Daily Archives: February 27, 2021

Medric Cousineau, who, it was announced Thursday, has received the Meritorious Service Medal from Rideau Hall, would like to forget the circumstances surrounding the first decoration he received from the office of the Governor General of Canada.

He just cannot.

The other day, when I asked him about the 1996 event, he paused and then directed me towards the GGs website which, he said, explains what happened with typical Canadian understatement.

The facts are these: in October 1986 Cousineau, then a Lieutenant, was serving as a navigator on a search and rescue helicopter flying off HMCS Nipigon, then patrolling the waters beyond Newfoundland in the midst of the Canada-Spain Turbot war.

That October 6, his helicopter took off to help two injured crewmen on an American long-liner about 800 km off the coast of Newfoundland.

The night was dark, the weather terrible rain, strong winds and heavy seas and the boat deck, which was covered with fishing apparatus, and machinery, pitching and rolling continuously, according to his citation for the Star of Courage, Canadas second-highest award for bravery.

Nevertheless, Cousineau, who was born in Vancouver and had trained as a gunnery officer, before becoming a navigator for Sea King helicopters, volunteered to be lowered to the deck of the vessel.

On the first attempt, he was thrown overboard by the wildly pitching boat.

The second time, Cousineau scrambled aboard, where despite the flying spray and the tremendous noise of the large helicopter hovering close overhead, he evacuated the injured crewmen.

During the rescue, Cousineau was slammed against the fishing ship, but the emotional injuries he suffered lingered even longer.

Though he left the military in 1991, his post traumatic stress disorder seemed to worsen as time went on. Flashbacks and night terrors haunted him.

In 2006, right around the anniversary of the rescue, Cousineau had a full psychotic break and was institutionalized.

I was gone, he said when we spoke Wednesday.

Six years later, an old high school classmate, who knew of his struggles, contacted Cousineau. A service dog helped her special needs daughter, and it was her understanding that they could also help PTSD sufferers.

Which is how, thanks to the canine assistance and rehabilitation education and services program in Concordia, Kansas, a golden lab named Thai came into his life.

And why, in a roundabout way, Cousineau was among the latest recipients of the Meritorious Service Medal which, according to the Governor Generals office, honours individuals who have performed a deed or an activity in a highly professional manner, or at a very high standard that brings benefit or honour to Canada.

The list includes Todd McDonald and Ashley Ward, of Halifax, for founding GIVETOLIVE, which organizes and hosts challenging sports events to raise funds for charity, as well as Lunenburgs William Brooks, one of the founders of Canadian Fallen Firefighters Foundation, which honours firefighters who have died in the line of duty and provides support for their families.

Cousineau and his wife Jocelyn are the drivers behind Paws Fur Thought, which brings together service dogs and veterans and first responders who afflicted by operational stress disorders.

Thai, it must be said, deserves some of the credit. The dog offers Cousineau security when the anxiety swirls. When he is about to blow, his wife and kids tell him to just take Thai for a walk, which calms him down.

Now, when night terrors are about to begin, Thai senses the impending attack and wakes him before it hits.

How many times has a mental health pro ever spent time with me during night terrors, Cousineau told me via email. Hint: never. Thai has never missed.

A year after the dog came into his life, Cousineaus eldest daughter, with whom he had a fractious relationship, turned to him, and said, I dont know what has changed with you, but something sure has.

Another the same time he and Jocelyn were out for a walk, when, apropos nothing he just blurted out, what about the others?

After decades of agony, Cousineau finally had relief from his demons, but he also intuitively understood that so many more like him were still suffering.

Support dogs like Thai are expensive anywhere from $25,000 to $30,000 each depending upon the school where they are trained.

Money is a really stupid reason to die, said Cousineau, by which he meant that it was plain dumb that the price of a dog is all that stops someone from escaping the hell of PTSD.

In his case, the local Legion ponied up the money. When a veteran with the same disorder came to Cousineau he began to find ways to connect PTSD sufferers with service dogs.

His commitment to the cause is such that in 2013, Cousineau walked 1,065 kilometres in 50 days to raise money and awareness about PTSD. And he and his wifes organization have found some 200 dogs for vets and first responders across the country.

