Characterising the Action in Rem in Australia and the Implications on International Commercial Arbitration

Abstract

The law of admiralty evokes, as Sir Ninian Stephan noted, a romantic sense of the high seas and of that which is exotic, but in the modern international economy, it is integral to facilitating maritime commerce and trade. In Australia, such law is grounded in legislation, in particular the Admiralty Act 1988 (Cth). A consequence of grounding admiralty law in legislation, according to some commentators, ‘has been the creation of an entirely novel form of action known as the statutory action in rem.' In Comandate Marine Corp v. Pan Australia Shipping Pty Ltd, the full bench of the Federal Court of Australia addressed the important and interesting question of whether a party initiating such an action may be deemed to have waived a contractual right to arbitrate. This article analyzes the court’s decision in light of the International Arbitration Act 1974 (Cth), the UNCITRAL model law, and the common law.

Keywords: arbitration, marine, maritime, in rem, admiralty, Comandate

JEL Classification: K12, K33, K41, L92, N70