DEMATERIALISATION AND CONTRACT OF CARRIAGE BY SEA

INTRODUCTION

The contract of carriage is a synallagmatic contract formed by the exchange of wills.

It is not always necessary for the contract to be in writing; what matters is the exchange of wills. Sea[1] or national road transport can be carried out without a written contract.

What counts is the exchange of wills.

But there are limitations to this statement: certain international conventions, such as the Warsaw[2] or Montreal[3]conventions on air transport or the 1956 Geneva convention for the carriage of goods by road[4], require a written contract.

Where the contract of carriage is no more than a confirmation of the parties’ agreement to the price and the various services and conditions of carriage, transfer by electronic means poses no real difficulty.

In addition to the international conventions governing transport, the States of the European Union, heirs to Roman law, have all adopted texts validating the value of a document transmitted electronically, at the instigation of the Commission.

Electronic writing therefore falls into the category of perfect evidence and can be used as proof of a legal act such as a contract.

(French Civil Code, art. 1316-3: « Writing on an electronic medium has the same probative value as writing on paper » free office translation).

In countries Common Law countries, the issue is also dealt with very liberally in the United Kingdom and more restrictively in the United States.

Everyone now agrees (even if there are reservations here and there) that a document transmitted electronically has the same evidential value as a paper document.

All the difficulties have therefore been resolved: a contract of carriage, whatever the mode used (road, rail, river, air or sea), can be transmitted electronically.

This would be the case if the sole purpose of the contract of carriage was to serve as proof of the contract.

Bills of lading have traditionally fulfilled three main functions in maritime transport:

(1) receipt of goods,

(2) contract for carriage of goods

(3) title of ownership.

If these three functions are not all fulfilled, it is not a bill of lading but another document.

To clarify these three functions of the bill of lading, it should be added that there are three types of bills of lading:

• the “named” bill of lading (the name of the consignee and the receiver appears on the contract). There are no difficulties with delivery: the goods are handed over to the person named in the contract.
• the “to bearer” bill of lading: in this case, the words « to bearer » appear in the box provided in the contract for the consignee. The goods are therefore delivered to the bearer of the original bill of lading.
• the “to order” bill of lading: for this bill of lading, the words to order are indicated in the box provided in the contract for the consigned. the « to order » bill of lading circulates by endorsement. This bill of lading is used for document credit for floating sales of goods.

In fact, the named bill of lading can be transmitted electronically using a system that guarantees the validity of the signature. It is also possible that to bearer bill of lading could be transmitted to the receiver electronically, provided that the signature of the document and therefore its validity is certified.

But it seems insofar inconceivable, in the current state of law in the european union, to electronically transmit a bill of lading that can be used as the basis for a credit document in the same way as an insurance contract or a contract of sale.

This is of the outmost importance when the sea voyage is long (40 days between Europe and East Asia for large container ships): the transport time means that the goods can be resold during the voyage. There is no interest in case of road transport and very limited interest in case of air transport to have a negotiable contract of transport. But this is crucial for sea transport, particularly for carriage of agricultural or mineral raw materials.

It may seem like a trivial question, but you have to bear in mind that 80% of products sold in the European Union are transported by sea. This is therefore a key issue in particular for raw materials.

I propose firstly to examine the existing state of law and secondly the daily practice.

I – Paper versus electronic bill of lading through legal texts

 

A / the paper bill of lading and the texts

 

An American law dated 13 February 1893 is at the origin of all contemporary transport law. The Harter Act clearly defined the contract of carriage in relation to charter parties.

Several shippers’ nations followed this movement, which reached such proportions at the beginning of the 20th century that it became imperative to unify the issue at international level.

A preparatory meeting was held in The Hague in 1921, and three years later the Brussels Convention of 25 August 1924 « for the unification of certain rules relating to bills of lading » was signed. As can be seen, the text’s ambitions are very modest: it is simply a question of unifying certain rules, which is certainly what explains its success.

It should be noted that this convention is often referred to as the Hague Rules.

This text is strongly influenced by English law and the spirit of the Harter Act.

In 1968, an additional protocol called the « Visby Rules » updated the convention by modifying the limitation of liabilities and another protocol in 1979 introduced the SDR as the unit of account.

The amended text is known as the Hague Visby Rules.

The Convention is not intended to cover all phases of transport and has not resolved all the issues raised by the contract of carriage by sea, starting with the definition of this contract. National laws at the port of departure and arrival are intended to govern phases that are not subject to the Convention or, failing that, the agreement of the parties.

Internationally, the movement initiated by the Harter Act is not dead, since the countries that gained independence following the decolonisation have taken over from the United States. The result is the latest convention, known as the Hamburg Rules, which was adopted on 31 March 1978 and came into force on 1 November 1992.

It should be emphasised that this text stands in stark contrast to previous texts: it is much more ambitious than the previous convention: the title itself is revealing: « United Nations Convention on the Carriage of Goods by Sea, 1978 ». This is a far from « certain rules relating to bills of lading », the title of the 1924 convention.

This text takes care to define the essential terms in Article 1, including the contract of carriage: Article 1.6:

« The term ‘contract of carriage by sea’ means any contract by which the carrier undertakes, in return for payment of freight, to carry goods by sea from one port to another; … ».

We find all the concepts used in the definition of the contract of carriage in civil law countries: the subject of the contract, the parties to the contract and the payment of the price.

At international level, the movement initiated by the Harter Act is not dead: the Rotterdam Rules are the new United Nations text designed to govern the international maritime transport of goods. This convention, has also been signed by 21 developing countries and industrialised countries including Poland[5].

This text is much more precise than previous texts, even if it has not retained the spirit of the Hamburg rules.

Article 1.1 defines the contract of carriage as follows:

Art. 1: « The term contract of carriage means a contract by which a carrier undertakes, in return for payment of freight, to move goods from one place to another. The contract provides for carriage by sea and may also provide for carriage by other modes. Any type of medium, including electronic. Charter parties are excluded ».

This would seem to solve all the problems associated with electronic transmission of the bill of lading, but the convention has not entered into force and the Hamburg Rules have had extremely limited success. In the European Union only Romania has ratified that convention.

It is no exaggeration to say that 95% of the world’s maritime trade is carried out under the authority of an international convention dating from 1924, which does not define the contract of carriage and, of course, makes no provision for the electronic transmission of this document.

B/ the electronic bill of lading and texts

1/ Electronic bills of lading are not covered by any convention currently in force.

Even though thousands of containers travel under electronic bills of lading every day, there is no convention governing the matter. It should also be pointed out that most electronic bills of lading are non-negotiable or are sea waybills.

The modern process of transmitting information by computer very soon emerged as a technical means of limiting documentary fraud in maritime transport under bills of lading. However, the main difficulty in dematerialised the bill of lading was not the transmission of information but the signature, the manual means of authenticating the bill of lading, for which there is as yet no satisfactory substitute. What’s more, information technology can also be a source of fraud: documentary fraud would be succeeded by computer fraud. Beyond the technical aspects, the computerisation of bills of lading posed a question of law.

The increasing use of electronic devices, new means of communication and the Internet is affecting many areas of life, including trade and transport.

One of the effects is the dematerialisation of bills of lading.

Paper bills of lading have traditionally fulfilled three main functions in maritime transport: (1) receipt of goods, (2) contract for carriage of goods and (3) title of ownership. If these three functions are not all fulfilled, it is not a bill of lading but another document.

In June 1990, the CMI[6] adopted the « Rules for Electronic Bills of Lading ».

These rules are not mandatory, but only applicable if the parties agree.

The best known systems for electronic bills of lading are the Bolero system (Bill of Lading for Europe) and the ESS system (Electronic Shipping Solutions paperless system). The best known  Bolero system, based on the CMI rules. There is also different other systems[7]. There Whichever system is chosen, however, the electronic bill of lading remains less complete than a traditional bill of lading because, while it assumes the role of receipt of the goods and proof of the contract of carriage, its negotiability is imperfect.

While practitioners have managed to contractually organise the negotiability of the document between the parties, the electronic bill of lading does not govern relations with third parties.

Article 9 of the Rotterdam Rules specifies the procedure to be followed for the transmission of a negotiable bill of lading and Article 10 provides for the substitution of a negotiable transport document or a negotiable electronic transport document.

However, this text has not yet entered into force.

At present, there is a real legal vacuum at international level on the question of the electronic bill of lading, so it is necessary to refer to the rules of evidence of the country of the court seised.

Let us examine briefly a few examples of domestic rules on literal evidence and electronic signatures.

2/ domestic laws

Electronic signatures

In the European Union, electronic signatures have been governed since 2014 by the eIDAS regulation, the first stage in a vast plan to harmonise digital transactions and promote interoperability between EU Member States.

This text establishes a regulatory framework to increase confidence in electronic transactions within the European market, and applies equally to all EU countries, without transposition into national law.

It appears that only the qualified electronic signature is supposed to be legally identical to a handwritten signature. However, this does not make the electronic bill of lading a negotiable document.

Recent developments

There have been a number of developments in Europe in recent years to promote the use of eBLs. One of the most important developments is the adoption of the Model Law on Electronic Transferable Records (MLETR) by the United Nations Commission on International Trade Law (UNCITRAL) in 2017.

The MLETR provides a framework for the use of electronic transferable records, including eBLs, and aims to remove legal barriers to their use.

Several European countries have already incorporated the MLETR into their national legislation[8], including Denmark, Estonia, Finland, France, Greece, Italy, the Netherlands, Norway, Spain and Switzerland. These countries have recognised eBLs as legally valid and enforceable documents, and have set up electronic platforms for issuing, transferring and storing eBLs.

However, the question of the negotiability of bills of lading has not been resolved.

For example, under French law, an electronic document has the same value as a paper document Law no. 2000-230 of 13 March 2000 adapting the law of evidence to information technologies enshrined the evidential value of electronic documents.

In a decision rended on 11 July 2018[9], the French Cour de Cassation (Supreme Court for civil and commercial and criminal cases) overturned a ruling by the Lyon Court of Appeal, which had held that an electronic message could not, by its very nature, constitute a written document containing the respective agreement of the parties. The case concerned a sports agent who sought payment of commission under a mandate received to negotiate with a football club for the transfer of a player. The mandate had been concluded by the exchange of several e-mails.

The French Transport Code contains no provision on electronic bills of lading: in the absence of a specific provision, we have to rely on the general law on literal proof.

As far as electronic signatures are concerned, the issue must therefore be seen in the light of the eIDAS regulation and through the lens of custom and practice. This includes the Boléro and essdocs systems. French law does not recognise electronic bills of lading as negotiable documents.

In the Netherlands, the form of the contract is irrelevant and the Civil Code contains no specific provision on the electronic bill of lading. However, the electronic bill of lading is not negotiable.

But the situation is moving forward. The Port of Rotterdam in the Netherlands launched its blockchain-based platform, DELIVER, in 2019, (now Naviporta) which allows users to issue, transfer, and store eBLs. DELIVER is a joint initiative between the port authority, the municipality of Rotterdam, and various industries and it aims to promote the use of eBLs and other digital solutions in the logistics industry.

What is the situation outside the Union?

In the United Kingdom, although the position of the courts in England and Wales is not always identical to that of the courts in Scotland and Northern Ireland, the Carriage of Goods By Sea Act of 1992 (COGSA) authorises the Secretary of State to extend the law to dematerialised transactions, which of course includes electronic bills of lading.

The Electronic Trade Documents Act of 2023 came into force on 20^th of September in the United Kingdom, giving legal recognition in English law to electronic trade documents, including electronic bills of lading.

The Act sets out provisions relating to the use of electronic trade documents in practice, such as indorsement and change of medium between electronic and paper trade documents. It also repeals sections 1(5) and 1(6) of the Carriage of Goods by Sea Act 1992, and makes consequential amendments to section 89B(2) of the Bills of Exchange Act 1882.

Deliberately broad in scope and with a non-exhaustive list of the types of documents covered, the act includes definitions of ‘paper document’ and ‘electronic trade document’ and provides that, if certain criteria are met, an electronic trade document ‘has the same effect as an equivalent paper trade document’.

Crucially, it also provides that an electronic trade document is now legally capable of ‘possession’.

The issue of ‘possession’ has, until now, been the main obstacle to the legal recognition of electronic trade documents.

How can something that only exists digitally be ‘possessed’ by one party at a time, in order to provide clear evidence of title to the underlying goods represented by the document?

The Electronic Trade Documents Act 2023 seeks to modernise the law surrounding electronic trade documents including electronic bills of lading. It adopts an approach which is light on detail and flexible.

It is interesting to note that this law gives judges considerable discretion.

The criteria of reliable system in section 2(5)[10] leave a considerable amount of scope for a court to apply at its discretion, but that is not a particularly satisfactory position for parties wishing to use electronic documents. Until a court has decided whether a system is reliable or not, there will be doubt as to whether a system meets this requirement – and thus the parties will not know for sure whether the electronic documents are recognised under the Act or not.

The act provides the flexibility for the conversion of paper documents to electronic versions, and vice versa. This should help to address some of the possible issues of trade transactions where not all of the parties or jurisdictions involved are adequately set up to recognise or operate with electronic trade documents. Paper will continue to have a place in the world of international trade, at least for now.

