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FORUM SELECTION, CHOICE OF LAW AND MANDATORY RULES

Lloyd's Maritime and Commercial Law Quarterly

FORUM SELECTION, CHOICE OF LAW AND MANDATORY RULES

Martin Davies*

Many countries have legislation striking down foreign forum selection clauses in bills of lading and other contracts for carriage by sea. The oldest such legislation in the common law world is that of Australia, which first legislated in 1904. By contrast, the United States has never passed legislation guaranteeing a plaintiff access to its home forum. Forum-protecting provisions were not included in the Harter Act or the Carriage of Goods by Sea Act because they were not thought necessary, as foreign forum selection clauses were regarded as contrary to public policy. That changed in 1995, with the Supreme Court’s Sky Reefer decision. Since then, foreign forum selection clauses have routinely been upheld, with the result that few cargo claims are tried in US courts. This article compares the Australian and American experience.

1. Introduction

Choice of law and choice of forum clauses are ubiquitous in contracts for the carriage of goods by sea. In the liner trade, such clauses usually provide that the contract is governed by the law of the carrier’s country and require any claim to be brought in the carrier’s principal place of business.1 Obviously, this may not always be convenient for the cargo owner or its insurer. The debate about whether to override such clauses by mandatory rules of law for the protection of cargo claimants mirrors the debate about overriding procarrier exclusion clauses, and it has gone on almost as long. In keeping with their generally minimalist nature, neither the Hague Rules nor the Hague-Visby Rules contain any provisions about jurisdiction or arbitration. It was never seriously contemplated that they should, the prevailing view being that these were questions for national law to decide.2 The Hamburg Rules3 did contain provisions about jurisdiction (Art 21) and
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