Jurisdiction and Arbitration Clauses in Bills of Lading and PowerPoint Presentation, PPT - DocSlides

Jurisdiction and Arbitration Clauses in Bills of Lading and PowerPoint Presentation, PPT - DocSlides

2017-03-27 62K 62 0 0

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Tomotaka Fujita (Japanese MLA). Graduate Schools for Law and Politics. University of Tokyo . 1. Background. No . statutory regulation directly addressing the international jurisdiction of Japanese . courts u. ID: 530343

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Slide1

Jurisdiction and Arbitration Clauses in Bills of Lading and Other Sea Carriage Documents in Japan

Tomotaka Fujita (Japanese MLA)Graduate Schools for Law and PoliticsUniversity of Tokyo

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Slide2

Background

No statutory regulation directly addressing the international jurisdiction of Japanese courts until recently. The question of whether the Japanese court had jurisdiction over a specific dispute, including the validity of the jurisdiction and arbitration clauses in bills of lading, has been developed as case law.

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Slide3

Supreme Court Decision* of November 28, 1975

*A translation of the decision is available in Japanese Annual of International Law, No.20, pp.106-118 (1976). The volume is available Hein Online: http://home.heinonline.org/

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Santos (Brazil)

Kobe (Japan)

Shipper (Seller)

Carrier

Consignee (Buyer)

Insurer

Goods damaged

Compensation

Subrogation

B/L

Slide4

Supreme Court Decision of November 28, 1975

“Any and all suits under this contract of carriage shall be brought before the court of Amsterdam and no other court shall have jurisdiction over any other suit unless the carrier brings such suit before a court of other jurisdiction or voluntarily accepts the jurisdiction of such court.”

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A jurisdiction clause in the bill of lading

Slide5

Supreme Court Decision of November 28, 1975

The formalities for the agreement: At least a court of a certain country is expressly designated in the document prepared by either of the parties and if the existence of such an agreement between the parties and the contents thereof are explicit. (2) The case is not subject to the exclusive jurisdiction of Japan.

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Four conditions

Slide6

Supreme Court Decision of November 28, 1975

(3) The designated foreign court has jurisdiction over such cases under the laws of that foreign country.(4) Unless such an agreement is very unreasonable and against the law of public policy.

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Four conditions

Slide7

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Tawau (Malaysia)

Tokyo (Japan)

Shipper

Carrier

B/L Holder

Third Party

B/L

Tokyo District Court, September 13, 1999

Delivery w/o B/L

Slide8

Tokyo District Court, September 13, 1999

Followed the framework of 1975 Supreme Court DecisionJurisdiction clause was held invalid as “very unreasonable and against the law of public policy” under the specific circumstances of the case.

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Slide9

Tokyo District Court, September 13, 1999

The court found (1) the dispute related to the (mis)delivery of the cargo in Japan, (2) many relevant parties involved were Japanese who lived in Japan, and (3) the relevant facts in the dispute had nothing to do with Malaysia.

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Slide10

Arbitration Clause Incorporated by Reference

Article 76(2) “Notwithstanding paragraph 1 of this article, an arbitration agreement in a transport document or electronic transport record to which this Convention applies by reason of the application of article 7 is subject to this chapter unless such a transport document or electronic transport record:(a) Identifies the parties to and the date of the charterparty or other contract excluded from the application of this Convention by reason of the application of article 6; and(b) Incorporates by specific reference the clause in the charterparty or other contract that contains the terms of the arbitration agreement.”

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Rotterdam Rules

Slide11

Arbitration Clause Incorporated by Reference

Arbitration clause in the charterparty: “any dispute arising out of this charterparty is referred to arbitration in London.”Incorporation provision in the B/L : “all the terms, conditions, and exceptions contained in which Charter are herewith incorporated.” Court dismissed the claim. Arbitration clause incorporated by reference effectively prevented the B/L holder’s suit.

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Osaka District Court, May 11, 1959

Slide12

Statutes

Code of Civil Procedure included provisions concerning the international jurisdiction of Japanese courts in 2011. Article 3-7 of the Revised Code provides for the validity of the choice of court agreement.The provision is, essentially, based on the 1975 Decision. No special rule for jurisdiction/ arbitration clauses in B/L The 1975 Decision still remains as a precedent today.

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Slide13

A Possible Change in Statutes or Case Law?

The new legislation is unlikely. The framework of 1975 Supreme Court Decision will be stable. Developments may be seen in the area where ambiguities remain. -When exclusive jurisdiction clause is “very unreasonable and against the law of public policy” - Validity of arbitration clauses incorporated by reference to charterparty provisions

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Slide14

Responses to the Rotterdam Rules

Japan is unlikely to opt-in Chapters 14 (Jurisdiction) and 15 (Arbitration) of the Rotterdam Rules However……..There may be indirect influence by the Rotterdam Rules E.g, Article 76(2) of the Rotterdam Rules, which regulates the effect of an arbitration clause incorporated by reference. If many states choose to opt-in Chapter 15 and Article 76 becomes a globally accepted rule, it might have some influence on Japanese courts.

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Slide15

Jurisdiction and Arbitration Clauses in Bills of Lading and Other Sea Carriage Documents in Japan

Tomotaka Fujita (Japanese MLA)Graduate Schools for Law and PoliticsUniversity of Tokyo

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