Comparative Analysis On The Arbitration Clause In Bills Of Lading Between China And United States

Bills of Lading have three basic functions: the receipt for the goods shipped, the evidence of the terms of the contract of carriage and the documents of title to the goods specified in the Bill of Lading. However, with the development of the shipping industry, carriers began to pre-print the bills of lading with fixed provisions including liability exemption clause, jurisdiction clause and arbitration clause. It remains to be arguable whether these kinds of arbitration clauses are binding to bills of lading holders.In the meantime, there is no uniform rules govern the arbitrations clause in bills of ladings in China. On the one hand, the current judicial explanation on foreign arbitration clause remains to be a draft and has not come into force. On the other hand, the Supreme Court of China has published 40 replies about the recognition of arbitration clause. However, there are only 3 relevant to maritime contracts and they can’t be the general rule governing the arbitration clause in bill of ladings.Therefore, this dissertation is focus on the comparative analysis between China and American judicial practice in the recognition of arbitration clause in bills of ladings for the purpose to find out the general rule in judicial practice and provide effective suggestions on revising the judicial explanations.This dissertation comprises four parts. Chapter I introduces the development of judicial practice on recognition of arbitration clause in both China and United States, mainly focus on the changes in statutory and cases. Chapter II discuss the general theories about the arbitration clause, comprises the theories in general contract and special theories in carriage of goods by sea contracts. Chapter III emphasize on the conflicts between the various values, including the conflict between the “substantial justices” and “contract of freedom”, the conflict between “procedure just” and efficient. Chapter IIII is the conclusion part. It includes the comments on both China and United States judicial practices and provides effective suggestions on China’s practice on arbitration clause in bill of ladings.