Arbitration for Liner Bills of Lading

We had the opportunity to present this paper at the recently concluded ICMA XXII at Dubai which was wonderfully hosted by DIAC. We are indeed grateful for this opportunity given that we had been propounding this in a series of articles published earlierⁱ. We also received helpful comments from the participants including that for the Dispute Resolution Clause to be valid, it should be printed in the face of the Bill of Ladingⁱⁱ and that nothing much has changed from the earlier Cedric Barclay Lecture in 1999ⁱⁱⁱ presented by the Late Justice Bradley Harley Giles. In order for this to become a reality, this should be considered by the powers to be at all of the Liner Companies. If any of you have access to the decision makers, please would you put us in touch with them so that we can enter into a dialogue to discuss and hopefully convert them to use arbitration as the default dispute resolution process in their Bills of Lading.

   Prevailing Dispute Resolution Clauses:

1. According to X-Change^iv and Wikipedia^v , the Top 5 Container Lines by capacity, as of 05th May 2023, is as follows:
   1. MSC – 4.8 million TEU’s – 18.2%
   2. Maersk – 4.1 million TEU’s – 15.8%
   3. CMA – CGM – 3.4 million TEU’s – 12.8%
   4. COSCO – 2.8 million TEU’s – 10.9%
   5. Hapag Llloyd – 1.7 million TEU’s – 6.8%
      Total – 16.8 Million TEU’s – 64.5% capacity by the Top 5 Container Lines.
2. The dispute resolution clauses of these Top 5 Container Lines are as follows:
   1. MSC – Clause 10.3^vi deals with Jurisdiction and states “It is hereby specifically agreed that any suit by the Merchant, and save as additionally provided below any suit by the Carrier, shall be filed exclusively in the High Court of London and English Law shall exclusively apply, unless the carriage contracted for hereunder was to or from the United States of America, in which case suit shall be filed exclusively in the United States District Court, for the Southern District of New York and U.S. law shall exclusively apply. The Merchant agrees that it shall not institute suit in any other court and agrees to be responsible for the reasonable legal expenses and costs of the Carrier in removing a suit filed in another forum. The Merchant waives any objection to the personal jurisdiction over the Merchant of the above agreed fora.
      In the case of any dispute relating to Freight or other sums due from the Merchant to the Carrier, the Carrier may, at its sole option, bring suit against the Merchant in the fora agreed above, or in the countries of the Port of Loading, Port of Discharge, Place of Delivery or in any jurisdiction where the Merchant has a place of business”.
   2. Maersk: Clause 26^vii of the Maersk Bill of Lading deals with Law and Jurisdiction and states: “For shipments to or from the U.S. any dispute relating to this bill of lading shall be governed by U.S. law and the United States Federal Court of the Southern District of New York is to have exclusive jurisdiction to hear all disputes in respect thereof. In all other cases, this bill of lading shall be governed by and construed in accordance with English law and all disputes arising hereunder shall be determined by the English High Court of Justice in London to the exclusion of the jurisdiction of the courts of another country. Alternatively, and at the Carrier’s sole option, the Carrier may commence proceedings against the Merchant at a competent court of a place of business of the Merchant”.
   3. CMA-CGM: Clause 30 and 31^viii of the CMA Bill of Lading deal with Law and Jurisdiction respectively. The clauses states as follows:
      Clause 30: “LAW: Except as specifically provided elsewhere herein, French law shall apply to the Terms and Conditions of this Bill of Lading, and French law shall also be applied in interpreting the Terms and Conditions hereof, excluding its conflict of law provisions”.
      Clause 31: “JURISDICTION: All claims and actions arising between the Carrier and the Merchant in relation with the contract of Carriage evidenced by this Bill of Lading shall be brought before the Tribunal de Commerce de Marseille and no other Court shall have jurisdiction with regards to any such claim or action. Notwithstanding the above, the Carrier is also entitled to bring the claim or action before the Court of the place where the defendant has his registered office”.
