This article examines the question left open by the authors of the CMI Draft Instrument on Transport Law whether or not, following the pattern of other international Conventions, the proposed international instrument should contain rules on jurisdiction and arbitration. In this context, practical needs for protection of shippers are discussed as well as pros and cons of the legal provisions.

The so-called “CMI Draft Instrument on Transport Law”, which seems to serve as a basis for the future work in UNCITRAL, does not, unlike the Hamburg Rules, contain provisions on jurisdiction and arbitration. The introduction, in this regard, reporting on the work of the CMI Sub-Committee, states:

The Instrument does not contain any provisions dealing with jurisdiction or arbitration and these topics have not been considered by the [International Sub-Committee]. It seemed premature to consider these topics before some conclusions had been reached on the nature of the Instrument, including its mandatory effect, the range of topics which it should cover and the scope of its application....

Whilst the Hague and Hague-Visby Rules contain no provisions on jurisdiction and arbitration, provisions are contained in articles 21 and 22 of the Hamburg Rules. The CMR contains provisions on jurisdiction and arbitration in articles 31 and 33, but the Budapest Convention1 contains no such provisions.

The CMI International Sub-Committee on the Uniformity of the Carriage of Goods by Sea considered that uniform rules should contain a provision on jurisdiction along the lines of article 21 of the Hamburg Rules, but not including the provisions of article 21 which were in conflict with article 7(1) of the 1952 Arrest Convention, and a majority was in favour of a provision along the lines of article 22 of the Hamburg Rules, but with the omission of subparagraph (3). These topics give rise to policy issues which require detailed consideration.

This statement is, like the whole draft, neither very precise nor elaborate. Nevertheless, it reflects, in a way contradictorily, a particular recommendation, obviously meant to depend mainly on the final decision on the nature of the Instrument.

405