2.3.1 Liner Bill of Lading
Arbitration clauses contained in these types of bill of lading, must be in written form.
In addition, if the validity requirements of the applicable law of the country chosen,
or if the law is not chosen, the law of the place of arbitration is satisfied, then a valid
contract is deemed to exist. In case the bill of lading is transferred, the arbitration
clause will bind both the assignee and the original holder of the bill.
2.3.2 Charterparty Bill of Lading
In these types of bills of lading, the charter parties are incorporated into the bills of
lading by an incorporation clause. In order to satisfy the condition that the arbitration
agreements should be in writing, a copy of the charter party should be handed over to
the bill of lading holder along with the bill of lading. The incorporation of the charter
party clauses along with the arbitration can be considered to be sufficient. However,
such arbitration agreement or clause is valid between the carrier and the charterer. In
the case that the bill of lading is transferred to a new holder, in order for the
arbitration clause to be valid for the new holder, a copy of the charterparty must
be submitted to the new holder in the course of transfer. (Art.1237/3 of Turkish
Commercial Code “hereinafter TCC”)
If the charterparty is submitted to the holder of the bill of lading, the arbitration
clause shall be binding for the new holder, as well. However, if the bill of lading
transferred, also contains an arbitration clause and there is contradiction between this
clause and the clause contained in the charterparty referred to, the clause in the bill of
lading will prevail. This issue is explained in more detail below.
3 Assessment in Terms of Commercial Law
3.1 Arbitration Clause Along with Other Carriage
Agreements/Bills of Lading Not Issued as a Reference
to Any Charterparties (in Container Shipping)
Container shipping, by its very legal nature, is a contract for the carriage of goods
without a need to issue a separate agreement, as all the conditions being applicable to
holders, are depicted on the reverse side of the bill of lading. The conditions in the
bill of lading become a part of it and are integrated with negotiable instruments. The
conditions being set out in the reverse side of the bill of lading, gives to that
instrument the characteristics of a contract of affreightment.
8 Moreover, merchants
8 Çağa/ Kender, Deniz Ticareti Hukuku, II, Eight Edition, 2006, pp. 16, 72.
The Effect of the Arbitration Clause Incorporated in a Bill of Lading. . .
7
Arbitration clauses contained in these types of bill of lading, must be in written form.
In addition, if the validity requirements of the applicable law of the country chosen,
or if the law is not chosen, the law of the place of arbitration is satisfied, then a valid
contract is deemed to exist. In case the bill of lading is transferred, the arbitration
clause will bind both the assignee and the original holder of the bill.
2.3.2 Charterparty Bill of Lading
In these types of bills of lading, the charter parties are incorporated into the bills of
lading by an incorporation clause. In order to satisfy the condition that the arbitration
agreements should be in writing, a copy of the charter party should be handed over to
the bill of lading holder along with the bill of lading. The incorporation of the charter
party clauses along with the arbitration can be considered to be sufficient. However,
such arbitration agreement or clause is valid between the carrier and the charterer. In
the case that the bill of lading is transferred to a new holder, in order for the
arbitration clause to be valid for the new holder, a copy of the charterparty must
be submitted to the new holder in the course of transfer. (Art.1237/3 of Turkish
Commercial Code “hereinafter TCC”)
If the charterparty is submitted to the holder of the bill of lading, the arbitration
clause shall be binding for the new holder, as well. However, if the bill of lading
transferred, also contains an arbitration clause and there is contradiction between this
clause and the clause contained in the charterparty referred to, the clause in the bill of
lading will prevail. This issue is explained in more detail below.
3 Assessment in Terms of Commercial Law
3.1 Arbitration Clause Along with Other Carriage
Agreements/Bills of Lading Not Issued as a Reference
to Any Charterparties (in Container Shipping)
Container shipping, by its very legal nature, is a contract for the carriage of goods
without a need to issue a separate agreement, as all the conditions being applicable to
holders, are depicted on the reverse side of the bill of lading. The conditions in the
bill of lading become a part of it and are integrated with negotiable instruments. The
conditions being set out in the reverse side of the bill of lading, gives to that
instrument the characteristics of a contract of affreightment.
8 Moreover, merchants
8 Çağa/ Kender, Deniz Ticareti Hukuku, II, Eight Edition, 2006, pp. 16, 72.
The Effect of the Arbitration Clause Incorporated in a Bill of Lading. . .
7