Subrogation Of The Arbitration Clause In The Bill Of Lading

The subrogation of the arbitration clause in the bill of lading refer to the situation that the loss of or damage to the subject matter insured within the insurance coverage is caused by the carrier who is liable for the loss. If there is a valid arbitration clause between the carrier and the insured in the bill of lading, whether the insurer should be bound by the arbitration clause or not after he made compensation to the insured. There have been a lot of disputes no matter in theory or practice for this problem for a long time. But no relative law regulated it clearly. The Judicial Directives of the Supreme People’s Court took the view that the arbitration clause contained in the bill of lading shall not have the binding effect upon the subrogated cargo insurer unless an agreement to be bound is expressed by the subrogated cargo insurer. It played a role in mediating disputes. But it has a lot of problem. This paper is intended to put forward opinion on whether the arbitration clause shall be subrogated to the insurer or not and make some suggestions at the same time.The first chapter mainly summarizes the fundamental questions of the subrogation of the arbitration clause in the bill of lading. It introduces the meaning of subrogation, the nature of the right to indemnity by subrogation and etc. to help the reader to better understand the issue.The second chapter analyzes the relative law and discusses the judicial practice and theoretical disputes about the subrogation of the arbitration clause in the bill of lading. Show the view that the arbitration clause in the bill of lading can be subrogated to the insurer.The third chapter demonstrates the theoretical and judicial practice which supports the view of the subrogation of the arbitration clause. And it analyzes the rationality of the subrogation of the arbitration clause from the perspective of insurance subrogation theory, arbitration theory and etc.The fourth chapter puts forward amendments on the basis of the regulation that involve in the above chapters about subrogation of arbitration clause in the bill of lading.