Research On The Arbitration Clause In The Charter Party Incorporated Into Bill Of Lading

With the rapid development of international trade and shipping industry, arbitration,as a convenient and efficient way of dispute resolution, is becoming a more and morepopular choice among the parties involved in maritime practice.In maritimearbitration practice, more and more parties choose to incorporate the arbitration clausestipulated in the charter party into the bill of lading (hereinafter referred to asB/L).However, regarding the requirement of validity of such incorporation and thevalidity of the arbitration clause itself, no unified opinion has been reached in theacademic area and maritime practice varies. Moreover,"Maritime Code of thePeople’s Republic of China"and "Arbitration Law of the People’s Republic ofChina ", two related laws, fail to give a concrete answer to this problem so that thestandard either has not been unified in juridical practice. Therefore, it is of certainimportance in both academic and practical area to study on several legal issues in thesituation where the charter party arbitration clauses are incorporated into the B/L.The dissertation comprises of4Chapters, in addition to an introduction.Chapter1probes into the conditions in which charter party arbitration clause can beincorporated into the B/L, therewith laying the foundation for a better understandingof the pertinent issues involved in the arbitration clause in the charter party incorporated into the B/L.By reference to general arbitration theory,this chapter startswith a profound analysis of the procedural and substantial elements of the B/L’sarbitration clause incorporated from the Charter Party and then discusses the wordingof incorporation clauses in the light of the New York Convention as well as domesticarbitration legislation and practice in some main shipping countries.In this part, theauthor firstly analyses the New York Convention, UNCITRAL Model Law onInternational Commercial Arbitration, the Hamburg Rules, and the Rotterdam Rules,then reaches a conclusion that the explanation by such international rules on the"written" form requirement for the arbitration clause tends to be more flexible.Then, itshifts to the substantial elements of a valid incorporation of the arbitration clause inthree parts, including the consensus of the parties, the capacity of the parties and thearbitrability of the matters at stake.At last, this dissertation discusses the wording ofincorporation clauses based on several typical England and American cases.Chapter2focuses on the validity of the arbitration clause in the charter partyincorporated into the B/L.This chapter classifies the issue into three subsets: thevalidity of the arbitration between the carrier and the holder of B/L, the validity of thearbitration between the third party and the insurer who shall realize the right ofsubrogation, and the validity of the arbitration under B/L fraud.The author confirmsthe validity in the first two situations from academic and practical aspects. Except forforged B/L, in the situation of anti-dated B/L, advanced B/L and delivery of goodswithout original B/L, the validity of the arbitration clause shall also be recognized too.In Chapter3, the author looks into our country’s current practice in legislation andjudicature, and analyzes the rules most related to this issue to see the imperfectness ofthem, including the rules in the Arbitration Law, Maritime Law and the SupremePeople’s Court Regulation on Cases related with Arbitration Concerning ForeignAffairs and Foreign Arbitration. Then, from analysis and review of relevant cases, theauthor concludes that there are strict and various standards for the requirement of thevalidity of the incorporation and the validity between the carrier and holder of B/L in judicial practice in China.Chapter4presents some legislative suggestions on the perfection on Chinesearbitration and Maritime legislation concerned with this issue. According to theanalysis above, some proposals are given with a view to improve correlativelegislation and judicatory on charter party arbitration clauses incorporated into theB/L in our country.The chapter firstly gives some advice on modifying the "MaritimeCode of the People’s Republic of China"and "Arbitration Law of the People’sRepublic of China ".Then, four practical methods are proposed in light of China’sactual situation.