Is there a place for regional dispute resolution structures? - Maritime law as a case study. Justice James Allsop

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1 Is there a place for regional dispute resolution structures? - Maritime law as a case study Justice James Allsop Abstract: Admiralty and maritime law has a significant element of internationality. It takes meaningful form not only in national laws but also as a body of principles largely common to shipping and trading nations. These characteristics make it particularly adapted to the development of regional dispute resolution structures, whether arbitral or judicial. The paper will explore possibilities for such regional structures. 1 The possibility of regional dispute resolution arrangements is, I think, worthy of discussion by judges. That is so even if effectuation is not a matter for the judiciary. 2 Let me summarise what I wish to say: (a) First, maritime law has a truly international and maritime character, notwithstanding that it takes its form in the positive law of individual nation states. The international character of maritime law derives from the international and maritime forces that shape it. These forces are common to all trading nations and their commercial relations. President, New South Wales Court of Appeal

2 (b) Secondly, over the last 50 years, international dispute resolution, in particular in the form of international commercial arbitration, has become increasingly anational and delocalised in its execution. (c) Thirdly, the place of efficient skilled commercial courts should not be lost sight of as playing, at the very least, a vital role in the encouragement and support of the health and efficiency of commercial arbitration. (d) Fourthly, these considerations, in conjunction with the weight of maritime related trade in the region, may make this region ripe for the consideration of working regional structures for the resolution of maritime disputes. 3 Let me deal with these elements in turn. A The international character of maritime law 4 Few maritime ventures are undertaken without a complex interconnection of international participants. Though not all are in direct legal relations with each other, the conduct by each of its part in the venture will generally have an effect on the safety or commercial viability of the venture for the others. That maritime activity is often international or transnational provides one essential characteristic of maritime law. The second essential characteristic is, of course, provided by the sea, and her demands. 5 The character of internationality is not limited, of course, to maritime law. Commercial law and its elemental concepts the bargain and promise, the means of exchange of value, including in particular, the promissory note and bill of exchange, performance, the spreading of risk by such means as insurance, partnership and joint venture, the lending and repayment of money and notions of restitution all bear the hallmarks of internationality in - 2 -

3 their history and development. For present purposes, however, I will focus on maritime law. 6 In eras more attuned to the broad sweep of natural law, maritime law (and indeed commercial law) was seen as part of a transnational law of nations, rather than of particular countries. 1 The proposition is not a fanciful one even in an era based on more positivist notions underpinning national sovereignty and national law. Its limitations must, however, be recognised in that modern context. 7 Four expressions of view are worthy of repetition and recall: (a) In 1875, speaking for the United States Supreme Court, Bradley J said the following about the general maritime law and its relationship with municipal maritime law: Each state adopts the maritime law, not as a code having any independent or inherent force, proprio vigore, but as its own law, with such modifications and qualifications as it sees fit. Thus adopted and thus qualified in each case, it becomes the maritime law of the particular nation that adopts it. And without such voluntary adoption it would not be law. And thus it happens, that, from the general practice of commercial nations in making the same general law the basis and groundwork of their respective maritime systems, the great mass of maritime law which is thus received by these nations in common, comes to be the common maritime law of the world. 1 Lord Mansfield in Luke v Lyde (1759) 2 Burr 882 at 887; 97 ER 614 at 617; Story J in De Lovio v Boit 7 F Cas 418 (1815); Marshall CJ in American Ocean Insurance Co v 356 Bales of Cotton 26 US 511 at (1928); In 1801, The Gatitudine, 3 C.Rob 240; 165 ER 450, Sir William Scott (later Lord Stowell) recognised the lex mercatoria as the practice of merchants which all tribunals are bound to respect, whenever that practice does not cross upon any known principle of law, justice or national policy. In 1834, in The Neptune, 3 Hagg 129 at 136, 166 ER 354 at 356, Sir John Nicholl referred to the law marine, together with the civil law and the law merchant as governing the court of Admiralty, as part of the law of England. In the same year, in The Girolamo, 3 Hagg 169 at ; 166 ER 368 at 374, Sir John Nicholl applied Blackstone and described the law merchant as the true principles of international law and emphasising the phrase in the extract and take notice of as a recognition of the need for municipal adoption (by the Admiralty Court). In 1846, in Brandao v Barnett, (1846) 3 CB 519; 136 ER 207, Lord Campbell, in a non-maritime context, recognised the lien of bankers as part of the law merchant

