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.


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