   4. COSCO: Clause 27^ix deals with Law and Jurisdiction and states as below:
      (1) Except as provided in Clause 27(2) below, all claims against the Carrier must be brought and heard exclusively in the Shanghai Maritime Court of P. R. China. Except as provided elsewhere in this Bill of Lading, laws of P. R. China shall apply to such claims.
      (2) Where the shipment covered by this Bill of Lading is to or from the United States of America (including its districts, territories and possessions), all claims arising hereunder must be brought and heard exclusively in the United States District Court for the Southern District of New York, or if that court is not competent to hear the matter, in any competent state or city court located in New York County. Except as otherwise set out herein, the United States law, including the Carriage of Goods by Sea Act 1936, shall apply to such claims. Where U.S. COGSA applies, then the provisions stated in said Act shall govern during carriage of the Goods before loading on the vessel at the port of loading and following discharge from the vessel at the port of discharge, and throughout the time that the Goods are in the Carrier’s possession, custody or control.
      (3) This Law and Jurisdiction Clause is intended solely for the Carrier’s benefit and may be unilaterally waived by the Carrier, in whole or in part, before or after proceedings are commenced. The Carrier shall be entitled, at its sole option, to pursue any claim against the Merchant in the jurisdiction agreed above, or in any jurisdiction of competent court in the Place of Receipt, the Port of Loading, the Port of Discharging, the Place of Delivery, or any other place related to the carriage, or where the Merchant has a place of business or has assets.
   5. Hapag Lloyd: Clause 25^x deals with Law and Jurisdiction and states “Except as otherwise provided specifically herein any claim or dispute arising under this Bill of Lading shall be governed by the law of the Federal Republic of Germany and determined in the Hamburg courts to the exclusion of the jurisdiction of the courts of any other place. In case the Carrier intends to sue the Merchant the Carrier has the option to file a suit at the Merchant’s place of business. In the event this clause is inapplicable under local law then jurisdiction and choice of law shall lie in either the port of loading or discharge at the Carrier’s option”.
3. From the above dispute resolution clause, we note the following:
   1. Except for CMA-CGM and Hapag Lloyd (19.6%), the other clauses permit for the application of US Law together with the Jurisdiction of the District Court of New York for shipments to and from the United States of America.
   2. Both MSC and Maersk provide for English Law as the law of the contract together with the jurisdiction of the High Court of London (34%).
   3. The other three carriers provide for the application of the laws where they are based together with the jurisdiction of their national courts.
      1. CMA – CGM (12.8%) – French law and the exclusive jurisdiction of Tribunal de Commerce de Marseille.
      2. COSCO (10.9%) – Law of PRC China and the jurisdiction of the Shanghai Maritime Court.
      3. Hapag Lloyd (6.8%) – Law of the Federal Republic of Germany and the jurisdiction of the Hamburg courts.
   4. All the Carriers have reserved their right to pursue in the jurisdiction where the cargo interests are based at.
4. While this paper focusses on Liner Bills of Lading (“Bs/L”), Bs/L issued pursuant to a Charterparty generally incorporate the charterparty arbitration clause such that the holders of the Bs/L are contractually bound to arbitrate any disputes which arise in relation to the contract of carriage. However, in the case of Liner Bs/L, the majority do not incorporate any arbitration clause but instead provide for the jurisdiction of a specific court, especially for non-US shipments.
5. We have also reviewed the top 10 Container Lines by volumex^xi and note:
   1. approx. 43% of the Bs/L provide for English Law and jurisdiction of the High Court of London (MSC, Maersk, Evergreen & YML) and 5.8% of the Bs/L provide for Singapore Law and jurisdiction (Ocean Network Express – known as “ONE”). Collectively, 48.8% would therefore be under the jurisdiction of common law courts.
   2. The remaining 5 other carriers (35.7%) provide for the law and jurisdiction of their national courts (CMA-CGM, Cosco, Hapag Lloyd, HMM & ZIM).
