Consent of the Holder of the Bill of Lading to the Arbitration Clause by Reference
Majallat Attahkim Al Alamiya [World Journal of Arbitration], Vol. 2, Issue 8 (Supplementary), October 2010, pp. 303-333.
31 Pages Posted: 1 Jan 2011 Last revised: 2 Mar 2013
Date Written: October 1, 2010
According to the author, the coming into force of the 1978 Hamburg Rules (November 1, 1992) in its contracting countries (the same will apply to the 2008 Rotterdam Rules) requires from the courts of these countries to revisit its case-law on the matter of incorporation of arbitration clauses into bills of lading, this particularly applies to Egypt. Two aspects should be changed; first, courts will no longer need to use conflict of laws to determine applicable law to the issue of the consent of the holder of the bill of lading with regard incorporation, since the Rules establishes an international rule directly applicable (i.e., international material rule); and second, the courts should check consent of the holder of the bill of lading, and not that of the consignor who made the original contractual relationship (usually a charterparty). Though there is no unified interpretation of the 1978 Hamburg Rules (and 2008 Rotterdam Rules) with regard the criterion of consent for the incorporation of arbitration into the bill of lading (Article 22(2) of the HgR; Article 76(2)(b) of the RR), the author interprets the Rules in favour of arbitration. According to him, it suffices that the holder of the bill of lading accepts the incorporation expressly or tacitly; however the author does not extend support to arbitration by denying jurisdiction to the courts to examine the consent in application of the ‘compétence de la compétence’ principle (opposite to the French Pella Lindos case-law, 2005-2006). Substantively, he supports the application of the English case-law and which distinguishes between specific and general references in determining such const (to the contrary to French case-law, namely the 1994 Osprey Stolt case). For the author, his lenient interpretation is supported by the procedural and substantive constrains invented by the 1978 Hamburg Rules (and later adopted by the 2008 Rotterdam Rules) and which protect the cargo interests’ shifting the arbitration clause from their risky foe to their best friend.
Note: Downloadable document is in Arabic.
Keywords: Charterparty, Arbitration Clause, Incorporation, 1978 Hamburg Rules Article 22(2), 2008 Rotterdam Rules Article 76(2)(b), Specific Reference; Compétence de la compétence
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