Jurisdiction and Arbitration Clauses in Maritime Transport Documents - A Comparative Analysis

Preface

Abbreviations

Contents

Chapter 1: Introduction

A. Towards a uniform system of choice of forumagreements in maritime transport documents

I. A note on the subject of this study

II. Objective and scope of the project

B. Benefits and disadvantages of choice of forumagreements

I. Benefits for the contracting parties

II. Disadvantages generally associated with choice of forumagreements

I. Protectionism and the structure of shipping

II. Industry bargaining pattern

III. Ability of the parties to conduct legal proceedings abroad

C. Choice of forum clauses in the context of maritimetransport

D. The influence of the lawyers’ own interests

E. Summary

Chapter 2: The Legal Framework for Choice ofForum Clauses in Maritime TransportDocuments

A. The legal framework for jurisdiction clauses inmaritime transport documents

I. The U.S. framework for jurisdiction clauses

1. Relation between federal and state law in maritime matters

2. Essential laws and some questions on their application

II. The European framework for jurisdiction clauses

1. The Brussels-Lugano regime

2. Scope of the Brussels-Lugano regime

III. The English framework for jurisdiction clauses

IV. The German framework for jurisdiction clauses

B. The legal framework for arbitration clauses inmaritime transport documents

I. The U.S. framework for arbitration clauses

II. The English framework for arbitration clauses

III. The German framework for arbitration clauses

C. Summary

Chapter 3: Bills of Lading and other MaritimeTransport Documents

A. Bills of lading

I. A short history of the bill of lading

II. The functions of a bill of lading

III. Bills of lading in the event of charter

B. Modern counterparts of bills of lading

I. Sea waybills

II. Transshipment and multimodal transport documents

III. Electronic shipping documents

C. Passenger tickets

D. Summary

Chapter 4: Common Types of Choice of ForumClauses in Maritime TransportDocuments

A. The use of jurisdiction clauses in maritimetransport documents

I. Exclusive and non-exclusive jurisdiction clauses

II. Interpretation of ambiguous and fragmentary clauses

III. Determination of the scope of jurisdiction clauses

B. The use of arbitration clauses in maritimetransport documents

I. Institutional and ad hoc arbitration

II. The place of arbitration

III. Arbitration procedure

IV. Determination of the scope of arbitration clauses

C. Summary and commentary

Chapter 5: Classification of Choice of ForumClauses and their Separability fromthe Main Contract

A. Classification of jurisdiction clauses and theirseparability from the main contract

I. Classification and separability under U.S. law

II. Classification and separability under the Brussels-Lugano regime

III. Classification and separability under English law

IV. Classification and separability under German law

B. Classification of arbitration clauses and theirseparability from the main contract

I. Classification and separability under U.S. law

II. Classification and separability under English law

III. Classification and separability under German law

C. Comparative review

D. Legal policy considerations

E. Summary

Chapter 6: Formal Requirements and theIncorporation of Choice of Forum Agreements

A. Formal requirements and the incorporation of jurisdiction agreements

I. Form and incorporation under U.S. law

II. Form and incorporation under the Brussels-Lugano regime

III. Form and incorporation under English law

IV. Form and incorporation under German law

B. Formal requirements and the incorporation ofarbitration agreements

I. Form and incorporation under U.S. law

II. Form and incorporation under English law

III. Form and incorporation under German law

C. Comparative review

D. Legal policy considerations

E. Summary

Chapter 7: Inconvenient and Unfair Choice of Forum Clauses

A. Inconvenient and unfair jurisdiction clauses

I. Inconvenient and unfair jurisdiction clauses under U.S. law

1. The reasonableness doctrine

2. Forum non conveniens and the change of venue section

3. Fairness

II. Inconvenient and unfair jurisdiction clauses under the Brussels-Lugano regime

III. Inconvenient and unfair jurisdiction clauses under English law

IV. Inconvenient and unfair jurisdiction clauses under German law

B. Inconvenient and unfair arbitration clauses

I. Inconvenient and unfair arbitration clauses under U.S. law

II. Inconvenient and unfair arbitration clauses under English law

III. Inconvenient and unfair arbitration clauses under German law

C. Comparative review

D. Legal policy considerations

E. Summary

Chapter 8: The Effect of Mandatory Liability Rules on the Enforcement of Choiceof Forum Clauses

A. The effect of mandatory liability rules on theenforcement of jurisdiction clauses

I. Mandatory liability and jurisdiction clauses under U.S. law

II. Mandatory liability and jurisdiction clauses under the Brussels-Lugano regime

III. Mandatory liability and jurisdiction clauses under English law

IV. Mandatory liability and jurisdiction clauses under German law

B. The effect of mandatory liability rules on theenforcement of arbitration clauses

I. Mandatory liability and arbitration clauses under U.S. law

II. Mandatory liability and arbitration clauses under English law

III. Mandatory liability and arbitration clauses under German law

C. Comparative review

D. Legal policy considerations

E. Summary

Chapter 9: The Effect of Choice of Forum Clauses on Third Party Cargo Receivers

A. The effect of jurisdiction clauses on third partycargo receivers

I. Position of third party cargo receivers under U.S. law

II. Position of third party cargo receivers under the Brussels-Lugano regime

III. Position of third party cargo receivers under English law

IV. Position of third party cargo receivers under German law

B. The effect of arbitration clauses on third partycargo receivers

I. Position of third party cargo receivers under U.S. law

II. Position of third party cargo receivers under English law

III. Position of third party cargo receivers under German law

C. Comparative review

D. Legal policy considerations

E. Summary

Chapter 10: Future Developments – the Hamburg Rules and Beyond

A. From Hamburg to Rotterdam

I. The Hamburg Rules

1. Jurisdiction clauses under the Hamburg Rules

2. Arbitration clauses under the Hamburg Rules

II. The United Nations Convention on International MultimodalTransport of Goods

III. The Rotterdam Rules

1. Jurisdiction clauses under the Rotterdam Rules

2. Arbitration clauses under the Rotterdam Rules

B. Further developments

I. U.S. Senate COGSA 1999

II. The Hague Convention on Choice of Court Agreements

C. Comparative review

D. Legal policy considerations

E. Summary

Chapter 11: General Observations andConclusions

A. General Observations

B. Conclusions

Bibliography

Table of Cases

Table of Legislation

About the International Max PlanckResearch School for Maritime Affairsat the University of Hamburg