   3. The common law courts would generally enforce the law and jurisdiction clause unless^xii they result in the derogation of any compulsory applicable carriage convention^xiii or law.
   4. With respect to the civil law courts, the author has limited knowledge and understands that if they (civil law courts) are approached by cargo interests based in their jurisdiction, the courts would be generally loath to deny their inherent jurisdiction on various bases including that the jurisdiction clause is asymmetric in nature or that the court seized upon is the correct fora for determining the dispute.
      The practical effect of this is that both Carriers and the Cargo interests would invariably take a tactical position to deal with disputes and which may inherently result in denial of “justice”. This leads to not only cost escalation but also to delays forcing parties to consider a negotiated settlement and in extreme cases drop hands i.e., drop further pursuit.Law of the contract:
6. A dispute resolution clause (“DRC”) may provide for both the law of the contract (“choice of law”) and the dispute resolution process. In the absence of any incorporation of choice of law in the Bs/L, the court/tribunal hearing the dispute would apply the law most closely connected with the subject matter of the contract. While the courts allow for such choice of law clauses, they may deny their application when it (choice of law) overrides any compulsory provision available as of right in the jurisdiction where heard. Accordingly, it may be preferable to choose the law of the location where the cargo is loaded or the contract is formed so as to
   1. avoid any conflicts with compulsory provisions/legislation applicable, and/or
   2. to avoid any challenges from the cargo interests including that they had not agreed to any choice of law and/or DRC.Jurisdiction clause:
7. While the courts, in theory, are meant to dispense justice, the fact is that not all jurisdictions have sufficient resources to deal with shipping/maritime disputes in a timely manner. Additionally,
   1. the costs to pursue or defend a claim in some jurisdictions, particularly for disputes with a value of USD 100,000 or so, and
   2. the timelines for the dispute to be heard and for the court to provide an enforceable judgment, may be a barrier such that parties are forced to discontinue pursuit or defend and instead compromise even though they may have a good claim or defence. This frequently results in various interest groups, including cargo interests, to lobby for additional regulations in their host countries to deal with such issues. This may then result in additional/new regulations^xiv leading to Carriers and the trade in general, incurring additional costs to deal with these regulations.
8. The common claims which arise in Liner contracts are:
   1. Cargo related such as damage, mis delivery or non-delivery.
   2. Injury/damage to carrying vessel^xv and 3rd party arising due to improper stowage/mis-declaration of cargo.
   3. Container detention and demurrage.
   4. Delay
   5. General Average
   6. Salvage
   7. Customs and other penalties which may be imposed by authorities.In our opinion, the maximum exposure arises for claims for damage to vessel/3rd party property and which may sometimes be for astronomical sums (3rd party liability), especially if they result in a casualty leading to total loss of the property. Unfortunately, both the cargo interests (who may be only insured for the property risks) and intermediate carriers (who may be insured for their liabilities) may often be underinsured, such that if there is a major casualty, the available insurance cover would be insufficient to deal with these exposures.
9. When a dispute arises, based on the DRC of the Top 5 Container Lines, parties would have to contractually litigate in the jurisdiction as provided in the DRC (including USA for US shipments) or, at the option of the Carrier, in the jurisdiction where the counterparty/cargo interests are based at.
   1. Given that the Carrier/Container Lines have an additional right, this clause may be considered as an asymmetric DRC and which may result in the clause being considered as a non-exclusive jurisdiction clause^xvi and/or held invalid.
   2. Some jurisdictions do not allow for the application of exclusive jurisdiction clauses such that the aggrieved parties could approach the local courts for assistance^xvii.
   3. It is possible for Carriers to approach the English or Common Law Courts for an “anti-suit injunction” (“ASI”) restraining cargo interests from initiating or proceeding with an action at another court contrary to what is provided for in the Bs/L. However, the effectiveness of any ASI would depend on the circumstances of each case.
