JURISDICTION AND ARBITRATION AGREEMENTS IN CONTRACTS FOR THE CARRIAGE OF GOODS BY SEA MARITIME AND TRANSPORT LAW LIBRARY MARITIME AND TRANSPORT LAW LIBRARY Ship Building, Sale and Finance The Law of Wreck Edited by Bariş Soyer and Andrew Tettenborn Nicholas Gaskell and Craig Forrest The Modern Law of Marine Insurance Codification of Maritime Law Volume 4 Challenges, Possibilities and Experience Edited by D. Rhidian Thomas Edited by Zuzanna Pepłowska-Dąbrowska and Justyna Nawrot Air Cargo Insurance Malcom A. 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All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-367-24346-3 (hbk) ISBN: 978-0-429-28189-1 (ebk) Typeset in Times New Roman by Deanta Global Publishing Services, Chennai, India CONTENTS Foreword by Erik Røsæg ix Foreword by Alfonso-Luis Calvo Caravaca and Javier Carrascosa González x Acknowledgements xi List of abbreviations xiii Table of cases xvi Table of legislation xxvi CHAPTER 1 INTRODUCTION 1 1 Limitations on party autonomy: background 3 1.1 The parties 3 1.2 The contracts 4 1.2.1 V essel-oriented contracts: the charterparty 5 1.2.2 Cargo-oriented contracts: the bill of lading 6 2 Party autonomy 7 2.1 Procedural party autonomy 8 2.2 Substantive party autonomy 9 2.3 Conflictual party autonomy 11 3 The problem with party autonomy 11 3.1 What are the limits on party autonomy regarding jurisdiction and arbitration clauses? 11 3.2 When does the arrest of the ship frustrate the jurisdiction or arbitration agreement of the parties? 13 3.3 When is the validity of a jurisdiction or arbitration agreement restricted by the substantive applicable law of the forum, including overriding mandatory rules? 14 4 Sources of law and the impact of Brexit 15 4.1 International treaties 16 4.1.1 The Hague–Visby Rules 16 4.1.2 The Hamburg Rules 1978 17 4.1.3 The Rotterdam Rules 18 4.1.4 The Hague Choice of Court Convention 19 v contents 4.1.5 The 1952 Arrest Convention and the 1999 Arrest Convention 19 4.1.6 The New York Convention 19 4.2 ‘Soft law’: customs and usages 20 5 Limits of this work 21 6 Conclusions 21 CHAPTER 2 INTERNATIONAL JURISDICTION AND ARBITRATION 23 1 International jurisdiction in the EU 23 1.1 Separability of the jurisdiction clause from the main contract 23 1.2 Brussels I Regulation (recast) in the EU 25 1.3 Prorogatio fori and derogatio fori under the Brussels I Regulation (Recast) 26 1.4 Declining jurisdiction, lis alibi pendens and related claims in the EU 29 2 International arbitration 32 2.1 Introduction to alternative dispute resolution 32 2.2 Maritime arbitration 33 2.3 The New York Convention 35 2.4 The doctrine of separability of the arbitration agreement from the contract 37 3 International jurisdiction and arbitration in maritime conventions 38 3.1 The Hague–Visby Rules 39 3.2 The Hamburg Rules 40 3.2.1 J urisdiction under the Hamburg Rules 40 3.2.2 A rbitration under the Hamburg Rules 42 3.3 The Rotterdam Rules 42 3.3.1 J urisdiction under the Rotterdam Rules 43 3.3.2 Arbitration under the Rotterdam Rules 46 3.4 Remarks on the Hamburg and Rotterdam Rules 48 3.5 Future directions on multimodal transport 51 4 Conclusions 53 CHAPTER 3 INCORPORATION OF DISPUTE RESOLUTION CLAUSES CONTAINED IN THE CHARTERPARTY INTO THE BILL OF LADING 55 1 Incorporation of charterparty terms into the bill of lading 55 2 Incorporation of dispute resolution clauses in England 58 2.1 Incorporation of jurisdiction clauses in England 58 2.2 Incorporation of arbitration clauses in England 64 2.3 The effect of Brexit on incorporation of dispute resolution clauses 69 3 Incorporation of dispute resolution clauses in Spain 70 3.1 Incorporation of jurisdiction clauses in Spain 74 3.1.1 J urisdiction agreements in favour of EU courts 74 3.1.2 J urisdiction agreements in favour of non-EU courts 77 3.2 Incorporation of arbitration clauses in Spain 82 3.3 Transferability of a foreign jurisdiction clause contained in the B/L to third parties under Spanish law 86 4 Incorporation of dispute resolution clauses under EU case law 89 5 Conclusion 96 vi contents CHAPTER 4 ANTI-SUIT INJUNCTIONS 98 1 Anti-suit injunctions and jurisdiction agreements in England 99 1.1 Anti-suit injunctions and jurisdiction agreements under Brussels I Regulation 44/2001 100 1.2 Anti-suit injunctions restraining the parties from commencing p roceedings outside the EU 101 2 Anti-suit injunctions and arbitration agreements 103 2.1 Anti-suit injunctions and arbitration agreements under the old Brussels I Regulation 44/2001 103 2.2 Anti-suit injunctions and arbitration agreements under the Brussels I Regulation (Recast) 107 2.3 Anti-suit injunctions restraining parties from commencing proceedings outside the EU 110 3 Conclusion 111 CHAPTER 5 PARTY AUTONOMY AND THE ARREST OF SHIPS 112 1 Ship arrest as an interim measure 112 1.1 Nature of actions in rem under civil law and common law 112 1.2 Requirements for an arrest 117 2 Arrest of ships in the