로테르담 규칙상 분쟁해결절차로서의 중재제도
A study on arbitration as a means of dispute resolution under the Rotterdam Rules
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The newly adopted Rotterdam Rules in 2008 by the UN will replace the current Hague-Visby Rules. The Rules has a substantive provisions on the jurisdiction and arbitration as opposed to the Hague-Visby Rules but similar to the Hamburg Rules. The exclusive jurisdiction clause which was inserted by the carrier on the reverse side of the Bill of Lading is known as a disadvantage to the shipper or cargo interest. Under the Rotterdam Rules it became one of connecting fact for the claimant to select the relevant court for bring about the law suit. In general, it is widely accepted that the freedom of contract principle prevails in the arbitration agreement. During the negotiations for the Rules many delegations worried about the possible circumvention of the carrier to insert the exclusive arbitration clause even in the Bill of Lading for the purpose of evading the compulsory application of strict jurisdiction clause. As a result, the Rules came to have several provisions on the arbitration. The exclusive arbitration clause in the Bill of Lading will be subject to the Rules and thus the claimant is allowed to select one of three other places including the place of receipt or delivery for the arbitration regardless of the presence of the exclusive arbitration clause. Charter party is excluded from the application of the Rules. The Rules will not be applicable between the carrier and the holder of the Bill of Lading if the arbitration clause is lawfully incorporated in the Bill of Lading and thus the exclusive arbitration agreement is effective. The States which do not want to be bound by this kind of new legal regime on the arbitration will enjoy current status of freedom of contract in relation to arbitration if it ratify without accepting opt-in provision in Art. 78. It seems to the writer that under the Rules the carrier will be frequently put in disadvantageous place if the claimant select another place as the arbitration place other than the place in the exclusive arbitration clause.
Abstract
The newly adopted Rotterdam Rules in 2008 by the UN will replace the current Hague-Visby Rules. The Rules has a substantive provisions on the jurisdiction and arbitration as opposed to the Hague-Visby Rules but similar to the Hamburg Rules. The exclusive jurisdiction clause which was inserted by the carrier on the reverse side of the Bill of Lading is known as a disadvantage to the shipper or cargo interest. Under the Rotterdam Rules it became one of connecting fact for the claimant to select the relevant court for bring about the law suit. In general, it is widely accepted that the freedom of contract principle prevails in the arbitration agreement. During the negotiations for the Rules many delegations worried about the possible circumvention of the carrier to insert the exclusive arbitration clause even in the Bill of Lading for the purpose of evading the compulsory application of strict jurisdiction clause. As a result, the Rules came to have several provisions on the arbitration. The exclusive arbitration clause in the Bill of Lading will be subject to the Rules and thus the claimant is allowed to select one of three other places including the place of receipt or delivery for the arbitration regardless of the presence of the exclusive arbitration clause. Charter party is excluded from the application of the Rules. The Rules will not be applicable between the carrier and the holder of the Bill of Lading if the arbitration clause is lawfully incorporated in the Bill of Lading and thus the exclusive arbitration agreement is effective. The States which do not want to be bound by this kind of new legal regime on the arbitration will enjoy current status of freedom of contract in relation to arbitration if it ratify without accepting opt-in provision in Art. 78. It seems to the writer that under the Rules the carrier will be frequently put in disadvantageous place if the claimant select another place as the arbitration place other than the place in the exclusive arbitration clause.
참고문헌 (17)
- 김인현, "해상법" (2011), 법문사
- 목영준, "상사중재법론" (2001), 박영사
- 송상현, "해상법원론" (2010), 박영사
- 석광현, "국제상사중재법연구 제1권" (2007), 박영사
- 이균성, "해상법" (2010), KMI
- 이철송, "상법강의" (2008), 박영사
- 채이식, "상법 IV" (2002), 박영사
- 최종현, "해상법상론" (2010), 박영사
- 김인현, "2008년 로테르담 규칙상 裁判管轄制度의 성립 과정과 내용 - 전속적 합의관할을 중심으로 -", 한국해법학회지, 32(1), pp.191~235 (2010), 한국해법학회
- 鄭炳碩, "해사 재판 관할권의 문제", 한국해법학회지, 25(2), pp.333~350 (2003), 한국해법학회
- 최준선, "UNCITRAL 국제(해상)운송법초안의 재판관할조항에 대한 고찰", 한국해법학회지, 28(1), pp.403~431 (2006), 한국해법학회
- 김인현, "Transport Law in South Korea" (2011), Wolter Kluwer
- Alexander von Ziegler, "The Rotterdam Rules 2008" (2010), Wolters Kluwer
- Martin Davies, "Jurisdiction and Forum Selection in Inter- national Maritime Law" (2005), Kluwer Law International
- John Wilson, "Carriage of Goods by Sea" (2004), Pearson Longman
- Anthony Diamond QC, "The Next Sea Carriage Convention", Lloyd's Maritime and Commerce Law Quarterly (2008)
- Rolf Herber, "Jurisdiction and arbitration" (2002), LMCLQ