   4. Additionally, courts in many jurisdictions, including England^xviii and Singapore, encourage parties to consider the ADR processes which may be more suitable to deal with the dispute at hand. Failure to do so may result in costs sanctions. Hence, it would be prudent for parties to consider and participate in the ADR processes like mediation or arbitration to avoid imposition of costs sanctions from the courts.
   5. With respect to costs incurred for the claim, at least in common law jurisdictions, costs follow the event i.e., the winning party is entitled to at least a portion of its costs (party to party costs). The quantum varies between jurisdictions, but often in many jurisdictions, it is much lesser than the actual costs incurred. This being the case, even if a party is successful, they may to have to bear substantial unrecoverable expenses such that they are only able to recover a portion, of their claim.
   6. In view of the above, the prevailing DRCs provided in the Bills of Lading may not be the best fit for the effective resolution of disputes, particularly when despite the jurisdiction provided, cargo interests could initiate action in the courts of their choice and / or that disputes are not pursued or defended due to the inherent deficiencies in the justice system as detailed in 7 above. Accordingly, the DRC in the present form is only of limited assistance in dealing with disputes arising from the contract of carriage for which a Bs/L is issued.Why Arbitration?
10. Arbitration has been the preferred dispute resolution process for other contractual disputes in the shipping industry including charterparties (voyage, time, and bareboat charters).
    1. The reason for the preference is that given the international nature of shipping, parties are concerned on the “justice” meted out through the court process, particularly due to the absence of resources including expertise in the shipping practices and its technicalities.
    2. A large pool of arbitrators with the requisite industry experience and/or knowledge remains available to hear these disputes.
    3. Finally, the New York Convention allows for easy enforceability vis-à-vis court judgements.
11. Maritime Arbitrations are generally ad-hoc^xix / unadministered^xx and may be the best fit for Liner Arbitration due to the following reasons:
    1. Minimal costs for the initiation of arbitration.
    2. If the initial negotiation fails, parties can initiate arbitration with minimal costs so as to ensure that the claims are not time barred. Parties may continue with further negotiation (after arbitration has been initiated), or proceed with the arbitration allowing for the tribunal to adjudge and provide an enforceable award.
    3. If arbitration process used is administered, parties would be required to make payment of the first tranche of fees, usually based on the claimed amount to the relevant institution, to trigger the process. Accordingly, to prevent time bar from engaging, parties would have to incur substantial costs by making payment of the first tranche of fees to the arbitral institution. While this does signal that the party initiating arbitration is serious given that they have initiated the process by incurring substantial costs, the opportunity to negotiate may be lost given that substantial costs have already been incurred leading to hardening of position. Additionally, this may result in parties not pursuing or defending small claims, say below USD 100,000, given that they would have first fund the arbitration process by payment of the institution’s fees.
    4. With respect to recoverability of Party-to-Party costs, arbitrators/arbitration rules do provide for the winning party to recover a greater portion of costs incurred.Arbitration for Liner Bills of Lading?
12. Most of the Liner Bs/L provide for an asymmetric DRC. Given that there are obvious advantages in choosing arbitration, Liner operators should consider arbitration as the ADR process for the following reasons:
    1. Although we have no anecdotal evidence, most of the Liner disputes would be for sums below USD 100,000 (say 70%), some disputes from USD 100,000 to USD 300,000 (say 25%) and with the balance (say 5%) exceeding USD 300,000. Accordingly, reining in costs would be one of the most important aspects for most of the disputes (say 95%). Costs would include not only the arbitral process costs such as for the initiation of the arbitration and engagement of the arbitral tribunal but also costs for the engagement of counsel^xxi to pursue or defend the claim. Additionally, parties would also be expending time themselves and for instructing counsel to participate in the process.
    2. It is our understanding that disputes below USD 100,000 would only be pursued if the DRC provides for a small claims procedure to rein the costs – otherwise, costs incurred may dwarf the claim such that it would not make commercial sense to pursue it further. It is possible for an arbitration clause (and for that matter DRC) to provide for multiple pathways for small and large claims to ensure that costs incurred are appropriate to the dispute at hand.
