Pitfalls in Negotiating and Drafting Arbitration Clauses in Transport Matters

1. Pitfalls in Negotiating and Drafting Arbitration Clauses in Transport Matters 3rd DIS Baltic Arbitration Days 2014, Riga, Latvia Professor Dr. Eckart Brödermann Hamburg University Faculty of Law, Attorney-at-Law (New York and Germany) Licencié / Maître en droit (Paris), LL.M. (Harvard), Fellow of the Chartered Institute of Arbitrators (London) Brödermann Jahn RA GmbH (Hamburg, Germany) Managing Director, Chinese European Arbitration Centre 26 June 2014

2. Upfront: The Advantages of Arbitration … … as compared to litigation … are taken for granted in this audience

3. The Topic General problems with an industry “painting”,  Focus on the method • Avoiding Pitfalls • Risk Management • in Drafting of Arbitration Clauses • Part of a Negotiation Process • Part of a Risk Management Process • in (international) Transport Matters • Road, Rail, Sea, Air, Multi-Model • complex frame agreements • special, industry related transportation: pipelines, data, space • related matters, e.g. ship construction

4. The Topic • Avoiding Pitfalls • Risk Management • in Drafting of Arbitration Clauses • Part of a Negotiation Process • Part of a Risk Management Process • in (international) Transport Matters • Road, Rail, Sea, Air, Multi-Model • complex frame agreements • special, industry related transportation: pipelines, data, space • related matters, e.g. ship construction

5. Starting Point: Drafting and Risk Management Perspective WTO & Regional (e.g. EU) & Constitutional Freedom Rights of other citizens and companies, costs Freedom of Contract Limits of mandatory law (e.g. Art. 33 CMR)

6. Risk Management: Steps • Discovering the Risks • Non-Legal (operative, financial etc.) • Legal • Understanding the Risks • Evaluation of Risks • Regulation of Risks • incl. arbitration clauses •  Controlling of Risks

7. Discovering of Risks: Starting Points • I: Different Non-Legal Risks • delay(e.g. demurrage) • increased costs (e.g. damage) • impossibility (e.g. general average) MSC Flaminia

8. Discovering of Risks: Starting Points Project (Technical problem?) People (Handling error?) Operational Issues (not enough fire fighting devices?) Economic & Financial Issues Cultural Issues (misunderstandings) • I: Different Non-Legal Risks • delay(e.g. demurrage) • increased costs (e.g. damage) • impossibility (e.g. general average) MSC Flaminia

9. Discovering of Risks: Starting Points Project (Technical problem?) People (Handling error?) Focus on Legal Risks: Risk Discovery, Legal Culture, in the context of arbitration clauses Operational Issues (not enough fire fighting devices?) Economic & Financial Issues Cultural Issues (misunderstandings) • I: Different Non-Legal Risks • delay(e.g. demurrage) • increased costs (e.g. damage) • impossibility (e.g. general average) MSC Flaminia

10. Discovering of Risks: Starting Points • II: General Legal Risks • Mandatory law (e.g. re anti-pollution,hazardous goods, dual usegoods) • Substantive and procedural risks • Risks of enforcement of judgements /awards abroad MOL Comfort

11. Discovering of Risks: Starting Points  Risk of Dispute: Arbitration clauses (still by far in the minority of transportation contracts) • II: General Legal Risks • Mandatory law (e.g. re anti-pollution,hazardous goods, dual usegoods) • Substantive and procedural risks • Risks of enforcement of judgements /awards abroad MOL Comfort

12. Discovering the Risk of Arbitration: Overview Award or Judgment Goal: $ Decision on Strategy Statement of Claim Analysis of Respondents Answer Rebuttal Oral Hearings Post Hearing Brief Recourse? Case I Settlement Negotiations Challenge of an Award / Appeal? Enforcement Case II (e.g. insurance, sandwich-positions), sometimes III

