论仲裁条款对提单受让人的法律效力——以仲裁协议效力扩张理论为视角

仲裁条款对提单受让人的法律效力问题一直备受争议,长期以来都未有定论。随着现代仲裁法学的不断发展,新的仲裁协议效力扩张理论为该问题的解决,提供了新的进路。

On the Legal Effect of the Arbitration Clause on Transferee of Bill of Lading:With Perspective from the Expansion Theory on the Effect of the Arbitration Agreement

It is not a settled issue of the legal effect of the arbitration clause on the transferee of bill of lading,which is under hot debate for quite a long time.The unilateral transfer of bill of lading fails to effect the arbitration clause on the basis of the principle of autonomy of will.However,thanks to the development of the modern arbitration jurisprudence,the expansion theory on the effect of the arbitration agreement can now create a new legal basis for that issue.With regard to that theory,where the transferee accepted the arbitration clause,the clause thereof is effective;while the transferee rejected the arbitration clause,the clause could not bind him;whichever the case may be,the carrier should obey the arbitration clause and he may not have the right to decline the effect of that clause.