El proceso de privatización de la tierra: la ley de la tierra

When the issue of validity of incorporation comes before the court of law, the judge will apply the conflict of laws of the forum.³⁰⁸ Private international laws differ from jurisdiction to juris-diction.³⁰⁹ In absence of choice of law by the parties, some of the most commonly adopted solutions are either the law of the arbitral seat which may be in a country other than that of the court, the lex fori or the law governing the contract as a whole.³¹⁰ Clearly, if a court character-izes the question of validity and interpretation of an arbitration agreement as a procedural mat-ter, it will apply the lex fori, based on the general conflict-of-law principle that the forum ap-plies only foreign substantive law, but uses its own procedural law.³¹¹ If it characterizes this question as a substantive matter, it will apply the conflict of law rules applicable to contractual matters.³¹² Also, as the courts in general are inclined to maintain jurisdiction over disputes concerning B/Ls,³¹³ it is less likely that they follow the validity principle while choosing the applicable law.

The practice of Norwegian and English courts on determining the law applicable to the validi-ty of incorporation of an arbitration clause differs.

Under English law, the substantive validity, scope and interpretation of an arbitration agree-ment is governed by: (a) the law expressly or impliedly chosen by the parties; or (b) in

308 Lew, “Albert Jan Van Den Berg (ed), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention,” p.142; Cordero-Moss, International Commercial Arbitra-tion, p.73.

309 Cordero Moss, Lectures on International Commercial Law, p.15.

310 International Council for Commercial Arbitration and Permanent Court of Arbitration, ICCA’s guide to the interpretation of the 1958 New York Convention: a handbook for judges (The Hague: International Council for Commercial Arbitration, 2011), p.51.

311 Hosking, “The Third Party Non-signatory’s Ability to Compel International Commercial Arbitration: Doing Justice Without Destroying Consent,” p.557.

312 Ibid.

313 Lanfang, “A Review of Judicial Attitudes Towards the Incorporation of Arbitration Clauses into Bills of Lad-ing in China,” pp.99-103.

sence of such choice, the law which is most closely connected with the arbitration agreement, which will in general be the law of the seat of arbitration.³¹⁴ Hence, law governing the incor-poration question under English law, is the law chosen in the charterparty, being the putative proper law of the arbitration agreement.³¹⁵ In case of failure to choose the applicable law, the law governing the validity of incorporation is the lex loci arbitri.³¹⁶

Norway does not have one codification of conflict rules.³¹⁷ The main choice of law rule under Norwegian law is a party autonomy.³¹⁸ Nevertheless, Norwegian Supreme Court practice re-veals that national requirements for formal validity of arbitration agreement were applied even in the cases where the parties have chosen different law to govern their arbitration agree-ment.³¹⁹ With respect to substantive validity of an arbitration agreement, Norwegian court is expected to apply the law chosen by the parties as the putative governing law of arbitration agreement.³²⁰

In absence of choice of law by the parties, the law governing a particular issue is the law with which it has the closest connection.³²¹ Under Norwegian law, the closest connection is

314 Dicey and Collins, Dicey, Morris and Collins on the conflict of laws., p.829.

315 Jurisdiction and Forum Selection in International Maritime Law, p.36.

316 Ambrose and Maxwell, London maritime arbitration, p.25; Blackaby, Redfern and Hunter on International Arbitration, p.169; Tweeddale, Arbitration of Commercial Disputes, p.221; Born, International Arbitration, p.56;

C v. D, EWHC 1541 (Q.B.D. 2007); Naviera Amazonica Peruana S.A. v. Compania International de Seguros del Peru, 1 Lloyd’s Rep. 116 (C.A. 1988); XL Insurance Ltd. v. Owens Corning, 2 Lloyd’s Rep. 500 (Q.B.D. 2000).

317 Cordero Moss, Lectures on International Commercial Law, p.77; Giuditta Cordero Moss, “Recent Private International Law Codifications National Report for Norway,” in Private International Law (presented at the International Academy of Comparative Law 18th International Congress of Comparative Law, Washington, 2010), p.1.

318 Cordero Moss, Lectures on International Commercial Law, p.83.

319 Flekkefjord v. Caterpillar, HR 01539 (NSC 2000); in Siig, “Arbitration agreements in a transport law perspec-tive,” p.173.