13. The Risk of Arbitration II Private Inter- national Law Institutional versus ad hoc arbitration Procedure/ Service Substantive Law International Public Law Litigation versus Arbitration Scouting the right sources of law Comparative Law Interpleading European Law Mandatory Transport arbitration Law Choice of arbitration institution Comparative Rules of Evidence Comparative Conflicts of law Mandatory Law re Substance Award or Judgment Goal: $ Decision on Strategy Statement of Claim Analysis of Respondents Answer Rebuttal Oral Hearings Post Hearing Brief Recourse? Case I Settlement Negotiations Challenge of an Award / Appeal? Enforcement Case II (e.g. insurance, sandwich-positions), sometimes III

14. The Risk of Arbitration III Private Inter- national Law Substantive Law International Public Law Institutional versus ad hoc arbitration Procedure/ Service Comparative Law European Law Litigation versus Arbitration Comparative Rules of Evidence Comparative Conflicts of law Choice of arbitration institution Mandatory Law Award or Judgment Goal: $ Decision on Strategy Statement of Claim Analysis of Respondents Answer Rebuttal Oral Hearings Post Hearing Brief Recourse? Case I Settlement Negotiations Challenge of an Award / Appeal? Enforcement Case II (e.g. insurance, sandwich-positions), sometimes III Research of Facts AnalysisBackground of Arbitrators Cost estimation Cost Controlling Know How Management Project Management Controlling of Facts Budget Coordination of Invoicing Quality Management Liaison with Client

15. The Risk of Arbitration IV Private Inter- national Law Substantive Law International Public Law Institutional versus ad hoc arbitration Procedure/ Service Comparative Law European Law Litigation versus Arbitration Comparative Rules of Evidence Comparative Conflicts of law Choice of arbitration institution .. and sometimes similar problems again on the enforcement level (COTIF, NYC) Mandatory Law Award or Judgment Goal: $ Decision on Strategy Statement of Claim Analysis of Respondents Answer Rebuttal Oral Hearings Post Hearing Brief Recourse? Case I Settlement Negotiations Challenge of an Award / Appeal? Enforcement Case II (e.g. insurance, sandwich-positions), sometimes III Research of Facts AnalysisBackground of Arbitrators Cost estimation Cost Controlling Know How Management Project Management Controlling of Facts Budget Coordination of Invoicing Quality Management Liaison with Client

16. Discovering the Risk of Arbitration Clauses Private Inter- national Law Institutional versus ad hoc arbitration Procedure/ Service Substantive Law International Public Law Litigation versus Arbitration Scouting the right sources of law Comparative Law Interpleading European Law Mandatory Transport arbitration Law Choice of arbitration institution Comparative Rules of Evidence Comparative Conflicts of law Mandatory Law re Substance

17. Discovering the Risk of Arbitration Clauses Private Inter- national Law Institutional versus ad hoc arbitration Procedure/ Service Substantive Law International Public Law Litigation versus Arbitration Scouting the right sources of law Comparative Law Interpleading European Law Legal Fields of Knowledge • Arbitration • Contracts • Transportation • Company Law • Employment • Private International Law • Determination of the contractual law • Classification • Room for mandatory law • Administrative Law • Industry specific variations • Criminal Law Mandatory Transport arbitration Law Choice of arbitration institution Comparative Rules of Evidence Comparative Conflicts of law Mandatory Law re Substance

18. Discovering the Risk of Arbitration Clauses Private Inter- national Law Institutional versus ad hoc arbitration Procedure/ Service Substantive Law International Public Law Litigation versus Arbitration Scouting the right sources of law Comparative Law Interpleading European Law Legal Fields of Knowledge • Arbitration • Contracts • Transportation • Company Law • Employment • Private International Law • Determination of the contractual law • Classification • Room for mandatory law • Administrative Law • Industry specific variations • Criminal Law Mandatory Transport arbitration Law Choice of arbitration institution Comparative Rules of Evidence Comparative Conflicts of law Mandatory Law re Substance Research of applicable sources of law • International treaties • Public International Law (e.g. COTIF etc.) •  Reservations; Declarations? • European / NAFTA Law • Or other “regional” law • ((in WTO categories)) • National law ( and private int’l. law to determine it, possibly special Model Arb. Law) • Civil • French and German legal family • Common law • Hybrid systems

