The Effectiveness Of The Arbitration Clause Of The Bill Of Lading A Number Of Issues

A bill of lading (hereinafter referred to as B/L) is one of the most important documents in maritime transport, therefore, the theoretical study of B/L plays an instructive and promotive role in the practice of B/L. On the other hand, as an independent means of resolution for disputes arising out of carriage of goods by sea, arbitration has a long history in the world, and becomes more and more popular recently, However,the validity of the arbitration clause in the B/L is widely debated ,thus needed to be studied more deeply, and my impetus of writing this dissertation is precisely arising from this. The dissertation consists of three parts: the introducing part; the principal part(divided into four chapters);and the concluding part. The introducing part is the introductory remarks of the dissertation. It expounds the writing intention and the methods used in the course of collection and sorting out the materials, in brief ,the methodology used in this dissertation. The principal part is the leading part. This part expounds with four 8 chapters ,including: the validity of the arbitration clause, when the arbitration agreement(by way of arbitration clause) is written in the B/L; the validity of the arbitration clause written according to usual practice in shipping fields, including Peking arbitration clause ,floating arbitration clause ,etc; The conflict of right between 揌ague Rules?and 揅onvention on the Recognition and Enforcement of Foreign arbitral Awards? the influence of the words of the United States of America 1999 Carriage of Goods by Sea (Draft) on the nature of the B/L ,the B/L arbitration clause , shipping industry and our countermeasure which we should take ; the validity of the content of charter-party B/L arbitration clause, the validity of the incorporation clause, etc. on the basis of the study method of historical investigation, analysis and comparison. Chapter one ,a introduction which is brief and to the point of the arbitration agreement, which serves as a prerequisite for the following chapters?study. Chapter two, the study considers that the fundamental cause of dispute concerning the validity of arbitration clause in B/L lies in the recognition whether or not there is a contractual relationship between the carrier and the lawful B/L holder of the third party. Afterward ,through the combination study of the legislation and economics, the chapter concludes that B/L is an implied contract between the carrier and the lawful B/L holder of the third party. Firstly, on the basis of the theory of implied contract in common law fields and the flexible interpretation of 揅onvention on the Recognition and Enforcement of Foreign arbitral Awards?and 揢NCITRAL MODEL LAW on international commercial arbitration? the validity of the arbitration clause in the B/L is entrusted. Secondly the dissertation employs ideas and principles of Law &Economics to expound and prove the importance and benefits of confirming the B/L arbitration not to be null&void, and there is not substantive conflict of right between 揌ague Rules?and 揅onvention on the Recognition and Enforcement of Foreign arbitral Awards? Chapter three focuses on the substantial content of charter-party arbitration clause, including the arbitration locale, the arbitration...