论并入租约提单中的仲裁条款
发布时间：2019-01-13 08:23
【摘要】：在海上货物运输中,租船合同下签发的提单称之为租约提单,其中往往含有一条并入条款以并入租船合同中的相关内容,这一做法已得到了多数国家法律及司法机关认可。总的来说,租约提单中并入租约条款是民法意思自治原则在海上货物运输法律关系中的一个体现。然而,由于仲裁条款的特殊性,租约中的仲裁条款在并入租约提单时存在诸多争议：如,租约提单中能否并入租船合同中的仲裁条款；若能并入,如何才能将仲裁条款有效并入；当存在多个租船合同时租约提单并入的是哪个租船合同中的条款等。所以,研究这些问题,既要依据合同法原理,又要考虑仲裁条款的特殊性。 在本文第一部分,笔者概括介绍了并入条款的概念和在租约提单中并入租船合同条款的起因,然后总结了仲裁条款所具有的特点。在第二部分,笔者主要对租约提单并入仲裁条款在实践中存在的两个法律问题进行了探讨,即,在租约提单中有效并入仲裁条款的条件和存在多个租约时并入租约提单的仲裁条款所属租约的识别两个问题。为此,笔者通过分析英国法院的主要判例来介绍英国法院在这两个问题上的观点和做法,并讨论了我国法院在这两个问题上的观点和做法,进而总结出英国与我国在这些问题上观点和做法的异同。根据前述分析,并参照《鹿特丹规则》等国际公约的规定,笔者在最后一部分总结出我国《海商法》、《仲裁法》在此方面规定的不足及司法实践中存在的一些问题,并提出相关完善建议。 希望本文的探讨有助于进一步统一我国海事司法实践对并入租约提单中的仲裁条款效力的态度,并对我国的国际贸易及海运实务有一些参考作用。
[Abstract]:In the carriage of goods by sea, the bill of lading issued under the charter party is called charter bill of lading, which often contains a clause to be incorporated into the charter party. This practice has been approved by most national laws and judicial authorities. In general, the incorporation of charter clause in charter bill of lading is an embodiment of the principle of autonomy of will of civil law in the legal relationship of carriage of goods by sea. However, due to the particularity of the arbitration clause, there are many disputes when the arbitration clause in the lease agreement is incorporated into the charter bill of lading: for example, whether the charter bill of lading can be incorporated into the arbitration clause in the charter party; If it can be incorporated, how can the arbitration clause be effectively incorporated; when there are more than one charter party, the bill of lading is incorporated into the terms of the charter party and so on. Therefore, to study these problems, we should not only consider the principle of contract law, but also consider the particularity of arbitration clause. In the first part of this paper, the author introduces the concept of incorporation clause and the causes of incorporation of charter party clause in charter party bill of lading, and then summarizes the characteristics of arbitration clause. In the second part, the author mainly discusses two legal problems existing in the practice of the incorporation of lease bill of lading into arbitration clause, that is, There are two problems: the condition of effectively incorporating the arbitration clause in the lease bill of lading and the identification of the lease agreement of the arbitration clause incorporated into the charter bill of lading when there are many leases. Therefore, by analyzing the main cases of British courts, the author introduces the views and practices of British courts on these two issues, and discusses the views and practices of Chinese courts on these two issues. Then sum up the similarities and differences between Britain and our country on these issues. According to the foregoing analysis, and referring to the provisions of the Rotterdam rules and other international conventions, the author summarizes in the last part the deficiencies in the provisions of the Maritime Law and the Arbitration Law in China and some problems existing in judicial practice. And puts forward the related consummation suggestion. It is hoped that the discussion in this paper will be helpful to further unifying the attitude of maritime judicial practice to the validity of arbitration clauses incorporated into charter bills of lading and has some reference functions for our country's international trade and maritime transport practice.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D996.1;D997.4
本文编号：2408268
[Abstract]:In the carriage of goods by sea, the bill of lading issued under the charter party is called charter bill of lading, which often contains a clause to be incorporated into the charter party. This practice has been approved by most national laws and judicial authorities. In general, the incorporation of charter clause in charter bill of lading is an embodiment of the principle of autonomy of will of civil law in the legal relationship of carriage of goods by sea. However, due to the particularity of the arbitration clause, there are many disputes when the arbitration clause in the lease agreement is incorporated into the charter bill of lading: for example, whether the charter bill of lading can be incorporated into the arbitration clause in the charter party; If it can be incorporated, how can the arbitration clause be effectively incorporated; when there are more than one charter party, the bill of lading is incorporated into the terms of the charter party and so on. Therefore, to study these problems, we should not only consider the principle of contract law, but also consider the particularity of arbitration clause. In the first part of this paper, the author introduces the concept of incorporation clause and the causes of incorporation of charter party clause in charter party bill of lading, and then summarizes the characteristics of arbitration clause. In the second part, the author mainly discusses two legal problems existing in the practice of the incorporation of lease bill of lading into arbitration clause, that is, There are two problems: the condition of effectively incorporating the arbitration clause in the lease bill of lading and the identification of the lease agreement of the arbitration clause incorporated into the charter bill of lading when there are many leases. Therefore, by analyzing the main cases of British courts, the author introduces the views and practices of British courts on these two issues, and discusses the views and practices of Chinese courts on these two issues. Then sum up the similarities and differences between Britain and our country on these issues. According to the foregoing analysis, and referring to the provisions of the Rotterdam rules and other international conventions, the author summarizes in the last part the deficiencies in the provisions of the Maritime Law and the Arbitration Law in China and some problems existing in judicial practice. And puts forward the related consummation suggestion. It is hoped that the discussion in this paper will be helpful to further unifying the attitude of maritime judicial practice to the validity of arbitration clauses incorporated into charter bills of lading and has some reference functions for our country's international trade and maritime transport practice.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D996.1;D997.4
【引证文献】
相关硕士学位论文 前1条
1 李佳媚;租约仲裁条款并入提单效力问题研究[D];大连海事大学;2012年
，本文编号：2408268
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