4 (b) (c) In 1946, Scott LJ in The Tolten 2 recognised in the discernment and declaration of English Admiralty and maritime law the need to resort to, and not depart unduly from, what he described as the general law of the sea. He described the importance of uniformity of development of maritime law in terms which recognised, explicitly, the existence of the general maritime law and its place in influencing the development of contemporary municipal maritime law. To Scott LJ, the general maritime law was a living force in the development of contemporary municipal law. In 1953, in Lauritzen v Larsen 3, Jackson J not long returned from prosecuting Nazi war criminals under the authority and legitimacy of the law of nations, and speaking for a Court which included Frankfurter J, one of the great judicial scholars of the 20 th century, summed up both the nature and importance of the general maritime law. He referred to a non-national or international maritime law of impressive maturity and universality. The terms in which he described the nature of this law are instructive. It had, he said, the force of law, not from extra-territorial reach of national laws, nor from abdication of its sovereign powers by any nation, but from acceptance by common consent of civilised communities of rules designed to foster amicable and workable commercial relations. Maritime law derived from the common acceptance of principles at a level of generality sufficient to enable its local adoption and adaption. As such, it was a body of accepted principles capable of meaningful description as law. Justice Jackson then went on to discuss the importance of the international character of maritime law in human affairs and of adhering, as far as possible, to these common principles to further the aims of stability, comity, forbearance, reciprocity and long-range national interest. Underlying these aims was the desire to avoid parochial national 2 3 [1946] P 135 at US 571 at (1953) - 4 -

5 jealousies and competing laws governing international conduct, in particular commercial conduct, in order to advance the mutual interests of all countries. (d) In 1999, in The Titanic 4, the Fourth Circuit Court of Appeals applied the general maritime law as the effective governing law of salvage rights over the wreck of Titanic on the seabed in international waters. 8 These views reflect the reality of the existence of maritime law as more than a shadow of the similar forms of municipal laws perceived through the prism of the study of conflict of laws and comparative law. The general maritime law is, perhaps, an early example of what people today call soft law, being legal norms not strictly binding in terms of sovereign authority, but generally adhered to by those who subscribe to them because of contract, moral suasion or fear of other adverse consequences. 5 Numerous forms of drafted principles now exist divorced from national legislative origins, but taking their place among the available accepted bodies of principles to assist in the regulation of human behaviour. 6 In large part, these form, in many fields of commercial law, the building blocks of common principle and a modern lex mercatoria. 7 The general maritime law is, however, more than that. It is the living source of principle derived from ancient practice, custom, codes and organised doctrine which affects, constrains and inspires the development of contemporary legal doctrine F 3d 943 at (1999). Goode R Commercial Law (2 nd Ed Penguin) pp See generally Goode, Kronke, McKendrick and Wool Transnational Commercial Law (Oxford 2004). See generally Tetley The General Maritime Law The Lex Maritima (1994) 20 Syracuse J Int l L & Com 105 at and the literature referred to therein; Galgano The New Lex Mercatoria (1995) 2 Annual Survey of International and Comparative Law 99; Goode, Kronke, McKenrick and Wool op cit; Dalhuisen J Transnational and Comparative Commercial, Financial and Trade Law (Hart Publishing 2007); Goode R Usage and its Reception in Transnational Commercial Law (1997) 46 Int l & Comparative Law Quarterly 1; Wiggers W International Commercial Law (Kluwer 2007); Marquis L International Uniform Commercial Law (Ashgate 2005)

