Comparative study of international carriage of goods by railway between CIM and SMGS
Author | ZHU Yan, Vadim Filimonov |
Pages | 115-136 |
FRONTIERS OF LAW IN CHINA
VOL. 13 MARCH 2018 NO. 1
DOI 10.3868/s050-007-018-0008-5
ARTICLE
COMPARATIVE STUDY OF INTERNATIONAL CARRIAGE OF GOODS BY RAILWAY
BETWEEN CIM AND SMGS
ZHU Yan*, Vadim Filimonov**
Abstract China and some of its trade partners in Western Europe apply different legal
regimes for international carriage of goods by railway — respectively Agreement on
International Railway Freight Transportation (SMGS) and Uniform Rules Concerning
the Contract of International Carriage of Goods by Rail (CIM). For transportation of
goods by railway between China and Western Europe both the CIM and the SMGS are
often applicable. China’s initiative “the Belt and Road” promotes development of
railway transport in Eurasia and creates new incentives for comparative study between
those two international legal systems. This article provides a brief historical outline of
comparative studies between the CIM and SMGS. This article also purports to show that
some similarities and differences between the two regimes might be better understood
from the perspective of comparative legal history. Taking into account inter alia the
common origin of the current versions of the CIM and SMGS in the 4th revision of the
CIM of 1933, differences and similarities between two legal regimes have been analysed
with regard to the following topics: the scope of application of the CIM and SMGS; the
nature of the carrier’s liability under the CIM and SMGS; exclusivity of the CIM,
exclusivity of the contract of carriage under the SMGS; period of responsibility; persons
for whom the carrier is liable.
Keywords “Belt and Road” initiative, international railway transportation law, comparative
law
INTRODUCTION .....................................................................................................................116
I. TWO LEGAL REGIMES FOR INTERNATIONAL CARRIAGE OF GOODS BY RAILWAY
IN EURASIA..............................................................................................................117
II. INTERNATIONAL RAILWAY LAW AS AN OBJECT OF COMPARATIVE STUDY ............. 120
III. COMPARATIVE STUDY BETWEEN THE CIM AND SMGS: VIEW FROM THE
PERSPECTIVE OF COMPARATIVE LEGAL HISTORY................................................. 123
A. The Scope of Application of the CIM and SMGS.............................................. 124
* () Ph.D. in Civil and Commercial Law, School of Law, Renmin University of China, Beijing, China;
Professor in Civil and Commercial Law, School of Law, Renmin University of China, Beijing 100872, China.
Contact: rotsteinzhu@aliyun.com
** Vadim Filimonov, M.Jur. (University of Oxford), Ph.D. Candidate, School of Law, Renmin University
of China, Beijing 100872, China. Contact: vadimf@sina.com
116 FRONTIERS OF LAW IN CHINA [Vol. 13: 115
B. The Nature of the Carrier’s Liability under the CIM and SMGS ......................126
1. General Structure of the Carrier’s Liability................................................... 126
2. Different Exception Groundsunder the CIM and SMGS............................... 127
3. Exception Grounds Only under the CIM....................................................... 129
4. Special Exception Groundsunder the SMGS?............................................... 130
C. Exclusivity of the CIM. Exclusivity of the Contract of Carriage under the
SMGS ................................................................................................................ 131
D. Period of Responsibility.................................................................................... 132
E. Persons for Whom the Carrier Is Liable........................................................... 133
F. Concluding Remarks and Relevant Provisions of the Draft URL ...................... 134
CONCLUSION........................................................................................................................ 136
INTRODUCTION
First proposed by Chinese President Xi Jinping in September 2013 in Astana, the “the
Belt and Road” initiative has since then become an important element of China’s future
vision.
In March 2015, under the authorization of the State Council, the National
Development and Reform Commission, Ministry of Foreign Affairs, and Ministry of
Commerce of the People’s Republic of China, jointly issued the document called “Vision
and Actions on Jointly Building Silk Road Economic Belt and 21st-Century Maritime
Silk Road.”1 Chapter 3 of the document stressed that “[o]n land, the Initiative will focus
on jointly building a new Eurasian Land Bridge and developing China-Mongolia-Russia,
China-Central Asia-West Asia [...] economic corridors by taking advantage of international
transport routes.” This involves more active carriage of goods by railways, an important
element of the “land bridge” in the region.
However, in practice while transporting goods from Shanghai to Hamburg by railway,
parties need to conclude consequently two contracts of carriage and apply two
international legal regimes (see below part Iof this article). This is not to mention the
need to apply various provisions of domestic laws of the countries through which goods
are transported with regard to issues not dealt with by international conventions. In this
situation, the importance of comparative analysis between various legal regimes cannot
be underestimated.
Indeed, several major projects in international railway transportation law have been
recently accomplished based on comparative research, including attempts to find a
“common core” of the law for international carriage of goods by railway in Eurasia. It can
be even said that recent years have witnessed emergence of a new attitude towards
international railway law as an object of comparative research (see below part II of this
article). China’s commitment to promote communications by railway across Eurasia as
1 21 (Vision and Actions on Jointly Building
Silk Road Economic Belt and 21st-Century Maritime Silk Road), available at http://www.ndrc.
gov.cn/gzdt/201503/t20150330_669392.html (last visited Jul. 18, 2017).
To continue reading
Request your trial