A note on Norden: Voyage Charterparties, the Hague/Visby Rules and Enforcing Foreign Arbitration Awards

• Author: Ashwin Nair
• Position: Solicitor, Cocks Macnish, Perth. This note is based upon part of a paper the author delivered at the 2013 MLAANZ Conference in Sydney on 20 September 2013
• Pages: 90-99

A NOTE ON NORDEN: VOYAGE CHARTERPARTIES, THE HAGUE/ VISBY

RULES AND ENFORCING FOREIGN ARBITRATION AWARDS

Ashwin Nair∗

In the late 17th century, Louis XIV’s finance minister, Jean-Baptiste Colbert gathered a group of

merchants at his house in Paris. He asked them what he could do for commerce, and one of them

responded, ‘Laissez nous faire’ – let us do it.1 The attitude of the plain-speaking merchant reflects in

part the policy in Australian courts of preserving the freedom of commercial parties to transact with

limited curial interference, and in particular, the freedom to choose the method by which disputes in

respect of their agreement may be resolved.2

Balanced against such a concern is that of protecting weaker parties from being exploited by stronger

parties.3 This is achieved in part by equity, but pertinently for the purpose of this note, by statute. On

a broader analysis, clarifying the space between the two objectives provides certainty to those who

engage in international commerce.

This note considers the recent decision of the Full Court of the Federal Court in Dampskibsselskabet

Norden A/S v Gladstone Civil Pty Ltd (formerly Beach Building & Civil Group Pty Ltd)(admin apptd,

subject to DOCA)4 (‘Norden’).

In that decision, the court held by a 2 to 1 majority that a London arbitration clause in a voyage

charterparty was not an agreement that precluded or limited the jurisdiction of the Australian courts in

respect of a sea carriage document relating to the outbound carriage of goods by sea. In order to arrive

at that conclusion, the court overturned the first instance decision of Foster J that a voyage

charterparty, on a standard Amwelsh 93 form, was a ‘sea carriage document’ within the meaning of ss

11(1)(a) and 11(2)(b) of the Carriage of Goods by Sea Act 1991 (Cth) (‘COGSA’).5 The Full Court’s

characterisation of the voyage charterparty aligned with the decision of Anderson J in a 2012 decision

of the South Australian Supreme Court.6

This note suggests that Norden demonstrates the relationship between the two competing concerns by

limiting the protective reach of COGSA in respect of dispute resolution agreements in voyage

charterparties, thereby allowing parties to such contracts to do as the plain-speaking 17-century

French merchant had asked to be allowed to do.

Background

A well-understood system of dispute resolution, particularly where parties have mutually agreed on a

particular resolution mechanism (like arbitration for example) is an ‘essential underpinning of

commerce.’7 In that respect, arbitration has long been recognised as an effective dispute resolution

process. In fact public and private arbitration were common in Ptolemaic Egypt with the aim to utilise

the arbitration process to reach settlement before turning to more formalistic legal process.8 Even

earlier, there are documentary references from the Bronze Age reign of the Great King Mursili II of

the Hittite Empire, to the sanction of an attempt to settle a dispute by arbitration before it is brought

∗ Solicitor, Cocks Macnish, Perth. This note is based upon part of a paper the author delivered at the 2013 MLAANZ Conference in Sydney

on 20 September 2013.

1 Joseph Kairys Jr, ‘Maximising the Wealth of Na tions: A Paradigm for Political Economy’ (Working Papers in Economics No 477,

University of Gothenburg, December 2010) 18.

2 Comandate Marine Corp v Pan Australian Shipping Pty Ltd (2006) 157 FCR 45, [192]-[193] (Allsop J).

3 AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170, 193-4 (Mason and Wilson JJ).

4 [2013] FCAFC 107.

5 Dampskibsselskabet Norden A/S v Beach Building & Civil Group Pty Ltd [2012] FCA 696.

6 Jebsens International (Australia) Pty Ltd v Interfert Australia Pty Ltd [2012] SASC 50. This case will be discussed later in this note.

7 Comandate Marine Corp v Pan Australian Shipping Pty Ltd (2006) 157 FCR 45, [192](Allsop J).

8 Derek Roebuck, ‘Cleopatra Compromised: Arbitration in Egypt in the First Century BC’ (2008) 74(3) Arbitration 263, 264. As the title

suggests, this article gives a brief yet fasc inating account of the sophisticated dispute resolution processes that existed in Ptolemaic Egypt in

the 1st century BC.

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