6 9 It can be readily accepted that the body of principles called the general maritime law described as such, and as separately existing, by lawyers and judges of distinction over the centuries does not, without more, bind a sovereign nation, a national court or a national community. But, to say as much, does not deny its existence as a body of law and principles broadly accepted and capable of adaption to national circumstances, in particular by judges in their role in the declaration and development of municipal maritime law. 10 It is also necessary to recognise that, as law, the general maritime law is not all judge or scholar made in the sense of common law or la doctrine. It exists in international treaty and convention, international regulation, codes, both historical and contemporary, and judicial and scholarly exposition The importance of this international character of maritime law is that it fulfils the need for foreign merchants and sea-faring people to be admitted to common protection of their rights by a uniform system. In particular, questions of ownership of the ship, the rights concerned with contracts of affreightment, sale of goods, payment and exchange, insurance and copartnership should be dealt with in a way common to accepted commercial usages. Vital, indeed the essence of this, is the prompt and just settlements of disputes. 12 The clearest illumination of the above comes from the enforcement of maritime claims, the carriage of goods by sea and judicial technique in the resolution of maritime claims and in the declaration of maritime law. 8 Tetley W The General Maritime Law The Lex Maritima (1994) 20 Syracuse J Int l L & Com 105 and Tetley W International Maritime Law ( ) 24 Tul Mar LJ

7 13 As Professor Tetley makes clear 9 the varied arrangements of different legal systems through the maritime lien, the action in rem, the action in personam and maritime attachment have the effect of creating a coherent and harmonised (though not uniform) system of enforcement of maritime claims. Personal claims are transformed, by the exercise of maritime jurisdiction by maritime courts, into secured claims over defined and quarantined property, taking their ranking by reference to well-known harmonised rules, regulated in part by international convention 10 and in part by the general law. 14 The regulation of carriage of goods by sea, whether under bill of lading carriage regulated by international convention since 1924 or under charterparties, has been broadly similar for decades. Differences of national law exist; but the underlying uniformity of principle is striking. 15 Judicial technique in the interpretation of international conventions and maritime law has for much of the 20 th century reflected, at least in principle, the need for comity and uniformity. The international character of maritime law means that the judicial development of municipal maritime law should take place, not merely by reference to domestic interests and considerations, but also by reference to the recognition of the common international interests in harmony and uniformity and the principles of the general maritime law, if discernible. The recognition of the desirability of international uniformity has not always been found in analysis of foreign jurisprudence whether the court in question be English, American, Australian or other. Two recent examples show how the task should be undertaken. Lord Justice Rix in the English Court of Appeal in The Rafaela S 11 and the judges of the Fourth Civil Division of the Supreme People s Tetley International Maritime and Admiralty Law Ch 10. International Convention for the Unifications of Certain Rules Relating to Maritime Liens and Mortgages 1926 (the 1926 Lien Convention); International Convention for the Unification of Certain Rules Relating to Maritime Liens and Mortgages 1967 (the 1967 Lien Convention); International Convention on Maritime Liens and Mortgages 1993 (the 1993 Lien Convention). [2003] 2 Lloyd s Rep 113 at (on appeal to the House of Lords in [2005] 2 AC 423)

8 Court of the People s Republic of China in American President Lines v Guangzhou Feida Electrical Apparatus Factory of Wanbao Group 12 both dealt with the problem of straight bills of lading in the carriage of goods by sea. Both these scholarly and important judgments can be seen to undertake not merely an analysis of comparative law in order to aid the development or identification of municipal law, but also an engagement with the existing and historical state of maritime law in order that the maritime law of England and China should conform with fundamental international principle. 16 It can legitimately be argued that there is a responsibility upon courts and judges to interpret and develop maritime law with an international and balanced approach, because to do so reflects the immanent fabric of maritime law. If balance be lost, whether because courts are seen to favour ship or cargo or some other particular national interest the international basis of maritime law is undermined to the good of no one. In such circumstances, decisions lose their international acceptance and the need arises to expend vast bodies of energy to devising new conventions. 17 This should be the approach not only to solving problems involving international conventions, but also in solving other maritime law problems. To do otherwise will only provoke distinctions based on national interests in a field of jurisprudence and human endeavour necessarily international.. B The increased delocalisation of international dispute resolution 18 One striking contemporary phenomenon is the globalisation of commerce, brought about by astonishing changes in communications and the 12 4 th Civil Division, unreported 25 June 2002, referred to by Rares J of the Federal Court of Australia in Beluga Shipping GmbH & Co v Headway Shipping Ltd [2008] FCA