Since 2019, hes been pulling back from his duties which he now describes as patting puppies, taking pictures and signing cheques. at the organization, which has 15-or-so volunteers in Nova Scotia.

After Thursday, he can add receiving one of the country's greatest honours to that job description.

RELATED:

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JOHN DeMONT: Fighting the PTSD demons one dog at a time - The Journal Pioneer

Rangers duo Joe Aribo and Leon Balogun will take to the high seas when they report for international duty with Nigeria.

The pair played a starring role in the weekend win over Dundee United as Steven Gerrard's side stand on the brink of the Premiership title.

Aribo scored one and assisted one, while Balogun filled in at right-back in the absence of captain James Tavernier.

They're both expected to report for Nigeria duty next month as the Super Eagles take on Benin and Lesotho in back-to-back Cup of Nations qualifiers.

The latter will see Gernot Rohr's side play in Nigeria's largest city Lagos for the first time in over a decade.

But it's their plans for the short away trip to play Benin in the city of Cotonou that's sure to raise eyebrows at Rangers.

Although there are just 75 miles between the cities, the journey takes up to five hours because of undeveloped roads and Nigeria have now announced they will travel to the game by the unorthodox method of taking a boat across the Gulf of Guinea to the game at the Stade de l'Amitie.

Rohr explained: "We are playing in Lagos for the first time in a very long time. I am very excited for the players.

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"We have players like Leon Balogun and Joe Aribo, who were born in Europe and have never seen Lagos. I want them to discover this crazy city with 19 million inhabitants.

"So it's important we have good security and escorts to move around. The traffic in Lagos is terrible. We also need to do some work on the surface of the pitch, like cut the grass which is very much needed.

"For the first match in Benin, we are playing in the city of Cotonou. We will stay in Lagos ahead of the match.

"But because the road is not good between Lagos and Cotonou, we will travel to the match on a boat because the crossing only lasts two hours, instead of many hours on poor roads by coach."

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Joe Aribo and Leon Balogun take to the high seas for Nigeria - Daily Record

Newport Daily News

COASTAL RHODE ISLAND

Saturday:A slight chance of rain and snow before 9 a.m., then rain. Patchy fog after noon. High near 44. Breezy, with a southeast wind 8 to 13 mph increasing to 15 to 20 mph in the afternoon. Winds could gust as high as 31 mph. Chance of precipitation is 90%. Little or no snow accumulation expected.Saturday Night:A chance of rain, mainly before 8 p.m. Patchy fog before midnight. Otherwise, mostly cloudy, with a low around 35. Southwest wind 5 to 13 mph becoming northwest after midnight. Chance of precipitation is 30%. New precipitation amounts of less than a tenth of an inch possible.

Sunday:Rain likely, mainly after 4 p.m. Mostly cloudy, with a high near 45. Calm wind becoming southeast 5 to 7 mph in the afternoon. Chance of precipitation is 60%.Sunday Night:Rain likely, mainly before 1 a.m. Patchy fog. Otherwise, cloudy, with a low around 39. Southeast wind around 6 mph becoming southwest after midnight. Chance of precipitation is 60%.

EXTENDED

Monday:Patchy fog before 10 a.m. Otherwise, partly sunny, with a high near 49. West wind 6 to 14 mph.Monday Night:Partly cloudy, with a low around 24. Blustery, with a west wind 15 to 21 mph.

Tuesday:Sunny, with a high near 35. Breezy, with a northwest wind 15 to 20 mph.Tuesday Night:Mostly clear, with a low around 26. West wind 10 to 13 mph.

Wednesday:A chance of rain. Mostly sunny, with a high near 41. Southwest wind around 11 mph, with gusts as high as 21 mph. Chance of precipitation is 30%.Wednesday Night:Mostly cloudy, with a low around 34. South wind 8 to 10 mph becoming southeast after midnight. Winds could gust as high as 20 mph.

MARINE

Saturday: Southeastwind 8 to 11 knots becoming southeast14 to 17 knots in the afternoon. Winds could gust as high as 27 knots. Rain and snow, becoming all rain after 3 p.m. Patchy fog after 11 a.m. Seas 1 foot or less.Saturday Night:Southwestwind 5 to 9 knots becoming variable and less than 5 knots after midnight. A chance of rain, mainly before 7 p.m. Patchy fog before 11 p.m. Seas 1 foot or less.