    3. If a dispute is litigated, a party would have to consider various factors including the potential for recoverability of costs, speed of the process and enforceability of the judgement prior to initiating action. In this regard, a well-thought of arbitration process could ensure that costs incurred are proportionate to the dispute, allow for higher recoverability of the costs incurred and with workable timelines to deal with the dispute expeditiously.Arbitral Process:
13. Given that Liner trade is worldwide with jurisdictions having different laws (Common/Civil or other forms of law), we would suggest that the arbitration process for Liner disputes consider the following:
    1. Joinder & Consolidation: Ad-hoc/unadministered arbitral rules, which are in use, generally do not provide for joinder or consolidation. Given that there may be several similar arbitrations, the rules for Liner Arbitration should consider incorporating a process for joinder and consolidation as this would result in not only ensuring that inconsistent findings and duplicative proceedings are avoided but also reduction in costs for all. This would be particularly important to deal with General Average Claims given that the York Antwerp Rules 1994 or later editions incorporated into the Bills of Lading do not provide for any DRC and instead this is generally provided for in the Average Bonds and Guarantees sought. While this may (for General Average Claims) may be a way to deal with disputes, we submit that cargo interests are obliged only to provide adequate security and can resist signing any bonds which provide for the imposition of a DRC contrary to what has been provided in the Liner Bs/L issued (as this does not impinge on the quality of the security provided).
    2. No right of appeal on a point of law: While some seats may indeed allow for arbitration awards to be challenged either on the merits or on a point of law, the arbitration clause/arbitration rules for Liner Bs/L should exclude the right of appeal to not only ensure finality but to rein in costs (given that majority of disputes would be below USD 300,000 or so). Otherwise, the losing party can continue to appeal such that the process is defeated^xxii .
    3. Seat:
       1. The arbitration seat is of major practical importance as this would determine the procedural laws which apply to the arbitration including the interim remedies and local court support and supervision. The significance of the seat is also that it is the place where an application can be made to set aside the award.
       2. In the case of Liner disputes, there may be a potential, at least in some jurisdictions based on the prevailing legislation or law, to challenge the award if the seat is different from where the cargo interests are based.
       3. The other potential challenge may be on the basis that the Liner Bills of Lading are adhesion contracts i.e. the Cargo interests have no say in the negotiation of the contract including the DRC.
       4. If the supervisory court/seat is of the jurisdiction where the cargo interests are based, we submit that it would be rare for the DRC to be held invalid given that the courts where the cargo interests are based have supervision over the arbitration.
       5. Additionally, the sting of a DRC could be reduced if cargo interests are notified at the time the contract is formed into so that they have a choice to either continue or choose another Carrier who could better serve their needs.
    4. Sole Arbitrator engagement: As majority of the disputes would be of lower value (as stated in 11a above), to rein in costs, a sole arbitrator should be engaged to hear the dispute. It would be important to ensure that the arbitrator chosen is not only impartial (which in any event they would duty bound to be) but also be seen to be impartial. While the appointment of the sole arbitrator could be ordered by the supervisory courts, in certain cases, this may not be palatable to the Carrier interests due to potential bias. This being the case, the appointment of the sole arbitrator would be better accomplished by an arbitral body keeping in mind both the dispute and the nationality of parties involved and who can then appoint an an arbitrator who has no nexus to the parties involved.
    5. Three-member panel: With respect to large claims, the Tribunal should consist of three members, one member being appointed by each party and the third member/presiding arbitrator being jointly appointed by the first two appointed arbitrators. In case of failure to agree, the third member/presiding arbitrator could be appointed by the arbitral body keeping in mind both the dispute and the nationality of parties involved and any other relevant factors.