9 integrated global and regional markets created or fostered thereby. 13 The supranational forces impinging on municipal states have influenced virtually all economies of the world, creating linkages, dependencies and opportunities quite unrelated to sovereign nation states and their borders. 19 The pace of development of international commercial law has been remarkable in the last 20 to 30 years. There are international and European restatements, model laws, principles, conventions, directives and other instruments on contract law, 14 electronic commerce, 15 international sale of goods, 16 agency and distribution, 17 international credit transfers and bank payment undertakings, 18 international secured transactions, 19 cross-border insolvency, 20 securities settlement and See Galgano, F The New Lex Mercatoria (1995) 2 Annual Survey of International and Comparative Law 99; and Bonell, MJ An International Restatement of Contract Law (Transnational Publishers 3rd Ed 2004) at As to international private law, see generally Goode, R et al Transnational Commercial Law:International Instruments and Commentary (Oxford 2004). The UNIDROIT Principles of International Commercial Contracts 2004, produced by a group of international scholars and practitioners under the direction of Prof Joachim Bonell (Part I of which was published in 1994); the Principles of European Contract Law completed in 2003 prepared by scholars from all member states of the European Community. UNCITRAL Model Laws on Electronic Commerce (1996) and on Electronic Signatures (2001); EC Directives on Electronic Commerce (2000) and on Electronic Signatures (1999); CMI Rules for Electronic Bills of Lading 1990; the Bolero (an acronym from Bill of Lading Registration Organisation) bill of lading prepared through the co-operation of the Through Transport Mutual Insurance Association (the TT Club) and the Society for Worldwide Inter Bank Financial Telecommunications (SWIFT) which operates through a joint venture company; and the ICC rules as to electronic presentation of documents. The United Nations Convention on Contracts for the International Sale of Goods done at Vienna 11 April 1980 ( CISG ) which superseded the Uniform Law on the Formation of Contracts for the International Sale of Goods, 1964 and the Uniform Law on the International Sale of Goods, 1964; and the ICC Official Rules for the Interpretation of Trade Terms (Incoterms 2000), replacing earlier versions. The First Company Directive (EEC) (1968); the EEC Directive on Commercial Agents (1986); the UNIDROIT Convention on Agency in the International Sale of Goods done at Geneva 17 February 1983; and the UNIDROIT Model Franchise Disclosure Law (2002). UNCITRAL Model Law on International Credit Transfers (1992); ICC Uniform Customs and Practice for Documentary Credits (1993) (UCP 500) and electronic supplement (EUCP); ICC Uniform Rules for Demand Guarantees (1992); International Standby Practices (ISP 98) by the Institute of International Banking Law & Practice Inc; UN Convention on Independent Guarantees and Stand-by Letters of Credit done at New York 11 December 1995; ICC Uniform Rules for Contract Bonds (1993). The European Bank for Reconstruction and Development (ERBD) Model Law on Secured Transactions (1994); the Model Inter-American Law on Secured Transactions (2002); the various - 9 -

