International commercial law, maritime law and dispute resolution: the place of Australia, New Zealand and the Asia Pacific region in the coming years

• Author: The Hon. Justice James L Allsop
• Position: Federal Court of Australia
• Pages: 1-16

Address to the 33rd Annual MLAANZ Confe rence

SYDNEY

28 SEPTEMBER 2006

Frank Stuart Dethridge Memorial Addre ss

INTERNATIONAL COMMERCIAL LAW, MARITIME LAW AND DISPUTE

RESOLUTION: THE PLACE OF AUSTRALIA, NEW ZEALAND AND THE ASIA

PACIFIC REGION IN THE COMING YEARS

Justic e Jam e s Allso p *

It is a privilege to be asked to give this address in memory of a great maritime lawyer. I hope my efforts

are worthy of that memory and worthy of the company of previous addresses.

I did not know Frank Dethridge personally. However, once one recognises the vision he displayed in his

involvement in the establishment of this Association, one knows that he would now recognise the

enormous challenges, and opportunities, facing Australia, New Zealand and the Asia Pacific Region in

maritime affairs in the coming decades.

As an Australian judge, I do not presume to speak with any authority borne of practice about New

Zealand or other countries in the region. I would however, like to raise for consideration some issues,

which are important in connection with the conduct and administration of maritime law and dispute

resolution. With some trepidation, I propose to make some suggestions. Ordinarily, it would not be my

place to make them, however I have been asked to give this address. That invitation and the authorisation

flowing therefrom relieve me of any accusation of presumptuousness, I hope. My suggestions may or may

not be worth implementing. I hope they are, however, worth listening to and considering. Of course, they

are my thoughts and not the views or position of the Federal Court of Australia.

What can be referred to as the Asia Pacific Region has changed enormously in 60 years. Without being

wedded to precise definition of the boundaries of the area under discussion, all countries in the region

have experienced, in some form or other, some or all of war and conflict, the end of colonial rule, the

emergence of independent sovereignty and, with the presence of relative peace in the last few decades,

significant material growth. Indeed, it is not an overstatement to say that the growth of economic activity

in the region has led to intercontinental shifts in economic power.

The economies of China, Japan, the Republic of Korea, India, the countries of South East Asia, Australia,

New Zealand and Canada now represent a significant part of world economic and financial activity. The

financial centres of Tokyo, Hong Kong, Shanghai, Singapore, Mumbai, Sydney and Melbourne are some

of the most important in the world. If one includes the United States of America as a Pacific littoral state,

one has a preponderance of world economic activity.

It is against this background that I wish to say something of commercial law, maritime law and maritime

dispute resolution.

Let me begin by saying something of the law and of commerce.

* Federal Court of Australia.

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Dethridge Address 2006: International Commercial Law, Maritime Law and Dispute Resolution

One striking contemporary phenomenon is the globalisation of commerce, brought about by astonishing

changes in communications and the integrated global and regional markets created or fostered thereby.1

The supranational forces impinging on municipal states have influenced virtually all economies of the

world, creating linkages, dependencies and opportunities quite unrelated to sovereign nation states and

their borders.

This, however, is nothing new. Only the tools of communication of bringing about and effectuating

commercial intercourse are new.

Commerce and maritime affairs are universal and timeless activities. ‘International commercial law’ is

not a new phrase. It can be distinguished from the phrase ‘international economic law’, which describes a

branch of public international law of more recent provenance. After the Second International Peace

Conference at the Hague in 1907 and the end of gunboat diplomacy that had typified the foreign policy of

European imperial powers in the 19th century and early 20th century, a framework of international

economic treaties between nation states developed. Under this new system, the remedy of the national

was through the diplomatic protection of his or her state in the enforcement of that nation’s rights.2 This

method of indirect protection of the individual’s rights against the foreign state changed with the

Convention on the Settlement of Investment Disputes between States and Nationals of Other States done

at Washington on 18 March 1965 (the ICSID Convention) which provided for arbitration between the

individual investor and foreign state.3 Since 1965, there have been many bilateral treaties which have

provided for private enforcement of rights against states, including recent bilateral free trade agreements.

Thus, aspects of public international economic law are converging with traditional international private

commercial law, in particular through the remedial mechanism of arbitral dispute resolution.

International commercial law is a species of private law that is supranational or transnational. Whether

this law is ‘soft’ or ‘hard’, to use the idiom of the debate, is a question to which I will come.

History tells us to expect rules for human commercial and maritime activity that transcend the political

structures of the day and that reflect the timelessness of the activity involved. The history of international

commercial law takes one back to the medieval law merchant and before then to the commercial laws and

activity in the Mediterranean, the Middle East, Greece, Rome, China, India and Asia. In Europe, even as

nation states were developing from the complexity of early medieval royal authority, a community of

cosmopolitan merchants travelled from fair to fair and port to port.

There is little doubt or controversy that in Europe, before the entrenched development of the modern

nation state in and after the 15th and 16th centuries, there was a law merchant:4 the title of Gerard

Malynes’ famous work of the 17th century was The Ancient Law-Merchant. Its title page stated that it

contained the essentials necessary for statesmen, judges, lawyers, merchants, mariners and all negotiating

in any part of the world.5

Important to the development and maintenance of a coherent law merchant were four elements: a degree

of unifying commonality of the laws of the market places and fairs, a degree of unifying commonality in

the laws and customs of the sea, a unifying role of specialised courts dealing with commercial disputes

and a unifying role of standard forms of contracts6. These elements are recognisable aspects of

international commercial life today.

1 See F Galgano, ‘The New Lex Mercatoria' (1995) 2 Annual Survey of International and Comparative Law 99; and M J Bonell, An

International Restatement of Contract Law (3rd ed, 2004) 11-13.

2 See the Permanent Court of Justice in the Panevezys – Saldutsikis Railway Case series A/B 76 p 16 and the discussion in A

Redfern and M Hunter, Law and Practice of International Arbitration (2004) 474-475.

3 See A Redfern and M Hunter, Law and Practice of International Arbitration (2004) 55 ff and 474 ff.

4 See G Malynes, The Ancient Law-Merchant (3rd ed, 1686); W Holdsworth, A History of English Law (3rd ed, 1945) vol V, 60-154;

FR Sanborn, Origins of the Early English Maritime and Commercial Law (2002).

5 Malynes said this about the law merchant at p 2:

Every man knoweth, that for Manners and Prescriptions, there is great diversity amongst all Nations; but for the customs observed in the course

of traffic and commerce, there is that sympathy, concordance, and agreement, which may be said to be of like condition to all People, diffused

and spread by right reason, and instinct of nature consisting perpetually. And these customs are properly those observations which Merchants

maintain between themselves, and if these be separated from the Law of Nations, the remainder of the said Law will consist of but few points.

6 See C M Schmitthoff, ‘International Business: A New Law Merchant’ (1961) II Current Law and Social Problems 129 in Cheng

CJ, Clive M Schmitthoff’s Select Essays on International Trade (1988) ch 3.

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