Journal Article

Incorporating Arbitration Clauses: The Sacrifice of Consistency at the Altar of Experience

in Arbitration International

Published on behalf of The London Court of International Arbitration

Volume 30, issue 2, pages 265-282
Published in print June 2014 | ISSN: 0957-0411
Published online August 2014 | e-ISSN: 1875-8398 | DOI: https://dx.doi.org/10.1093/arbitration/30.2.265
Incorporating Arbitration Clauses: The Sacrifice of Consistency at the Altar of Experience

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This article considers the varying judicial approaches to the question of incorporation of arbitration agreements by reference to another contract, schedule of terms, or trading rules. In particular, attention is directed to the approach taken by English courts in considering whether a subsequent holder of a bill of lading is bound by an arbitration agreement contained in a charterparty. In that context, English courts required an express reference in a bill of lading to the charterparty arbitration clause before it could be regarded as part of the contract. General words purporting to incorporate the terms and conditions of a charterparty would not be sufficient. This article examines the development of this strict approach to incorporation in the maritime context, its application to contractual disputes outside that context and recent case law signalling a more flexible approach to the question based on the intention of the parties involved.

Journal Article.  9292 words. 

Subjects: Arbitration ; Company and Commercial Law ; Competition Law ; Employment and Labour Law ; Settlement of Disputes

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