1 8th ECMLR Colloquium Rotterdam Harmonizing the fragmented law of transport through soft law? Prof. Dr. Frank Smeele 12 September 2014

Harmonizing transport law through soft law? Outline Introduction Current methodology of unification transport law Fragmented law of transport Towards a general law of transport? Concluding remarks 2

Harmonizing transport law through soft law? Introduction Soft law, some features: Modest Swift Non-binding Focus on quality Persuasion rather than compromise 3

Harmonizing transport law through soft law? Current methodology Historically maritime law developed through soft law ‘avant-la-lettre’, e.g. Rôles d’Oléron Consolat de Mar York Rules 1864 York-Antwerp Rules 1994 /

Harmonizing transport law through soft law? Current methodology Since End 19 th Century mainly international conventions: 1890 Berne Convention (rail) 1924 Hague Rules (sea) 1929 Warsaw Convention (air) 1956 CMR (road) 1968 Hague-Visby Rules (sea) 1978 Hamburg Rules (sea) 1999 Montreal Convention (air) 2001 CMNI (Budapest) (inland navigation) 2008 Rotterdam Rules (sea-plus) 5

Harmonizing transport law through soft law? Current methodology Problems: Many unsuccessful attempts, e.g International Multimodal Transport of Goods 1991 Liability of Operators of Transport Terminals in International Trade 1996 Hazardous & Noxious Substances (HNS), 2010 Protocols Successful conventions difficult to reform, e.g. Hague Rules 1924 Warsaw Convention 1929 Non-uniform interpretations by courts 6

Harmonizing transport law through soft law? Fragmented law of transport ‘New’ developments pose new challenges: Supply chain management Logistics Door-to-door transport multimodal transport Parcel distribution services Synchromodality 7

Harmonizing transport law through soft law? Fragmented law of transport Is ‘modal split’ of transport law still acceptable? Shared basic structure and conceptualisation, yet divergent approaches regarding: scope of application, scope mandatory regime, period of responsibility, duty of care, 8

Harmonizing transport law through soft law? Fragmented law of transport Is ‘modal split’ of transport law still acceptable? Shared basic structure and conceptualisation, yet divergent approaches regarding: … exemptions from liability, loading and discharge, limits of liability, conduct barring limitation, term of protest, time bar, jurisdiction 9

Harmonizing transport law through soft law? Fragmented law of transport Is ‘modal split’ of transport law still acceptable? Shared basic structure and conceptualisation, yet divergent approaches regarding: … exemptions from liability, loading and discharge, limits of liability, conduct barring limitation, term of protest, time bar, jurisdiction 10

Harmonizing transport law through soft law? Fragmented law of transport Is ‘modal split’ of transport law still acceptable? E.g. hidden defects in means of transport: Carrier warrants sound condition truck (art. 17(3) CMR), airplane (art. 17, 18, 20 Montreal) vs. Carrier does not warrant seaworthiness of vessel, due diligence obligation “before or at the beginning of the voyage” (art. III.1 Hague Rules, art. 3.1 CMNI) or continuously (art. 14 Rotterdam Rules). No intrinsic reason for this. 11

Harmonizing transport law through soft law? Towards a general law of transport? Caveats No illusions, but modesty; unimodal conventions are here to stay for the foreseeable future. Soft law approach is long-term project aimed at changing our perspective (winning over hearts and minds), rather than changing the law at once. 12

Harmonizing transport law through soft law? Towards a general law of transport? Caveats It requires the commitment, research time, hard work and willingness to reach consensus of international group of scholars and practitioners of repute for an extended period of time. Organizational and financial support Coordination and cooperation 13

Harmonizing transport law through soft law? Towards a general law of transport? Benefits Stimulus and enrichment for academic research in this area. Improve academic debate by bringing specialists in various unimodal regimes together in the arena to discuss what general law of transport should look like. Draft Principles of Transport Law provide inspiration to international and national legislators. 14

Harmonizing transport law through soft law? Concluding Remarks 15

Harmonizing transport law through soft law? Thank you for your attention. 16