Decoding the law of incorporation of charterparty arbitration clauses into bills of lading and identifying its dimensions: delineating the sui generis status of arbitration clauses

Abstract

It is trite law that arbitration clauses are sacrosanct in maritime trade as they promote certainty and predictability in the contingency of disputes. Standard forms of charterparties and bills of lading equally mirror the wish of the parties to trade over trusted and thus frequently incorporated terms, and inevitably, the phrasing “including the arbitration clause” is of focal attention. The institution of arbitration has been cherished as a preferred expression of party autonomy at international treaty level, through the New York Convention in an aspiration to establish a harmonious international legal framework of acceptance and recognition of foreign arbitration clauses and awards.

This PhD thesis studies the interpretational complexities that arise when incorporating arbitration in maritime contracts, in cases of disputes where the courts themselves struggle with discerning the contractual intention that lurks behind the unclear wording. The originality of this PhD rests in its challenging scope, its penetrating research into English, European and Chinese case law, with the objective to assess how the incorporation of arbitration principles crystallises through the years. Identifying whether recent English case law applies the principles advocated on incorporation of arbitration clauses from charterparties into bills of lading or whether it takes a different stance in the attempt to read contracts in a way that aligns with business common sense has been the primary objective of this thesis. Following this, the author illustrates the complexities that arise and how they affect the arbitration-friendliness of the New York Convention and party autonomy as conveyed through express or incorporated arbitration clauses in bills of lading especially when the ambiguities set the debate of whether an arbitration or a(n) (exclusive) jurisdiction clause has been incorporated. Most importantly, the author will present the optimal construction methods in a spirit that respects leading English case law, as well as the protected status of arbitration clauses under the purview of the New York Convention.

The author has distilled and proven why a series of English cases has paved the way in identifying not simply whether a clause has been incorporated but also by advocating principles on how different types of charterparties, in different forms, progress in their writing (oral, written, evidenced merely by a fixture recap) can be incorporated, with emphasis on their arbitration clauses. This thesis then engages in a critical analysis of recent cases to see how these apply in modern maritime disputes. The author offers original conclusions on optimal methods and priorities of construction under the light of the arbitration friendliness furthered by the New York Convention, the existing incorporation principles and the sui generis status of arbitration clauses. The aim is to conclude on how arbitration clauses and maritime law can keep walking hand-in-hand suggesting to judges, lawyers and policy makers how English law can through common law develop systematized and clear methods of construction of arbitration clauses.

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