Overruling Sky Reefer in the International Arena: A Preliminary Assessment of Forum Selection and Arbitration Clauses in the New UNCITRAL Transport Law Convention

摘要

Forum selection clauses in contracts for the carriage of goods by sea endured an uneven history in U.S. law during the twentieth century. As the century opened, it was well-established as a matter of general law that "agreements in advance to oust the courts of the jurisdiction conferred by law are illegal and void." Thus forum selection clauses in carriage contracts were disfavored along with all other forum selection clauses. By mid-century, however, a more receptive attitude had begun to develop. And in 1972, the Supreme Court, in The Bremen v. Zapata Off-Shore Co., finally reversed the long tradition and declared the general rule that forum selection clauses are presumptively valid. Despite the shift in general law, a forum selection clause in a bill of lading governed by the Carriage of Goods by Sea Act (COGSA) remained a special case. For almost the last third of the twentieth century, the U.S. courts—following Judge Friendly's lead when writing for the en banc Second Circuit in Indussa Corp. v. S.S. Ranborg—held that subsection 3(8) of COGSA invalidated all foreign forum selection clauses because they necessarily had the effect of impermissibly "lessening" a carrier's liability in a manner not permitted by the statute. Some lower courts applied the same reasoning to hold that foreign arbitration clauses were also "null and void and of no effect" under this provision.