Arbitration under the CMR is permitted
Can CMR-disputes be resolved in arbitration? In connection with damage during carriage, the question arose where the ensuing dispute was to be decided. A framework agreement between the parties called for arbitration in Norway, but one of the parties believed that this was disallowed or not agreed. The court confirmed that arbitration is permitted and struck the case off.
When two parties became engaged in litigation over a CMR carriage, the question arose whether the parties had validly agreed arbitration in their framework agreement. The parties also disagreed whether it was possible to agree arbitration at all.
According to the CMR, cases can be heard only where the carrier resides, where the carriage commenced or where is ended. The cargo interests had commenced proceedings in the Danish courts. However, it appeared in a framework agreement that such cases were to be decided in arbitration in Norway according to the Norwegian “Vegfraktlov” i.e. carriage of goods by road act. Norway was not one of the places where the case could otherwise be heard, according to the law.
CMR is mandatory and cannot be deviated from. The question was therefore if the arbitration could be agreed at all. The question was also if the arbitration clause in the agreement had been validly agreed, as the CMR consignment note did not refer to the framework agreement, so the agreement was unclear. That could mean that the case should be heard before the Danish Maritime and Commercial High Court. If the arbitration clause was valid, the Danish Maritime and Commercial High Court should instead dismiss the case, and the case should be handled in arbitration.
According to CMR, it is permitted to agree to arbitration as long as the tribunal decides the case applying the CMR or law that applies it.
CMR cases can be heard in arbitration
The court found that the consignment note did not set aside the framework agreement’s arbitration clause.
The court also concluded that the CMR did not hinder an arbitration clause in a framework agreement. It was required, however, that the tribunal would apply the CMR or law that applies it. The arbitration agreement referred to the Norwegian carriage of good by road act, which enacts the CMR.
The court therefore concluded that the arbitration clause would not be set aside and struck the case off.
IUNOs opinion
The case is a reminder that arbitration is actually permitted under the CMR, somewhat a rarity in Denmark. This means that the courts which would otherwise be competent must defer to arbitration. This may have great impact on where the case is heard and accordingly, its outcome. It must be remembered, however, that the arbitration has to be decided according to the CMR. IUNO recommends consideration whether this may be the right solution in, for example, framework agreements.
[Maritime and Commercial High Court decision of 27 February in case no. BS-35272/2022-SHR]
When two parties became engaged in litigation over a CMR carriage, the question arose whether the parties had validly agreed arbitration in their framework agreement. The parties also disagreed whether it was possible to agree arbitration at all.
According to the CMR, cases can be heard only where the carrier resides, where the carriage commenced or where is ended. The cargo interests had commenced proceedings in the Danish courts. However, it appeared in a framework agreement that such cases were to be decided in arbitration in Norway according to the Norwegian “Vegfraktlov” i.e. carriage of goods by road act. Norway was not one of the places where the case could otherwise be heard, according to the law.
CMR is mandatory and cannot be deviated from. The question was therefore if the arbitration could be agreed at all. The question was also if the arbitration clause in the agreement had been validly agreed, as the CMR consignment note did not refer to the framework agreement, so the agreement was unclear. That could mean that the case should be heard before the Danish Maritime and Commercial High Court. If the arbitration clause was valid, the Danish Maritime and Commercial High Court should instead dismiss the case, and the case should be handled in arbitration.
According to CMR, it is permitted to agree to arbitration as long as the tribunal decides the case applying the CMR or law that applies it.
CMR cases can be heard in arbitration
The court found that the consignment note did not set aside the framework agreement’s arbitration clause.
The court also concluded that the CMR did not hinder an arbitration clause in a framework agreement. It was required, however, that the tribunal would apply the CMR or law that applies it. The arbitration agreement referred to the Norwegian carriage of good by road act, which enacts the CMR.
The court therefore concluded that the arbitration clause would not be set aside and struck the case off.
IUNOs opinion
The case is a reminder that arbitration is actually permitted under the CMR, somewhat a rarity in Denmark. This means that the courts which would otherwise be competent must defer to arbitration. This may have great impact on where the case is heard and accordingly, its outcome. It must be remembered, however, that the arbitration has to be decided according to the CMR. IUNO recommends consideration whether this may be the right solution in, for example, framework agreements.
[Maritime and Commercial High Court decision of 27 February in case no. BS-35272/2022-SHR]
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