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).