19. Discovering the Risk of Arbitration Clauses Private Inter- national Law Institutional versus ad hoc arbitration Procedure/ Service Substantive Law International Public Law Litigation versus Arbitration Scouting the right sources of law Comparative Law Interpleading European Law Legal Fields of Knowledge • Arbitration • Contracts • Transportation • Company Law • Employment • Private International Law • Determination of the contractual law • Classification • Room for mandatory law • Administrative Law • Industry specific variations • Criminal Law Mandatory Transport arbitration Law Choice of arbitration institution Comparative Rules of Evidence Comparative Conflicts of law Mandatory Law re Substance Research of applicable sources of law • International treaties • Public International Law (e.g. COTIF etc.) •  Reservations; Declarations? • European / NAFTA Law • Or other “regional” law • ((in WTO categories)) • National law ( and private int’l. law to determine it, possibly special Model Arb. Law) • Civil • French and German legal family • Common law • Hybrid systems Knowledge about methods of interpretation • Schemes of interpretation • Wording, Goals, Systematic interpretation (context), History • Defined differently for different sources of law • International: Vienna Convention on the Law of Treaties (1969) • and specific rules on interpretation, e.g. Art. 3 Hamburg Rules • European: Effet utile-interpretation • National: e.g. “good faith”-rules // the art of distinction in common law

20. Transportation Sector Specific Perspective Discovering the Risk of Arbitration Clauses • Legal • I.Mandatory law on transportation arbitration issues • for traditional transportation • II. General legal risks of arbitration clauses in cross-border transportation contracts • for all kinds of transportation

21. I. Mandatory International Arbitration Law: ”Road” Convention on the Contract for the International Carriage of Goods by Road (CMR), 1956/78 e.g. limitation of liability, Art. 23 para. 3 • Arbitration, Art. 33 • “The contract of carriage may contain a clause conferring competence on an arbitration tribunal if the clause conferring competence on the tribunal provides that the tribunal shall apply this Convention.”

22. Mandatory International Arbitration Law: ”Rail” Convention concerning International Carriage by Rail (COTIF) • Arbitration, Art. 28-32 • Article 29 • “Competence • § 1 Disputes between Member States .. to .. Arbitration Tribunal .. • § 2 Other disputes arising from the interpretation or application of the Convention …, if not settled amicably or brought before the ordinary courts or tribunals may, by agreement between the parties concerned, be referred to an Arbitration Tribunal. Articles 29 to 32 shall apply to the composition of the Arbitration Tribunal and the arbitration procedure. • § 3 Any State may … reserve the right not to apply all or part of the provisions of §§ 1 and 2. • § 4 A State which has made a reservation … may withdraw it ….”

23. Mandatory International Arbitration Law: ”Rail” Convention concerning International Carriage by Rail (COTIF) • Arbitration, Art. 28-32 • Article 29 • “Agreement to refer to arbitration.. which shall, in particular, specify: • a) the subject matter of the dispute; • b) the composition of the Tribunal and the period agreed for nomination of the • arbitrator or arbitrators; • c) the place where it is agreed that the Tribunal is to sit. • The agreement to refer to arbitration must be communicated to the Secretary General who shall act as Registrar.”

24. Mandatory International Arbitration Law: ”Rail” Convention concerning International Carriage by Rail (COTIF) • Arbitration, Art. 28-32 • Article 30 • “Arbitrators • § 1 A panel of arbitrators shall be established ... • § 2 The Arbitration Tribunal shall be composed of one, three or five arbitrators in accordance with the agreement to refer to arbitration. Thearbitrators shall be selected from persons who are on the panel referred to in § 1. … If the parties cannot agree on the selection of a sole arbitrator, or the selected arbitrators cannot agree on the appointment of a third or fifth arbitrator, the appointment shall be made by the Secretary General. • § 3 The sole arbitrator, or the third or fifth arbitrator, must be of a nationality other than that of either party, unlessboth are of the same nationality. • § 4 The intervention of a third party in the dispute shall not affect the composition of the Arbitration Tribunal.”