10 securities collateral, 21 conflict of laws, 22 international civil procedure, 23 and international commercial arbitration There has been for many years a significant debate about the extent to which these kinds of instruments, at their varying level of legal standing, can be said to create a law merchant or lex mercatoria existing above and distinct from municipal laws. maritime conventions dealing with security: on Maritime Liens and Mortgages (1926 and 1993) and on Arrest (1952 and 1999); the Convention on the Unification of Certain Rules Relating to the Precautionary Attachment of Aircraft done at Rome on 29 May 1933; the Convention on the International Recognition of rights in Aircraft done at Geneva on 19 June 1948; the UNIDROIT Convention on International Financial Leasing done at Ottawa 28 May 1988; the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment and Protocol done at Cape Town on 16 November 2001; the UNIDROIT Convention on International Factoring done at Ottawa 28 May 1988; the UN Convention on the Assignment of Receivables in International Trade done at New York 12 December The UNCITRAL Model Law on Cross-Border Insolvency (1997); the European Union Convention on Insolvency Proceedings; and the EC Council Regulation NO 1346/2000 on Insolvency Proceedings. The EC Settlement Finality Directive (1998), 98/26/EC; and the EC Directive on Financial Collateral Arrangements (2002), 2002/47/EC. Convention on the Law Applicable to Contracts for the International Sale of goods done at the Hague on 22 December 1986; the Convention on the Law Applicable to Contractual Obligations done at Rome on 19 June 1980; the Inter-American Convention on the Law Applicable to International Contracts done at Mexico on 17 March 1994; and the Convention on the Law Applicable to Certain Rights in Respect of Securities held with an Intermediary done at the Hague in The European Convention on State Immunity done at Basle on 16 July 1972; European Community Council Regulation No 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters; a MERCOSUR Convention and Protocol on jurisdiction in civil and commercial matters; the Buenos Aires Protocol to the Treaty of Asuncion signed on 26 March 1991, on International Jurisdiction in Contractual Matters done at Buenos Aires on 5 August 1944; the Convention on the Service Abroad of Judicial or Extra-judicial documents in Civil or Commercial Matters done at the Hague on 15 November 1965; the European Community Council Regulation No 1348/2000 of 29 May 2000 on the service in the Member States of Judicial and Extrajudicial Documents in Civil or Commercial Matters; the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters done at the Hague on 18 November 1970; European Community Council Regulation No 1206/2001 of 28 May 2001 on Cooperation of Courts of Member States in the Taking of Evidence in Civil or Commercial Matters; and the American Law Institute and UNIDROIT jointly developed Principles of Transnational Civil Procedure. The Convention on the Recognition and Enforcement of Foreign Arbitral Award adopted in 1958 by the United Nations Conference on International Commercial Arbitration at its 24th meeting (the New York Convention); the Inter-American Convention on International Commercial Arbitration done at Panama City on 30 January 1975; the UNCITRAL Model Law on International Commercial Arbitration (1985); the UNCITRAL Arbitration Rules (1976); the ICC Rules of Arbitration (1998); and the London Court of International Arbitration Rules

11 21 One of the least outwardly exciting, but one of the most important, body of principles that has been developed is the American Law Institute and UNIDROIT Principles of Transnational Civil Procedure. This was a hugely important project with an object that some said could not be achieved: the harmonisation of the civil law and the common law dispute resolution procedures. The project was begun by distinguished American and European professors. Their vision was to develop a body of principles for transnational cases which could apply in national courts (or arbitral bodies) and in so doing replace domestic procedural rules when the parties to litigation involved nationals of different states or when the case could otherwise be described as international. The Principles are an attempt to approximate, in a flexible way, important issues common to the two dominant legal systems. They are available for adoption and adaption by courts and arbitral bodies. They form a bridge between two very different legal cultures and provide a common and fair basis for hearing international disputes. Importantly, they provide a procedural foundation that can give confidence to parties in litigation who come from different legal cultures. 22 Thus, we find ourselves in an era of the active development of international legal principles, in the fertile environment of active global commerce, in a prevailing framework of freedom of international trade. 23 The last 50 years, in particular the last 20 to 30 years, have seen changes to dispute resolution which reflect the growth of international commerce and the transnational principles governing it. There has been a significant shift away from municipal courts towards commercial arbitration. This is particularly so in the resolution of international commercial disputes. This can be seen in the development of international conventions promoting arbitration, 25 in the development of rules and model laws by supranational 25 The United Nations Conference on International Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in 1958 (the New York Convention)

