Pitfalls in Negotiating and Drafting Arbitration Clauses in Transport Matters

Pitfalls in Negotiating and Drafting Arbitration Clauses in Transport Matters

Professor Dr. Eckart BrödermannHamburg 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

3rd DIS Baltic Arbitration Days 2014, Riga, Latvia

3rd DIS Baltic Arbitration Days 2014 | 26 - 27 June 2014 |

Upfront: The Advantages of Arbitration …

2

… as compared to litigation

… as compared to litigation

… are taken for granted in this audience

… are taken for granted in this audience


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

General problemswith an industry “painting”,

Focus on the method

General problemswith an industry “painting”,

Focus on the method


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


Starting Point: Drafting and Risk Management Perspective

5

WTO & Regional (e.g. EU) &Constitutional Freedom

WTO & Regional (e.g. EU) &Constitutional Freedom

Rights of other citizens

and companies, costs

Rights of other citizens

and companies, costs

Limits of mandatory law

(e.g. Art. 33 CMR)

Limits of mandatory law

(e.g. Art. 33 CMR)Freedom of ContractFreedom of Contract


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


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



MSC Flaminia

People (Handling error?)


Project (Technical problem?)


Economic & Financial IssuesEconomic & Financial Issues

Operational Issues (not enough fire fighting devices?)


Cultural Issues(misunderstandings)





MSC Flaminia





Economic & Financial IssuesEconomic & Financial Issues





Focus on Legal Risks:Risk Discovery, Legal Culture,

in the context of arbitrationclauses

Focus on Legal Risks:Risk Discovery, Legal Culture,

in the context of arbitrationclauses




II: General Legal Risks➡ Mandatory law (e.g. re anti-pollution, hazardous goods, dual use goods)➡ Substantive and procedural risks➡ Risks of enforcement of judgements /awards abroad

MOL Comfort



MOL Comfort

Risk of Dispute:

Arbitration clauses(still by far in the minority

of transportation contracts)

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 use goods)➡ Substantive and procedural risks➡ Risks of enforcement of judgements /awards abroad


Award or

Judgment

Goal: $

Post Hearing Brief

Oral HearingsRebuttalAnalysis of

RespondentsAnswer

Decision on Strategy

Statement of Claim

Recourse? Recourse?

Case I

Case II (e.g. insurance, sandwich-positions), sometimes III

Settlement Negotiations

Challenge of an Award / Appeal?

Challenge of an Award / Appeal? Enforcement

Enforcement

Discovering the Risk of Arbitration: Overview


Awardor

Judgment

Goal: $

Recourse? Recourse?

Post Hearing Brief


RespondentsAnswer


Statement of Claim

Case I



Choice of arbitrationinstitution

European Law

Private Inter- national Law

ComparativeConflicts of

law

Procedure/Service

ComparativeRules of Evidence

International Public Law

Institutional versus ad hoc

arbitration

Litigation versus

Arbitration ComparativeLaw

MandatoryLaw re

Substance

Substantive Law

EnforcementEnforcement

The Risk of Arbitration II



InterpleadingMandatoryTransport arbitration

Law

Scouting theright sources

of law


Award

orJudgment

Goal: $

Recourse? Recourse?

Post Hearing Brief


RespondentsAnswer


Statement of Claim

Case I



ProjectManagement

QualityManagement

Know HowManagement

Cost Controlling

Coordinationof Invoicing

Cost estimation

Budget

AnalysisBackground

of Arbitrators

Research of Facts

Controllingof Facts

Liaison with Client


The Risk of Arbitration III




European Law



law

Procedure/Service



Institutional versus ad

hoc arbitration

Litigation versus

Arbitration

ComparativeLaw

MandatoryLaw

Substantive Law


Award

orJudgment

Goal: $

Recourse? Recourse?

Post Hearing Brief


RespondentsAnswer


Statement of Claim

Case I



ProjectManagement

QualityManagement

Know HowManagement

Cost Controlling

Coordinationof Invoicing

Cost estimation

Budget

AnalysisBackground

of Arbitrators

Research of Facts

Controllingof Facts

Liaison with Client


The Risk of Arbitration IV




European Law



law

Procedure/Service



Institutional versus ad

hoc arbitration

Litigation versus

Arbitration

ComparativeLaw

MandatoryLaw

Substantive Law

.. and sometimes similar problems again

on the enforcement level (COTIF, NYC)

.. and sometimes similar problems again

on the enforcement level (COTIF, NYC)



European Law



law

Procedure/Service




arbitration

Litigation versus


MandatoryLaw re

Substance

Substantive Law

Discovering the Risk of Arbitration Clauses


Law


of law



European Law



law

Procedure/Service




arbitration

Litigation versus


MandatoryLaw re

Substance

Substantive Law



Law


of lawLegal 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



European Law



law

Procedure/Service




arbitration

Litigation versus


MandatoryLaw re

Substance

Substantive Law



Law




Research of applicable sources of lawInternational 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



European Law



law

Procedure/Service




arbitration

Litigation versus


MandatoryLaw re

Substance

Substantive Law



Law




Research of applicable sources of lawInternational 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


Transportation Sector Specific Perspective

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



I. Mandatory International Arbitration Law: ”Road”

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.”

