Nick Fell of BW Group was officially elected Chairman of the Documentary Committee at BIMCO’s General Meeting on 20 May last year. When Fell took over, the industry was in many ways still confronted with the effects of the COVID-19 pandemic while, at the same time, the need for contractual solutions in key areas such as environmental compliance was growing. Below, Fell answers seven questions about his and the Committees work, reports an article published on their website.
1. Can you tell us a bit about yourself, your career and how you got involved with BIMCO and the Documentary Committee?
I grew up by the seaside in England and my first position out of law school was working in London with the shipping oriented firm Richards Butler, now Reed Smith. As a young lawyer I was lucky enough to be posted to Hong Kong and I spent nearly six years there before heading to Chicago to do an MBA. After a stint in management consulting, I returned to law and practiced in California for seven years. I then headed back to London to take up my first general counsel position for a well-known tanker owner. In 2011 I was appointed General Counsel of BW Group in Singapore and I have been privileged to be a part of the growth and diversification of the company during this time. I confess to having a little seagoing experience as a junior Royal Naval Reserve officer serving on minesweepers in the 1980s and early 1990s.
While I have of course known about BIMCO for many years, my first direct engagement with the association and its contractual work was in 2015 when I joined the subcommittee in charge of drafting SHIPTERM, the bilateral term sheet for ship financing transactions.
Following the development of SHIPTERM and the subsequent version for syndicated ship financing transactions, SHIPTERM S, I was asked to chair the subcommittee drafting the third in the suite of financing term sheets, namely one for ship sale and leaseback transactions. Here, we hit a sweet spot for BIMCO in so far as these transactions have been booming in recent years and, as there was no industry template, the term sheet published in September 2020 was an “industry first” – in addition to being my first BIMCO project as chair.
So, you can say that I went straight into the “engine room” with my participation in the financing term sheets and I think this gave me a good background knowledge about how BIMCO’s contracts and clauses are developed and how, as chair of the Documentary Committee, I can foster the best conditions for the various drafting teams that are working on the many projects we are involved in.
2. How long have you been involved with the Documentary Committee and how do you see the interaction between your day job and being Chairperson of the Documentary Committee?
I have served as an owner representative for Singapore on the Documentary Committee since 2017. I was elected chair of Committee at BIMCO’s General Meeting in May 2021.
Shipping, today, is much more – and much more complex – than transportation of goods by sea. It is about global economics, geopolitics, sustainability, and the environment, and so on. Coming from a global maritime company involved not only in various shipping segments but also in areas such as oil and gas production, floating structures and renewables is definitely a plus as I have the chance to understand the opportunities and challenges in a broader context. So, there are a lot of synergies between my day job and my BIMCO role, and I think that goes for all members of the Documentary Committee who bring valuable insights to BIMCO and take away equally valuable insights!
3. How do you see BIMCO’s role in the development of standard documentation for the maritime industry? How does the Documentary Committee fit into that picture?
BIMCO has a huge role to play in the development of standard documents for the maritime industry and I think it is fair to say that the drafting of contracts and clauses is the single most important activity of the association. Almost dating back to its establishment in 1905, BIMCO has produced standards for the industry, and it is today the world leader in this field. It is a big responsibility – for the association, and therefore also for the Documentary Committee and me as its chair.
That said, we have a strong “documentary infrastructure” with the Documentary Committee and its more than 60 professionals with shipping, commercial, insurance, legal and shipbroking expertise as well as the many drafting subcommittees where we take great care to involve the right industry experts in each and every project. So, the system has in many ways been tried and tested over the years and ensures that BIMCO continues to develop fair and balanced contracts and clauses for the industry, and by the industry.
4. Can you tell us about any of the projects that are coming up?
The Documentary Committee work programme is constantly developing and at any given time we have more than ten projects ongoing. The most significant project we are working on at the moment is, no doubt, the development of so-called “carbon clauses”. In view of the environmental agenda, the Documentary Committee has set up a “standing subcommittee” tasked with the development of a range of clauses aimed at addressing the various regulatory developments taking place at the IMO and elsewhere. Following the development of the EEXI Transition and ETS Allowances Clauses, the Documentary Committee adopted the CII Operations Clause at its meeting on 16 November last year.