12 bodies such as UNCITRAL and UNIDROIT, in the development of scholarship dealing with international commercial arbitration 26 and by the reduction of hostility of municipal courts to arbitration. 27 This shift, in what might be referred to as the consumption patterns of parties to commercial litigation, and the public policy now recognising the legitimacy of such choice, has occurred for many reasons. The reasons vary from country to country and region to region. The reasons most usually put forward are flexibility, expertise, party autonomy, confidentiality, greater speed, lower cost and better enforcement. In part, the shift is explained by the failures or inadequacies of court systems, but I think that denigration of all national judicial systems as inherently incapable of satisfying the needs of international commerce is both wrong as a general proposition and overly simplistic. 24 It is important to recognise that the growth and development of commercial arbitration is no more or less than the setting up, in the field of international commerce, of a worldwide de-localised private (or semi-public) dispute resolution system made up of a large number of self-created and selfadministered, largely non-governmental, organisations. 28 With its importantly different characteristics or attributes, such as confidentiality, commercial arbitration, however, often seeks the status of court determination. One only has to see the use of the word court in the names of some arbitral bodies or to ponder the use of powers of interlocutory injunction by arbitrators to appreciate this. 25 There are now numerous arbitral institutions worldwide catering for international commercial arbitration, including maritime arbitration It is impossible to survey the literature adequately in a short footnote. See the cases referred to in Incitec Ltd v Alkimos Shipping Corporation (2004) 138 FCR 496 at [36]. There are important theoretical debates in relation to the sovereign role of the lex arbitri, of the seat of the arbitration and of the extent of lawful de-localisation: see generally Petrochilos, G op cit chs 1, 2 and 3. For example, the International Court of Arbitration, the London Court of International Arbitration, the Inter-American Arbitration Commission, the Singapore International Arbitration Centre, the

13 Arbitration is active in this region. The Asia Pacific Regional Arbitration Group (APRAG) is an association of 24 arbitration centres in the region 30 which has a panel of arbitrators drawn from constituent arbitration centres and approved by the APRAG executive. C The place of efficient skilled commercial courts 26 In many countries, the legislatures and the courts themselves have recognised the need for efficient skilled commercial and maritime courts. 27 It also must be said, however that commerce demands more than individual municipal court systems have provided, and to some degree, can provide: the autonomous choice of a perceived reliable and skilled adjudicator, without trusting to the municipal judicial organ to provide such a person in a manner which cannot be controlled or perhaps predicted a potentially wider enforcement regime Australian Chamber of International Commercial Arbitration, the Australian Maritime and Transport Arbitration Commission, the Chartered Institute of Arbitrators, the American Arbitration Association, the London Maritime Arbitration Association, various national associations of maritime arbitration, the Paris Chambre Arbitrale Maritime, the Regional Centre for Arbitration Kuala Lumpur, the Association of Maritime Arbitrators Canada, Vancouver Maritime Arbitrators Association, the Society of the Maritime Arbitrators Inc, the Houston Maritime Arbitrators, the Japan Shipping Exchange, the Tokyo Maritime Arbitration Centre, the China Maritime Arbitration Commission. The list can go on, and on. 30 Arbitrators and Mediators Institute of New Zealand, Australian Centre for International Commercial Arbitration, Australian Commercial Disputes Centre; Arbitration Association (Brunei), Beijing Arbitration Commission, Chartered Institute of Arbitrators (Australia), Chartered Institute of Arbitrators (East Asia) Chartered Institute of Arbitrators (Malaysia), china International Economic and Trade Arbitration Commission, Hong Kong International Arbitration Centre, ICC Asia, Indian Council of Arbitration, Indonesian National Arbitration Board, Institute of Arbitrators and Mediators Australia, Japan Commercial Arbitration Association, Korean Commercial Arbitration Board, Korean Council for International Arbitration, Kuala Lumpur Regional Centre for Arbitration, Malaysian Institute of Arbitrators, Mongolian Chamber of Commerce & Industry, Philippine Dispute Resolution Centre Inc, Singapore International Arbitration Centre, Tokyo Maritime Arbitration Commission, Vietnam International Arbitration Centre

