in the Egyptian maritime commercial law No. 8/1990.
By Mr. / Usama Soliman
Advocate before Supreme Court
The maritime commercial law No. 8 / 1990 in its Articles 246,
247, states that arbitration as a legal discipline settles the disputes
resulting from the contract of maritime transport of goods beside
the national justice. The maritime legislator organized in these
Articles two problems: the place of arbitration and the applicable
law on the dispute topic .
How will the place of Arbitration be chosen ?
The maritime commercial law, Article 246 states that arbitration
may be performed according to the plaintiff choice at one of the
following places:
a. At the circuit of the court wherein the port of charge or the port
of discharge lies.
b. At the residence of the defendant.
c. At the place where the contract was concluded, provided the
defendant has in this place a headquarter, a branch or an agency.
Soliman Advocates
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www.solimanadvocates.comd. At the place stated in the arbitration agreement .
e. At the circuit of the court wherein the port that the ship is
detained lies.
Therefore , the Maritime commercial law renders the choice
of arbitration place in the disputes of the maritime transport only
to the will of the plaintiff , and opens before him many choices ,
of which is the place they had agreed upon in the arbitration
clause .
In fact , this attitude of the maritime commercial law
towards the definition of the arbitration place , that derives from
Hamburg convention 1978 launched a revolution in the method of
defining the arbitration place . In the maritime arbitration practice
, the arbitration place is defined according to the parties
agreement , either directly through defining it in the arbitration
agreement , or indirectly through rendering it to an institutional
maritime arbitration centre to carry out arbitration in its
headquarter or through carrying out arbitration in accordance with
maritime arbitration rules to define this place .
The legislator idea of discrepancy in defining the arbitration place
in the present maritime arbitration practice only through the
plaintiff choice is to take care of the consigner as the weak party
in the transport contract . Thus , the law nullified all agreements precedent to the rise of the
dispute decreeing depriving the plaintiff this right or limiting it
(Art . 246) . Consequently , in the concept of the discrepant , the
plaintiff may , after the dispute arises , agree with the transporter
upon any other provisions concerning the location of the
arbitration place contradicting the provisions of the maritime
commercial law .
What will be the Applicable law to the Dispute topic ?
The maritime commercial law , Article 247 obligated the maritime
arbitrator to settle the dispute according to the provisions depicted
in this law about the maritime transport contract agreed upon
referring the deputes that arise out of it to arbitration .
This obligation of the maritime legislator to the maritime
arbitrator to execute the provisions of the law without exception
to the dispute topic contradicts also the present maritime
arbitration practice , as these practices render the parties free to
choose the applicable law to the dispute topic . If the parties fail in
defining the law , the whole freedom of choosing it is shifted to
the maritime arbitrator .
In fact , the wisdom that cherished the maritime legislator in this
respect is the same that cherished him in defining the arbitration
place through the lonely will of the plaintiff . This wisdom secures
the plaintiff , who is almost the consigner , as he is the weak party
in the transport contract . Therefore , the law has nullified all the agreements precedent to the rise of the dispute depicting relieving
the arbitrator from adhering to these provisions (Art.247) .
Consequently, with the concept of discrepancy, the consigner and
the transporter may agree upon the execution of any other
provisions , concerning the law to be applied to the dispute topic ,
that contradict the maritime commercial law after the rise of the
dispute .
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This article provides for a general overview only and must not be relied upon as constituting
advice in any specific case. Advice should always be sought before taking steps in
proceedings- For Further information pls. Contact Mr. U. Soliman