Study On The Validity Of Arbitration Clause In Bills Of Lading

Carriage of goods by sea, as the major mode of transport in international trade, is composed of liner shipping and tramp shipping. In both cases, bills of lading are adopted to facilitate the transfer of goods. In order to resolve the disputes arising out of or in connection with bills of lading, attempts have been made to print an arbitration clause on it or to incorporate the arbitration clause in the charter-party. However, there is still no established rule as to the legal effect of the arbitration clause between the carrier and the shipper or the holder of a bill of lading.This dissertation comprises three parts: the introductory part, the principal part and the conclusion, totaling about 30,000 characters.The introductory part delineates the background and research methods employed by this dissertation.The principal part consists of five chapters, focusing on the legal effect of an arbitration clause in a bill of lading.Chapter I probes into the basics of international commercial arbitration and expounds on the formal validity and essential validity of an arbitration clause. The examination of the New York Convention, the UNCITRAL Model Law on International Commercial Arbitration, the arbitration legislation both in England and Hong Kong evidences an tendency to relax the"in writing"requirement of an arbitration clause, while the significance of the parties'agreement to arbitrate is pinpointed.Chapter II, in retrospect, summarizes the historical views towards the legal effect of an arbitration clause in a bill of lading in China. By analyzing the affirmative as well as the negative views, the author concludes tentatively that the historical views are not well-grounded.Chapter III presents a panorama of the legal effect of an arbitration clause in a bill of lading in England and United States. Landmark cases are digested in this chapter.Chapter IV classifies the issue into two subsets, the legal effect of an arbitration clause in a bill of lading as between the carrier and the shipper and that as between the carrier and the holder of a bill of lading. By revisiting the shipping practice and defining the property of the bill of lading, the legal effect of an arbitration clause in a bill of lading as between the carrier and the shipper is endorsed while that as between the carrier and the holder is negated.Chapter V concentrates on the perfection of the maritime arbitration in China. First, since ad hoc arbitration is prevalent in the maritime field, it should be recognized and established in China. Second, the LMAA terms may serve as a"lighthouse"for the progress of the maritime arbitration in China.