Your World of Legal Intelligence
 United Kingdom | +44 (0) 20 7284 8080

Adjudicatory Jurisdiction in International Carriage of Goods by Sea: Would the Rotterdam Rules Settle the Controversy?

Document Cited authorities 2 Cited in Related
Vincent
Date01 October 2013
Published date01 October 2013
DOI10.3366/ajicl.2013.0073
Pages467-488
AuthorAbegaz Yimer Gebreyesus
INTRODUCTION

Contracts of carriage of goods are predominantly regulated by international conventions. Given the fact that a contract of carriage of goods usually would not be devoid of international elements, internationalising this area of law is appropriate; however, the internationalisation of the substantive laws of carriage of goods would not lay to rest the issue of jurisdiction, which is a common factor of all international litigations.

Parties to litigation foresee the advantages and disadvantages of litigating in one or another court. To litigate in a court of your choice is like playing football on your own pitch. Players feel comfortable when they play at their home ground, though they cannot be sure they will win the game. In the same vein, litigants leave no stone unturned to bring their opponent into their favourite court. Unfortunately, there is a lack of consensus among civilised legal systems on how to regulate the issue of jurisdiction in international litigation. Understanding the existing gap and the importance of fixing this issue, most conventions on international contracts of carriage of goods have incorporated provisions that regulate the issue of jurisdiction. When it comes to carriage of goods by sea, however, some trading nations and scholars do not accept the inclusion of jurisdictional provisions in the conventions that regulate carriage of goods by sea. They do not welcome any attempt to incorporate the issue of jurisdiction in international conventions for carriage of goods by sea, and this is the subject of debate and controversy. This article discusses the main arguments for and against the inclusion of jurisdictional provisions in international conventions that regulate the carriage of goods by sea, with special reference to the Rotterdam Rules 2009.

The first section of this article is devoted to discussing the general principles of jurisdiction as well as grounds of jurisdiction in common law and civil law countries. The importance of jurisdiction in international litigation is also addressed. The second section deals specifically with jurisdictional provisions on international conventions that regulate the carriage of goods by sea and partially by sea. Finally, some conclusions and recommendations are offered.

 GENERAL PRINCIPLES OF ADJUDICATORY JURISDICTION IN CIVIL AND COMMERCIAL LITIGATIONS Why jurisdiction matters

Adjudicatory jurisdiction is ‘the power of the courts or other adjudicatory organs to decide the disputes in a binding manner’,1

Symeon C. Symeonides, American Private International Law, Kluwer Law international, The Hague (2008), p. 26.

that is, to have authority to hear and decide a controversy in a binding manner. In very important international disputes, usually parties fight hard on jurisdictional issues and once the issue of jurisdiction is decided, they settle the case out of court without further litigation.2

Trevor C. Hartley, International Commercial Litigation: Text, Cases and Materials on Private International Law, Cambridge University Press (2009), p. 6.

 This is because once the forum of litigation is identified, the parties can predict the outcome of the case much more easily. Moreover, the parties can estimate the costs and inconveniences of litigation in that particular forum. Furthermore, the forum court would apply its own conflict of laws rules or regional conventions or regulations to which the country is a member, to determine the applicable law; therefore, the outcome of the case depends on which court has jurisdiction over it.3

Helene Van Lith, International Jurisdiction and Commercial Litigation: Uniform Rules for Contract Disputes, T. M. C./Asser Press (2009), p. 4.

 Hence, one important reason why parties fight tooth and nail in international litigation on the issue of jurisdiction is because it determines the applicable law over the case. Even when the applicable law is a uniform international convention, however, the issue of jurisdiction is important because courts often differ in their interpretation of the uniform conventions.4

Krijn Haak and Marian Hoeks, ‘Intermodal Transport under Unimodal Arrangements, Conflicting Conventions: The UNCITRAL/CMI Draft Instrument and CMR on the Subject of Intermodal Contracts’, 3 Transportrecht (2005): 98; Hartley, International Commercial Litigation, supra note 2, p. 7.

 Therefore, the second justification that makes the issue of jurisdiction vital in international litigations is the difference in interpretation of the law among different courts

The issue of jurisdiction is the crux of international litigation because of differences in procedural laws and evidence rules. Courts differ significantly in their approach on how to regulate litigation from its inception until its culmination. Moreover, it is a well-established principle that courts apply their own procedural laws even when a foreign law is applicable to the substance of the case.5

J. J. Fawcett, Janeen M. Carruthers and P. M. North, Cheshire, North and Fawcett Private International Law, 14th edn, Oxford University Press (2008), p. 76.

