Academic journal article Texas International Law Journal

The United Nations Commission on International Trade Law's Transport Law Project: An Interim View of a Work in Progress

Academic journal article Texas International Law Journal

The United Nations Commission on International Trade Law's Transport Law Project: An Interim View of a Work in Progress

Article excerpt

I. INTRODUCTION

Over the years, the United Nations Commission on International Trade Law (UNCITRAL) has had some remarkable successes, such as the Vienna Sales Convention' and the Model Law on International Commercial Arbitration.2 It has also had some disappointments. Twenty-five years ago, UNCITRAL completed the U.N. Convention on the Carriage of Goods by Sea3 (commonly known as the "Hamburg Rules").4 Although the convention entered into force in 1992 and almost thirty nations are now parties,5 the major commercial and maritime powers have not adopted the Hamburg Rules (and do not appear likely to do so). The contracting states represent only a small proportion of international trade. Indeed, over a third of the parties to the Hamburg Rules are land-locked.6 Despite having entered into force, this convention is one of UNCITRAL's disappointments because it has not achieved the level of uniformity that existed immediately before World War II under a 1924 convention popularly known as the "Hague Rules,"7 nor has it displaced the "Hague-Visby Rules"-the Hague Rules as amended8 by the 1968 "Visby Protocol"9-as the dominant convention for the international carriage of goods by sea.10

In the meantime, the Hague-Visby Rules, despite their widespread applicability, do not satisfactorily meet the world's needs for a modem, uniform" law on the subject. Most obviously, they are dated.12 The Visby Protocol itself is thirty-five years old (ten years older than the Hamburg Rules), and it amended the Hague Rules only in limited respects. The core of the Hague-Visby Rules remains the 1924 Hague Rules, which were not particularly "modern" even in the 1920s. The Hague Rules were substantially based on a 1910 Canadian statute13 that was modeled on the 1893 Harter Act,14 which was passed to address problems that began to arise at the beginning of the steam era.15

Moreover, the Hague-Visby Rules do not provide sufficient uniformity. Although they offer the most popular liability regime, important parts of international trade are simply not covered. The United States, whose international trade represents close to a quarter of the world's total, continues to adhere to its Carriage of Goods by Sea Act (COGSA),17 a 1936 enactment of the original Hague Rules.18 China, with roughly a quarter of the world's population and a steadily increasing proportion of its trade, operates under a Maritime Code19 that combines selected elements from the Hague-Visby and Hamburg Rules with unique Chinese provisions.20 Even a number of Hague-Visby parties have adopted nonuniform variations of the international convention, thus further undermining international uniformity.21

In view of this confused international situation, which practically all observers find unsatisfactory, UNCITRAL has reentered the field in an attempt to find an acceptable solution. This new UNCITRAL project, however, seeks not simply a new convention to replace the Hague, Hague-Visby, and Hamburg Rules. Its goal is a much broader instrument that will not only unify the law on liability issues but also bring uniformity to aspects of transport law that have never been addressed by international agreements. It is an ambitious project, and a great deal of work still needs to be done before we will know how a number of key issues will be resolved.

This article is designed to introduce the new project, identify some of the issues that are most likely to raise questions or be controversial, discuss the context in which these issues arise, and outline some possible solutions.

3 II. BACKGROUND

A. Rationale for the New Project

Many factors have combined to persuade UNCITRAL of the value of embarking on this new project. Commentators have frequently noted the breakdown in uniformity of the law governing an ocean carrier's liability for cargo loss or damage22 as different nations have adopted different international conventions, or domestic variations on these conventions. …

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