25. Mandatory International Arbitration Law: ”Rail” Convention concerning International Carriage by Rail (COTIF) • Arbitration, Art. 28-32 • Article 31 • “Procedure. Costs • § 1 The Arbitration Tribunal shall decide the procedure to be followed …: • a) it shall enquire into and determine cases on the basis of the evidence submitted by the parties, but will not be bound by their interpretations when it is called upon to decide a question of law; • b) it may not award more than the claimant has claimed, nor anything of a different nature, nor may it award less than the defendant has acknowledged as due; • c) the arbitration award, setting forth the reasons for the decision, shall be drawn up by the Arbitration Tribunal and notified to the parties by the Secretary General; • d) save where the mandatory provisions of the law of the place where the Arbitration Tribunal is sitting otherwise provide and subject to contrary agreement by the parties, • the arbitration award shall be final. • § 2 The fees of the arbitrators shall be determined by the Secretary General. • § 3 The Tribunal shall determine in its award the amount of costs and expenses and shall decide how they and the fees of the arbitrators are to be apportioned between the parties.”

26. Mandatory International Arbitration Law: ”Rail” Convention concerning International Carriage by Rail (COTIF) • Arbitration, Art. 28-32 • Article 32 • “Limitation. Enforcement • § 1 The commencement of arbitration proceedings shall have the same effect, as regards the interruption of periods of limitation, as that attributed by the applicable provisions of substantive law to the institution of an action in the ordinary courts or tribunals. • § 2 The Arbitration Tribunal's award shall become enforceable in each ofthe Member States on completion of the formalities required in the State where enforcement is to take place. The merits of the case shall not be subject to review” Priority over NYC (Art. VII (1) NYC)

27. Mandatory International Arbitration Law: ”Air” • Convention for the Unification of Certain Rules for International Carriage by Air (Montreal 1999) • Limits of liability in relation to delay, baggage and cargo, Art. 22 • No limitation regarding compensation in case of death or injury of passengers, Art. 21 • Arbitration, Art. 34 • Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw 1929) • Limitation of liability, Art. 22 • Arbitration, Art. 32

28. Mandatory International Arbitration Law: ”Air” Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw 1929) • Arbitration, Art. 32 • “Any clause contained in the contract and all special agreements entered into before the damage occurredby which the parties purport to infringe the rules laid down by this Convention, whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null and void. Nevertheless for the carriage of goods arbitration clauses are allowed, subject to this Convention, if the arbitration is to take place within one of the jurisdictions referred to in the first paragraph of Article 28.”

29. Mandatory International Arbitration Law: ”Air” Convention for the Unification of Certain Rules for International Carriage by Air (Montreal 1999) • Arbitration, Art. 34 • “Arbitration • 1. Subject to the provisions of this Article, the parties to the contract of carriage for cargo may stipulate that any dispute relating to the liability of the carrier under this Convention shall be settled by arbitration. Such agreement shall be in writing. • 2. The arbitration proceedings shall, at the option of the claimant, take place within one of the jurisdictions referred to in Article 33. •  e.g. domicile of carrier, carriers principal place of business or place of destination • 3. The arbitrator or arbitration tribunal shall apply the provisions of this Convention. • 4. The provisions of paragraphs 2 and 3 of this Article shall be deemed to be part of every arbitration clause or agreement, and any term of such clause or agreement which is inconsistent therewith shall be null and void.”

30. Mandatory International Arbitration Law: ”Sea” • United Nations Convention on the Carriage of Goods by Sea (Hamburg Rules) • Limitation of liability, Art. 6 et seq. • Arbitration, Art. 22 • Status:in force in 34 countries (e.g. Chile, Nigeria), but not in Europe, USA, Russia, China • United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (Rotterdam Rules) • Limitation of liability, Art. 59 et seq. • Arbitration, Art. 75 et seq., if declared applicable • Status: not in force • (25 signatories, 3 of 20 approvals) • Hague-Visby Rules • Limitation of liability, Art. IV para. 5, Art. IV bis • No regulation on arbitration Surplus material