Convention on the Contract for the International Carriage of Goods by Road (CMR), 1956/78

e.g. limitation of liability,Art. 23 para. 3

e.g. limitation of liability,Art. 23 para. 3


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 ….”

Mandatory International Arbitration Law: ”Rail” Convention concerning International Carriage by Rail (COTIF)



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 thearbitrator 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.”




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. The arbitrators 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, unless both are of the same nationality.

§ 4 The intervention of a third party in the dispute shall not affect the composition of the Arbitration Tribunal.”



Arbitration, Art. 28-32Article 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.”



Arbitration, Art. 28-32Article 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 of the 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)

Priority over NYC(Art. VII (1) NYC)


Mandatory International Arbitration Law: ”Air”

Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw 1929)

➡ Limitation of liability, Art. 22

➡ Arbitration, Art. 32

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





“Any clause contained in the contract and all special agreements entered into

before the damage occurred by 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.”

Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw 1929)




“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

destination3. 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.”

Convention for the Unification of Certain Rules for International Carriage by Air (Montreal 1999)


Mandatory International Arbitration Law: ”Sea”

Hague-Visby Rules

➡ Limitation of liability, Art. IV para. 5, Art. IV bis ➡ No regulation on arbitration

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) Surplusmaterial

Surplusmaterial




“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 arbitration and 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 lawwhere applicable

Priority over national lawwhere applicable



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)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 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 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 everyArbitration clause or agreement, and any term of such clause or agreementwhich is inconsistent therewith is null and void.





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.”



Mandatory International Arbitration Law: ”Multi-Modal”

United Nations Convention on International Multimodal Transport of Goods

➡ Limitation of liability➡ Multimodal Transport Operator, Art. 18, 21


Status: not in force (6 of 30 signatories)Surplus

materialSurplus

material


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 x x x x x x Requiring Application of the Convention (incl. rules on liability-limitation)

➡ x x x x partial x Form of the arbitration clause

➡ x x x x Place of the arbitration

➡ x x x x x x Further details (e.g. appointments, reasons in award, costs, finality)

➡ x Enforcement

➡ x


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)

+ II. General Legal Risks of Arbitration Clause Drafting(and: risks in case that treaty n/a; transportation: pipeline, data, space)I


+ 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


+ 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)



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)



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



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


Conclusion: Avoiding Pitfalls of Drafting Arbitration Clauses for (international) Transportation Contracts

Part of a Necessary Risk Management Process

Growing Mandatory Arbitration Law for the “Classical Transportation” methods

+ All the “Classical Int’l. Arbitration” risks➡ with relevant industry mind-sets

MSC Napoli


Conclusion: Avoiding Pitfalls of Drafting Arbitration Clauses for (international) Transportation Contracts

Part of a Necessary Risk Management Process

Growing Mandatory Arbitration Law for the “Classical Transportation” methods

+ All the “Classical Int’l. Arbitration” risks➡ with relevant industry mind-sets

MSC Napoli

with constant changes

and developments in different jurisdictions

e.g. in Germany,to be discussed tomorrow

with constant changes

and developments in different jurisdictions

e.g. in Germany,to be discussed tomorrow

Thank you very much

Prof. Dr. Eckart BrödermannHamburg 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 GmbHNeuer Wall 7120354 Hamburg, Germany

www.german-law.com



Arbitration, Art. 75 et seq. (Chapter 15, if declared as applicable: 78, 91)

Art. 75“Arbitration agreements1. 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 of receipt 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.…

United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (Rotterdam Rules: not in force) Surplus

materialSurplus

material




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:

(a)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.


materialSurplus

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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.”


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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.”


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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.”


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Arbitration, Art. 27“Arbitration1. Subject to the provisions of this article, parties may provide by agreement evidenced in

writing 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)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.

United Nations Convention on International Multimodal Transport of Goods: Not in force Surplus

materialSurplus

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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.

5. Nothing in this article shall affect the validity of an agreement on arbitration made by the parties after the claim relating to the international multimodal transport has arisen.”

United Nations Convention on International Multimodal Transport of Goods : Not in force Surplus

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Pitfalls in Negotiating and Drafting Arbitration Clauses in Transport Matters

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