This Blog is the second and concluding part of the earlier Blog under the heading: A Look At Dispute Resolution Under International Maritime Law (Maritime disputes under public international law)
Part Two – Maritime Disputes Under Private International Law
This area of the law involves non-state actors conducting business across jurisdictions or countries, commonly referred to as international commercial law. Traditionally, disputes falling within this domain are at the behest of contracts/agreements between natural or legal persons, who are nationals of different countries. When such disputes are referred to national courts for settlement, the courts determine the matter according to their national laws, subject to the principles of conflict of laws. This invariably means that the party to the agreement/contract most closely connected to the nationality of that court gains an advantage over the other party, more often than not, raising concerns regarding neutrality of the national courts.
In this regard, companies/ individuals frequently include international arbitration agreements/clauses in their commercial contracts with businesses located in other jurisdictions. This ensures that by their agreement if a dispute occurs, they would be under an obligation to go before neutral arbitrators rather than litigate before a national court.
Disputes falling under this category, commonly referred to as international commercial law, come under different subject areas such as construction law, international trade/commercial law and international maritime law, where contentious matters relating to shipping, charter parties, bills of lading, sale of goods and commodities, amongst others, form the subject matter of disputes.
Maritime arbitration is a recognised branch of dispute resolution under private international law. Most arbitral institutions such as the LCIA and ICC, amongst others, provide for the resolution of maritime disputes under their rules generally. However, the London Maritime Arbitrators Association (LMAA) is a specialist adhoc arbitral institution which addresses maritime disputes. The LMAA Rules which are widely used in the resolution of maritime disputes include the LMAA Terms 2017, the LMAA Intermediate Rules 2017 and the LMAA Small Claims Rules 2017. These Rules are generally designed to ensure a speedier resolution of maritime disputes, taking cognisance of the specialist nature of the maritime industry. The International Arbitration Statistics Report published in 2018 indicates that the LMAA Rules are used in the highest number of maritime arbitrations. Indeed, maritime matters that go before arbitration come under the rubric of diverse activities relating to maritime issues. These include the financing, building, sale and acquisition of ships; the deployment of ships; the carriage of goods by sea; the insurance of ships, cargo and other marine adventures and also other contractual relationships arising from the use of ships, as for instance demurrage and salvage. Recent blockades in the Suez Canal and congestion at various ports creating attendant delays and huge backlogs in the delivery of goods to countries, are a recipe for a rise in maritime arbitrations.
In conclusion, it is worth noting that the law of the sea traverses the public and private domains of international law. This is due to the fact that public international law gradually fuses into the national legal system in ways which affect individuals on a number of issues such as safety, navigation, environmental protection, conservation and exploitation of resources, to name but a few. Furthermore, the activities of oil companies tend to be closely related to delimitations of maritime zones, as for instance, the interest of Tullow Oil in the Ghana / Côte d’Ivoire ITLOS case. In the same vein, fishing fleets have been a major issue of concern relating to fishing rights in the U.K./ EU Brexit negotiations. These contentious issues are generally rights and obligations falling within the Exclusive Economic Zone (EEZ). In effect, private activity (falling under the domain of private international law or even domestic law) is quite often, the catalyst for maritime conflicts between States, under public international law.
© 27/9/2021 Ellen Bannerman-Quist FCIArb
This Blog is for general information only and not intended for the use of readers to rely upon as legal advice. Therefore, readers with specific issues relating to the subject matter are advised to contact Bannerman-Quist Legal Consult& Notary directly for any relevant legal advice.