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Trade Law (UNCITRAL) 1985 (with Amendments as adapted c) an exchange of statements of claim and defence
in 2006), most of the Insurance policies limit the choice of in which the existence of the agreement is alleged
dispute resolution to quantum of claim (liability being by one party and not denied by the other.
otherwise admitted).
5. The reference in a contract to a document containing
Arbitration Clauses are rarely found in Marine Cargo an arbitration Clause constitutes an arbitration
Insurance. agreement if the contract is in writing and the
reference is such as to make that arbitration clause
It is also observed that "Institute Time Clauses - Hull" of " part of the Contract.
Institute of London Underwriters" which is being followed
by most of the Insurers globally do not have "Arbitration It may be observed that there are two types of Arbitration
Clause". Agreements. First one is in the form of an "Arbitration Clause"
incorporated in the Contract and the second one is in the form
International Hull Clauses - 1.11.2003 followed by some of a separate agreement signed after a dispute has arisen.
Insurers do have an "Arbitration Clause".
Hence in the absence of an Arbitration Clause in
The utility of "Arbitration" mechanism in the absence of an a contract,a dispute can be resolved through
"Arbitration Clause" in Marine Cargo Insurance is the Arbitration by entering into an Agreement.
subject matter for this article.
Two aspects are to be considered to determine whether
Definition of "Arbitration" as per "Model Law on the dispute is arbitral. First one is that the Arbitration
International Commercial Arbitration" of United Agreement / Arbitration clause incorporated in the contract
Nations Commission on International Trade Law should specify the kinds of disputes that are submitted to
(UNCITRAL) 1985: Arbitration. Second whether any prohibition exists in that
Country to bring the dispute under Arbitration.
"Arbitration Agreement" is an Agreement by the parties
to be submitted to Arbitration All or certain disputes which Sec.2 (1) (f) - Part I - Chapter I - General Provisions
have arisen or which may arise between them in respect of Arbitration and Conciliation Act, 1996 (India)
of a defined legal relationship whether Contractual or not. defines "International Commercial Arbitration".
Arbitration agreement may be in the form of an
"Arbitration Clause" in a Contract or in the form of a "International Commercial Arbitration" means an
Separate Agreement. arbitration Relating to disputes arising out of legal
relationship, whether Contractual or not, considered as
Chapter II of Arbitration and Conciliation Act, commercial under the law in force in India and where at
1996 (India) defines the "Arbitration least one of the parties is -
Agreement" as follows: i) an individual who is a national of or habitually resident
1. In this Part "Arbitration Agreement" means an in any country other than India
agreement by the parties to submit to arbitration all or
or certain disputes which have arisen or which may arise
between them in respect of a defined legal ii) a body corporate which is incorporated in any country
relationship, whether contractual or not. other than India
or
2. An Arbitration Agreement may be in the form of an
Arbitration Clause in a contract or in the form of a iii) a Company or an association or a body of individuals
separate agreement. whose central management and control is exercised in
any country other than India
3. An Arbitration Agreement shall be in writing or
4. An Arbitration Agreement is in writing if it is contained in iv) the government of a foreign country
a) a document signed by the parties
b) an exchange of letters, telex, telegrams or other Most of the disputes under Marine Cargo Import / Export
means of Telecommunication which provide a policies may fall under the purview of the above definition.
record of the agreement
Or To summarise it is possible that a dispute under
Marine Cargo Policy can be submitted to
Arbitration by entering into an Agreement.
The Insurance Times, March 2016 37
