Are jurisdiction clauses recognised and enforced?
In addition to compulsorily applying the Australian amended Hague Rules to outward bound shipments, COGSA also provides that any agreement which purports to preclude or limit the jurisdiction of an Australian Court (whether Commonwealth or State/Territory level) will have no effect for both outward and inbound shipments (see s11(2)(b) and (c)).
No. The jurisdiction clause in the bill of lading is normally not enforceable by Chinese court.
There are no special rules in Croatian national law dealing with the jurisdiction clauses in the bills of lading and their effect towards third-party holders. It is assumed that the Croatian courts should follow the EU law on this topic, including the decision by the European Court of Justice in the Coreck case (387/98, Coreck Maritime GmbH v Handelsveem BV (2000) ECR I-09337).
It is debatable whether said clauses are valid in Colombia. Local judges have in certain cases disregarded such clauses using arguments of local procedural law in order to recognise their competence to provide a decision on the case at hand.
Jurisdiction clauses are generally recognised and enforced by Cyprus Courts.
A law and jurisdiction clause will be recognized and enforced if it can be evidenced from its wording that the parties have agreed that the jurisdiction stated in the clause will supersede any other jurisdiction. Therefore, the Court will seek for wording such as "exclusively" or "exclusively and only" or "all claims shall be brought before…" in order to recognize a law and jurisdiction clause and order a stay of proceedings.
In addition, the Court is also authorized to order a stay of proceedings if he finds that the Israeli forum is "Forum Non-Convenience" in the sense that, for example, considering the place where the cause of action took place and the location of the expected witnesses, there if a foreign jurisdiction which can considered as the appropriate forum to hear the claim.
Over the past few years the validity of jurisdiction clauses contained in bills of lading has been increasingly acknowledged by Italian Courts, as a result of the European Court of Justice's interpretation of Article 17 of the 1968 Brussels Convention (now Article 25.1 of EU Regulation 1215/2012).
In recent decisions the Italian Supreme Court explained that, based on the abovementioned rules, it is possible to infer the parties' consent to the jurisdiction clause when specific commercial usages exist, of which the carrier and the receiver are or ought to have been aware.
In this respect, the court held that it is normal practice in the international transport business that bills of lading are signed only by the carrier.
Such practice is regarded as a commercial usage, of which international trade operators should be aware.
Further, in several occasions Italian judges affirmed the principle that when, by starting the proceedings, the plaintiffs produce the bill of lading with no reservation or objection, they are bound by the jurisdiction clause, since the presentation of such document proves the plaintiffs reliance on the terms and conditions of the bill of lading, thereby including the jurisdiction clause contained in it.
The courts tend to broadly admit an exclusive jurisdiction clause on the reverse side of a bill of lading, which means that the courts will dismiss a claim brought to an undesignated jurisdiction under the contract of carriage covered by such bill of lading.
In general, jurisdiction clauses are recognised, cf. sec. 4-6 NDA. For bills of lading, there are special rules set out in sec. 310 NMC, limiting the possible scope of jurisdictional clauses. The claimant’s right to file a suit at the defendant’s seat, the place where the contract of carriage was concluded, the place of delivery according to the contract of carriage or the place of actual delivery cannot be limited by a jurisdictional clause. However, jurisdictional clauses in accordance with Lugano Convention art. 23 do not have to follow NMC sec. 310, as Lugano convention art. 23 takes precedence.
Generally speaking, rules on private international law apply. Where the goods are destined for the Philippines, this fact is deemed sufficient to establish a link to the Philippine jurisdiction whereby the proper Philippine court takes cognizance of the suit. There is a tendency for Philippine courts to maintain that parties cannot enter into a stipulation ousting a Philippine court of jurisdiction.
Most bills of lading would have an express term stating the choice of court for disputes relating to the bill of lading. These clauses are generally recognised and enforced. Ultimately, the force of any application for a stay will depend upon whether the forum clause is exclusive or non-exclusive.
The Korean courts have ruled that agreement for exclusive foreign jurisdiction may be effective and valid if:
- the case does not belong to the exclusive jurisdiction of Korean courts;
- the designated foreign court has jurisdiction over the case under the law of that foreign country;
- the case has reasonable relevance/connection with the foreign jurisdiction; and
- such agreement for exclusive foreign jurisdiction is not wholly unreasonable, unfair or against the public policy (Korea Supreme Court Case No. 2010 Da 28185 delivered on 26 August 2010, et al). Based on this principle, general practice is that Korean courts are likely to recognize and enforce jurisdiction clauses.
In principle, the Taiwanese courts seldom recognize the jurisdiction clause since the carrier usually cannot provide the solid evidence to prove the express consent of the B/L holder on the jurisdiction clause. The B/L itself is insufficient. Article 78 of the MA further provides that, "Any disputes arising under a Bill of Lading, which port of loading or port of discharge is in R.O.C.(Taiwan), may be filed in the court of the said R.O.C. port of loading or port of discharge or any competent court according to the law or regulations." Accordingly, the Taiwanese court of the port of loading or discharge has the jurisdiction over the disputes arising from the B/L despite the jurisdiction clause.
Yes. Forum selection, arbitration and choice of law clauses are enforced if they are properly incorporated into the bill of lading.
Yes. See above.
The grounds upon which our Courts will exercise jurisdiction are laid down in Section 742 of the Code of Organisation and Civil Procedure. When local courts are seized of cases over which they have legal jurisdiction, over a claim regarding bills of lading containing a jurisidiction clause, the Courts will generally recognise such clauses.
However, recent case law indicates that where the jurisdiction clause in a bill of lading is not reflective of the closest link between the carrier and the shipper, this may be disregarded. Courts have taken a practical stance on this matter and have on various occasions refused to recognise a clearly defined jurisidiction clause in a bill of lading, if there exist other closer and stronger links to the Malta. This is the case when the Court is persuaded that all the evidence for the case exits in Malta. Furthermore, if the jurisidiction clause forms part of a standard form and has not been negotiated but presented ‘post facto’ to the shipper in the form of a finalised bill of lading, this may be successfully challenged.
According to numeral 3 of article 22 of Law 8, the Maritime Courts may refrain upon request of a party, of trying or continue trying a proceeding on cases originated outside the territory of the Republic of Panama, if the parties have negotiated, previously and expressly, to submit their controversies to arbitration or to a court in a foreign country, and they have agreed to this in written. Pro forma contracts or adhesion contracts are not considered being previously and expressly negotiated.
The context in which the jurisdiction clause is evaluated may vary depending on the circumstances, including how lawyers can defend or oppose to the viability of the same.
The Art. 25 of the Civil Procedural Code 2015 states that ‘no Brazilian judicial authority is responsible for the processing and trial of the lawsuit when there is a choice of exclusive foreign jurisdiction clause in the case of international contracts, if raised by the defendant in the defence’.
Therefore, if a foreign jurisdiction has been elected, a lawsuit filed in Brazil will be extinguished, unless the mentioned clause is not considered valid.
One of the main reason for such clause not being considered valid is its insertion in a contract of adhesion, in which there is no room for negotiation.
In Brazil’s Arbitration Law (9.307/96), there is a special provision on Article 4º §2º, which states that “In adhesion contracts, an arbitration clause will only be valid if the adhering party takes the initiative to file an arbitration proceeding or if it expressly agrees with its initiation, as long as it is in an attached written document or in boldface type, with a signature or special approval for that clause”.
Although such article is aimed at an arbitration clause, judges might make an analogy and apply it to foreign jurisdiction clauses in adhesion contracts.