Jurisdiction and Arbitration Clauses in Maritime Transport Documents: A Comparative Analysis »

Jurisdiction and arbitration clauses are two different mechanisms that help to ensure impartiality and predictability in international dispute resolution. Despite their benefits, these clauses can be inconvenient for parties that are forced to litigate before distant fora. Moreover, particular problems arise in the context of maritime transport documents. Based on a broad comparative approach, this study seeks to explain the existing rules within their legal context and to develop a coherent system for such clauses, which takes into account the underlying interests as well as economic theory. While offering detailed answers to most issues surrounding jurisdiction and arbitration clauses in maritime transport documents, the book confronts the fundamental question of the limits of freedom of contract in an international setting.

Abbreviations XIII

Chapter 1 Introduction 1

A Towards a uniform system of choice of forum agreements in maritime transport documents 1

I A note on the subject of this study 1

II Objective and scope of the project 2

B Benefits and disadvantages of choice of forum agreements 4

I Benefits for the contracting parties 4

II Disadvantages generally associated with choice of forum agreements 6

C Choice of forum clauses in the context of maritime transport 9

I Protectionism and the structure of shipping 9

II Industry bargaining partern 12

III Ability of the parties to conduct legal proceedings abroad 13

D The influence of the lawyers' own interests 14

E Summary 17

Chapter 2 The Legal Framework for Choice of Forum Clauses in Maritime Transport Documents 19

A The legal framework for jurisdiction clauses in maritime transport documents 19

I The U.S. framework for jurisdiction clauses 19

1 Relation between federal and state law in maritime matters 19

2 Essential laws and some questions on their application 21

II The European framework for jurisdiction clauses 24

1 The Brussels-Lugano regime 24

2 Scope of the Brussels-Lugano regime 26

III The English framework for jurisdiction clauses 28

IV The German framework for jurisdiction clauses 30

B The legal framework for arbitration clauses in maritime transport documents 31

I The U.S. framework for arbitration clauses 31

II The English framework for arbitration clauses 34

III The German framework for arbitration clauses 36

C Summary 37

Chapter 3 Bills of Lading and other Maritime Transport Documents 39

A Bills of lading 39

I A short history of the bill of lading 39

II The functions of a bill of lading 41

1 Receipt for the goods delivered by the shipper to the carrier 41

2 Evidence of the terms of the contract 43

3 Document of title 44

III Bills of lading in the event of charter 47

1 Bills of lading issued by the owner to the charterer 48

2 Bills of lading issued by the charterer 48

B Modern Counterparts of Bills of Lading 49

I Sea Waybills 49

II Transshipment and multimodal transport documents 52

1 Transshipment and multimodal transport documents generally 52

2 CMR consignment notes 54

III Electronic shipping documents 56

C Passenger tickets 58

D Summary 60

Chapter 4 Common Types of Choice of Forum Clauses in Maritime Transport Documents 63

A The use of jurisdiction clauses in maritime transport documents 63

I Exclusive and non-exclusive jurisdiction clauses 63

II Interpretation of ambiguous and fragmentary clauses 66

1 Clauses which are ambiguous as to being exclusive or non-exclusive 66

2 Clauses which are unclear about the chosen forum 68

III Determination of the scope of jurisdiction clauses 69

B The use of arbitration clauses in maritime transport documents 71

I Institutional and ad hoc arbitration 72

II The place of arbitration 73

III Arbitration procedure 76

IV Determination of the scope of arbitration clauses 77

C Summary and commentary 79

Chapter 5 Classification of Choice of Forum Clauses and their Separability from the Main Contract 81

A Classification of jurisdiction clauses and their separability from the main contract 82

I Classification and separability under U.S. law 82

II Classification and separability under the Brussels-Lugano regime 84

III Classification and separability under English law 85

IV Classification and separability under German law 86

B Classification of arbitration clauses and their separability from the main contract 88

I Classification and separability under U.S. law 88

II Classification and separability under English law 90

III Classification and separability under German law 91

C Comparative review 93

D Legal policy considerations 94

E Summary 98

Chapter 6 Formal Requirements and the Incorporation of Choice of Forum Agreements 99

A Formal requirements and the incorporation of jurisdiction agreements 100

I Form and incorporation under U.S. law 100

II Form and incorporation under the Brussels-Lugano regime 101

III Form and incorporation under English law 104

IV Form and incorporation under German law 105

B Formal requirements and the incorporation of arbitration agreements 107

I Form and incorporation under U.S. law 107

II Form and incorporation under English law 111

III Form and incorporation under German law 114

C Comparative review 117

D Legal policy considerations 117

E Summary 123

Chapter 7 Inconvenient and Unfair Choice of Forum Clauses 125

A Inconvenient and unfair jurisdiction clauses 125

I Inconvenient and unfair jurisdiction clauses under U.S. law 125

1 The reasonableness doctrine 125

2 Forum non conveniens and the change of venue section 128

3 Fairness 131

II Inconvenient and unfair jurisdiction clauses under the Brussels-Lugano regime 133

III Inconvenient and unfair jurisdiction clauses under English law 135

IV Inconvenient and unfair jurisdiction clauses under German law 138

B Inconvenient and unfair arbitration clauses 141

I Inconvenient and unfair arbitration clauses under U.S. law 141

II Inconvenient and unfair arbitration clauses under English law 143

III Inconvenient and unfair arbitration clauses under German law 144

C Comparative review 146

D Legal policy considerations 147

E Summary 152

Chapter 8 The Effect of Mandatory Liability Rules on the Enforcement of Choice of Forum Clauses 153

A The effect of mandatory liability rules on the enforcement of jurisdiction clauses 153

I Mandatory liability and jurisdiction clauses under U.S. law 153

II Mandatory liability and jurisdiction clauses under the Brussels-Lugano regime 156

III Mandatory liability and jurisdiction clauses under English law 157

IV Mandatory liability and jurisdiction clauses under German law 158

B The effect of mandatory liability rules on the enforcement of arbitration clauses 161

I Mandatory liability and arbitration clauses under U.S. law 161

II Mandatory liability and arbitration clauses under English law 162

III Mandatory liability and arbitration clauses under German law 162

C Comparative review 163

D Legal policy considerations 164

E Summary 168

Chapter 9 The Effect of Choice of Forum Clauses on Third Party Cargo Receivers 169

A The effect of jurisdiction clauses on third party cargo receivers 170

I Position of third party cargo receivers under U.S. law 170

II Position of third party cargo receivers under the Brussels-Lugano regime 172

III Position of third party cargo receivers under English law 174

IV Position of third party cargo receivers under German law 176

B The effect of arbitration clauses on third party cargo receivers 178

I Position of third party cargo receivers under U.S. law 178

II Position of third party cargo receivers under English law 180

III Position of third party cargo receivers under German law 181

C Comparative review 183

D Legal policy considerations 184

E Summary 187

Chapter 10 Future Developments - the Hamburg Rules and Beyond 189

A From Hamburg to Rotterdam 189

I The Hamburg Rules 189

1 Jurisdiction clauses under the Hamburg Rules 192

2 Arbitration clauses under the Hamburg Rules 194

II The United Nations Convention on International Multimodal Transport of Goods 196

III The Rotterdam Rules 198

1 Jurisdiction clauses under the Rotterdam Rules 200

2 Arbitration clauses under the Rotterdam Rules 202

B Further developments 203

I U.S. Senate COGSA 1999 203

II The Hague Convention on Choice of Court Agreements 206

C Comparative review 209

D Legal policy considerations 210

E Summary 216

Chapter 11 General Observation and Conclusions 219

A General Observations 219

B Conclusions 221

Bibliography 225

Table of Cases 259

Table of Legislation 271