Paul Johnson

Paul is a solicitor qualified in England (1990) and Hong Kong (1993) and registered as a foreign lawyer in Singapore (2018).

Paul has specialised in commodities for his entire career, encompassing physical trading and shipping, commodity finance, and commodity derivatives. He was previously a solicitor at Reed Smith, a partner at HFW, and the Global Head of Commodities Legal at BNP Paribas. He has also held senior in-house counsel positions at Enron Europe Limited and ABN Amro Bank.

Paul is a “complete” commodities lawyer, possessing a thorough understanding of each of its component parts and legal skill sets across all types of commodities (energy, metals, and agri). These include physical trading and shipping, hedging (futures and OTC), commodity finance, and commodities regulatory – how they interrelate under the applicable legal and regulatory infrastructure to maximise legal (and related) risk coverage for clients in both transactions and disputes. Mercatis Law operates across these typically compartmentalised legal skill sets.

Paul has extensive transactional/advisory and dispute-related experience in the following areas:

Transactional & Advisory Practice Overview

Types of transactions and related work include:

Physical Trading & Shipping

• Sale and Purchase of Physical Commodities and Shipping:
  • Spot S&P (delivery C&F, CIF, FOB, ex Ship, etc.)
  • Forwards hedged on exchange or OTC.
  • Drafting standard terms and conditions, delivery terms, adaptation of Incoterms, negotiation with counterparties to closure for numerous clients.
  • Shipping, transportation, and logistics: carriage by sea (Charterparties, Bills of Lading, COAs), Bill of Lading analysis and negotiation/transfer, storage and warehousing contracts, all documents of (possessory) title: Warehouse Warrants, Receipts, Holding Certificates, etc.

Commodity Derivatives

• Over-the-Counter Trades:
  • OTC cash-settled hedging & physically delivered products (vanilla swaps, options, forwards, and exotics based on ISDA, EFET documentation) across commodities: energy, metals, and ags.
  • Negotiating ISDA Master Agreements, ISDA Commodity Annexes for Natural Gas, Power, Freight, EU Emissions, LME look-alikes, Credit Support Annexes, margin, etc.
  • Documenting trades under industry standard master agreements, e.g., EFETs, PPAs, NBP ’97, SCoTA, IETA, FFA 2005.
  • Drafting/negotiating bespoke provisions for termination of positions, novation of futures positions into financially settled OTC monetization, unwinding hedges, resolution of close-out netting and set-off issues.

• Exchange-Traded Execution and Clearing:
  • Exchange-traded execution and clearing in relation to commodity futures & options and OTC Cleared products across commodity exchanges (e.g., LME, ICE, CME, SHFE, SGX) at three clearing brokers where Paul was Head of Commodities Legal: (1) Enron Metals (ex MG); (2) ABN Amro Futures Ltd; and (3) BNP Paribas Commodity Futures Ltd. 
• Structured Trade and Commodity Finance
  • Repo/monetization financing structures, title-based inventory financing (e.g., repos with exchange hedge/EFP on metals in warehouse or afloat, oil and gas storage in tank, salt cavern, or afloat), true sale and balance sheet optimization, RWA/capital efficiency issues.
  • Flash title transfer structures over non-vanilla storage (e.g., oil afloat, in challenging jurisdictions); negotiation of security, discounting and forfeiting L/Cs, bills of exchange, deferred credit/usance L/Cs, and other negotiable instruments.
  • Prepay financing structures: Pre-pay financing + physical offtake contracts + commodity price risk hedge – numerous prepay financing facilities, with the principal repayment vehicle being delivery of the commodity product + basic security (PGC, share pledge, etc.), and commodity hedge. Examples have included gold doré (Armenia), crude oil (Argentina), coal (Russia, Indonesia), base metals (DRC, Angola, Ghana, Australia), and metal concentrates (Russia, Turkey).
  • Reserve-based lending (RBL) and borrowing base facilities with finance-linked OTC hedging to major oil producers and mines in a large number of jurisdictions. Average deal size USD 250M – USD 750M. 