31. Mandatory International Arbitration Law: ”Sea” United Nations Convention on the Carriage of Goods by Sea (Hamburg Rules) • Arbitration, Art. 22 • “1. Subject to the provisions of this article, parties may provide by agreement evidenced in writing that any dispute that may arise relating to carriage of goods under this Convention shall be referred to arbitration. • 2. Where a charter-party contains a provision that disputes arising thereunder shall be referred to arbitrationand a bill of lading issued pursuant to the charter-party does not contain a special annotation providing that such provision shall be binding upon the holder of the bill of lading, the carrier may not invoke such provision as against a holder having acquired the bill of lading in good faith. • …  Priority over national law where applicable

32. Mandatory International Arbitration Law: ”Sea” United Nations Convention on the Carriage of Goods by Sea (Hamburg Rules) • Arbitration, Art. 22 (cont’d.) • 3. The arbitration proceedings shall, at the option of the claimant, be instituted at one of the following places: • a place in a State within whose territory is situated: • the principal place of business of the defendant or, in the absence thereof, the habitual residence of the defendant; or • the place where the contract was made, provided that the defendant has there a place of business, branch or agency through which the contract was made; or • the port of loading or the port of discharge; or • (b) any place designated for that purpose in the arbitration clause or agreement. • 4. The arbitrator or arbitration tribunal shall apply the rules of this Convention. • 5. The provisions of paragraphs 3 and 4 of this article are deemed to be part of every • Arbitration clause or agreement, and any term of such clause or agreement • which is inconsistent therewith is null and void.

33. Mandatory International Arbitration Law: ”Sea” United Nations Convention on the Carriage of Goods by Sea (Hamburg Rules) • Arbitration, Art. 22 • 6. Nothing in this article affects the validity of an agreement relating to arbitration made by the parties after the claim under the contract of carriage by sea has arisen.”

34. Mandatory International Arbitration Law: ”Multi-Modal” • United Nations Convention on International Multimodal Transport of Goods • Limitation of liability • Multimodal Transport Operator, Art. 18, 21 • Arbitration, Art. 27 • Status: not in force (6 of 30 signatories) Surplus material

35. Mandatory law on transportation arbitration issues • Topic:Road / Rail / Air / Sea/ Multi-Model • Source: CMR / COTIF/ Warsaw/Montreal/Hamburg/Rotterdam / UN • (1956/78)(1999)(1929) / (1999)(1978) (2008 n/a) (1980 n/a) • Admissibility of arbitration • x xxxxxx • Requiring Application of the Convention (incl. rules on liability-limitation) • x x x xpartial x • Form of the arbitration clause • x xxx • Place of the arbitration • xxxxxx • Further details (e.g. appointments, reasons in award, costs, finality) • x • Enforcement • x

36. + II. General Legal Risks of Arbitration Clause Drafting(and: risks in case that treaty n/a; transportation: pipeline, data, space)I • e.g. Validity of arbitration clause(avoidance of “pathological” clauses) • e.g. Writing(e.g. [where applicable]COTIF, Montreal, Hamburg Rules) • regards to enforcement regime, e.g. New York Convention Requirement (if applicable: e.g. not in Taiwan) • Clear decision on arbitration regime (Art. II para. 3 NYC) • e.g. Supreme Commercial (Arbitrazh) Court of Russia July 2013 (Bosch v Avtosped) • On true intention who shall administer( arbitration-friendly approach overturning the 7th Appellate Court and the Federal Arbitrazh Court of West Siberian region); • e.g. ad hoc or institutional arbitration • e.g. unclear clauses referring to Chinese European Arbitration Centre: difficulties to paste/copy)

37. + II. General Legal Risks of Arbitration Clause Drafting(and: risks in case that treaty n/a; transportation: pipeline, data, space)I • e.g. Validity of arbitration clause (cont’d.) • local needs: • e.g. China: need to name an arbitration institution (China Art. 16 Arb. Law 1994) • e.g. Risks of Bill of Lading-Arbitration Clauses referring to Charter-Parties • if no protection by Art. 22 II CMR • regional risks: • German legislation fall 2013 (striking provisions permitting such integration) • similar discussions earlier in London and Paris

