Conflict of laws doctrines hold that parties are free to choose the law to govern their relationships. Absent an exception, the substantive law selected determines disputes arising between the parties. The range of exceptions is small and effectively restricted to overriding mandatory laws, which are immune to attempts at waiver by the consent of parties, and which oblige the judiciary to uphold the public policies they enshrine.

In Australia, s.11(1) of the Carriage of Goods by Sea Act 1991 (Cth) (COGSA 91) is such a mandatory rule. It deems parties to a contract to have intended Australian law to apply to the carriage of goods agreement from an Australian port to a foreign destination. Section 11(2)(a) renders ineffective attempts to preclude or limit the application of Australian law. Choices of law agreed between parties in relation to the outward bound carriages of goods are rendered ineffective (s.11(2)(b)), as are choices of forum with respect to such inward bound shipments (s.11(2)(c)).

However, s.11 is anomalous with respect to provisions preserving the jurisdiction of Australian courts, in that it does not expressly invalidate clauses which choose foreign law or foreign jurisdiction for disputes arising under carriage of goods agreements from one state of Australia to another state. Section 11, with its notorious silence on inter-state carriage, has received its first judicial construction in Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG (The BBC Nile).1