Disputes Practice Overview

• Insolvency: energy trading conglomerate, copper mines, trading companies, agri producers, including unwinding inventory financing and related hedging, multi-jurisdictional title issues relating to physical inventory on vessels and rail trucks, in warehouse, status of negotiable documents of title (e.g., Bills of Lading, LME Warrants, Warehouse Receipts, etc.); resisting and enforcing liens and RoT clauses.
• Dispute Resolution/Mitigation (including mediation and arbitration): (1) distressed cargo/vessel crisis management, salvage, cargo recovery, vessel arrest, claims for defective quality, contamination, misdelivery, shortage, cargo damage, enforcement of liens (e.g., against freight, bunkers, cargo), demurrage, off-hire; (2) Clients included Greek, Korean, and HK shipowners and charterers, and most of the leading P&I and Defence Clubs.
• Litigation & Arbitration: Multi-party, multi-jurisdictional litigation before the Commercial Division of the High Courts in London, Hong Kong, and Singapore. Conducting arbitrations before arbitral tribunals in London (LME, LCIA, ICC, GAFTA, FOSFA, SAOL, RSA, LMA), Hong Kong (HKIAC, ICC), PRC (CIETAC), & Singapore (SIAC). Regulatory investigations before the FCA, ICE, LME, CME, CFTC, OFAC; acting as specialist counsel regarding futures contracts maturing into physical settlement and delivery (bridging the gap between the physical and financial commodities markets).
• Shipping and Cargo Crisis Management:
  • Breakdown of vessel mid-Pacific, perishable agri cargo afloat en route from LA to Ho Chi Minh City, salvage/tow, delay, L/C payment dispute, vessel arrest, negotiations with Vietnamese state bank to resolve.
  • Breakdown and salvage of vessel carrying Zambian copper to ARA ports, protection of cargo interests, salvage arbitration. 
  • Freight and demurrage dispute leading to the exercise of lien and unlawful discharge/theft of cargo in an unsafe port, subsequent arrest and judicial sale of the vessel, and settlement of claims arising.
  • Cargo claims disputes over two vessels carrying Vietnamese rice to the Middle East, vessel arrest and detention, fire sale of cargo.
  • Numerous vessel arrests, cargo security negotiations, and dispute resolution/arbitrations (London, Hong Kong, and Singapore).

Career Highlights and Notable Transactions

• Structured Commodity Trade Finance:
  • European gas storage (finance) transactions between banks and major European utilities and traders based on the transfer of title and true sale, injection and withdrawal scheduling, locking in the spread between forward summer and winter prices on TTF, NCG/Gaspool, and VTP, with optionality for location swaps and additional trading opportunities based on the acquired physical positions. Approximately 20 transactions closed in Germany, Austria, Italy, Czech Republic, UK, and the Netherlands.
  • Monetisation of inventory flows (metal, agri products), advance structured products to provide finance and liquidity to developing country banks or traders. Clients have included South American banks and trading companies, Russian metals smelters, Chinese suppliers/traders of copper concentrates, Indonesian banks, and licensed trading companies.
• UCP 600: Review and redesign of the trade finance product suite and documentation for global implementation of UCP 600 (ABN AMRO).
• Oil afloat: 18-month term purchase by a Russian bank from a Singaporean oil trader of multiple cargoes of Crude Oil afloat FOB cash v. docs, and onward sale CFR Chinese ports to a Singaporean trader on B/L + 180-day “post pay” flash title terms.
• Coal: 12-month term purchase by a Russian bank from an Indonesian producer of monthly 70,000mt cargoes of steam coal FOBT Kalimantan port, cash v. docs, and onward sale C&F on back-to-back delivery terms + flash title to a Singaporean trading house priced on B/L + 30 days, including Initial and Final price provisions, and a price adjustment mechanism for variations in gross calorific value.
• Physical Metals:
  • Physical base metals trading platform (BNP Paribas): Established and developed a global physical base metals trading platform in Europe and Asia (including China) conducting repo/monetisation activity on LME and non-LME warranted metal in various warehouse locations, and afloat, ensuring a well-risk-managed infrastructure (legal and regulatory) with accompanying on-exchange and OTC hedging; and establishment of an onshore Chinese vehicle (WOFE) to trade domestically in China, including on the Shanghai Futures Exchange.
• Fraud in Chinese ports: Introduction of innovative legal protections following metals frauds at Qingdao and Penglai, and new, market-leading concepts into repo documentation to avoid losses due to fraud.
• Enron: Reorganised and redrafted entire physical commodity transactional processes and documentation, new deal capture system generating confirms. Rolled out new GTCs incorporating detailed shipping/delivery bases (C&F, FOB, ex Ship, DDP, etc.) and payment terms for live trading.  Project management and coordination with IT, physical traders, clearing brokers, and logistics/shipping departments.
• Mining finance: Refinanced mining and production of precious metal, sale of physical metal to Lender with monthly physical offtake, and OTC hedge (ISDA based) with two Fixed Income counterparties, and on-sale of physical unallocated silver (ABN AMRO).
• Tolling Aluminium/Power: 10-year physical call option with an Aluminium smelter on the NW coast of the U.S., dedicated plant production capacity allocated on the declaration of the option, for payment of a daily fee (no option premium). Ancillary agreements for shipping/storage of Alumina, offtake of Aluminium and LME warranting, title-based inventory financing with LME futures hedging.
• Insolvency: wind down of Enron Metals’ entire physical book, termination of positions with minimum liability possible, unwinding hedges, financing on relevant inventory; negotiating and concluding numerous settlement agreements; multi-jurisdictional title issues relating to physical inventory on vessels, trucks, in warehouse, status of negotiable documents of title (e.g., Bills of Lading, Warrants), liens, and retention of title; recovery of assets under lien or Court Order in foreign jurisdictions, enforcement of liens and rights of detention at port, or in ocean transit; supervising arbitrations and foreign Court proceedings.