38. + General Legal Risks of Arbitration Clause Drafting(and: risks in case that treaty n/a; transportation: pipeline, data, space) • Choice of the adequate arbitration regime • Influencing Factors of Legal Culture • e.g. speed of procedure v. need for a correct decision • approach towards settlement during the arbitration • requirements of a conclusive filing • the approach towards truth(inquisitorial, adversarial, moderately inquisitorial) • the taking of evidence(document production, witness statements, cross examination, witness conferencing, choice of experts) • freedom for arbitrators to research the law(e.g. Art. 31 § 1 COTIF)

39. + General Legal Risks of Arbitration Clause Drafting(and: risks in case that treaty n/a; transportation: pipeline, data, space) • Choice of the adequate arbitration regime (cont’d.) • Influencing Factors of the Arbitration Institution (or regime) itself • Know How, experience • quality of arbitrators on the panel • neutrality • does it claim to interfere (e.g. multi-party Art. 30 § 4 COTIF v. Art. 12 para. 8 ICC Rules)? • Time frames and time record (statistics)

40. + General Legal Risks of Arbitration Clause Drafting(and: risks in case that treaty n/a; transportation: pipeline, data, space) • Choice of the adequate arbitration regime (cont’d.) • due regard to the chosen system (back-up rules) • e.g. on the number of arbitrators • Continental Europe: 3 arbitrators • e.g. UK, Hong Kong, Singapore, New York: 1 arbitrator • e.g. GMAA: 2 arbitrators • e.g. on the review on points of law • Art. 31 COTIF (freedom of arbitrators to review the law) • Art. 69 English Arbitration Act 1996 (appeal on points of law) • legal regime at the seat of the arbitration • Attitude towards injunctions

41. + General Legal Risks of Arbitration Clause Drafting(and: risks in case that treaty n/a; transportation: pipeline, data, space) • Influencing Factors Based on the Contractual Setting (due regard to the circumstances) • There are always several options worth considering • example: cement transportation under country agreements in 6 African countries, European agreement between parent companies with a paramount clause (“as if”) providing for arbitration in Switzerland. • Trend towards a real globalization of the arbitration system • Newcomers like Riga, Chinese European Arbitration Centre • Time of growth and diversification

42. Conclusion: Avoiding Pitfalls of Drafting Arbitration Clauses for (international) Transportation Contracts • Part of a Necessary Risk Management Process • Growing Mandatory Arbitration Lawfor the “Classical Transportation” methods • + All the “Classical Int’l. Arbitration” risks • with relevant industry mind-sets MSC Napoli

43. Conclusion: Avoiding Pitfalls of Drafting Arbitration Clauses for (international) Transportation Contracts • Part of a Necessary Risk Management Process • Growing Mandatory Arbitration Lawfor the “Classical Transportation” methods • + All the “Classical Int’l. Arbitration” risks • with relevant industry mind-sets with constant changes and developments in different jurisdictions e.g. in Germany, to be discussed tomorrow MSC Napoli

44. Thank you very much Prof. Dr. Eckart Brödermann Hamburg University School of Law, Attorney-at-Law (New York and Germany) Licencié / Maître en droit (Paris), LL.M. (Harvard), Fellow of Chartered Institute of Arbitrators (London) Managing Director, Chinese European Arbitration Centre 26 June 2014 • Brödermann Jahn RA GmbH • Neuer Wall 71 • 20354 Hamburg, Germany • www.german-law.com

45. Mandatory International Arbitration Law: ”Sea” United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (Rotterdam Rules: not in force) Surplus material • Arbitration, Art. 75 et seq. (Chapter 15, if declared as applicable: 78, 91) • Art. 75 • “Arbitration agreements • Subject to this chapter, parties may agree that any dispute that may arise relating to the carriage of goods under this Convention shall be referred to arbitration. • 2. The arbitration proceedings shall, at the option of the person asserting a • claim against the carrier, take place at: • (a) Any place designated for that purpose in the arbitration agreement; • or • (b) Any other place situated in a State where any of the following places is located: • (i) The domicile of the carrier; • (ii) The place ofreceipt agreed in the contract of carriage; • (iii) The place of delivery agreed in the contract of carriage; or • (iv) The port where the goods are initially loaded on a ship or the port • where the goods are finally discharged from a ship. • …