A very challenging task given the complexity of the matter and the uncertainties surrounding the underlying MARPOL Regulations, but we got the job done and arrived at what the DC considers a workable solution although I am aware that the clause has not yet been embraced by all charterers. We will be monitoring the application of the CII Clause amongst the industry with a view to considering if, down the line, the clause needs adjusting. The next step is to consider the development of voyage and trip time charter versions of the CII Clause as well as one for contracts of affreightment. BIMCO is holding webinars and offering courses to help the industry make practical sense of the CII clause as well as the regulation.
GENCON 2022 is another monumental project that I am proud to see concluded during my tenure. GENCON, and in particular its 1994 edition, is a flagship BIMCO contract and while recognising the popularity of earlier versions I hope the industry will be ready to take on board this new edition of BIMCO’s “industry classic”. We are planning a series of seminars worldwide to explain and promote the revised version of the contract.
While still work in progress, I also want to highlight the ASBATANKVOY project. By having joined forces with copyright holders ASBA to revise what many regard as their preferred form for use in the tanker trade, BIMCO is further strengthening its position in this area – something which I consider particularly important in view of the association’s strategy to develop contracts and clauses for all segments of the industry.
5. Are there any recent milestones the Documentary Committee have reached?
I am amazed by the breath and variety of projects undertaken by the Documentary Committee. Ranging from a new ship conversion contract, sanctions and force majeure clauses, ship financing documents, and LNG bunker terms, to documents ready to be used in connection with autonomous ships, just to mention a few. There is no doubt in my mind that the Documentary Committee is constantly breaking new ground.
One project, though, which has been particularly important for BIMCO in 2022 is the publication of its new sale and purchase standard SHIPSALE 22. Having relied for many years on the cooperation with the Norwegian Shipbrokers’ Association on their SALEFORM 2012 agreement, BIMCO took the bold step to develop its own form. Having been involved in many S&P deals over the years, I think SHIPSALE 22 provides a modern and “fresh” alternative to other forms – and while you might say I am biased in my capacity as DC chair I can only recommend S&P stakeholders to check it out for themselves!
6. What are the biggest challenges the Documentary Committee faces?
In a constantly evolving world, for a truly global sector such as shipping, BIMCO and its documentary work are more important than ever. It is therefore imperative that we are able to provide the contractual solutions that the wider shipping industry rightly expects from us. More and more stakeholders come to BIMCO with requests for us to develop standards because we are recognised as a reliable and fair partner for the industry. One of the biggest challenges, as far as I see it, is to ensure that BIMCO is continuously able to meet the industry’s needs and expectations swiftly and efficiently.
Over the years, BIMCO has managed to develop contractual solutions with impressive speed, when necessary, for example when GUARDCON and the COVID-19 Crew Change Clause were developed within a very short timeframe to meet critical issues facing the shipping industry. Another such “hot topic” is the Russian oil price cap scheme implemented in December. Here, we have put together a fast-working subcommittee tasked with the drafting of a contractual response that will address, amongst others, the requirement to obtain an attestation of compliance with the relevant regulations.
And with the new MARPOL CII Regulations now in force, at the end of 2022 BIMCO delivered a contractual solution – the CII Operations Clause which I consider a good starting point for owners and charterers to discuss and agree on appropriate methods to deal with the practicality of addressing the regulations in time charters.
7. What do you hope to achieve as Chairperson of the Documentary Committee?
It is a huge privilege to be chair of the Documentary Committee and in particular at a time which I consider critical for the shipping industry. As mentioned, the Committee has to be ready to deliver when needed by the industry. The “carbon clauses” are key and I want to make sure that BIMCO does indeed deliver on this even if the underlying regulatory framework is imperfect and may be uncomfortable for some.
As a more fundamental point, I want to ensure that the Documentary Committee continues to be the efficient and well-functioning “engine room” that it has been for decades. My predecessor in the post, Francis Sarre of CMB, initiated procedural changes aimed at ensuring that the Committee continues to have sufficient expertise and embarks on the right projects. I want to ensure that these changes are effectively implemented so that BIMCO at all times has the structures in place to maintain its position as world leader in this field.
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