Sunday:Variable winds less than 5 knots becoming southeastaround 6 knots in the afternoon. Rain likely, mainly after 3 p.m. Seas 1 foot or less.Sunday Night:Variable winds 5 knots or less. Rain likely, mainly before midnight. Patchy fog. Seas 1 foot or less.

TIDES, ETC.

Saturday's high tides: 7:34a.m., 7:58p.m. Low tides: 12:51a.m., 1:32p.m.

Sunday's high tides: 8:18a.m., 8:44p.m. Low tides: 1:38a.m., 2:08p.m.

Saturday's sunrise, 6:24. Sunset, 5:34.

Sunday's sunrise, 6:33. Sunset, 5:27.

Thursday's temperatures: High 45, low 35.

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NEWPORT AREA WEATHER REPORT: Feb. 27-28 - newportri.com

Introduction:

Recognising that an arbitration agreement between parties is anagreement independent of the substantive contract, the Delhi HighCourt in Dholi Spintex Pvt. Ltd. v. Louis Dreyfus Company IndiaPvt. Ltd.1 has held that two Indianparties can choose a foreign law as the law governing thearbitration between them. The Court has also reiterated the legalposition on limited interference by Courts in internationalarbitrations.

Dholi Spintex Pvt. Ltd. (the"Plaintiff") had entered into a contractwith Louis Dreyfus Company India Pvt. Ltd. (the"Defendant") for supply of 600 metrictonnes of American imported raw cotton on May 30, 2019("Contract"). The Contract was enteredinto on a high sea sales basis. Clause 6 of the Contract providedfor resolution of disputes through arbitration in accordance withInternational Cotton Association ("ICA")rules & arbitration procedure. It further provided London asthe venue of arbitration. Clause 7 of the Contract provided that'only the courts in New Delhi would havejurisdiction'. The relevant ICA rules and by-laws (beingby-laws 200, 300 and 306) inter-alia provided that (i)'The law of England and Wales and the mandatory provisionsof the Arbitration Act 1996 (Act) shall apply to every arbitrationand/or appeal under these By-laws'; (ii) 'The seatof our arbitrations is in England. No one can decide or agreeotherwise'; and (iii) 'Disputes shall be settledaccording to the law of England and Wales wherever domicile,residence, or place of business of the parties to the contractmay'.

Eventually, disputes arose between the parties with respect tothe said Contract. The Defendant invoked arbitration before the ICAand appointed its nominee arbitrator in terms of the arbitrationagreement between the parties. Thereafter, the ICA called upon thePlaintiff to appoint its arbitrator. Since the Plaintiff failed tonominate its arbitrator, the ICA stepped in and appointed anarbitrator in accordance with the ICA rules. Thereafter, theDefendant filed its claim before the arbitral tribunal. Instead offiling its reply, the Plaintiff instituted a suit before the DelhiHigh Court inter alia, seeking (i) an anti-arbitrationinjunction; (ii) a declaration that Clause 6 of the Contract wasinvalid, null & void; and (iii) a declaration that thearbitration initiated by the Defendant was null and void. TheDefendant in turn filed an application under Section 45 of theArbitration and Conciliation Act, 1996 ("ArbitrationAct") and prayed that the suit be dismissed as thesame was not maintainable in terms of Section 45 of the ArbitrationAct.

The Plaintiff contended inter alia that (i) as theContract was executed between two Indian companies in India and wasto be performed in India, the parties could not have avoided Indianlaw by choosing a foreign seat of arbitration and a specificforeign system of law; (ii) In cases where the contract is to beperformed in India, parties can choose a foreign system of law togovern their contractual relationship only in two instances,firstly, cases where conflict of law rules apply, which givesprecedence to the choice of law made by the parties and/or in caseof an International Commercial Arbitration seated in India (as setout in Section 28(1)(b) of the Arbitration Act); (iii) As perSection 23 of the Indian Contract Act, 1872, any attempt to excludethe application of Indian laws is void and against public policy;(iv) By-law 200 of the ICA by-laws is opposed to and directlycontravenes Indian public policy, which envisages that Indianparties cannot contract out of Indian law; (v) in terms of Clause 7of the Contract, the Courts at New Delhi were vested with exclusivejurisdiction and the same amounts to the parties agreeing to havethe seat of arbitration at New Delhi with venue at London; (vi) incase the plaintiff was subjected to arbitration contrary to Indianlaw, it would suffer irreparable loss.

