چکیده:
The forum selection clause in international commercial contracts, which is also known as jurisdiction clause, is an agreement based on which the parties of maritime shipment of goods choose a forum the settle the disputes arising from the contract. The incorporation of such clauses in maritime bills of lading results in granting jurisdiction to a foreign court and deprivation of jurisdiction from an internal competent court. The proceedings in a foreign court, in many cases, lead to the application of governing law on the settlement of disputes and affect the carrier’s responsibilities. On the other hands, most of the international and national rules governing on the maritime shipments of goods are mandatory and the validity of foreign forum selection clause in maritime bills of lading has been doubted because of the inconsistency with public policy. Regardless of complying with the fundamental circumstances governing on the validity of contracts in the formation of jurisdiction agreements, the courts of different countries consider some criteria for the application of such clause based on their national legal system and they may also give no effect to the forum selection clause due to the forum non convenient or evasion of the law. However, the validity of forum selection clause is currently accepted in most international agreements and national legal systems and the courts of different countries are complying with. The main theme of the present study is to examine the validity of this clause.
خلاصه ماشینی:
Associate Professor, Faculty of Law and Political Science, University of Tehran, Iran (Received: 2020/01/05 – Accepted: 2021/09/22) Abstract The choice of court clause in bills of lading, also known as the jurisdiction clause, is an agreement whereby the parties to a maritime cargo transport contract select a court to resolve disputes arising therefrom.
On the other hand, many international and domestic regulations governing maritime cargo transport are mandatory, and the validity of a foreign choice of court clause in bills of lading may be questioned due to conflict with public order.
Regardless of compliance with the basic conditions governing the validity of contracts in forming jurisdictional agreements, the courts of different countries consider criteria for enforcing this clause, taking into account the prevailing legal system, and may disregard the choice of court clause due to the unsuitability of the chosen court or fraud regarding the law.
Therefore, in this section, the intention of the parties and their consent, the specificity of the subject matter of the agreement, the legitimacy of the condition, and the reasonableness of the choice of court clause in bills of lading will be examined with reference to Articles 190 and 232 of the Civil Code.
These provisions are mandatory, and any agreement contrary to them is void and invalid, and for this reason, the question arises as to whether the choice of foreign court clause in marine bills of lading is contrary to paragraph 8 of Article 3 of the Hague Rules (paragraph 8 of Article 54 of the Iranian Maritime Law)?
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