Статья посвящена морскому арбитражу, в частности и особенности арбитражу ЛМАА. Действительно, почему стороны спора выбирают арбитражную, а не судебную процедуру рассмотрения и разрешения его? Почему именно ЛМАА? Как возбудить арбитражный процесс? На эти вопросы содержатся весьма содержательные ответы в настоящей публикации, которая представляет собой только первую из трех частей.
Why arbitration
From at least the last quarter of the 19th century brokers on the Baltic Exchange (where a great many if not most of the world’s charterparties were at that time negotiated) began to increasingly negotiate charterparties providing for dispute to be resolved by arbitration in London according to English law.
The tendency towards London arbitration is exemplified more generally by the strong growth of Lloyd’s Open Form salvage arbitration after World War II and the marked growth at the same time of dedicated institutional commodity arbitration schemes run by the various well known London commodity associations. It also became a common feature of many large-scale construction and engineering contracts. Oddly it never took off in London insurance contracts; e.g. Lloyd’s hull or cargo cover, save for re-insurance where it has become almost universally accepted!
Baltic Exchange arbitrations were for many years often very informal indeed and conducted by the brokers themselves on behalf of their respective principals without involvement of lawyers. The arbitrator was a ship broker practising on the Baltic and selected by the parties as having the appropriate expertise to decide the case.
The award was often short and without reasons but the process was regarded as a great deal better than litigation, as it then was, before the High Court in London. Of course, as is the way of things, inevitably as time went, and certainly as the 1960’s were seen out, the references became more complex. Above all, as always tends to happen in this sort of situation, and for better and worse depending in your interest and point of view, lawyers came to be increasingly involved in the references and to a substantial extent dominate the approach to matters.
The Baltic Exchange lost its predominant influence in the 1980’s. All the same English law and London arbitration remained, and still remains, a popular choice of governing law and forum for those concluding charterparty contracts for whatever reason and whether by default and for want of anything better, or for one or more of its particular attributes, or rather perceived attributes.
It is worth observing however that with liner bills of lading (where the predominance of English shipping was never quite as great as in the bulk/tramp charter market – most developed countries exporting finished goods had their own liner companies which issued bills subject to their own local law) the idea of English law, let alone arbitration, never took hold in the same way and indeed even to this day those liner bills of lading which are made subject to English law do not usually contain an arbitration clause.
However in the in the bulk trades where bills of lading are frequently issued by charterers under time charters it is common for the charterparty to stipulate that the bills of lading should incorporate a similar law and arbitration clause to that in the charterparty and the manner of incorporation, and the words necessary in the bill of lading to give effect to it, have given rise to a considerable and rather complex body case law.
The number of such salvage arbitrations is now much less than it used to be for a variety of commercial reasons. However a significant number of international arbitrations are held each year in London; often before LMAA members and according to LMAA Rules, which are neither strictly shipping cases or institutional commodity arbitrations. In particular this is true of many international oil trading and storage contract disputes where choice of London arbitration and English law is quite popular. Shipbuilding contracts are another example of contracts which are often expressly made subject to a English law and London arbitration; even though of course the majority of new buildings now emanate from Far Eastern yards. LMAA members also sometimes arbitrate in ICC and other forms of international trade arbitration.
The LMAA
The London Maritime Arbitrators Association (LMAA) is, as its name implies, an association of maritime arbitrators practising in London. It exists to promote and support London maritime arbitration in various ways. As such it is a trade association seeking to promote the interests of its members and it does not (unlike, for example, the Chambre Arbitrale Maritime in Paris, or the ICC International Court of Arbitration) administer or supervise the conduct of arbitrations; the tribunals involved administer and conduct the arbitration entirely themselves. Nor does it award any professional qualification or exercise any regulatory or disciplinary functions over its members or otherwise hold itself act as having any public or professional function.
Occasionally, however, the LMAA (or, more usually, the President for the time being) will appoint arbitrators, when an arbitration agreement provides for it to do so or when parties specially agree that it should as they might do for example where the contract provides for arbitration in London but does not make provision for each party to appoint its own arbitrator and the parties cannot agree on who should be a sole arbitrator.
The LMAA usually has between 40 and 50 full members, as well as a number of retired members. It also maintains a large category of Supporting Membership usually comprising of some 700 or more individuals. Full members of the LMAA are those arbitrators practising maritime arbitration in London full time who have satisfied the LMAA Committee that they are and have been working as arbitrators and are capable of properly conducting themselves as arbitrators, writing awards, and so on.
