American And English Case Law On Incorporation Clause In B/L And Its Revelation To Our Country

This thesis focuses on the topics as follows: firstly, general rules of incorporation clauses in B/L; secondly, regulations of American and English case law regarding incorporation clause in B/L, and finally analysis of the contradiction of the judicial decisions of our country in this area. The aim of the article is to provide examples and reduce inconsistency.General rules of incorporation clauses in B/L-As a common contract clause, incorporation clause in B/L should be analyzed with general contractual construing rules. The article also classifies incorporation clause into two categories, general incorporation clause and special incorporation clause. The classification is not only in accordance with the different area these two kinds of incorporation clauses respectively covers but also of great significance in introducing English case law and American case law.English rules-English case law on this subject is quite mature. We will reach the essence of it in this chapter by reading the leading cases such as the Merak[1965] and the Annefield[1971], which reflect the attitude of English court towards general incorporation clause and special incorporation clause; the Miramar[1984] and the Rena-k[1978], which reveal the verbal manipulation regulations on incorporated clauses from C/P; the SanNicholas[1976], which gives resolution when the incorporation clause fails to point out the C/P meant to incorporate.American rules-This part first makes a comparison between English rules and American rules with regard to incorporation clause in B/L. Then expounds the regulations of American case law on general incorporation clause in B/L; the rules of identifying the incorporated C/P; the validity of the incorporated arbitration clause from C/P.Hague- Rules- Hague Rules being always applied to B/L, it seems necessary to stu^y the relationship between incorporation clause in B/L and Hague Rules. This chapter covers the topics as follows: whether Hague rules permit the application of arbitration as a method of settlement of disputes; whether arbitration clause could stipulate a time bar less than one year; where arbitration clause fails to provide time limitation, whether the one-year time bar in Hague Rules should apply.Chinese current situation-There is three major controversies, which result in inconsistency in judicial decisions. They are the requirement on the form of incorporationclause, the validity of incorporating the arbitration clause from C/P into B/L and meanwhile restricting the B/L holder as the third party and the method of identifying the proper law of incorporated arbitration clause.Conclusion- suggestion, based on the reference to American and English case law and the analysis of current situation of our own country, is offered in this part.Ying Zhu (International Law Department) Directed by Prof. Jun Hou...