14 the measure of control over the appeal structure in respect of the award the de-localisation of the process, away from the courts of the nationalities of the parties (the removal of home-town risk, or worse) in some cases a desire for confidentiality sometimes, perceived greater speed and lower cost 28 That said, a number of attributes of the judicial system must be recognised. A good court system is vital for the health and well being of arbitration in any country. The skill and efficiency of the courts in supervision, enforcement and collateral assistance is vital for successful arbitration. In that sense, arbitration and the court system have a symbiotic relationship. 29 Whilst recognising the above advantages of arbitration, it should be said that very often a commercial court can provide a skilled judge as promptly and effectively as any system of arbitration can provide an arbitrator. 30 Also, the development of maritime or commercial law, whether municipal or in the form of a lex maritima or lex mercatoria, is assisted by good commercial courts retaining a real role in the development of the jurisprudence of maritime and commercial law. To a not insignificant extent, the attraction of places such as London for commercial arbitration is founded on the reputational legacy or goodwill of the great commercial judges of years past and upon the continuing quality of judges (as well as arbitrators) with deep experience of commercial law. D The place for regional dispute resolution structures for maritime disputes

15 31 What can be referred to as the Asia Pacific Region has changed enormously in 60 years. Without being wedded to precise definition of the boundaries of the area under discussion, all countries in the region have experienced, in some form or other, some or all of war and conflict, the end of colonial rule, the emergence of independent sovereignty and, with the presence of relative peace in the last few decades, significant material growth. Indeed, it is not an overstatement to say that the growth of economic activity in the region has led to intercontinental shifts in economic power. The economies of China, Japan, the Republic of Korea, India, the countries of South East Asia, Australia, New Zealand and Canada now represent a significant part of world economic and financial activity. The financial centres of the region are some of the most important in the world. If one includes the United States of America as a Pacific littoral state, one has a preponderance of world economic activity. 32 Given the importance of maritime activity in international commerce, given the underlying international character of maritime law that I have referred to and given the region s significant place in maritime commerce, could there not be an Asia Pacific Maritime Arbitration Commission? 33 On a regional basis, with uniform rules as to the law of the arbitration, as to rules of procedure, with available transnational principles of contract and contractual interpretation, and with a uniform approach to curial supervision, enforcement and collateral assistance based on international conventions and regional agreement, such an organisation could call upon the maritime skill of the whole region arbitral, judicial, scholarly and professional for the resolution of disputes. Hearings could take place at the most convenient place, with the use of widespread video link facilities. Parties could be given the choice of language and identity of arbitrator. A uniform approach to the lex arbitri and law of procedure would enable the development of a truly transnational arbitration structure to deal with maritime disputes in the region. A generous right of appearance could be

16 given to lawyers of the litigants choice who would not necessarily be admitted in the place where the arbitration takes place. 34 This region has enormous skill to harness in the formation of such a regional body. There are many scholarly institutions in the region with a significant, or sole, focus on maritime affairs and maritime law. 31 Maritime scholars and experienced maritime lawyers, arbitrators and judges are to be found throughout the region. There are flourishing arbitration centres in many countries of the region. 35 What then could be the advantage of a regional structure? There might be a number: the harmonisation of the laws and rules of the arbitration, the harmonisation of the place of courts in support of the arbitration process, the deepening of the available pool of arbitrators for any particular dispute, the strengthening of the reputation of the region in the provision of maritime dispute resolution, the removal or amelioration of apparent fragmentation of approach by individual centres, the harmonisation of procedural law and the fostering of the development of a more consistent body of substantive maritime law. 36 These suggestions may be said to gloss over some of the theoretical questions as to: the nature of, and the legal theory governing, international arbitration; the role of different laws impinging on an arbitration; and the relationship between supervision, annulment and enforcement. That said, the coherent organisation of regional arbitral decisionmaking might be a goal worthy of aspiration and realistic effort. 37 In order to ensure harmony and comity it would be necessary to have a clear regime dealing with the law of the seat of the arbitration 32 and a clear An incomplete list is Shanghai Maritime University, Dalian Maritime University, National University of Singapore, Maritime and Shipping Law Unit of the University of Queensland, Kobe University of Maritime Sciences, Vietnam Maritime University, McGill University, Korean Maritime University, Centre for Ocean Law and Policy Maritime Institute of Malaysia, the Australian Maritime College, to mention only a few. Involved in that is the question whether to make it central or peripheral

