Study On The Validity Of Jurisdiction Clause On Bill Of Lading

The jurisdiction clause in bill of lading is a clause which provided all disputesbased on b/l would be judged by a court. That clause means a choice of forum clause.The jurisdiction clause in b/l is not only a standard terms, and a bilateral agreement tochoose a court to judge the dispute. In this paper, author want to talk about that fivemain aspects:1、the basic theory of the jurisdiction clause in b/l,2、the validity of thejurisdiction clause,3、 the validity of jurisdiction clause, Influential factors,4、international practice,5、contrast with arbitration clause.The jurisdiction clause is a standard terms, unilateral formulation of the productinstead of the two sides negotiated, and therefore often be denied validity because ofthe defects on its desirable. For making up that defects on desirable, the carrier to usea variety of ways to issue b/l, for example, make a special logo on the jurisdictionclause in order to compensate for this desirable flaws prior to the issue of the form ofthe b/l, in these cases can not be generalized desirable but not established that the lackof standard terms. Again, the jurisdiction clause as part of the provisions of the b/l, thetransfer of the b/l influenced its effectiveness. The bill of lading shall have differenceeffect between the carrier and the shipper with the carrier and the third party holdingthe bill of lading.The effectiveness of jurisdiction clause including the binding of parties, theeffectiveness of the court, the applicable choice of law, and the effectiveness against third parties. The binding of parties means the parties can only be sued in court withinthe stipulated range, also responding to the obligations. The jurisdiction clause makecourt which mention in clause get the jurisdiction, and other effect is that clause mayhave to exclude the jurisdiction of the other court’s jurisdiction.And when it is no agreement in the bill of lading about the applicable law, thejurisdiction clause will choose the applicable the law to determine whether thejurisdiction clause is in force. Effectiveness against a third person refers to the transferof the bill of lading, whether the jurisdiction clause binding the third party holding thebill of lading.Factors affect the effectiveness of the jurisdiction clause including thejurisdiction clause in its own words, the legal provisions of the Convention, the legalprinciples. The jurisdiction clause need to be an definite textual representation toexpress it is pursuing a court of competent jurisdiction. Some representation, like themain place of business terms often been rejected because they can not clearly point toa court of competent jurisdiction. The Hague Convention on behalf of theinternational maritime transport of goods Convention for the carrier to set a minimumstandard of liability under the Convention, the provisions of the bill of lading anylowering of the standard will be considered invalid. This is also reflected in thelegislation of many countries. In addition, the heavier the terms of the responsibilityof the shipper also be regarded as invalid. Jurisdiction clause may result in the case bya lower standard of responsibility countries court to accept a case, the jurisdictionclause is not valid in this case. At the same time, if the jurisdiction clause aggravatethe shipper’s obligations to pay for litigation costs did not exist, lead to unfairsituations can also cause the jurisdiction clause is found to be invalid. The principle ofreciprocity and public policy restrictions also used for protecting their ownjurisdiction.The current practice of international judicial tend to agree with the validity of thejurisdiction clause. Early American jurisdiction clause "disenfranchised" negate itseffectiveness, and now that the jurisdiction clause "Generally effective" and"unreasonable jurisdiction" was invalid. Britain is generally believed that the jurisdiction clause is valid, must be integrated into a variety of factors in order tonegate the effectiveness of the jurisdiction clause. The International Covenant on arealso introduced to the jurisdiction of the force of law.Compared to the jurisdiction clause, Arbitration clause is a totally contract, andits standard is more unified, and does not involve the judicial sovereignty of factors,so the effectiveness of the arbitration clause is widely recognized. The arbitrationclauses explicitly exclude the jurisdiction of the effectiveness of, and unifiedinternational conventions Arbitration clause explicitly rule out the effectiveness ofjurisdiction.