EU 118 2.1 Compatibility of the Arrest Conventions with the Brussels I Regulation (recast) 119 2.2 The arrest of ships of contracting and non-contracting states to the Arrest Conventions 122 2.3 Jurisdiction for arrest in non-EU states 123 2.4 Jurisdiction for arrest in another EU Member State 125 2.5 The validity of the jurisdiction or arbitration clause for provisional measures 126 3 The arrest of ships: a comparative perspective 127 3.1 Arrest of ships in England 127 3.2 Arrest of ships in Spain 130 4 Arbitration and the arrest of ships 133 4.1 Party autonomy and shipping arbitration 133 4.2 A procedural approach to maritime arbitration in England 134 4.3 Arbitral powers to request the arrest of ships in Spain 137 5 Can the court keep the case at the agreed court under the 1952 Arrest Convention? 139 6 Van Uden: a real connecting link between subject matter and forum 140 7 Forum shopping and the arrest of ships 141 8 Conclusions 145 CHAPTER 6 PUBLIC POLICY AND MANDATORY RULES: LIMITATIONS ON PARTY AUTONOMY 147 1 Mandatory rules, public policy and overriding mandatory rules 148 2 The incompatibility of an imperative norm with a jurisdiction agreement 151 2.1 Incompatibility under the Brussels I Regulation (recast) 151 vii contents 2.2 Intra-EU jurisdiction agreements 151 2.3 Extra-EU jurisdiction agreements and imperative rules 155 2.4 Effects of forum selection agreements and effectiveness of imperative norms 156 3 Validity of arbitration agreements and incompatibility with public policy 158 4 Conclusion 160 CHAPTER 7 CONCLUSIONS AND A NEW PERSPECTIVE 162 1 Procedural matters 162 2 Privity of contract 163 3 Forum shopping, irreconcilable judgments and lis alibi pendens 164 4 Restrictions on jurisdiction and arbitration clauses 164 5 Perspectives for a new specialised convention on maritime matters 165 Annex I: Bibliography 169 Annex II: Additional legal sources 185 Annex III: Official reports and preparatory works 186 Annex IV: Additional cases 188 Index 190 viii FOREWORD BY ERIK RØSÆG I had the pleasure of studying the manuscript of the book you are now holding in your hands during the PhD phase of the work. I became acquainted with the author while he was visiting me at the Scandinavian Institute of Maritime Law at the University of Oslo, and I very much enjoyed our exchanges. Jurisdiction and arbitration clauses are fascinating, and the studies responding to the four research questions of the current work certainly bring the debate forward. The interaction between EC law, English law, and Spanish law is well suited to demonstrating the complexi- ties of these issues. The arrest dimension adds another layer of complexity. Thanks to Jonatan for his successful efforts in bringing better order to parts of this confusing area of law. Despite these academic achievements, clarification also has its downsides. It is right that system and order are virtues of legal scholars, and predictability an ideal for the law. However, we have yet to reach full predictability, system, and order in the law because leg- islative interventions are lacking. As long as the system is imperfect and thus the ideals are not reached, clarification tends to assist rather than combat forum shopping. It is much eas- ier to take advantage of flaws in systems when the flaws are clarified, as it is much easier to take advantage of differences in legal systems when the differences are pointed out clearly. In this way, academic clarification attempts in research, as well as clarification attempts in conventions harmonising the law, may be a problem as long as the system has not become all-embracing and perfect through legislation. The next-to-perfect is sometimes far from the best. Academic clarification can only create the next-to-perfect, as legislation is neces- sary to create the perfect system. Jonatan proposes a new international convention to address the problems of jurisdiction and arbitration clauses. This may very well be a worthwhile attempt. However, there are strong commercial interests in maintaining the current complex legal situation. The jungle guides are likely to resist attempts to establish and maintain highways through the jungle. Governments are likely to their ears to commercial interests rather than the academic ideals of system and order. The current skepticism regarding globalisation does not assist. The climate for allowing matters to be decided in foreign jurisdictions, and recognising and enforcing the foreign judgments that follow, is becoming more hostile. Furthermore, some states are tending to look to national solutions rather than those that are international and comprehensive. I do hope the wind will change. While waiting for the legislators, the best we can do is to pursue our academic ideals. I wish Jonatan further success in his future academic pursuits. Erik Røsæg Professor of Law at the University of Oslo, Norway Nesodden, Norway, 2 July 2020 ix