Abstract
Party freedom to choose the terms of agreement is a core doctrine of contract law. Parties are legitimately able to agree to litigate or arbitrate disputes in a state that is not their usual residence. While the default position of the judiciary in New Zealand has been to uphold these types of clauses in commercial contracts, this is not the case in regards to foreign jurisdiction clauses contained in bills of lading evidencing the contract for carriage of goods by sea. In contrast, foreign arbitration clauses will be enforced by the New Zealand courts.
This paper examines the historical reasons for legislation regulating foreign jurisdiction and arbitration agreements in New Zealand. An examination of the Australian and Canadian situations are also undertaken to provide a broader insight into the issues of regulating such agreements. This investigation leads to the conclusion that the historical reasons for regulation no longer remain. However, there are technical reasons for regulating foreign jurisdiction and arbitration clauses in bills of lading.
A solution for the issues raised is sought from the international arena by examining the Hamburg Rules and the UNCITRAL Draft Convention on the carriage of goods [wholly or partly] [by sea]. The conclusions drawn are that the international arena does not and will not, in the near future, provide a remedy for the concerns raised in this paper.