Unsurprisingly, the outcome of litigation depends mainly on the procedural laws applied.6

Hartley, International Commercial Litigation, supra note 2, p. 6.

 Therefore, procedural laws that are applicable notwithstanding the involvement of a foreign element in the case have a considerable impact on the parties’ decision where to litigate. The impact of evidence rules on the outcome of the case is not difficult to appreciate, only the different attitudes courts hold towards discovery tells us a lot about its significance for the parties. Furthermore, litigation costs, the possibility of enforcing the judgment and the obligations to employ local lawyers are important elements that affect the parties’ choice of forum. In brief, the issue of jurisdiction is important for the parties as it tells them which way the wind of winning the case is blowing and the range of costs involved in the given litigation

Countries naturally weigh their own interests in regulating the issue of jurisdiction or while ratifying any international convention that regulates jurisdiction. Their interest in avoiding conflicting judgments and respect for the courts of a foreign country are important factors countries consider in regulating the issue of jurisdiction in international litigation. The motive of controlling caseloads in the courts and an interest in protecting weaker social groups are also important elements in the decision-making process.7

Hartley, International Commercial Litigation, supra note 2, p. 14.

Sometimes countries may also insist on having jurisdiction over the case in order to apply their mandatory laws.8

Mary Keyes, Jurisdiction in International Litigation, Federation Press (2005), p. 4.

 Generally, when it comes to the issue of determining jurisdictions, countries consider their public policies and their own sense of justice to allow or refuse access to their courts Jurisdiction in civil law countries

In the above discussion, an attempt was made to clarify the significance of jurisdiction in international litigation. The interests of the plaintiff and the defendant are commonly contradictory,9

Ibid.

therefore it is important to have principles based on which a court will uphold jurisdiction in international litigation. Unfortunately, there is no international convention that regulates jurisdiction, and countries are free to set their own laws to determine the issue of jurisdiction within their territory.10

Van Lith, International Jurisdiction and Commercial Litigation, supra note 3, p. 21.

 In civil law countries, there are three main well-accepted grounds of jurisdiction and a brief note now follows on each of these

The first and widely recognised principle of jurisdiction not least in commercial cases is consent of parties. It is now widely accepted that parties have to be given the freedom to choose where to litigate.11

Hartley, International Commercial Litigation, supra note 2, p. 15.

Parties in commercial litigations are well informed and they can bargain effectively to maximise their own benefits. Therefore, with limited restrictions based on public policy and formal validity requirements, autonomy of parties is a well-established principle in the civil law legal system and the Brussels Regulation recognises this principle.12

Council Regulation on Jurisdiction and Enforcement on Civil and Commercial Matters, (EC) No. 44/2001 of December 2000, OJ 2001 L 12, articles 23 & 24.

The second acceptable ground of jurisdiction in the civil law legal system is the residence of the defendant. This principle is embedded in the ancient Roman maxim: actor sequitur forum rei.13

Hartley, International Commercial Litigation, supra note 2, p. 5; Van Lith, International Jurisdiction and Commercial Litigation, supra note 3, p. 129.

The logic here is that the plaintiff is claiming a legal remedy for the alleged action or inaction of the defendant; therefore, he or she shall follow the defendant. This is based on the governing principle ‘the protection of the rights of the defence’.14

J. A. Pontier and E. Burg, EU Principles on Jurisdiction and Recognition and Enforcement of Judgments in Civil and Commercial Matters: According to the Case Law of the European Court of Justice, T. M. C./Asser Press (2004), p. 6.

 The domicile of the defendant is emphasised in the Brussels Regulation as the main rule.15

Council Regulation No. 44/2001, supra note 12, article 2 (hereinafter ‘the Brussels Regulation’); Case 125/79 Denilauler v Courchet Frères, 21 May 1980, available at http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc={\break}61979J0125 (accessed 14 June 2013).

The third main ground of jurisdiction in the civil law legal system is based on the relation of the forum to the action that led to litigation. These grounds of jurisdiction are limited to disputes emanating...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT