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      Forum Description: This forum is available for everyone to post messages to. Students can raise questions or discuss issues related to the module. Students are encouraged to post to this forum and it will be checked daily by the module leaders. Students should feel free to reply to other students if they are able to.

  • IMPORTANT MODULE INFORMATION

    • Video - SOLM145 MARITIME ARBITRATION - MODULE OVERVIEW QMplus Media Video
    • Module Syllabus File
      57.2 KB

    • Module Description

      Specialist dispute resolution mechanisms catering to specific industry needs are popular in international commerce, and arbitration has emerged as the dominant industry choice for resolving shipping disputes, in particular charterparty disputes. Indeed important maritime arbitration centres have long been established in London and New York, and more recently others have started to emerge in countries such as Singapore, Hong Kong, Russia and China . London remains a leader in this field with a large number of disputes being decided each year through arbitration in accordance with the terms of the London Maritime Arbitrators Association. The module will tackle questions such as: What is special about maritime arbitration and what distinguishes it from general commercial arbitration? What are the features of maritime arbitration that make it particularly popular?  Is arbitration by its nature more suited to the resolution of disputes arising in connection with certain types of shipping contracts (e.g. charterparties) rather than others (e.g. contracts of carriage contained in bills of lading)? Why? What are the implications of widespread use of arbitration for the continued development of shipping law?

      Learning Aims and Outcomes

      Module Aims

      The module will aim at establishing a sound understanding of maritime arbitration as a method of dispute resolution as well as the theoretical and practical implications of its widespread use. It will also provide students with the skills and knowledge necessary to go further into depth in their independent exploration of the subject matter.


      Learning Outcomes

      Academic Content

      By the end of this module students will have:

      • Acquired a thorough understanding of maritime arbitration as a method of dispute resolution and the theoretical and practical implications of its widespread use.
      • Acquired a comprehensive and critical understanding of the major principles which characterize legal frameworks underpinning maritime arbitration.
      • Developed the ability to approach the subject from an international perspective and address important concomitant issues including continued legal development, transparency in decision-making, legitimacy of decisions and enforcement of decisions.


      Disciplinary Skills

      By the end of the module students will be able to:

      • Manage, analyse and evaluate various legal sources and materials relating to maritime arbitration, including legislation, case law, awards, contractual documents, industry-developed terms and conditions, and academic commentary. In this regard, students will not only be able critically to assess the importance of the various different legal concepts that derive from such sources, but also to formulate legal arguments and propositions in relation to various complex topics that will be examined.
      • Apply the skill of analysing and reviewing a wide range of legal material to the resolution of practical legal problems.


      Attributes

      Students will develop the ability to:

      • Exercise personal responsibility and initiative to manage a plethora of legal material and their learning.
      • Analyse a variety of legal material, to challenge it critically through debate and discussion and to use it to resolve complex legal problems that may arise in practical scenarios.


    • SCHEDULE


      Week 1:

      Thursday 30.01.2025

      Introduction to maritime arbitration and overview of major maritime arbitration centres – MG

      The agreement to arbitrate I: charterparty contracts – MG

       

      Week 2:

      Thursday 06.02.2025

      The agreement to arbitrate II: bill of lading contracts – BR

       

      Week 3:

      Thursday 13.02.2025

       

      The maritime arbitral process under English and Federal US Law and under LMAA Terms and SMA-NY Rules – MG  

       

      Week 4:

      Thursday 20.02.2025

      The importance of expertise: maritime arbitrators and their role – MG

       

      Week 5:

      Thursday 27.02.2025

       

      How does the maritime arbitral tribunal decide? Assessing the evidence and applying the law – MG

       

       

       

      WEEK 6 – STUDY WEEK

       

      Week 7:

      Thursday 13.03.2021

       

      Challenging and Appealing Awards – MG

       

      Week 8:

      Thursday 20.03.2025

      Confidentiality of Awards – benefits and implications – BR  

      Week 9:

      Thursday 27.03.2025

      Enforcing awards – MG

      Week 10:

      Thursday 06.03.2025

      Arbitration and the continued development of shipping law – MG

       

      Week 11:

      Thursday 13.03.2025

      Sum Up and Exam Revision – MG

       

    • MODULE EXPECTATIONS


      TEACHING ARRANGEMENTS

      Each week you will have one 90 minute webinar and one 60 minute webinar on specific substantive topics. Over the course of the module each of you will also attend four small group sessions which are designed to give you a chance to practice (i) articulating what the law is with reference to authorities (primary legal sources) and other materials (contractual terms, industry guidance, academic commentary) (ii) evaluate the law by reference to specific criteria (e.g. commercial certainty, business common sense, justice and fairness) and (iii) apply the law to practical scenarios involving disputes.

      You will be set tasks intended to help you prepare for each taught session. You should be ensure that you set aside enough time to undertake these tasks each week - they are the best way to stay on top of your work and prepare for the final assessment.

      You will be set a formative assessment (that does not count towards your final grade) just before reading week with the submission deadline soon afterwards. This task is intended as a "test run" for the final exam.

  • Where to get help

    If you have questions about the content of the module or any task you have been asked to undertake please contact the module convenor Prof. Miriam Goldby on m.goldby@qmul.ac.uk. She will respond to your query directly or forward it to the relevant instructor for the topic.

  • Week 1 - Introduction; The Agreement to Arbitrate I

    • Week 1 - Topic 1

       In this session we will be examining the nature of arbitration and exploring the features that distinguish maritime arbitration from the generality of international commercial arbitration.

      Week 1 - Topic 2

      The central requirement for one disputant to be able to compel the other to arbitrate is a valid and binding arbitration agreement between them. In this session we will be exploring what the requirements are for an arbitration agreement to be valid and binding. Please have available during the class a copy of the BIMCO Law and Arbitration Clause 2020 - London and the BIMCO Dispute Resolution Clause 2017. 


      Week 1 TASKS

      Task 1 - Read and Reflect - the principles of arbitration

      Please download a copy of the Arbitration Act 1996 from Westlaw and read Section 1.  You should also download a copy of LMAA Terms and Procedures 2021 and read Clause 3 of the Terms. What do these provisions tell you about the nature of arbitration? 

      Please pay close attention during all the lectures in this module to the different provisions of the 1996 Act which we will be discussing, as all of them tie back to these principles, and are interpreted accordingly by the courts.


      Task 2 - Read and Reflect - the basic features of maritime arbitration [

      By way of preparation, please read at least one of the following:

      • Baatz, Maritime Law (4th edn, Routledge, 2017 or 5th edn 2021) Chapter 1 (available electronically from the i-law maritime database which you can access off the IALS library website using your IALS library card).
      • Baughen, Shipping Law (6th edn) Chapter 18
      • C Ambrose, K Maxwell and M Collett, London Maritime Arbitration (4th edn, Informa, 2017), Chapter 1 (available electronically from the i-law maritime database which you can access off the IALS library website using your IALS library card).

      You should also download and read this 2023 HFW survey report on maritime arbitration. Read also LMAA Terms Paragraphs 6 and 7.


      Please prepare brief answers to the following questions:

      1. What are the perceived advantages of arbitration over litigation? What are the risks of going to arbitration rather than litigating in court?

      2. What is the most popular arbitration forum for maritime disputes? Does the HFW report give you any hint as to why? What are the consequences of paragraphs 6 and 7 of the LMAA Terms?


      Task 3 - Read and Reflect: Agreement to Arbitrate 

      Please read the following case prior to class:

      • Sonatrach Petroleum Corporation (BVI) v Ferrell International Ltd [2002] 1 All ER (Comm) 627

      Chapters 4 to 8 of Ambrose and Maxwell, in particular Chapter 4, are all relevant to what we will be covering. 


      Please prepare answers to the following questions:


      1. What was the cause of the problem in Sonatrach v Ferrell? 
      2. What does the case tell us about the requirements for formation of a valid arbitration agreement?

  • Week 2 - The Agreement to Arbitrate II


    • WEEK 2 - are arbitration clauses appropriate to contracts of carriage contained in bills of lading?

      In this  seminar we will we will focus on disputes in connection with bill of lading contracts. There are two ways in which disputes in connection with a bill of lading contract can become the subject of an arbitration agreement. The first is as a result of  the incorporation of a charterparty arbitration clause into a bill of lading. This is a ubiquitous practice in the bulk trades where ships are chartered as a matter of course. The second is through the inclusion of an arbitration clause in the carrier's standard terms and conditions of carriage. This sometimes happens in the liner trades for container cargoes, although it is much more common to find litigation rather than arbitration clauses in such standard terms.

      You will note that the title of this topic is phrased as a question, and that the question is an evaluative one, so when doing your reading  you should think about what might make it inappropriate for the holder of a bill of lading to be bound to arbitrate when a dispute against the carrier arises. [Hint: the answer is linked to the principle of party autonomy]


      week 2 TASKS

      Task 1 - Read and Reflect: Agreement to Arbitrate 

      Please read the following case prior to class

      • Shagang South-Asia (Hong Kong) Trading Co Ltd v Daewoo Logistics [2015] EWHC 194 (Comm)

      You are  reminded that Chapters 4 to 8 of Ambrose and Maxwell, in particular Chapter 4, are all relevant to what we will be covering. 

      Please prepare answers to the following questions:


      1. What was the cause of confusion in Shagang v Daewoo Logistics? 
      2. What does the case tell us about the way the English courts interpret arbitration clauses?


      Task 2 - bills of lading and arbitration clauses. 

      Please download a copy of Congenbill 2022 from the BIMCO website and read clause 7. You should pay close attention to the wording as during the lecture I will be asking you to comment on it, when we discuss various cases. 

      Task 3 - Read and Reflect.

      Please read the following article and answer the questions below. You can download the article from the i-Law Database.

      • Y Baatz, ‘Should Third Parties be bound by Arbitration Clauses in Bills of Lading?’ [2015] LMCLQ 85. 
      1. Who is Baatz referring to when she refers to "third parties"? To what are they third parties?
      2. What are Baatz's views regarding whether these third parties should be bound by arbitration clauses in bills of lading?

      Task 4 - Understanding cargo disputes

      Please read the annotated copy of Lavender Ship Management v Ibrahima and Others [2020] EWHC 3462 (Comm) posted below, including the annotations in the comment boxes, and answer the following questions:

      1. Why did the claimants go to court? What were they asking the court for?
      2. Why did these issues arise? 
      3. What does this case tell you about the relationship between a bill of lading contract and a charterparty the terms of which are incorporated into the bill of lading?
      4. What does this case tell you about party autonomy?

    • Gaunt 2015 File
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    • Sturley 2016 File
      247.8 KB
    • Lavender v Ibrahima and others [2020] EWHC 3462 (Comm) - annotated copy File
      422.1 KB

  • Week 3: The Maritime Arbitration Process

    • WEEK 3 - THE MARITIME ARBITRATION PROCESS

      We will examine in detail the most important procedural provisions within the Terms of the London Maritime Arbitrators Association (applying the English Arbitration Act 1996) and the Rules of the Society of Maritime Arbitrators, New York (applying the United States Arbitration Act (Title 9 of the United States Code)). 

      You will find the following resources useful:

      Ambrose and Maxwell, Chapters 9, 10 and 12 are all relevant to this topic.

      WEEK 3 - TASKS 

      Task 1 - Read and Reflect 

      Please read the following journal article and answer the questions below.

      1. What are the criteria based on which Waincymer evaluates various sets of arbitration rules?
      2. What are his findings and conclusions in respect of the sets of rules he evaluates?
      3. To what extent do these findings apply to the LMAA Terms and the SMA-NY Rules?

      Task 2 - Explore: The LMAA - facts and figures 

      Please look at the most recent statistics on LMAA arbitration (available here) and answer the following questions:

      1. How many "appointments" did LMAA arbitrators receive during the last reported year? How does this compare to the number of "references" (i.e. disputes referred to arbitration)? What so you think is the reason for the discrepancy?
      2. How many awards were "published" (i.e. how many disputes were finally decided) by LMAA arbitrators? Why do you think is there a discrepancy between the number of disputes referred and the number of awards made?


  • Week 4: Maritime Arbitrators and Their Role


    • WEEK 4 - MARITIME ARBITRATORS AND THEIR ROLE: 

      THE DUTIES OF ARBITRATORS: DUE PROCESS AND EFFICIENCY;

      THE IMPORTANCE OF EXPERTISE



      We will discuss the duties of arbitrators and the challenges of balancing the need to give each party a fair opportunity to putting their case while at the same time avoiding unnecessary delay and expense. These duties can be hard to reconcile.

      We will also discuss the importance to arbitrators of two types of expertise in carrying out their duties: first expertise regarding the subject-matter of the claim and second, expertise in undertaking the arbitral process. We will explore how maritime arbitration panels are formed and the considerations underlying choice of arbitrators.


      WEEK 4 - Tasks


      Task 1 - Read and Reflect: Impartiality

      • Chapter 11 of Ambrose and Maxwell
      • L J E Timmer, ‘The quality, independence and impartiality of the arbitrator in international commercial arbitration’ (2012) Arbitration 348

      Task 2 - Selecting Arbitrators

      Read the following:

      Do either of these two arbitration clause models impose any requirements that might trigger the application of s 24(1)(b) of the Arbitration Act 1996?


      Task 3 - Explore: London Maritime Arbitrators

      Please look through the CVs of the Full Members of the LMAA published online here and prepare some notes on the following:

      • Identity diversity (age, gender, race)
      • Disciplinary diversity (professional background and experience)

      You should also look at the requirements for full membership available here. Might these requirements explain some of the observations you made in the first part of the exercise?

  • Week 5: How does a maritime arbitration tribunal decide? Use of facts and of substantive law in reaching a decision

    • WEEK 5 - Use of facts and substantive law in reaching a decision

      This week we will be exploring how maritime arbitration tribunals use facts and substantive law in reaching a decision. As we have already seen, it is rare that a dispute will turn on a point of law and they much more often turn on the facts, so that once the facts have been established it is straightforward to apply the law so as to reach an outcome. However, determining the facts is often a complex exercise involving the examination of voluminous documentation, including, often, expert evidence. While hearings are not frequent, they may be needed in order to hear oral evidence and so that witnesses (including expert witnesses) may be cross-examined. 

       

      WEEK 5 TASKS

      Prior to class you should read the following cases which provide very good illustrations of the potential importance of evidentiary issues in maritime disputes:

      • The Kalisti [2014] EWHC 2397 (Comm)
      • The Pamphilos [2002] EWHC 2292 (Comm)

      Please make a note of the way in which arbitrators approached evidentiary questions in these cases. In particular:

      1. What was the consequence of failing to comply with the Tribunal's request to make full disclosure in the Kalisti?
      2. What was the basis of the arbitrators' decision that withheld hire was payable to the shipowner in the Pamphilos? [Note: a time charterer is contractually permitted to withhold hire for periods when the ship is deemed to be "off-hire" unable to perform the service immediately required of her. The cause of this inability may be relevant depending on the wording  of the off-hire clause.]


      Further Reading

      • J Risse, ‘Ten Drastic Proposals for Saving Time and Costs in Arbitral Proceedings’ (2013) 29 Arbitration International 453
      • J Waincymer, ‘International Arbitration and the Duty to Know the Law’ (2011) 28 Journal of International Arbitration 201



  • Week 6 - Study Week

    Reading Week Exercises

    Task 1 - Quiz on the Maritime Arbitral Process 

    You should go over your slides and lecture materials for weeks 3, 4 and 5 and then undertake the Quiz which will be posted below.


    Task 2 - Researching Maritime Arbitral Awards.

    Please find the paragraph within the LMAA Terms that provides for the publication of awards. In what circumstances are awards published?

    Please do a search following the steps below and find out how many arbitral awards made under LMAA Terms were published in 2024.  

    To search publicized awards made under LMAA Terms:

    • Log into i-Law Maritime (IALS Library resources).
    • Click on "All Publications" in the left-hand menu.
    • Select "Lloyd's Maritime Law Newsletter" from the list
    • Use the search box at the top to look up arbitration awards, leaving the menu option to the right of the search box as "This publication". You can use the search term "London Arbitration".

    From a brief look through these published awards, how do they compare to published case reports? In particular:

    1. What do they tell you about the identity of the disputants, counsel or the adjudicator(s)?
    2. What do they tell you about the issues in dispute?
    3. How detailed is the reasoning?
    4. How detailed is the analysis of the law?
    5. Compare the number of awards published in the newsletter with the number of awards "published" by arbitrators to the parties, i.e. made (available in the LMAA statistics you looked at last week).  What are your thoughts about the discrepancy?

    • No regular teaching will take place during this week.

    • Quiz: The Maritime Arbitral Process

      You should undertake this Quiz after revising your slides and lecture notes for weeks 3, 4, and 5. 

  • Week 7: Challenging and appealing awards: the losing party’s remedies


    • WEEK 7 - CHALLENGING AWARDS

      We will be looking at the routes towards challenging an award under the Arbitration Act 1996 and the Federal Arbitration Act. There are two main routes under the AA 1996. An award can be challenged for lack of jurisdiction under s 67 or for a serious irregularity under s 68. Broadly similar grounds of challenge exist under the FAA, although they are narrower in scope.


      APPEALING AWARDS

      We will be discussing the circumstances in which an appeal lies from an arbitral award on a point of law. Under English law it is possible to appeal to the courts on the basis that a dispute was wrongly decided by the arbitrators, unless the parties to the arbitral agreement opt out. This possibility is unique to English law. While Hong Kong law does provide for the possibility of appeal, this only applies on an opt-in rather than an opt-out basis. We shall be discussing the importance of this feature of English law during the lecture, focusing on the circumstances when an appeal might be allowed.


      WEEK 7 TASKS

      Task 1 - Read and Reflect: challenging awards 

      Please read Primera Maritime (Hellas) Ltd v Jiangsu Eastern Heavy Industry Co Ltd [2013] EWHC 3066 (Comm)and answer the questions below:

      1. On what basis did the applicants attempt to challenge the tribunal's decision? What was  the alleged "serious irregularity" in this case?
      2. Why did Flaux J refuse the application?


      Task 2 - Application for leave to appeal 

      Please familiarise with the following materials:

      You will be set an exercise involving these materials during the webinar. The exercise will be assessed in Week 10.

      Chapter 22 of Ambrose and Maxwell's book is relevant to this week's discussions.

      Task 3 - Appeals under s 69 

      Please read the annotated copy of CVLC Three Carrier Corp v Arab Maritime Petroleum Transport Company [2021] EWHC 551 (Comm) posted below, including the annotations in the comment boxes. You should prepare answers to the questions in the comment boxes which are underlined. You should also prepare an answer to the question below:

      How does the guarantee in this case compare to the LoU given in the Lavender Ship Management case discussed in the interactive tutorial session of 22nd February 2021?



    • Introduction to Topic 7: Challenging and Appealing Awards File
      13.6 KB
    • CVLC Three Carrier Corp v Arab Maritime Petroleum Transport Company [2021] EWHC 551 (Comm) - Annotated File
      343.1 KB

  • Week 7: Preparation for Workshop on Procedure (week 10)

    Following this week's class, you should start preparing for the Workshop on procedure taking place in Week 10. 

    Exercise A 

    You will be divided into two groups. Each group will be asked to prepare a s 69(2)(b) application for leave to appeal from an arbitration award. Your applications will be assessed by a guest lecturer who will give you feedback in class in Week 10. This is a non-credit-bearing exercise, but a very useful practical way of understanding the s 69 process. 


    Exercises B and C

    These exercises are intended to help you familiarise with the complexities involved in challenging an arbitral award, especially in light of the recent recommendations for reform to the arbitration Act. (See here for current status of Amendment Bill). Each group will be asked to prepare a presentation of the answer to each exercise and nominate a representative to present the answer in class. Feedback will be provided in class.

  • Week 8: Privacy of Proceedings and Confidentiality of Awards

    • WEEK 8 - privacy of proceedings and confidentiality of awards in maritime arbitration.

      Prof. Sir Bernard Rix will cover privacy and confidentiality in maritime arbitration. Privacy of proceedings is, for good reason, highly valued in maritime arbitration. It prevents commercially sensitive information from making it into the public domain and ensures that details of the commercial relationship remain known only to the parties. There is some debate however whether this notion should extend to arbitral awards, in particular those awards where widely used contractual clauses are analysed and interpreted or where market practices and usages are articulated by the tribunal in construing the contract.

        

      WEEK 8 TASKS

      Please read Halliburton v Chubb [2020] UKSC 48, [82]-[105] and answer the questions below.

      1. What is the legal source of the duty of confidentiality in English arbitration law?
      2. Who is bound by this duty?
      3. What is the relationship between the duty of confidentiality and the arbitrator's duty under s 33 of the AA 1996? Does practice and usage (or "common understanding") have a role in answering this question? If so, what is it?


  • Week 9: Enforcing awards: the New York Convention, the peculiarities of the shipping world and the interaction of courts and arbitration tribunals


    • WEEK 9 Enforcing Awards

      We will discuss the challenges of enforcing awards and the issues surrounding the need to obtain security for the claim that arises specifically in the maritime field. The proceedings for obtaining security often run alongside the arbitral proceedings on the merits of the dispute, sometimes leading to additional issues questions regarding whether the parallel proceedings for obtaining security breach the arbitration agreement.



      Tasks Week 9


      Task 1 - Enforcing awards.

      In preparation for this lecture please read The New York Convention 1958.

      Ambrose and Maxwell Chapters 17, 18 and 23 are relevant to this topic.





    • Zoom Webinar: Interactive Tutorial Session of 29.04.2021 at 13.30-15.00 URL

      Please use this link to join the webinar. The waiting room has been disabled.

      Meeting ID: 846 7637 3122

      Passcode: 176717


    • Slides Topic 9 - Enforcing Maritime Arbitral Awards - 2021 File
      291.9 KB
    • Slides Topic 10 - Role of Arbitration in the Continued Development of Shipping Law - 2020 File
      581.8 KB

  • Week 10: Workshop on Procedure (2 hours); The continued development of shipping law and the role of arbitration (1 hour)


    We shall be covering the final topic for this module which is the role of arbitration in the continued development of shipping law.

    Task

    Please read the following case:

    The Aconagua Bay [2018] EWHC 654 (Comm)

    Further Reading

    • M Goldby ‘Enforceability of Spontaneous Law in England: Some Evidence from Recent Shipping Cases’ in M Goldby and L Mistelis (eds), The Role of Arbitration in Shipping Law 
    • M Davies, ‘More Lawyers but Less Law: Maritime Arbitration in the 21st c.’ (2010) 24 Austl. & N.Z. Mar. L.J. 13


  • Week 11: Sum Up and Exam Revision


    • WEEK 11 - WEBINAR OF 08.03.2021 AT 14.00-15.00

      Sum up and Exam Revision.

       

      WEEK 11 TASKS

      In the session of 07.04.2021 we will be doing a brief overview of all the topics covered during this module and I'll be giving you some tips for preparation.


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