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2 EJCCL 1 (2010)

handle is hein.journals/ejccl2 and id is 1 raw text is: Olivier Cachard* Jurisdictional Issues in the Rotterdam Rules: Balance of Interests or Legal Paternalism? 1. The question of international jurisdiction in the Rotterdam Rules evokes the apparition of the Ghost in The Tragedy of Hamlet, Prince of Denmark: 'Enter the Ghost, clad in complete armour, with its visor raised and a truncheon in its hand'. In the maritime world of the 21st century, the Ghost might be the carrier operating a regular line, clad in a complete armour of standard forms incorporating a choice of court clause. But the Ghost might also be Chapter 14 of the Rotterdam Rules coming back from the past, i.e., Article 21 of the Hamburg Rules, where it first appeared in 1978. Although the question of jurisdiction is not a matter of substance of maritime law, it is nevertheless crucial for several reasons. 2. From a pragmatic point of view, time and money are of the essence in questions of jurisdiction. Be it for the carrier, the shipper or the consignee, the preservation of contractual rights depends on the effective access to justice. Distance, predictability, the language of the proceedings, representation and assistance in court by a local lawyer, the neutrality of local State courts - all are crucial criteria for the implementation of the new unified regime for door to door transportation includ- ing a maritime phase. 3. From a political point of view, jurisdictional issues also are very significant. We know very well that States endorse the interests of their industries and of their legal professionals. There is obvious competition be- tween legal systems: an international convention, even if it promotes uniform law, can affect the attractiveness of legal systems. Everybody remembers that jurisdic- tional issues contributed, among other reasons, to the failure of the Hamburg Rules in maritime nations. This is the reason why Article 74 has instituted an opt-in mechanism, the provisions regulating jurisdiction bind- ing 'only Contracting States that declare in accordance with Article 91 that they will be bound'. The position of the European Union, that can ratify the Convention, will be scrutinised when revision of Regulation (EC) 44/2001 is being prepared. 4. From a systemic point of view, the impact of the jurisdiction provisions of the Rotterdam Rules on general private international law also has to be con- sidered. Although the Rotterdam Rules are a special instrument in maritime law, we all remember that landmark decisions by the European Court of Justice2 and by national Supreme Courts3 were often given in European Journal of Commercial Contract Law 2010-1/2 maritime law cases. Choices made in maritime law may extend to other fields of law. 5. Finally, if Chapter 14 is severable from the rest of the Rotterdam Rules,' does it mean that it departs from the rationale and the method that have inspired the whole text? Considering the recitals paying a tribute to 'the progressive harmonisation and unification of international trade law', authors indeed consider that the Rotterdam Rules are more evolutionary than revolutionary. For Alexander von Ziegler, 'The new Convention is, as it relates to liability issues, a revision, a modernization, a reorganization, and a clarification of Agr6g6 des Facult6s de Droit; Doyen de la Facult6 de Droit, Sciences 6conomiques et Gestion de Nancy; Arbitre a la Chambre Arbitrale Maritime de Paris. This article is based on the lecture held by the author at the conference 'the Rotterdam Rules appraised' on 24 September 2009 at the Erasmus University Rotterdam. 1. W. Shakespeare, Hamlet (G. R. Hibbard, ed., Oxford Univer- sity Press, 1987), Act I, scene i; see also Marcellus' invitation to Horatio: 'Thou art a scholar, speak to it Horatio'. 2. For example, ECJ, 19 June 1984, Tilly Russ, aff. C-71/83, Rev. crit. DIP, 1985, p. 385 note H. Gaudemet-Tallon; ECJ, 25 July 1991, Marc Rich c. Societ Italiana Impianti, aff. C-190/89, Rev. crit. DIP, 1993, pp. 316, note P. Mayer; ECJ, 20 Feb. 1997, Les Gravires Rhinanes, Rev. crit. DIP, 1997, pp. 563, note H. Gaudemet-Tallon; ECJ, 16 March 1999, Trasporti Castelleti, aff. C- 159/97, Rev. crit. DIP, 1999, pp. 559, note H. Gaudemet-Tallon; ECJ, 11 Sept. 2000, C-387/98, Coreck Maritime GmbH./.Handelsveem BVIJD.I., pp 701, note J.-M. Bischoff; ECJ, 04/27/2004, C-159/02, Gregory Paul Turner IFelix Fareed Ismail Grovit et al.; ECJ 10 Feb. 2009, Allianz SpA, anciennement Riunione Adriatica di Sicurtd SpA, Generali Assicurazioni Generali SpA, contre West Tankers Inc., Le droit maritime francais, 2009, p. 211, note R. Carrier. 3. For a study of the French case law as regards the binding ef- fect of the choice of court agreement stipulated in the B/L onto the consignee of the goods, 0. Cachard, 'La force obliga- toire vis-a-vis du destinataire des clauses relatives a la comp6- tence internationale dans les connaissements: plaidoyer pour un renouveau des consid6rations maritimistes', in Melanges Gaudemet Tallon (Paris: Dalloz 2006), 189-208; adde Cass, 1 civ., 16 Dec. 2008, pourvoi no. 07-18.834 and Cass., com., 16 Dec. 2008, pourvoi no. 08-10.460, Dalloz, 2008, p. 89, note X. Delpech, 'Opposabilit6 des clauses attributives de juri- diction contenues dans des connaissements maritimes'; Ph. Delebecque, 'Clauses attributives de comp6tence, transport maritime et textes communautaires: une unification de la juris- prudence par le bas', Le droit maritime frangais (2009), 134. 4. Since they are submitted to a special declaration according to Arts 74 and 91. 1

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