customer which was only concluded on appeal in 1999.
Press Releases:
- 7KBW wins four Chambers Bar Awards 2009 - 01/10/09
