로테르담 규칙상 재판관할조항의 법적 검토
A Study on the Provisions of the Jurisdiction under the Rotterdam Rules
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Most of the Provisions of the Rotterdam Rules address substantive aspects of the relationship between cargo and carrier interests. But Chapter 14 relates only indirectly to that substantive risk allocation. They instead address a procedural question: If a substantive dispute arises under the Convention, what forum will resolve that dispute? Chapter 14 concerns the choice of court in a litigation context. Once the forum issue is settled, the parties in many cases are able to resolve their dispute without further ado. Thus it is no surprise that the parties to a dispute will vigorously seek to advance their interests by trying to have the dispute resolved in a forum that will be sympathetic, convenient, or otherwise beneficial to their side. Any party represented by competent counsel will engage in ‘forum shopping’when doing so advances its interests, but cargo claimants and carriers have ‘shopped’in different ways. Cargo claimants traditionally shop for a forum by deciding where they will bring a claim against a carrier. Carriers traditionally shop for a forum by inserting a choice-of-court agreement in the bill of lading or other transport document that governs a particular shipment. Just as the parties to an individual dispute fight vigorously to obtain an advantageous forum, so those representing particular interests negotiated vigorously to codify their preferred principles, for examples, lis pendens, additional bases of jurisdiction,arrest and provisional protective measures, councursus and removal of actions, jurisdiction when the defendant has entered an appearance, recognition and enforcement in the Rotterdam Rules. In the end, the Rotterdam Rules has provisions to regulate the exclusive jurisdiction agreement. Further Article 67 recognizes it only in volume contract. Chapter 14 was probably the most controversial of the Convention. Irreconcilable positions emerged during the debates, and it proved impossible to achieve consensus on any compromise solution. The broadest compromise that could be found was ultimately included in Chapter 14, but it became optional to permit those nations that could not accept the compromise to ratify the rest of the Rotterdam Rules.
Abstract
Most of the Provisions of the Rotterdam Rules address substantive aspects of the relationship between cargo and carrier interests. But Chapter 14 relates only indirectly to that substantive risk allocation. They instead address a procedural question: If a substantive dispute arises under the Convention, what forum will resolve that dispute? Chapter 14 concerns the choice of court in a litigation context. Once the forum issue is settled, the parties in many cases are able to resolve their dispute without further ado. Thus it is no surprise that the parties to a dispute will vigorously seek to advance their interests by trying to have the dispute resolved in a forum that will be sympathetic, convenient, or otherwise beneficial to their side. Any party represented by competent counsel will engage in ‘forum shopping’when doing so advances its interests, but cargo claimants and carriers have ‘shopped’in different ways. Cargo claimants traditionally shop for a forum by deciding where they will bring a claim against a carrier. Carriers traditionally shop for a forum by inserting a choice-of-court agreement in the bill of lading or other transport document that governs a particular shipment. Just as the parties to an individual dispute fight vigorously to obtain an advantageous forum, so those representing particular interests negotiated vigorously to codify their preferred principles, for examples, lis pendens, additional bases of jurisdiction,arrest and provisional protective measures, councursus and removal of actions, jurisdiction when the defendant has entered an appearance, recognition and enforcement in the Rotterdam Rules. In the end, the Rotterdam Rules has provisions to regulate the exclusive jurisdiction agreement. Further Article 67 recognizes it only in volume contract. Chapter 14 was probably the most controversial of the Convention. Irreconcilable positions emerged during the debates, and it proved impossible to achieve consensus on any compromise solution. The broadest compromise that could be found was ultimately included in Chapter 14, but it became optional to permit those nations that could not accept the compromise to ratify the rest of the Rotterdam Rules.
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