Accordingly, the Plaintiff prayed that Clause 6 of the Contractbe declared as null and void or in the alternative, be given ameaningful interpretation by applying the 'Blue PencilTest', whereby the parties could then subject themselves to thejurisdiction of ICA. The Plaintiff also prayed that an anti-suitinjunction be granted.

The Defendant on the other hand contended that the suitinstituted by the Plaintiff was not maintainable and that ananti-arbitration injunction ought not to be granted against aforeign seated arbitration. It argued inter alia that (i)when parties had agreed that the arbitration would be conductedunder the ICA rules and procedure and would be seated at London,the Plaintiff could not wriggle out of the same; (ii) there is aforeign element in the Contract between the parties as it is a highseas sale agreement and it was agreed to be performed on high seas,i.e. outside the territorial jurisdiction of India; (iii)since at the point of actual sale as envisaged in the contract, thegoods were located in international waters, there existed potentialconflict of laws situation. Thus, the two Indian partiesvoluntarily chose to resolve all disputes by having English law asthe governing law of arbitration under the ICA by-laws and Rules;(iv) international trade in American cotton is generally conductedunder the ICA rules and procedures; (v) the principle ofkompetenz-kompetenz is universally accepted and thus, thearbitrators have jurisdiction to consider and decide the existenceand extent of their own jurisdiction; (vi) the suit is specificallybarred under Section 45 of the Arbitration Act; (vii) two Indianparties can agree to arbitrate abroad and there is no legal bar tothis extent especially where transactions involve foreignelements.

On perusing the submissions made by both parties, the Court heldthat the arbitration agreement contained in Clause 6 of theContract was neither null nor void nor inoperative nor incapable ofbeing performed.

The Court found that the parties in the Contract had clearlynoted that the property in goods would pass from the Defendant tothe Plaintiff in a place beyond the territorial waters of India. Itreiterated that in cases where there is a foreign element involved,three sets of law may apply to the arbitration, i.e. (i)the proper law of the contract (the law governing the substantivecontract); (ii) the proper law of the arbitration agreement/lexarbitri (the law governing the agreement to arbitrate and theperformance of that agreement); and (iii) the proper law of theconduct of arbitration/ lex fori/ curial law (the lawgoverning the conduct of the arbitration).

It observed that it was well-settled that even though anagreement to refer disputes to arbitration may be a part of thesubstantive contract, the said agreement is independent of thesubstantive contract and survives despite termination/ repudiation/frustration of the substantive contract. Thus, an arbitrationagreement/ clause does not govern the rights and obligationsarising out of the substantive contract and only governs the mannerof settling disputes between the parties.

Accordingly, it was held that since the arbitration agreement isan independent agreement, it may be governed by a proper law of itsown, which need not be the same as the law governing thesubstantive contract. The Court held that two Indian parties couldchoose a foreign law as the law governing arbitration. Further,there being clearly a foreign element to the Contract between theparties, the two Indian parties could have agreed to aninternational commercial arbitration governed by the laws ofEngland.

Further, the Court held that the express designation of a courtunder Clause 7 of the Contract, providing for exclusivejurisdiction at New Delhi would not be determinative of the seat ofarbitration. It found that even though in Clause 6 of the Contract,the term 'Venue' had been used, by specifically agreeingthat any dispute arising out of the Contract would be resolvedthrough arbitration, in accordance with the ICA rules andarbitration procedure, the parties had agreed that the seat ofarbitration would be London and not New Delhi.

With regard to Section 45 of the Arbitration Act, relying on theprecedents set forth by the Supreme Court2 as well as the DelhiHigh Court3, in the instant case, the Courtreiterated that the scope of interference by a Court in anInternational arbitration is limited to the Court determiningwhether a valid arbitration agreement exists between the partiesand whether the agreement is null and void, inoperative orincapable of being performed. It was observed that the Court couldnot, at this stage, enter into a full-fledged inquiry on the meritsof the matter as only a prima facie finding is required tobe arrived at.

