로테르담 규칙상 분쟁해결절차로서의 중재제도 (A study on arbitration as a means of dispute resolution under the Rotterdam Rules)

서지정보

· 발행기관 : 한국경영법률학회
· 수록지 정보 : 경영법률 / 22권 / 4호 / 403 ~ 429페이지
· 저자명 : 김인현

초록

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.

영어초록

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.

참고자료

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