Characterising the Action in Rem in Australia and the Implications on International Commercial Arbitration

Posted: 27 Aug 2009  

Andrew Dahdal

Macquarie Law School

Peter Gillies

School of Law, Murdoch University, WA

Date Written: April 1, 2009

Abstract

The law of admiralty evokes, as Sir Ninian Stephan noted, a romantic sense of the high seas and of that which is exotic, but in the modern international economy, it is integral to facilitating maritime commerce and trade. In Australia, such law is grounded in legislation, in particular the Admiralty Act 1988 (Cth). A consequence of grounding admiralty law in legislation, according to some commentators, ‘has been the creation of an entirely novel form of action known as the statutory action in rem.' In Comandate Marine Corp v. Pan Australia Shipping Pty Ltd, the full bench of the Federal Court of Australia addressed the important and interesting question of whether a party initiating such an action may be deemed to have waived a contractual right to arbitrate. This article analyzes the court’s decision in light of the International Arbitration Act 1974 (Cth), the UNCITRAL model law, and the common law.

Keywords: arbitration, marine, maritime, in rem, admiralty, Comandate

JEL Classification: K12, K33, K41, L92, N70

Suggested Citation

Dahdal, Andrew and Gillies, Peter, Characterising the Action in Rem in Australia and the Implications on International Commercial Arbitration (April 1, 2009). Journal of Maritime Law and Commerce, Vol. 40, No. 2, 2009. Available at SSRN: https://ssrn.com/abstract=1462801

Andrew Dahdal (Contact Author)

Macquarie Law School ( email )

NSW 2109
Australia

Peter S. Gillies

School of Law, Murdoch University, WA ( email )

Australia

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