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Lex Maritima: Vanishing Commercial Trial – Fading Domestic Law?

Author

Listed:
  • Gralf-Peter Calliess

    (University of Bremen - Faculty of Law & ZenTra)

  • Annika Klopp

    (University of Bremen - Faculty of Law)

Abstract
This paper elaborates on a fundamental transformation of maritime law. On the basis of statistics it is argued that the London Maritime Arbitration Association (LMAA) has become the dominant provider on the global market for dispute resolution in the maritime industry, but currently is challenged by this very success. In the first part of the paper, we present some statistics on the development of the caseload of German and English Commercial Courts and – more specifically – some data and estimates on the caseload of these courts in maritime law. The upshot is that the commercial trial is vanishing in favour of arbitration. As long as arbitration is only an alternative to litigation there are no problems regarding the maintenance of law through precedent. However, as we illustrate in the second part of the paper, the LMAA nowadays has taken over the role of the ‘general jurisdiction’ of the shipping industry. This raises concerns regarding legal certainty as a public good and the development of law in general, because arbitral awards – even where published – do not carry precedential value. Thus, if arbitration becomes the dominant method of dispute resolution, maritime law may turn into dead ‘law in the books’. In principle, arbitral awards could be used as persuasive precedent, thus contributing to the further development of shipping law. In order to ascertain, whether or not awards could function as a new private source of maritime law, we analysed a series of LMAA and SMA awards, which were published in 2014. We conclude that the analysed awards do not qualify to carry precedential value and discuss a variety of reasons as well as potential solutions. As a result, we remain sceptical with regard to the potential role of arbitration in the maintenance of maritime law.

Suggested Citation

  • Gralf-Peter Calliess & Annika Klopp, 2015. "Lex Maritima: Vanishing Commercial Trial – Fading Domestic Law?," ZenTra Working Papers in Transnational Studies 56 / 2015, ZenTra - Center for Transnational Studies, revised Oct 2015.
    • Handle: RePEc:zen:wpaper:56
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    File URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2668109
    File Function: First version, 2015
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    More about this item

    Keywords

    Law Merchant; maritime Law; international commercial arbitration; transnational law; cross-boarder contracts; international trade; private international law; conflict of laws; general principles of law; party autonomy; trade usage; standard form contracts; legal certainty; Lex Maritima; arbitral awa;
    All these keywords.

    JEL classification:

    • A14 - General Economics and Teaching - - General Economics - - - Sociology of Economics
    • F13 - International Economics - - Trade - - - Trade Policy; International Trade Organizations
    • F14 - International Economics - - Trade - - - Empirical Studies of Trade
    • F15 - International Economics - - Trade - - - Economic Integration
    • F23 - International Economics - - International Factor Movements and International Business - - - Multinational Firms; International Business
    • F63 - International Economics - - Economic Impacts of Globalization - - - Economic Development
    • K12 - Law and Economics - - Basic Areas of Law - - - Contract Law
    • K21 - Law and Economics - - Regulation and Business Law - - - Antitrust Law
    • K33 - Law and Economics - - Other Substantive Areas of Law - - - International Law
    • K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process
    • K49 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Other
    • L14 - Industrial Organization - - Market Structure, Firm Strategy, and Market Performance - - - Transactional Relationships; Contracts and Reputation

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