Members, whether Full or Supporting, come from many backgrounds: they may be and are former shipbrokers, owners, charterers, operators, consultants, surveyors, mariners, P&I Club executives, lawyers and judges. Those who still have a practice at the bar or as a solicitor cannot be Full Members of the LMAA. Nevertheless as supporting members they can, and often do, take up appointments as arbitrators under LMAA rules; in many cases without ever becoming Full Members. Where an arbitration clause in the contract requires an arbitrator to be a member of the LMAA, as some clauses do, then Supporting Membership is adequate to fulfil the requirement of the courts unless that is, unusually, the clause specifically provides that the appointee must be a Full Member.
The LMAA itself also publishes a great deal of useful material on developments in shipping law and serves to provide a number of other very useful and convenient services including publication of interest rate tables and a very useful handbook.
The LMAA Terms are the terms on which LMAA members usually accept arbitration appointments. Where the members of the tribunal accept the appointment on such terms they therefore apply to and govern the procedure adopted in the arbitration reference. The Terms are revised from time to time and the current version is the LMAA Terms (2006).
The LMAA has also instituted other terms, namely the Intermediate Terms, the Small Claims Procedure (SCP) and the Fast and Low Cost Arbitration (FALCA), as well as Mediation Terms, which together offer a wide range of choice for the resolution of disputes.
BIMCO and the LMAA have published a so-called Model Arbitration Clause. However many charterparties simply stipulate for arbitration in London according to English law or something of that sort. In practice, and whether or not the contract actually provides for arbitration according to LMAA Rules, the parties in making their choice of arbitrator will usually appoint an LMAA member who will in turn accept appointment on LMAA terms so that in reality probably very few, if any, maritime arbitrations in London are conducted on any other terms.
However there is no obligation even on LMAA for members to accept appointments only on LMAA terms and indeed in some cases the terms may be varied by an ad hoc agreement as to the particular procedure in the reference made between the parties themselves for one reason or another.
Starting the Arbitration
A party wishing to commence an arbitration should first carefully consider the terms of the arbitration clause in the contract and especially any requirements as to the composition of the tribunal (e.g. sole arbitrator or three arbitrators or, unusually nowadays, two arbitrators and an umpire), and any specific qualification that the arbitrator or arbitrators must possess by the terms of the clause; e.g. any requirement that they be ‘commercial men’, ‘members of The Baltic Exchange’ or ‘members of the LMAA’.
However even these stipulations are matters which can be varied by the agreement of the parties if they wish and indeed if no objection is taken by the opposing party reasonably promptly to the absence of the any specified qualification on the part of an appointee, that party may in time lose the right to complain; see s.73 of the Arbitration Act 1996. In practise of course these points only ever becomes significant if it is too late to rectify an error by reason of an intervening time bar.
Attention must also be given to any time limitation for commencement of the reference, either by the terms of the arbitration clause itself or perhaps by some other term of the contract or indeed for that matter of course to any limitation period applicable as a matter of the general law i.e. say the six year time limit for contractual claims applicable under the English Limitation Acts. Extensions of time by the courts can be given only in exceptional cases.
The arbitration clause will very commonly require that each party shall appoint its own arbitrator (the so-called two ‘original arbitrators’), with provision for the appointment thereafter either of an umpire or a third arbitrator – such appointment being necessary only if an oral hearing is required, or if the original arbitrators disagree in a documents only reference.
The appointment of an ‘original arbitrator’, in order to be validly effected requires strict observance of the following three essential formalities. The arbitrator must have been offered the appointment, he must have signified his acceptance of the appointment and then the appointment and identity of the arbitrator so appointed must have been communicated to the other party.
If the arbitration clause calls for the appointment of a sole arbitrator (a provision which will be implied if the arbitration clause does not specify how the tribunal is to be constituted) and the parties cannot agree upon the identity of the person to be appointed, then they must either agree (in writing) to vary the clause to require three arbitrators or two arbitrators and an umpire. Otherwise it will be necessary to apply to the High Court for a judge to appoint the sole arbitrator.
It is usual when appointing the arbitrator to appoint him in respect of all disputes arising at that stage or henceforth in relation to the contract under which the dispute arise (e.g. the charterparty) to ensure that the appointment is of sufficient breadth to cover all possible areas of dispute.
Автор: Paul Bugden (Bugden + Co.)
Источник: http://www.forwarderlaw.com/library/view.php?article_id=799