Lex Maritima: Vanishing Commercial Trial – Fading Domestic Law?

This paper elaborates on a fundamental transformation of maritime law. On the basis of statistics it is argued that the London Maritime Arbitration Association (LMAA) has become the dominant provider on the global market for dispute resolution in the maritime industry, but currently is challenged by this very success. In the first part of the paper, we present some statistics on the development of the caseload of German and English Commercial Courts and – more specifically – some data and estimates on the caseload of these courts in maritime law. The upshot is that the commercial trial is vanishing in favour of arbitration. As long as arbitration is only an alternative to litigation there are no problems regarding the maintenance of law through precedent. However, as we illustrate in the second part of the paper, the LMAA nowadays has taken over the role of the ‘general jurisdiction’ of the shipping industry. This raises concerns regarding legal certainty as a public good and the development of law in general, because arbitral awards – even where published – do not carry precedential value. Thus, if arbitration becomes the dominant method of dispute resolution, maritime law may turn into dead ‘law in the books’. In principle, arbitral awards could be used as persuasive precedent, thus contributing to the further development of shipping law. In order to ascertain, whether or not awards could function as a new private source of maritime law, we analysed a series of LMAA and SMA awards, which were published in 2014. We conclude that the analysed awards do not qualify to carry precedential value and discuss a variety of reasons as well as potential solutions. As a result, we remain sceptical with regard to the potential role of arbitration in the maintenance of maritime law.