涉海商事仲裁的缘起及其法律结构

Preface Introduction Chapter 1 Setting the Scene of Incorporating an Arbitration Clause from a Charterparty to a Bill of Lading in Chinese Legal System 1.1 Introduction 1.2 Maritime Arbitration in China 1.3 Problems in Chinese Legal System Concerning the Incorporation of an Arbitration Clause from a Charterparty to a Bill of lading Chapter 2 Functions and Legal Nature of Bills of Lading 2.1 Introduction 2.2 Custom of Merchants 2.3 The Register Book 2.3.1 The Clerk—Officer in Charge of the Register Book 2.3.2 The Contract of Carriage Recorded in the Register Book 2.4 Copies of the Register Book and Rudimentary Forms of Bills of Lading 2.5 The Book and/or the Bill of Lading 2.6 Bills of Lading as Transferrable Documents 2.6.1 Before the Bill's Transferability BeingRecognised in English Law 2.6.2 The Leading Case Lickbarrow v Mason 2.7 The Legal Nature of Bills of Lading Under the Bills of Lading Act 1855 2.8 The Legal Nature of Bills of Lading Under the Carriage of Goods by Sea Act 1992 2.9 Conclusion Chapter 3 Traditional Legal Basis for Extending the Referred Arbitration Clause to a Holder of a Bill of Lading 3.1 Introduction 3.2 Assignment 3.2.1 The Charterparty's Arbitration Clause is Not Assigned to the Holder of a Bill ofLading 3.2.2 A Holder's Consent to the Assignment of an Obligation to Arbitration is Absent 3.2.3 An Arbitration Clause Would Be Unassignable if it is Proved as a Personal Performance 3.3 Incorporation by Reference 3.3.1 The Conflicting Judgments About Interpreting the Bill's Incorporation Clause 3.3.2 The Non-Contractual Effect Bill's Incorporation Clause Hinders the Application of the Principle of Incorporation 3.4 Third-Party Beneficiary 3.5 Conclusion Chapter 4 The New Paradigm for the Incorporation of an Arbitration Clause from a Charterparty to a Bill of Lading (Part 1) 4.1 An Overview of the New Paradigm 4.2 The New Paradigm Part I: When the Holder of a Bill of Lading Does Not Have Access to the Referred Arbitration Clause 4.3 Establishing an Independent Contractual Effect of the Bill's Incorporation Clause 4.3.1 The Practical Necessity to Regard an Incorporation Clause as a Separate Contract 4.3.2 Theoretical Support: The Principle of Separability 4.4 Parties' Consent to Arbitrate and its Legal Effecton an Incorporation 4.4.1 The Consent from a Shipowner 4.4.2 The Consent from the Holder of a Bill of Lading 4.5 The Consistency Test 4.5.1 When the Wording of the Referred Arbitration Clause Incurs Inconsistency 4.5.2 No Arbitration Clause Exists in the Referred Charterparty 4.6 The Case The Channel Ranger 4.7 The New Paradigm Part I: When the Holder of a Bill of Lading is a Third-party to the Related Charterparty Chapter 5 The New Paradigm Part II: When the Holder of aBill of Lading Has Access to the Referred Arbitration Clause 5.1 The Legal Effect of the Bill's Incorporation Clause 5.1.1 When the Holder of a Bill of Lading is an Original Party to the Referred Arbitration Clause 5.1.2 When the Related Charterparty is on aStandard Form 5.1.3 hen a Bill of Lading is on a Standard Form 5.2 The Consistency Test 5.2.1 When the Holder of a Bill of Lading is an Original Party to the Referred Arbitration 5.2.2 When a Standard Arbitration Clause Conflicts with a Bill's Incorporation Clause or When a Standard Incorporation Clause Conflicts with the Referred Arbitration Clause 5.3 The New Paradigm Part II: When One-Contract Doctrine Applied Chapter 6 The Workability of the New Paradigm: Setting the Scene in Chinese Legal System 6.1 Applying the New Paradigm to Chinese Law 6.2 Step 1: The Incorporation Clause-An Evidential Document between the Charterer and the Carrier 6.3 Step 2: The Incorporation Clause-An Independent Contract between the Shipper and the Carrier 6.3.1 The Independent Legal Status of an Incorporation Clause 6.3.2 A Valid Incorporation Clause between the Shipper and the Carrier 6.4 Step 3: The Transfer of an Incorporation Clause-An Independent Contract between the Holder of aBill of Lading and the Carrier 6.4.1 Theoretical Support 6.4.2 The Judicial Trend in China 6.5 Challenges: A Strict Interpretation of 'an Agreement in Writing 6.5.1 A Different Treatment to Clauses on the Face and the Reverse 6.5.2 A Strict Rule of Locating the Referred Charterparty 6.5.3 Distinct Requirements in Substantive Validity: Nominating an Existing Arbitration Commission is a Necessity to a Valid Arbitration Clause 6.6 Conclusion Chapter 7 The Findings: A New Paradigm Bibliography