    6. Failure to participate: Often, a party may tactically refuse to participate in the arbitral process to not only put financial pressure on the other party to bear the complete costs related to arbitration but also to delay the process. To avoid such roadblocks, the arbitration clause/rules should allow for the first nominated /appointed arbitrator to act as the sole arbitrator should the other party refuse to participate and / or nominate an arbitrator if called on to do so.
    7. Confidentiality: Most of the jurisdictions favor an imposition of a duty of confidentiality, which may also be reflected in their legislation. We submit that this should be removed for Liner disputes to allow for the development of soft law for Liner Disputes. This can be accomplished by publication of awards which can then be used as reference/persuasive authority for future arbitrations. Additionally, removal of confidentiality would also result as a quality check on the arbitral tribunal i.e., the quality of the award would result in the market deciding whether they should consider the appointed arbitrators for other Liner arbitrations.
    8. Incorporation: Liner Bs/L provide a host of clauses on the reverse side, which would often be unread by the Cargo interest at the time of contracting. Often, the Bs/L would be made available to the Cargo interests after shipment or delivery of the cargo to the Carrier. Accordingly, Cargo interests could argue that they were unaware of the terms of carriage including the DRC provided in the Bs/L. The terms of the Carriers Bs/L are generally available in the Carrier’s website and cargo interests could certainly ascertain the terms prior to contracting with the Carrier. However, as this may be one of the ways to challenge the imposition of a DRC including provision of Arbitration to deal with disputes, it would be best to build consensus with the interested parties (Carriers, Cargo interests including Shippers’ council) to agree on a clause which best serves everyone’s interests. Additionally, Carriers should, as a matter of course, advise the cargo interests at the time of booking about the DRC provided in their BL and seek a confirmation that they (Cargo interests) have been provided proper notice.Suggested arbitration clause:
14. We believe that it would be best to develop the arbitration clause jointly with Carrier/Shipper interests to ensure that there is appropriate buy in from the interested parties and is fit for purpose. Our suggested clause is given below purely as a starting point to aid in the discussions between Carrier and Shipper Interests:
    “Any and all disputes arising out of or in connection with this Bill of Lading contract shall be referred to and finally resolved by arbitration seated in the location where the cargo interests are based or pursued) in accordance with the Arbitration Rules of the Singapore Chamber of Maritime Arbitration (“SCMA Rules”) current at the commencement of the arbitration/ in accordance with the London Maritime Arbitrators Association (LMAA) Terms, including the Small Claims Procedure for claims and counterclaims below USD 100,000 current at the commencement of the arbitration time (choose either SCMA or LMMA by striking out the other), which rules/terms are deemed to be incorporated by reference in this clause. Parties agree to waive both their rights to any right of appeal and inherent confidentiality or otherwise permitting for the details of the dispute to be provided to interested third parties including publishing of awards”.
15. Liner arbitration has the potential to develop the growth of maritime arbitration by acting as a channel to train young arbitrators worldwide. Liner disputes are generally for very low sums and may not be of interest to established arbitrators. Instead, young/aspiring arbitrators could be engaged as arbitrators, and which would assist them in getting the relevant experience. These arbitrators could then graduate to other disputes leading to development of diversity in the talent pool. Otherwise, the growth of maritime arbitration may be stymied by the number and quality of arbitrators available.
16. Given the amounts in question, Carriers and Cargo Interests may also choose to self-represent themselves in the arbitration, at least for low value claims, to avoid incurring costs. We submit that the Carriers would be having internal resources such as their claim department who could deal with the Arbitration by themselves. With respect to cargo interests, their associations such as the Shippers’ Council could provide this service to aid their members in representing them during the arbitration.
17. Conclusion:
    1. The prevailing DRC in Liner Bills of Lading do not appear to be the right fit for resolving disputes effectively.
    2. Arbitration may instead be considered as the default process to deal with Liner disputes and which
       1. has the potential to develop the market for disputes to be dealt by arbitration, some of which would never have come to fore due to the inherent issues with litigation.
       2. would ensure that disputes are dealt with expeditiously keeping costs in rein.
