Welcome speech by José Capel Ferrer

José Capel Ferrer, Director of the Transport Division United Nations Economic Commission for Europe

THE CMR CONVENTION – A PILLAR OF INTERNATIONAL CARRIAGE OF GOODS BY ROAD 

1. GENERAL CONSIDERATIONS
The unification of laws governing the international carriage of goods had long begun in the field of the railways (1890 CIM Rules), sea transport (1924 Hague Rules) and air transport (1929 Warsaw Convention) when work started in 1948 to develop uniform rules applying to contracts of carriage of goods by road within the Inland Transport Committee of the United Nations Economic Commission for Europe (UNECE).

The need to subject international road transport to uniform rules arose when, in the span of the 25 years prior to the signing of the CMR, road transport absorbed about 2/3 of the goods flow increase in Western Europe.

Until then, each country would draw up its own transport legislation and problems often arose in case of dispute (loss of or damage to the goods, delays, etc.) in which foreign partners were involved (language difficulties, unfamiliar law and jurisdiction, administrative delays). Neither did the rules of conflict of national laws satisfy the parties to a contract of carriage.

The work initiated in 1948 on the CMR Convention was part of a wide programme adopted further to the Second World War by the UNECE Inland Transport Committee in order to establish bases for international road transport. This was the time of pioneers and of the inception of major international conventions regarding:

• road traffic and road signs and signals

• taxation issues

• customs issues

• regulation in general and of contracts of carriage in particular.

Among the conventions adopted at that time under the auspices of the UNECE and whose influence subsequently largely exceeded the borders of UNECE member states, one should mention in particular the Convention and Protocol on Road Traffic, the TIR Convention and the CMR Convention.

The latter was drawn up under the UNECE’s auspices thanks to the concerted efforts in particular of the International Institute for the Unification of Private Law (UNIDROIT), International Chamber of Commerce (ICC) and International Road Transport Union (IRU).

It was signed on 19 May 1956 (E/ECE/253) and entered into force on 2 July 1961.

The CMR Convention is currently applied in 46 States /.

On 5 July 1978 a Protocol to the CMR Convention (ECE/TRANS/34) was drawn up under the aegis of UNECE to allow the use of Special Drawing Rights (SDR) to replace the gold franc and thus facilitate calculation of compensation amounts payable in case of damage to or loss of the goods. This Protocol entered into force on 28 December 1980.

Some time ago UNECE, determined to keep the CMR up-to-date, initiated work on a Protocol to allow the use of electronic consignment note. As on previous occasions, assistance from UNIDROIT and the IRU was particular useful in this case. We hope that the relevant work will soon be completed and that the road transport industry will thus have a valuable tool to make the use of IT official in contractual relations subject to the CMR – in particular through the interchange of electronic consignment notes.

The CMR Convention does not foresee any particular format for consignment notes.

For the sake of harmonisation and simplification of all commercial and transport documents, a layout key was devised under the UNECE’s auspices. Based on this, in 1976 the IRU developed a model international CMR consignment note whose use in its initial format or as adjusted to local needs is now widespread.

We are pleased to hear that the IRU has initiated work to modernise is model CMR consignment note to adjust it to the electronic interchange of consignment notes.

2. FUTURE PROSPECTS
The future of the CMR is closely liked to that of international road transport which, despite many infrastructure and economic problems, is continuing to develop and represents a vital pillar of international trade.

Although primarily aimed at UNECE member states, the CMR has largely exceeded its initially foreseen geographical scope.

Today it applies from the Atlantic to the Pacific. However, its influence goes even beyond that.

Its text and principles inspired the drafters of the Inter-American Convention on Contracts for the International Carriage of Goods by Road, signed in Montevideo on 15 July 1989, although it did not enter into force.

The CMR also served as a basis to draw up the OHADA Uniform Act on Contracts for the Carriage of Goods by Road which entered into force in 16 African countries on 1 January 2004 /.

Even the latest version of the CIM Rules adopted in 1999 as an integral part of the COTIF Convention draws inspiration from the CMR, its younger counterpart, so as to better prepare the railways for privatisation /. Thus road transport is repaying its debt to rail transport, since the CIM Rules were considered by the drafters of the CMR as a model for the CMR Convention and were largely reproduced in the latter’s text.

The CMR Convention is a great success in contract law in general, and particularly for transport law. Former UNIDROIT Secretary General Malcolm Evans even considered that the CMR Convention was one of the most successful agreements ever to be adopted in the field of transport law unification /.

The CMR owes its continuous expansion and integrity to the wisdom of its drafters who selected contractual provisions from the CIM Rules, which had been put to the test over 60 years of rail transport and who, moreover, included the CMR’s own rigorous principles.

As for these principles, it should be recalled that, among other things, the CMR Convention applies to any road transport operation for hire or reward performed from or to a Contracting Party, regardless of the citizenship and domicile of the carrier, sender or consignee. As a result, the CMR even applies to contracts concluded with foreign carriers whose country has not acceded to this Convention provided only that the operation begins or ends in one Contracting Party country to the CMR Convention. This principle extends the scope of the CMR Convention far beyond the borders of contracting States, thus encouraging those countries which have not yet done so to accede to this Convention.

The CMR Convention owes its integrity to its deliberately strict revision procedure. Indeed, the text of the Convention may only be amended in the framework of a reviewing conference to be requested by a Contracting Party from the Secretary General of the United Nations. However, the latter may only convene such a conference provided that 25% of Contracting Parties concur with the request.

Moreover, so as to avoid certain Contracting Parties being tempted to amend the CMR in transport operations between them, the CMR Convention precludes any special agreement between two or more Contracting Parties (article 1.5) /. This latter principle was recently confirmed by the UNECE Transport Division to the Hague Conference on Private International Law on the occasion of the drafting of the Convention on exclusive choice of court agreements, whose preliminary draft contravened the provisions of article 31 of the CMR Convention. Thanks to everyone’s efforts, goods and passenger transport was excluded from the scope of the Convention on exclusive choice of court agreements, thus preserving the CMR’s integrity.

The CMR’s prohibition from any separate international agreement as well as its strict revision procedure allow us to presume that any revision of the CMR would only be possible provided that it was unanimously accepted by all Contracting Parties /. There are 46 Contracting Parties to date and, until now – except for rail transport conventions whose situation is specific – no other amendment of a convention in the field of transport has ever been unanimously approved. One must therefore conclude that, although an amendment of the CMR is possible in theory, it is virtually impossible in practice. It was not without reason that, in 2003, the Governing Council of UNIDROIT reached the following conclusion: “for reasons of legal technique, it was not possible to amend CMR, even very partially” /.

That being said, in order to bypass this problem, there is nothing to preclude using additional Protocols to complement and fill gaps in the Convention without amending it.

The 1978 Protocol and the Protocol aiming at introducing electronic consignment notes are excellent examples of this possibility.

As a conclusion, it should be noted that the transport industry will continue to enjoy an intact CMR Convention for a long time. The only concern is to ensure its uniform interpretation from the Atlantic to the Pacific… But this is another issue to be dealt with on another occasion.

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