A Gateway to Electronic Transport Documentation in International Trade: The Rotterdam Rules in Perspective
Sammanfattning: Trade was the main reason for the development of transportation of goods by sea. With the evolution of technology, the amount of goods transported increased. Early in the history of trade, traders would sail with their goods to the port of destination. As the technology allowed more frequent and longer trips, this practice was seen to be impossible to continue. Thus, the bill of lading was invented. This document served as a receipt of the goods shipped, and over time became also to function as the evidence of the contract of carriage as well as a document of title. As such, the bill of lading fulfilled an important role in world trade. The possessor of the document had the constructive possession of the shipment - as the document represented these goods - and could therefore claim the delivery or sell the goods by transferring the bill of lading to the buyer. As trade and transportation evolved worldwide, uniformity was necessary for the actors involved. Otherwise there would be a risk that uncertainty could create unattractive situations with costly litigation and partnerships being broken. The international law community started drafting a convention on carriage of goods by sea in order to create harmony and unification. This convention was called the Hague Rules, and was adopted in 1924. The Hague Rules created the desired uniformity. However, as custom and practice in the shipping industry became more modern the Hague Rules became old fashioned. A new convention was therefore drafted in 1968, the Hague-Visby Rules. Most of the world trade today is governed by the Hague-Visby Rules, except two of the main trading actors: USA and China. This is clearly not a harmonious and uniform condition. Additionally, the convention is over 40 years old and hardly up to date and adaptable to the technology of today. Transport documentation and the law governing carriage of goods came to be, through custom and practice, attached to each other. Dematerializing transport documents is therefore a hard task, as the law and the whole practice is based on these tangible documents. Attempts have been made, most of them unsuccessful. UNCITRAL and CMI drafted thus a new convention in 2008, The Rotterdam Rules. The legislators of the Rotterdam Rules recognized the faults and errors made in previous attempts and tried to avoid these. The result is a new convention recognizing electronic equivalents to traditional transport documentation, and allowing these equivalents to have the same functionalities as the traditional documents. The Rotterdam Rules is, amongst other things, an attempt to give actors involved the possibility to make trade even more efficient. One of the approaches is by moulding together electronic commerce with multimodal contracts of carriage. The attempt takes an approach by stating merely the framework for actors to create their own ways of taking advantage of the possibilities given by the new convention. This neutral approach has many advantages when compared to earlier conventions, where the drafters set out the firm rules on how things were supposed to be done. As technology progressed and allowed other, better and more efficient means- these means were out of the scope of the out of date conventions. The Rotterdam Rules are a dynamic set of rules, which gives the industry the possibility to prosper, while the rules remain applicable and up to date. The Rotterdam Rules introduces a notion that is new for a carriage of goods by sea convention, namely “exclusive control”. This notion is equivalent of the physical possession of the goods and gives the party with the exclusive control the same rights as if the party had a physical bill of lading. The Rotterdam Rules also codifies the rights of a party with exclusive control, which adds certainty and uniformity in current practice. Because of the introduction of the notion of exclusive control, the Rotterdam Rules provide the international shipping community the possibility to conduct business without documents, paper or electronic. The convention also provides a foundation for the usage of sea waybills, as the convention makes the evidential value of the sea waybill in the hands of a third party even greater as compared to earlier conventions on carriage of goods by sea. The Rotterdam Rules offer very suitable solutions and meet the goals that they attempt to achieve.
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