17 regime of inter-jurisdictional curial supervision. These kinds of considerations would overcome, in a pragmatic way, any potential practical differences in the operation of the rival theories explaining the nature of international arbitration. 38 Such a structure could place this region far ahead of any individual local maritime arbitration centre anywhere in the world. 39 To illuminate its potential effect, let me explore one issue which might be addressed, at least in a practical sense, by this framework: the anti-suit injunction. This instrument of contractual enforcement has become the tool of choice of many litigants to stay legal proceedings in national courts in apparent contravention of an exclusive jurisdiction or arbitration provision. This is not the place to discuss the debates about the application of this remedy in the context of various classes of contracts, including contracts evidenced by bills of lading in liner trade, or about the risk the use of the injunction can pose to comity between courts. In cargo-claims, in particular ones of modest size (as many are), it may be an effective denial of any remedy to require the holder of a bill of lading (or its insurer) to cross the globe for enforcement. This problem has led to national legislation nullifying such clauses 33 and to discussion at international level The existence of a regionally based and supported arbitration commission chosen in a jurisdiction clause could give cargo interests in the region enhanced confidence in international commercial arbitration and thus avoid the occasion for the perceived need for the use of the injunction Such as s 11(2) of the Carriage of Goods by Sea Act 1991(Cth) and s 46(1) of the Canadian Marine Liability Act In this regard see Ch III of the Proposed Hague Convention on Exclusive Choice of Court Agreements and in particular the exceptions set out in cl 7 of the draft: Hague Conference on Private International Law Working Document No 110E (27 April 2004); and see Meeson, M Comparative Issues in Anti-Suit Injunctions in Davies, M Jurisdiction and Forum Selection in International Maritime Law: Essays in Honour of Robert Force (Kluwer Law International 2005) ch

18 41 The same kind of co-operation might be possible in a regional court structure. Given the dominance of international commercial dispute resolution through arbitration, this may be seen as an unnecessary or irrelevant consideration. 42 Nevertheless, a regional international maritime court with appointments of undoubted experience and quality providing non-partisan (that is, other than the nationalities of the parties) judges of recognized skill, supported by regional recognition of judgments and combining civil and common law procedures along the lines of the UNIDROIT/American Law Institute transnational procedures is a structure to consider. 43 As a regional maritime court, its procedures could be adopted to fit most harmoniously with the resolution of maritime disputes: judges, assessors and expert witnesses drawing on the whole region s expertise. 44 If such a court were established as an alternative to arbitration, the shipping and commercial interests of the region might have the advantage of the availability of arbitral and curial structures providing a non-partisan, independent, and skilled curial tribunal delivering widely enforceable judgments, assuming that the structure was underpinned by a regional regime of enforcement. 45 The maritime and commercial interests of the region might be well served. 46 In referring to harmonization of the common law and civil law, Sir Otto Kahn-Freund said in : [It was] not only useless, but dangerous to extend attempts at harmonisation into fields in which legal differences reflect differences in political or social organisation or in cultural or social mores. 35 In Capelletti (ed) New Perspectives for a Common Law of Europe p

19 47 Maritime dispute resolution may fall outside this stricture, because of the underlying international character of maritime law and the ability to synthesise civil and common law procedure. It may therefore be worth thinking about regional structures for its organization. Hong Kong January

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