320 Jalna, ND 366 (NCA 1957); in Siig, “Arbitration agreements in a transport law perspective,” p.161.

321 Cordero Moss, Lectures on International Commercial Law, p.83; Falkanger, Scandinavian Maritime Law, p.37.

lished by evaluating various elements of the dispute and determining which elements are so important as to warrant the closest connection.³²² The rule has been laid down by the Norwe-gian Supreme Court in the Irma-Mignon case³²³ and was later slightly modified in The Leros Strength.³²⁴ In the latter case, the Norwegian Supreme Court recommended that courts choose between Norwegian and other legal systems based on what would be the most natural and fair solution. While making this assessment, the court must take into consideration the underlying policy of the Norwegian rules applied in the respective area.³²⁵ As flexible as this rule may sound, it is often criticized in the legal literature because it gives wide discretion to the judge to determine the applicable law and undermines predictability.³²⁶

Hence, when seized with the question of validity of incorporation, both Norwegian and Eng-lish courts are likely to apply the law chosen by the parties to govern the arbitration agree-ment. In absence of such choice in the charterparty, English court will most likely apply the law of the seat of arbitration to determine the validity of incorporation. By contrast, Norwe-gian court will apply the law warranting the most natural and fair solution.³²⁷ Norwegian rules implementing particular important policies will directly be applied, even through the case may have closer connection to other legal system.³²⁸ With the same token, given that the rules pro-vided in Secs.310 and 311 of the NMC seek to protect the interests of the good faith holder of

322 Cordero Moss, Lectures on International Commercial Law, p.83.

323 Irma-Mignon, ND 289 (NSC 1923); Cordero Moss, Lectures on International Commercial Law, p.83; Fal-kanger, Scandinavian Maritime Law, p.37.

324 Leros Strength, Rt. 180 (NSC 2002).

325 Leros Strength, Rt. 180 (NSC 2002); in Giuditta Cordero Moss, “The Norwegian Approach to Private Interna-tional Law - Illustrated by a Recent Supreme Court Decision on the Direct Action Against the Insurer” (2004), pp.55–68; in T.M.C. Asser Instituut, Intercontinental Cooperation Through Private International Law: Essays in Memory of Peter E. Nygh (The Hague: New York: T.M.C. Asser Press; Distributed by Cambridge University Press, 2004), p.57.

326 Cordero Moss, Lectures on International Commercial Law, p.84.

327 Cordero Moss, “The Norwegian Approach to Private International Law - Illustrated by a Recent Supreme Court Decision on the Direct Action Against the Insurer” in T.M.C. Asser Instituut, Intercontinental Cooperation Through Private International Law, p.63-64.

328 Cordero Moss, “Recent Private International Law Codifications National Report for Norway,” p.9.

the B/L, this policy consideration may warrant application of Norwegian law by Norwegian courts for determining the validity of incorporation.

5 CONCLUDING REMARKS

This study provided a comparative analysis of incorporation of charterparty arbitration clauses into B/Ls by reference under English and Norwegian laws. As highlighted above, incorpora-tion by reference raises quesincorpora-tions of the formal and substantive validity of an arbitraincorpora-tion agreement so incorporated. While arbitration clause incorporated by reference received statu-tory recognition as to the formal validity under both legal systems, its binding force vis-à-vis third parties remains subject of interpretation.

Under English law, general rule is that only specific reference in the B/L can bring a char-terparty arbitration clause into the B/L. Nevertheless, general reference to a charchar-terparty arbi-tration clause may successfully incorporate such clause only when it is worded so to make sense in the context of the B/L.

Under Norwegian law, a charterparty arbitration clause is not binding on a third party holder of the B/L unless expressly provided otherwise in the B/L. In absence of such express provi-sion, charterparty arbitration clause cannot be validly incorporated into the B/L, except when the holder was otherwise aware of existence of such clause in the charterparty. Amendments to the NMC are expected to change this attitude towards more liberal approach (Alternative A), or set even stricter requirements (Alternative B).

In principle, these two legal systems approach the issue of incorporation differently. While Norwegian law is more concerned with establishing actual or constructive notice of such clause by the holder, English law focuses on its formulation. English judge will examine whether the reference clause on the one hand, and the arbitration clause, on the other hand, are worded so as to warrant incorporation.