    3. provide a training ground for young arbitrators to deal with Liner disputes and subsequently move on to other maritime disputes.

^i. See our earlier articles, Arbitration for Liner Contracts & Arbitration Clause – Liner Bills of Lading. Also our presentation slides for our paper at ICMA XII.
^ii. Omar Omar of Al Tamimi & Co in his talk preceding ours suggested that for arbitration clauses to have effect generally in the Middle East, they must be in the face of the Bills of Lading.
^iii. We thank Paul David KC for his comments and who was one of the contributors to the lecture given by the Late Justics Bradley Harle Giles in 1999. 
^iv.As stated in X-Change’s website and which can be viewed at 💬1 – Top shipping container companies [+ updated market trends 2023] (container-xchange.com)
^v. See List of largest container shipping companies – Wikipedia
^vi.  See https://www.msc.com/-/media/files/legal-files/bill-of-lading.pdf
^vii. See Terms for Carriage | Maersk Terms
^viii. See BILL OF LADING CMA CGM Terms and Conditions 07_2021.pdf (cma-cgm.com)
^ix. See coscon_tidan_cn.pdf (coscoshipping.com)
^x. See Hapag-Lloyd_Bill_of_Lading_Terms_and_Conditions.pdf
^xi. See statistics provided at List of largest container shipping companies – Wikipedia
^xii. See The Hollandia, [1982] 1 AC 565 where the English House of Lords refused to allow the matter to be dealt by the application of the contractually provided Dutch Law and Amsterdam Courts given that this would result in the carriers being entitled to a lower limitation amount than that provided under the Hague-Visby Rules.
^xiii. See S 11 (2)(c) of The Australian Carriage of Goods by Sea Act 1991 which provides that for Australian Shipments (both inward and outward), any jurisdiction of foreign courts would be invalid.
^xiv. For instance, the proposed FMC regulations to deal with Container Demurrage and Detention in USA – see an article from Hill Dickinson
^xv. See the developing case of The MSC Flamina in which the amounts involved exceed USD 200 million. While the Owners and Charterers of the vessel are arbitrating their claims, the cargo interests are using the US Courts to defend the claims pursued against them.
^xvi. See the article of SH Legal on Industrial and Commercial Bank of China (Asia) Limited v Wisdom Top International Limited [2020] HKCFI 322.
^xvii.. See article “Enforcing English Jurisdiction Clauses in Bills of Lading” by Yvonne Baatz published in (2006) 18 SAcLJ 727, article of Gard which discusses the application with respect to Norway, the Carriage of Goods by Sea Act -1991 S 11 which compulsorily provides for Australian jurisdiction if the shipment is an Australian Shipment (both inward and outward) and would depend whether a party choses to approach them & and article Choice of Law and Forum Clauses in Shipping Documents – Revising Section 11 of the Carriage of Goods by Sea Act 1991 (CTH) by Simon Allison published by Monash University Law Review (Vol 40, No 3) and an article published by Dacheng Law Offices LLP on Validity of jurisdiction clause on bills of lading hard to guage.
^xviii. See article on “Engage with alternative dispute resolution or face the costs consequences” by Macfarlanes with respect to the English Courts.
^xix. For instance, the London Maritime Arbitration Association is conducted on an ad-hoc basis.
^xx. For instance, the Singapore Chamber of Maritime Arbitration is an unadministered form of arbitration.
^xxi. While it is certainly possible for the parties to represent themselves in the arbitration, most of the arbitration is conducted using third party counsel to assist the parties and for which parties would incur costs.
^xxii. There is no right of appeal on a point of law provided in the Model Law and which has been adopted in 87 states out of a total of 120 jurisdictions. While there is a right of appeal on a point of law provided in S69 of the English Arbitration Act 1996, this can be waived by the agreement of the parties. Also see article on Waiver of right of recourse against arbitral award: a global perspective by Dr Hamid Sultan Bin Abu Backer & Dr Kasi published by CLJ.