The Effect of the Arbitration Clause
Incorporated in a Bill of Lading to Third
Persons
Pinar Akan
Abstract The validity of the arbitration clause in a bill of lading (liner and/or
charterparty bills of lading) under Turkish law governed by various Acts. Conditions
for the validity of foreign arbitration agreements are; (1) The arbitration agreement
shall be in writing. (2) The parties to the arbitration agreement shall be competent.
(3) The arbitration agreement shall be valid under the law, which the parties have
chosen. The condition for the arbitration agreement to be in writing can be achieved
in two ways. One of them is insertion of the arbitration clause among other existing
terms and conditions of the bill of lading and the other way is incorporation to a
charterparty provided that a copy of the charterparty is handed over to the holder of
the bill of lading. Due to the following reasons those terms and conditions, including
arbitration clause, either inserted or incorporated properly are exempted from the
examination brought by the Art. 20 of Turkish Code of Obligations; (1) By virtue
of a bill of lading having the characteristics of negotiable instruments, (2) The
infeasibility of examination of generalized transaction terms in contracts between
merchants, (3) Freedom of contract and the principle of diligent businessman
in commercial law, (4) Article 55/1 of Turkish Commercial Code and the issue
of constituting unfair competition already regulated, (5) The privity of practical
commercial and customary application compared to Turkish Code of Obligations,
(6) The effect of the compulsory provisions regarding maritime law under Turkish
Commercial Code.
1 Introduction
This chapter covers my legal assessment regarding whether or not the arbitration
clause in a bill of lading is valid against third party holders in Turkey. In my opinion,
the issue of validity of the arbitration clause in a bill of lading, which is a document of
title, receipt and evidence for the contract of carriage, be it either liner or charter party,
three separate but closely connected areas should be taken into consideration;
P. Akan (*)
Maritime Law Department, Marmara University, Faculty of Law, Istanbul, Turkey
© Springer Nature Switzerland AG 2020
P. K. Mukherjee et al. (eds.), Maritime Law in Motion, WMU Studies in Maritime
Affairs 8, https://doi.org/10.1007/978-3-030-31749-2_1
1
Incorporated in a Bill of Lading to Third
Persons
Pinar Akan
Abstract The validity of the arbitration clause in a bill of lading (liner and/or
charterparty bills of lading) under Turkish law governed by various Acts. Conditions
for the validity of foreign arbitration agreements are; (1) The arbitration agreement
shall be in writing. (2) The parties to the arbitration agreement shall be competent.
(3) The arbitration agreement shall be valid under the law, which the parties have
chosen. The condition for the arbitration agreement to be in writing can be achieved
in two ways. One of them is insertion of the arbitration clause among other existing
terms and conditions of the bill of lading and the other way is incorporation to a
charterparty provided that a copy of the charterparty is handed over to the holder of
the bill of lading. Due to the following reasons those terms and conditions, including
arbitration clause, either inserted or incorporated properly are exempted from the
examination brought by the Art. 20 of Turkish Code of Obligations; (1) By virtue
of a bill of lading having the characteristics of negotiable instruments, (2) The
infeasibility of examination of generalized transaction terms in contracts between
merchants, (3) Freedom of contract and the principle of diligent businessman
in commercial law, (4) Article 55/1 of Turkish Commercial Code and the issue
of constituting unfair competition already regulated, (5) The privity of practical
commercial and customary application compared to Turkish Code of Obligations,
(6) The effect of the compulsory provisions regarding maritime law under Turkish
Commercial Code.
1 Introduction
This chapter covers my legal assessment regarding whether or not the arbitration
clause in a bill of lading is valid against third party holders in Turkey. In my opinion,
the issue of validity of the arbitration clause in a bill of lading, which is a document of
title, receipt and evidence for the contract of carriage, be it either liner or charter party,
three separate but closely connected areas should be taken into consideration;
P. Akan (*)
Maritime Law Department, Marmara University, Faculty of Law, Istanbul, Turkey
© Springer Nature Switzerland AG 2020
P. K. Mukherjee et al. (eds.), Maritime Law in Motion, WMU Studies in Maritime
Affairs 8, https://doi.org/10.1007/978-3-030-31749-2_1
1