Lloyd's Maritime and Commercial Law Quarterly
SHOULD THIRD PARTIES BE BOUND BY ARBITRATION CLAUSES IN BILLS OF LADING?
Yvonne Baatz *
This article considers English law on the incorporation of an arbitration clause from a charterparty into a bill of lading and whether it binds a third party to the bill of lading. The varying approaches of the EU Member States to arbitration clauses in bills of lading mean that parallel proceedings in arbitration and court may carry the risk that conflicting awards or judgments may be made. Recent European attempts to address these issues have not eliminated uncertainty as to the position on recognition and enforcement of arbitration awards. The global position is even more diverse and the latest attempt to address arbitration clauses in bills of lading in the Rotterdam Rules fails to tackle the problems.
A. INTRODUCTION
The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the “New York Convention”) has been very widely accepted around the world.1 It gives effect to the principle of party autonomy. That principle is also at the heart of many Conventions and EU Regulations in other areas of conflict of laws governing court jurisdiction and applicable law, such as Council Regulation (EC) No 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (the “EC Jurisdiction Regulation”); the Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (the “Recast Regulation”);2 the Hague Convention on Choice of Court Agreements 2005;3 Regulation (EC) No 593/2008 on the law applicable to contractual
* Professor of Maritime Law and member of the Institute of Maritime Law at the University of Southampton. My thanks go to Robert Veal, research assistant at the Institute of Maritime Law, for his helpful comments on a draft of this article. Any errors remain my own.
The following abbreviations are used:
ECJ: Court of Justice of the European Communities; Court of Justice of the European Union;
Heidelberg Review/Report: B Hess, T Pfeiffer and P Schlosser, The Brussels I—Regulation (EC) No 44/2001: The Heidelberg Report on the Application of Regulation Brussels I in 25 Member States (Study JLS/C4/2005/03) (CH Beck, Hart, Nomos, 2008).
1. As at 17 March 2014, 149 States are party to the New York Convention.
2. The Recast Regulation will apply to legal proceedings instituted on or after 10 January 2015 (Art.66) and will apply to all EU Member States, including Denmark, according to the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2013] OJ L79/4.
3. On 30 June 2005, the Final Act of the Twentieth Session of the Hague Conference on Private International Law was signed, including the Convention on Choice of Court agreements. The text of the Convention is available from www.hcch.net/index_en.php?act=conventions.text&cid=98. It is not yet in force. Two ratifications or accessions are required (Art.31). As at June 2014, Mexico had acceded to the Convention on 26 September 2007, the United States of America had signed on 19 January 2009 and the European Community, now replaced by the European Union, signed on 1 April 2009 (but this does not bind Denmark). On 4 December 2014 the European Council approved the Convention. The Convention will come into force “on the first day of the month following the expiration of three months after the depot of the second instrument of … approval”. However, even when it comes into force, it does not apply to the carriage of goods: see Art.2(2)(f) and (g).
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