The Feasibility of a Regional Legal Framework on European Multimodal Transport in light of the Rotterdam Rules

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1 The Feasibility of a Regional Legal Framework on European Multimodal Transport in light of Senior Researcher Ellen Eftestøl-Wilhelmsson, University of Helsinki / University of Oslo

2 Questions to be addressed in the seminar: Does EU need an additional regional legal framework on international multimodal transport, or can the Rotterdam Rules satisfy the European need? What does EU want and why? What do offer?

3 What does EU want? The European Transport Policy Sustainability through multimodal transport COM(97)243: Intermodality and Intermodal Freight Transport in the EU: The objective is to develop a framework for an optimal integration of different modes so as to enable an efficient and cost-effective use of the transport system through seamless, customer-oriented doorto door services whilst favouring competition between transport operators

4 The need for a European liability regime Legal uncertainty considered a friction cost preventing the formation of a competitive intermodal transport chain. What kind of liability regime? Predictable No distinction between national and international law Not mode specific One transport one document one liability A uniform liability system

5 A group of legal experts: The ISIC proposal; Uniform Multimodal Liability Rules Strict liability Exempt circumstances beyond Transport Integrators control Liability limited to 17 SDR Default regime with an opt-out solution Apply to a Transport Integrator which perform of procure the transport Presupposes no collision - a sui generis approach Subject of massive discussion within the EU no consensus reachable

6 New initiative from the Commission: The Freight Transport Logistic Action Plan (2007) Aim: Improve the efficiency and sustainability of European Freight A regional legal act is justified by the failing rapid progress of the UNCITRAL project (not valid anymore) Other options for Europe: A legal act could be envisaged with a standard liability clause for all transport operations. It could be a fall-back clause, meaning that if nothing else is agreed between parties to a transport contract, this standard clause would automatically apply. The contracting parties could also explicitly mention it in the transport contract. (ISIC-2005) Gaps between existing international liability regimes could be addressed in such a way that coverage is provided for those parts of the logistics chain that currently fall between the mode-based liability regimes. (Rotterdam Rules)

7 The 2009 expert report (June) Political consensus not possible on limitation limits Proposal: A European mandatory uniform regime for all matter other than liability limits A modified uniform liability system September 2009 The Rotterdam Rules signed EU: Denmark, Greece, France, Netherlands, Poland and Spain (Finland and Sweden not)) EEA: Norway, Switzerland (Iceland not) Others: USA (China not) No state has ratified the convention

8 Informal meeting of the EU Transport Ministers, Antwerp September 2010 Agenda: Full integration of waterborne transport into the EU transport and logistical chain Aim: to optimise the European transport systems/co-modal logistics chains. Conclusion: Ministers agreed that seamless co-modal logistics would also require co-modal arrangements for liability issues, as well as a single transport document. In this context, the "Rotterdam Rules" seem to have great potential. However, some further examination of how they could serve this purpose, might still be necessary

9 What do offer? A set of liability rules applicable to International contracts of carriage with a sea leg -wet multimodal transport If not governed by other conventions Art 82 Collision with unimodal conventions Based on a modified network liability system Art 26 What liability regime should be used?

10 What does EU want and why? Predictability, but also harmonisation What do offer? A modified network liability system Covering the existing liability gaps But only for wet multimodal transport Could be extended by the EU Krijn Haak: The next-best solution for international multimodal cases simply because it will increase the level of uniformity in international multimodal transport. What does Hannu Honka say?