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Restraint of Princes

Government Interferences
Last updated: 06-Oct-2014

Per Eder J in ED & F Man Sugar Ltd v Unicargo Transportgesellschaft GmbH [2012] EWHC 2879 (Comm) at paras 35-36:

35. As it is, it would in many cases be very difficult to determine whether, in any given case, a port authority is or is not a government entity for the purposes of "government interferences". Challenging and subtle distinctions would arise between ports which are plainly state-operated (openly, through a ministry) and ports which are operated by private companies which are themselves state-owned or state-operated. As submitted by Mr Phillips, it seems to me that the need to wrestle with such distinctions confounds the certainty for which commercial parties would be expected to provide.

36. In light of the observations above, it does not matter what is encompassed within "government interferences"; it suffices that the facts of the present case are not. However, the Tribunal was plainly right in concluding that: "That phrase was suggestive ... of an embargo or export ban, rather than simply an administrative re-scheduling of cargoes due to a fire". What was required, at the least, was an act by a port authority (which was also a government entity) which amounted to the discharge of a sovereign function and which differed from an ordinary administrative act of which any port or berth authority (state-owned/operated or otherwise) would be capable in the day-to-day management of a berth. There was no such act in the present case (nor any finding in that regard).

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