46. Mandatory International Arbitration Law: ”Sea” United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (Rotterdam Rules: not in force) Surplus material • Arbitration, Art. 75 (cont’d.) • 3. The designation of the place of arbitration in the agreement is binding for disputes between the parties to the agreement if the agreement is contained in a volume contract that clearly states the names and addresses of the parties and either: • Is individually negotiated; or • (b) Contains a prominent statement that there is an arbitration agreement and specifies the sections of the volume contract containing the arbitration agreement. • 4. When an arbitration agreement has been concluded in accordance with paragraph 3 of this article, a person that is not a party to the volume contract is bound by the designation of the place of arbitration in that agreement only if: • (a) The place of arbitration designated in the agreement is situated in one of the places referred to in subparagraph 2 (b) of this article; • (b) The agreement is contained in the transport document or electronic transport record; • (c) The person to be bound is given timely and adequate notice of the place of arbitration; and • (d) Applicable law permits that person to be bound by the arbitration agreement.

47. Mandatory International Arbitration Law: ”Sea” United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (Rotterdam Rules: not in force) Surplus material • Arbitration, Art. 75 (cont’d.) • 5. The provisions of paragraphs 1, 2, 3 and 4 of this article are deemed to be part of every arbitration clause or agreement, and any term of such clause or agreement to the extent that it is inconsistent therewith is void.”

48. Mandatory International Arbitration Law: ”Sea” United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (Rotterdam Rules: not in force) Surplus material • Arbitration, Art. 75 et seq. (Chapter 15) • Article 76 • “Arbitration agreement in non-liner transportation • 1. Nothing in this Convention affects the enforceability of an arbitration agreement in a contract of carriage in non-liner transportation to which this Convention or the provisions of this Convention apply by reason of: • (a) The application of article 7 [i.e. application of the Convention towards the consignee, controlling partner or holder (that is not an original party to the contract)]; or • (b) The parties’ voluntary incorporation of this Convention in a contract of carriage that would not otherwise be subject to this Convention. • 2. Notwithstanding paragraph 1 of this article, an arbitration agreement in a transport document or electronic transport record to which this Convention applies by reason of the application of article 7 is subject to this chapter unless such a transport document or electronic transport record: • (a) Identifies the parties to and the date of the charter party or other contract excluded from the application of this Convention by reason of the application of article 6; and • (b) Incorporates by specific reference the clause in the charter party or other contract that contains the terms of the arbitration agreement.”

49. Mandatory International Arbitration Law: ”Sea” United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (Rotterdam Rules: not in force) Surplus material • Arbitration, Art. 75 et seq. (Chapter 15) • Article 77 • “Agreement to arbitrate after a dispute has arisen • Notwithstanding the provisions of this chapter and chapter 14, after a dispute has arisen the parties to the dispute may agree to resolve it by arbitration in any place.” • Article 78 • “Application of chapter 15 • The provisions of this chapter shall bind only Contracting States that declare in accordance with article 91 that they will be bound by them.”

50. Mandatory International Arbitration Law: ”Multi-Modal” United Nations Convention on International Multimodal Transport of Goods: Not in force Surplus material • Arbitration, Art. 27 • “Arbitration • Subject to the provisions of this article, parties may provide by agreement evidenced inwriting that any dispute that may arise relating to international multimodal transport under this Convention shall be referred to arbitration. • 2. The arbitration proceedings shall, at the option of the claimant, be instituted at one of the following places: • A place in a State within whose territory is situated: • (i) The principal place of business of the defendant or, in the absence thereof, the habitual residence of the defendant; or • (ii) The place where the multimodal transport contract was made, provided that the defendant has there a place of business, branch or agency through which the contract was made; or (iii) The place of taking the goods in charge for international multimodal transport or the place of delivery; or • (b) Any other place designated for that purpose in the arbitration clause or agreement.