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Shipowners
in pool agreements could be caught out by new EU regulations
according to a shipping lawyer.
Such agreements may have to be rewritten.
Øystein Meland, partner at the Bergen office of law firm Wikborg Rein,
warned new EU enforcement rules may come into effect in 2005 or 2006 making
some existing pool agreements illegal.
"A pool agreement is a horizontal agreement between competitors which may
create market dominance and increase barriers to entry. In many
jurisdictions this already makes them illegal," says Meland.
"To date, they have largely been left alone due to the positive effect they
have on world trade and lack of enforcement of the competition rules. But
all that could be about to change."
In the wake of a number of recent shipping cases, the regulators are
increasingly focused on competition in international shipping.
The EU is now looking at revising Regulation 4056/86 of the EC Competition
Rules in order to abolish the block exemption currently enjoyed by both
liner and tramp shipping.
"While it is hoped that the regulators will appreciate the important role
played by shipping pools, shipowners are strongly advised to review and
possibly rewrite their shipping pool agreements as soon as possible. Failure
to do so could result in huge fines and/or civil suits," says Meland.
According to Meland, pool agreements need to be rewritten to emphasise that
the purpose of the agreement is increased efficiency and utilisation of
vessels, and demonstrate that the customer gets a fair share of the benefit.
Non-competition clauses should be minimised, particularly those that hinder
any of the pool participants from buying similar ships to operate either on
their own or in co-operation with other operators.
"Agreements that fail to comply with the new rules could attract corporate
fines of up to 10 per cent of annual worldwide turnover on a group basis, or
up to ten years imprisonment for individuals," he warns.
The new rules will also introduce stricter filing or registration
requirements leading to increased bureaucracy and costs for owners.” |
