Jurisdiction and Arbitration Agreements in Contracts for the Carriage of Goods by Sea – Limitations on Party autonomy, published by Taylor & Francis (Informa Law from Routledge) in March 2021, is based on the PhD thesis I defended at the Copenhagen Business School (CBS) on 21 February 2019. The book focuses on party autonomy and its limitations in relation to jurisdiction and arbitration clauses included in contracts for the carriage of goods by sea in case of cargo claims.
Carriage of goods by sea is the globally preferred method of international cargo transportation. When a buyer and a seller agree on a contract for the sale of goods, they must set all conditions of purchase, including the transport of such goods by land, air or sea. Maritime transport documents (primarily charterparties and bills of lading) are relatively complex and the uncertainty concerning dispute resolution clauses deserves particular attention.
I have adopted the shipping companies and the shipowners’ perspective, as these are the driving forces of the shipping industry due to their strategic importance. The book provides an analysis of the existing law on the recognition and validity of jurisdiction and arbitration clauses in the contracts for the carriage of goods by sea in case of cargo claims related to the damage, loss, misdelivery or delay of merchandise during a sea venture. It sheds light on especially problematic scenarios, in which parties to the carriage contract might not be able to resolve their disputes, and examines the interface between party autonomy and dispute resolution clauses in bills of lading and charterparties in the context of restrictions imposed by different legal regimes in relation to procedure, substantive law and choice of law.
Private international law, or conflict of laws, shows that the law of treaties is not sufficient to solve the complex problems posed by the plurality of international, European and national sources that affect this subject. The global regulatory unbundling process has diminished the role that international conventions play in normative unification. Their coexistence with more flexible instruments (‘soft laws’, reflecting both private and public interests and using normative principles and models) ensures that trade usages and practices are suited to the complex modern reality of the shipping sector.
Some conclusions areprovided as well as some lessons for the future regarding the non-recognition and the non-enforcement of the clauses in the existing fragmented legal framework at an international, European Union, and national level (England & Wales and Spain). The interface between the different legal regimes reveals the lack of international harmonisation and the existence of ‘forum shopping’ when a cargo interest sues the shipowner or the party to whom the shipowner charters the vessel.
Chapter 1 introduces the research questions, the limitations on party autonomy, the relevant parties, the contracts for the carriage of the goods by sea (charterparties and bills of lading) and the main legal sources.
Chapters 2 and 3 focuses on international jurisdiction with a particular concentration on procedural law in the European Union and the two main selected jurisdictions in which this author is familiarised. England and Spain have been selected to show the contrast between the common law and civil law systems respectively. The problems of incorporation of jurisdiction and arbitration clauses of a charterparty into a bill of lading will also be addressed.
Chapter 4 introduces the anti-suit injunctions, a traditional common law device that may be issued when there is a danger that proceedings may be brought by one of the parties to a contract in breach of a jurisdiction or arbitration agreement. The chapter makes a distinction between anti-suit injunctions issued by a judge or an arbitration as well as its territorial scope.
Chapter 5 tackles the arrest of ships and the international conventions applicable to that interim measure may limit the party autonomy when a cargo claimant sues the shipowner and the court that orders the arrest assumes jurisdiction for the arrest procedure and the merits of the dispute.
Chapter 6 examines how jurisdiction and arbitration agreements may be limited or overruled by mandatory rules, and public policy.
Chapter 7 provides a response to the research questions by outlining the limitations on party autonomy for shipowners and charterers. A new international instrument for a uniform recognition of jurisdiction and arbitration agreements in contracts of affreightment and the mutual recognition of judgments rendered pursuant to a choice of ‘forum’ or arbitral tribunal by the contracting parties is proposed ‘de lege ferenda’.
Some recent developments following the culmination of the Brexit process have made this book even more relevant. For example, the European Commission opposed the accession of the UK to the Lugano Convention.
Spanish domestic law, and the international instruments that Spain has ratified will be applicable to the recognition of English jurisdiction clauses by Spanish courts. It can be said that Brexit has led to the end of the automatic recognition of English choice of court clauses under EU law. Similarly, other EU Member States will also apply their domestic laws to these agreements, considering the UK as a third country outside the Lugano Convention and the Brussels I Regulation (recast). The monograph also contains some notes regarding the applicability of the Hague Convention on Choice of Court Agreements 2005 to maritime disputes.
This concise book provides a useful overview of existing research, for students, scholars, shipping lawyers and anyone interested in the jurisdiction and arbitration clauses contained in contracts for the carriage of goods by sea from a practical and academic angle.
Dr Jonatan Echebarria Fernández, City Law School