In light of the above, the Court dismissed the suit as not beingmaintainable and refused to grant an anti-suit injunction to thePlaintiff.

Keeping up with the pro-arbitration approach being adopted byCourts across the country, the Delhi High Court in the instant casehas recognised and given primacy to the importance of partyautonomy in the field of arbitration. A recent judgment passed by asingle judge bench of the Gujarat High Court in GE PowerConversion India Private Limited v. PASL Wind Solutions PrivateLimited4 has been decided on similar lines,enabling two Indian parties to choose a foreign seat ofarbitration. This recent trend of pro-arbitration judgments willonly make it tougher for parties to wriggle out of agreedarbitration clauses.

Footnotes

1. CS(COMM) 286/ 2020 decided on 24th November2020

2. InSasan Power Limited v. North American Coal Corporation IndiaPrivate Limited (AIR2016SC3974 ), the Hon'ble Supreme Courtdealing with scope of consideration under Section 45 of the Actheld that the scope of enquiry under Section 45 is confined only tothe question whether the arbitration agreement is "null andvoid, inoperative or incapable of being performed" but not thelegality and validity of the substantive contract.

3. InW.P.I.L Vs. NTPC Ltd. and Ors. (2009 (108) DRJ 404 ), dealing withSection 45 of the Act, the Delhi High Court had held that Section45 of the Arbitration Act obligates every judicial authority inIndia to refer the parties to arbitration, if they have agreed tobe governed by arbitration agreements, which would be covered bySection 44. The obligation is an overriding one, apparent from thenon-obstante clause, and the mandatory "shall" occurringin the provision. The only qualifications, relieving the court fromits duty to refer the parties to arbitration, is if it is convincedthat the agreement is "null and void, inoperative or incapableof being performed (Section 45).

4.R/Petn. Under Arbitration Act No. 131 of 2019 with R/Petn. UnderArbitration Act No. 134 of 2019 decided on 3rd November2019

December 2, 2020

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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Can Two Indian Parties Choose Foreign Law To Govern Their Arbitration Agreement? The Delhi High Court Answers In The Affirmative - Litigation,...

The Bahamas Maritime Authority (BMA) is delighted to announce that the Western and Central Pacific Fisheries Commission (WCPFC), at its 2020 annual meeting, has accorded The Bahamas the status of Cooperating Non-Member (CNM) within the organisation. This decision not only recognises The Bahamas non-compromising commitment to transparency, regulatory compliance and better control over fishing-related activities by the Bahamas fleet, but also strengthens its position as a strong supporter of Regional Fisheries Management Organisations (RFMO) efforts in total eradication of Illegal, Unregulated and Unreported (IUU) fishing practices on a global scale.

The WCPFC was established in 2004 on the basis of the Convention for the Conservation and Management of Highly Migratory Fish Stock in the Western and Central Pacific region. The Commission is acting as the regulatory authority in the management of high seas fisheries activities and conservation efforts in the convention area.

Cooperation with WCPFC paves the way for The Bahamas to establish a fisheries cargoes transhipment authorisation program with the Commission. The program will allow reefer carriers flying The Bahamas flag to undertake high-seas transhipment of cargoes originated from the WCPFC regulatory area. Such cooperation will open new commercial opportunities to Bahamian flagged reefers available through the Transhipment Authorisation program enrolment and allocation to the list of WCPFC Fishing Vessels.

Captain Dwain Hutchinson, the BMA Managing Director and CEO, said: Cooperation with the WCPFC will facilitate the way the Bahamas flagged reefer ships operate in the Western and Central Pacific region and will bring new prospects for cooperation in promoting sustainable fishing. We look forward to continuing to offer quality services to all registered ships and welcome the opportunity to discuss our commitments with any stakeholder.

In line with existing programs already in place with NEAFC, ICCAT and the Norwegian Fisheries Directorate, the WCPFC Transhipment Authorisations will be issued to qualifying reefer ships on submission of an application by the managing Company. The Bahamas Department of Marine Resources (DMR), in collaboration with The BMA, ensures the regulatory control, monitoring and licensing activities in establishing and maintaining the fisheries cargoes Transhipment Authorisation programs world-wide.

Sea News, February 23

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Bahamas flagged reefer ships to benefit from WCPFC cooperation - Sea News