Research On The Determination Of The Validity Of The Charter Party Arbitration Clause After Being Incorporated Into The Bill Of Lading

Bill of lading is one of the most important documents for carriage of goods by sea,and has the property of the contract of carriage of goods.As a kind of document with property rights,it is the most direct and effective evidence to restrain the carrier and the holder of the bill of lading.The bill of lading is the source of the rights and obligations of the carrier and the holder of the bill of lading,and the parties are bound by the terms of the bill of lading.In the carriage of goods by sea,the carrier often chooses to incorporate the arbitration clause in the charter party previously negotiated with the lessee when issuing the bill of lading.But once the bill of lading is transferred to a third person,the holder of the bill of lading is not the party to the original charter party.Due to the unique nature of the arbitration clause,the legal effect of the arbitration clause of the charter party to the bill of lading will be controversial.The arbitration clause incorporating the bill of lading is essentially signed by the parties to the charter party,and it is incorporated into the bill of lading by the "incorporation clause" in the bill of lading.The holder of the bill of lading is not a party to the arbitration clause of the charter party.According to the relativity of the contract,it is difficult to determine that the arbitration clause of the bill of lading is effective for the holder of the bill of lading.However,due to the particularity of the system of bill of lading,it is improper to deny the system of bill of lading with ordinary contract theory.With the rapid development of maritime arbitration,arbitration has become an important way to resolve disputes in maritime areas by virtue of its own efficiency and convenience,and the scope for arbitration is expanding.The written form of the arbitration agreement is expanding with the development of the arbitration undertaking,and the written form of the arbitration agreement is gradually extended to the bill of lading which is incorporated into the arbitration clause.The question of the validity of the arbitration clause of the charter party has been the focus of academic and practical disputes.Now,the arbitration clause of Voyage CP is valid for the holder of the bill of lading if the arbitration clause incorporated into the bill of landing.This theory is supported by more and more countries including important maritime powers,as long as the bill of lading is incorporated into the terms and conditions,the court shall support the validity of the arbitration clause incorporated in the bill of lading.But different counties have different standards.In the case of the representative of the United Kingdom,the bill of lading must be clearly worded to express the intention to arbitrate.In the case of the United States as the main representative,the bill of lading should be marked with the specific charter party and the holder of the bill of lading knows the facts of the incorporation.As a powerful maritime country China still has no standard on this question.This paper makes a comparative analysis of the standard of the incorporation of the arbitration clauses into the bill of lading by the maritime powers of the world.This article points out that as our county's standard,charter party and its arbitration clause must be marked in the front of the bill of lading and incorporation clause must be clearly worded to put the charter party arbitration clause into the bill of lading.