| dc.description.abstract | Carriage of goods by sea constitutes a major means of transporting goods in international commerce, and bills of lading were invented by merchants as evidential instruments which are used as records of quality and quantity of loaded goods, evidence of contracts of carriage and evidence of lawful holders’ right to claim delivery. This means that terms and clauses contained in bills of lading may greatly affect interests of parties to sea commerce. Besides, arbitration has been increasingly welcomed by businessperson and legal systems. For instance, bringing an arbitration clause from a charterparty to a bill of lading by an incorporation clause in a bill of lading is commonplace. Special attention has been drawn to the legal effect of such an incorporation clause because this clause may ‘drag’ a lawful holder of a bill of lading into a charterparty arbitration agreement. Although certain rules have been imposed on the wording of incorporation clauses, uncertainties arising from such an incorporation clause still exist both in law and commercial practice. This study focusses on addressing those uncertainties, particularly, this thesis examines the underpinning legal principles for the incorporation of an arbitration clause from a charterparty into a bill of lading under Chinese legal system. This thesis firstly challenges the prevailing presumption about the legal nature of bills of lading, clarifying that they are mere evidential instruments. According to this view, the ensuing question is whether an incorporation clause in a bill of lading can be a self-contained contract between a holder of the bill of lading and a shipowner. The study demonstrates that the legal status of such an incorporation clause depends on the position of a holder of the bill of lading. Accordingly, this thesis discusses the legal effect of a bill’s incorporation clause under two scenarios, namely when the holder is a third party to the related charterparty, and when the holder is the charterer (an original party to the related charterparty). It argues that in the former scenario an incorporation clause can be an independent contract if this clause makes explicit reference to an arbitration clause. The underpinning principles are separability of arbitration, principle of incorporation, principle of assignment and principle of implying parties’ consents. Consequently, an explicitly worded incorporation clause in a bill of lading can be a self-contained contract binding a holder and a shipowner. In the latter scenario, an incorporation clause in a bill of lading remains as evidence, and the governing contract is the related charterparty. Therefore, disputes between a holder and a shipowner shall be addressed as it was stipulated in the related charterparty. The discussion of these two scenarios leads to a new paradigm rendering the incorporation of an arbitration clause from a charterparty to a bill of lading. The workability of this new paradigm under Chinese legal system is tested. This thesis argues that the new paradigm can be adopted in Chinese law, as principles underpinning the new paradigm are accepted by Chinese law. Moreover, considering the challenges imposed by certain unique provisions contained in Chinese law, this thesis proposes a reform of Chinese law and provides suggestions for businessperson. | en_GB |
