The Rotterdam Rules

The still-not-in-force Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, known as The Rotterdam Rules, aims to establish a uniform and modern legal regime governing the rights and obligations of shippers, carriers and consignees under a contract for door-to-door carriage that includes an international sea leg. However, it has to be borne in mind that this set of rules is still not in force and requires ratification by 20 contracting states. As of 26 December 2019, only the Republic of the Congo, Spain, Togo, Benin and Cameroon have ratified the Convention.

The principal objective of the Rotterdam Rules is to achieve harmonisation and progressive unification of international maritime law and to enable a mandatory universal regime to standardise maritime transport contracts and contracts for the use of other modes of transport, to guarantee and promote legal security and sector efficiency. To this end, the Rules incorporate an autonomous definition of the contract of carriage and distinguish a list of contractual modalities, including volume contracts, regular line transport and nonregular transport. The Rules attempt to reconcile various interests, especially for the liability regime, including contractual and extra-contractual actions, providing a margin of manoeuvre to shipping operators while allowing party autonomy.

The Rotterdam Rules differentiate between various parties that might be involved in a transport relationship: these include the carrier, the performing party, the maritime performing party, the shipper, the documentary shipper, the holder and the consignee. The Rules include provisions concerning third-party claims against the carrier.

There is a tension between the different players in maritime transport, namely the developing economies versus the traditional seafaring powers that protect the shipping and insurance industries. The practical effect of choice of forum clauses is to reduce carriers’ liability by choosing a forum that will award a very low level of damages. If the carrier and the shipper agree on the competent court or courts designated under an exclusive jurisdiction agreement a third party may be bound by such agreement under Article 67(2) of the Rotterdam Rules if the relevant requirements are fulfilled.

The Hague Choice of Court Convention

The 2005 Hague Choice of Court Convention^[1] aligns with the Brussels I Regulation (recast), stating in its Article 1(1) on the scope of application of the Convention that it ‘shall apply in international cases to exclusive choice of court agreements concluded in civil or commercial matters’. It was drafted under the auspices of the Hague Conference on Private International Law as an attempt to achieve the same effectiveness and legal certainty for jurisdiction agreements that arbitration agreements already enjoy under the New York Convention.

In Baatz’s words, the Hague Choice of Court Convention shares three principles with the Brussels I Regulation (recast), ‘subject to exceptions: if parties to a contract choose court jurisdiction or arbitration that choice should be given effect to; no other court should take jurisdiction; and any court judgment or arbitration award resulting from such choice should be recognised and enforced'. The scope of the Hague Choice of Court Convention is more restrictive than the Brussels I Regulation (recast) since it does not provide for the competent court where there is no jurisdictional agreement between the parties.

The limitation of its scope of application excluding maritime disputes makes it inapplicable to the carriage of goods by sea and the limitation on liability for maritime claims. However, it does apply to contracts of insurance (or reinsurance). It is arguable whether it applies to time charterparties. This author agrees with the assumption that it could be applicable to demise chartering, but not voyage charterparties.

The 1952 Arrest Convention and the 1999 Arrest Convention

The 1952 Arrest Convention and the 1999 Arrest Convention are of paramount importance since their rules, providing for jurisdiction, have a disproportionate influence over party-agreed dispute resolution clauses. These conventions may allow the claimant to benefit from ‘forum shopping’ tactics, where parties aim to benefit from the most advantageous jurisdiction offering the best procedural and substantive potential for arrest.

The New York Convention

The New York Convention of 1958 regulates the recognition and validity of arbitration agreements. This Convention is considered erga omnes as it is widely ratified by most countries worldwide, currently with 159 contracting states. It regulates a positive effect (that is, it confers jurisdiction for dispute resolution) and a negative one (that is, the obligation of courts to decline jurisdiction when a valid arbitration agreement exists).

The New York Convention has two aims: First, it prevents foreign arbitral awards from being discriminated against in its contracting states, favouring recognition and execution by them. Second, the text seeks to ensure that third-state courts recognise the frill effect of arbitration agreements subscribed to by the original parties to the contract. There is no parallel international convention regarding the recognition and enforcement of judgments with such broad acceptance.

• [1] The Hague Convention of 30 June 2005 on Choice of Court Agreements of the Hague Conference on Private International Law, 44ILM 1294. 2 Juan José Alvarez Rubio and Unai Belintxon Martin, ‘La Nueva Ley de Navegación Marítima desde la Perspectiva del Derecho Internacional’ in Alberto Emparanza Sobejano and José Manuel Martin Osante (eds), Comentarios Sobre la Ley de Navegación Marítima (Marcial Pons 2015). 3 Yvonne Baatz, ‘The Conflict of Laws’ in Yvonne Baatz, Maritime Law (4th edn, Routledge 2018) 16-17. 4 Articles 2(2)(f)-(g) of the Hague Convention on Choice of Comt Agreements, also exclude marine pollution, general average and emergency towage and salvage. 5 Yvonne Baatz, ‘The Conflict of Laws’ in Yvonne Baatz (ed), Maritime Law (4th edn, Routledge 2018) 17; Andrew Tettenbom, ‘The Nuts and Bolts of Mantime Contracts: BREXIT and Choice of Law and Choice of Court Agreements’ (Tribuna Profesional ANAVE, January 2018) accessed 15 January 2018. 6 International Convention on the Arrest of Ships 1999 (adopted 12 March 1999, entered into force 14 September 2011) (1999 Arrest Convention), 2797 UNTS 3.