TNAG-2893-FCO40-4166-Hong-Kong-localisation-of-laws-merchant-shipping-and-carria-1993 — Page 34

1

1166

MERCHANT SHIPPING

3. Where a liner conference operates a pool or a berthing, sailing and/or any other form of cargo allocation agreement in accordance with Article 2 of the Code, the volume of cargo to which the group of national shipping lines of Hong Kong and all relevant states participating in that trade or the shipping lines of Hong Kong and all relevant states participating in that trade as third-country shipping lines are entitled under the Code shall be redistributed, unless a decision is taken to the contrary by all the lines which are members of the Conference and parties to the present redistribution rules. This redistribution of cargo shares shall be carried out on the basis of a unanimous decision by those shipping lines which are members of the conference and participate in the redistribution, with a view to all these lines carrying a fair share of the conference trade.

4. The share finally allocated to each participant shall be determined by the application of commercial principles, taking account in particular of:

(a) the volume of cargo carried by the conference and generated by the countries

or territories whose trade is served by it;

(b) past performance of the shipping lines in the trade covered by the pool; (c) the volume of cargo carried by the conference and shipped through the ports

of the countries or territories concerned;

(d) the needs of the shippers whose cargoes are carried by the conference.

5. If no agreement is reached on the redistribution of cargoes referred to in paragraph 3, the matter shall, at the request of one of the parties, be referred to conciliation in accordance with the procedure set out in paragraph 7. Any dispute not settled by the conciliation procedure may, with the agreement of the parties, be referred to arbitration. In that event, the award of the arbitrator shall be binding.

6. At intervals to be laid down in advance, shares allocated in accordance with paragraphs 3, 4 and 5 shall be regularly reviewed, taking into account the criteria set out in paragraph 4 and in particular from the viewpoint of providing adequate and efficient services to shippers.

7. The parties to the dispute shall designate one or more conciliators. Should they fail to agree on the matter, each of the parties to the dispute shall designate a conciliator and the conciliators thus designated shall co-opt another conciliator to act as chairman. Should a party fail to designate a conciliator or the conciliators designated by the parties fail to reach agreement on the chairman, the President of the International Chamber of Commerce shall, at the request of one of the parties, make the necessary designations. The conciliators shall make every endeavour to settle the dispute. They shall decide on the procedure to be followed. Their fees shall be paid by the parties to the dispute,

Without prejudice to paragraph 9 of this Annex, Article 2 of the Code shall not be applied in conference trades between Hong Kong and relevant states.

Paragraph 8 of this Annex shall not affect the opportunities for participation as third country shipping lines in such trades, in accordance with the principles. reflected in Article 2 of the Code, of the shipping lines of a developing country which are recognized as national shipping lines under the Code and which are:

(a) already members of a conference serving these trades; or

(b) admitted to such a conference under Article 1(3) of the Code.

10. Articles 3 and 14(9) of the Code shall not be applied in conference trades. between Hong Kong and relevant States.

11. In trades to which Article 3 of the Code applies, the last sentence of that Article is interpreted as meaning that:

(1) the two groups of national shipping lines will co-ordinate their position before voting on matters concerning the trade between their two countries; and

(2) this sentence applies solely to matters which the conference agreement identifies as requiring the assent of both groups of national shipping lines concerned, and not to all matters covered by the conference agreement.