Characterising the Action In Rem in Australia and the Implications on International Commercial Arbitration

摘要

The fiction of the ship as defendant, as was accepted in the pre-judicature system, is again useful to a degree. It allows the judicial compulsion of international commercial arbitration by an aggrieved party without ever technically litigating against the other party and technically not breaching the agreement containing the arbitration clause. This is opposed to the prevailing approach in the UK where a procedural formulation has prevailed.