Arrest of ships in private international law: analysis of English, Scots and International Law on the arrest of ships from a private international law perspective

Abstract

The arrest of ships is a truly Private International Law (PIL) institution. Its main rationale is to provide a useful device for international commerce and to compensate for the difficulty of enforcing judgments abroad. The arrest of ships is the typical provisional measure used in maritime claims; but it is as typical for maritime claims as it is atypical as a provisional measure. Arrest of ships is also a typical jurisdictional basis in the maritime sphere; but outside maritime claims it is nowadays completely atypical as a jurisdictional basis, i.e. arrest of non -maritime property to found jurisdiction is regarded as unacceptably exorbitant. Moreover, arrest of ships is a means of security, but its security- related effects are differently understood in comparative law. What is it about the arrest of ships that makes it so distinctive, particularly from a PIL perspective?This thesis analyses the theme in English and Scots law in the light of the international Conventions in the field. It examines the three main functions of arrest of ships, i.e. its protective function, its security function and its jurisdictional function, within the three classical domains of PIL, i.e. applicable law, jurisdiction, and the recognition and enforcement of foreign judgments. It looks at the role of the lex fori; its impact on characterization issues; its subtleties when applied qua lex causae; and its so often too far -reaching scope when applied qua lex fori. In practice its influence is unhelpful and poses a drawback to the uniformity sought by the international community. Its downside is apparent in English law where the frame in which arrest of ships currently develops is the action in rem, and where the impossibility to separate the two has complicated matters in various ways. In Scots law, due to the fact that arrestment of ships pertains to the broader law of diligence, the distinction between the different functions of the arrest of ships is clearer. Furthermore, recent law reform has brought the arrestment of ships in Scotland into line with the latest international trends in the sphere of provisional and protective measures.Central to this thesis is the jurisdictional function of arrest of ships. Forum arresti, the paradigmatic forum selection criterion in English and Scots law, has survived as a specific jurisdictional basis for maritime claims in the process of Europeanization of PIL. This thesis establishes that forum arresti in the case of arrest of ships is a cooperative forum. It advances the dynamic objective of PIL, i.e. the juridical continuity of legal relations across national borders. In this context, the conceptual distinction between jurisdiction on the merits and jurisdiction for the sole purpose of interim relief becomes paramount.Ultimately, the whole analysis shows that the combination of civilian legacy, common law creativity and international attempts for uniformity has profoundly affected the nature of arrest of ships; not only in England and in Scotland, but, through their influence on international Conventions, in the entire shipping world