However, with the International Chamber of Commerce estimating that approximately 80% of trade documents globally are based off English law, and many Commonwealth nations having legal systems modelled on English law, the introduction of the act in the UK is likely to see equivalent legislation appear in other nations in due course as the benefits of this new legal recognition become more apparent and fears of the unknown begin to ease.

As I have already said, many commercial contracts contain jurisdiction clauses making them subject to English law. This is very often the case in maritime transport, where standard bills of lading such as the Gencon bill of lading, for example, include a jurisdiction clause subjecting disputes to arbitration in London and English Law.

This law cannot be ignored, and both shippers and receivers will have to manage contracts subject to English law, including this text, which authorises the transmission and negotiability of dematerialised bills of lading.

The People’s Republic of China has no legal framework for electronic bills of lading: the Chinese text on the maritime bill of lading dates back to 1993.

The first Chinese bank to use a negotiable electronic bill of lading did so in 2013, using a document generated by the Bolero system.

The situation is similar in Russia.

In the United States, the situation is no simpler: legislation on electronic signatures exists at federal level (Electronic Signatures in Global and National Commerce Act « ESIGN Commerce Act »). Transport law is federal in nature, but commercial law is a matter for the federated states: you have to refer to the law of the federated states to find out whether the electronic bill of lading is provided for in the legal arsenal. In New York State, for example, the electronic bill of lading is recognised under commercial law, but it is not a negotiable document.

The paper bill of lading is a key document in international trade, used for carriage of goods by sea, in particular by containerships (liner transportation), as well as for international sale of commodities (and containerized goods) on CIF (cost, insurance freight) and FOB (free on board) terms (UNCTAD, 2023)

Unlike other transport documents, the negotiable bill of lading (‘bearer’ or ‘order’ bill of lading) is universally recognized as a ‘document of title’ and provides any lawful holder of the document with exclusive right to demand delivery of the goods from the carrier in exchange for the original document

As such, paper/negotiable bill of lading provides traders and banks with an independent documentary security that can be traded along a chain of contracts (string sales), enabling performance of sale of goods in transit.

Although electronic equivalents to the negotiable bill of lading are increasingly being developed, in many jurisdictions they do not yet benefit from full legal recognition as equivalent to traditional paper-based documents with the recent notable exception of the United Kingdom.

The above legislative provisions show that the use of information technology in documentary matters requires a considerable effort to organise electronic data interchange (EDI).

It is still arguable that bills of lading are generally not negotiable documents as are not legally capable of ‘possession’.

Today electronic bills of lading currently account for only 1.2% of the 45m bills of lading issued annually by ocean carriers (DCSA[11], 2023). But those bills of lading are not negotiable.

II – the practical response

To enable electronic transmission, several solutions have been devised in practice, while leaving aside the negotiability of the document. It should be underlined that the list of contracts is not exhaustive, as shippers’ and carriers’ imaginations are fertile.

• The sea way bill (SWB)

The SWB fulfils two of the three functions of the bill of lading: it provides proof of the contract of carriage by sea and of the characteristics of the goods loaded, but it does not represent those goods; unlike the bill of lading, it is not a negotiable document.

In the case of transport under a bill of lading, delivery implies completion, i.e. the actual handing over of the document. With a sea waybill, on the other hand, the consignee can obtain delivery of the goods without producing them: all he has to do is prove his identity.

As sea waybills are non-negotiable, they cannot be used for transactions involving floating sales. Its use where no transaction is envisaged.

The sea waybill has a computerised variant, the Data Freight Receipt, enabling it to be transmitted electronically.

The Sea Waybill (SWB) is a document intended not so much to replace the Bill of Lading as to co-exist with it. It meets a different need.

The sea waybill is a non-negotiable document and therefore does not need to be presented in order to hand over the goods to the consignee, who has no other formality to fulfil than to prove his identity.

The practice of the sea waybill, which emerged a few years ago in the form of ad hoc initiatives, was officially recognised in June 1990 at the 34th CMI[12] Conference, which adopted the « Uniform Rules » for users wishing to make use of this instrument.

Article 10 of the HAGUE RULES only applies to carriage covered by a bill of lading. In other word, sea waybill are without the scope of the convention.

In certain countries where there is no mandatory legislation applying to all contracts of carriage, even those not covered by a bill of lading, the SWB may not be subject to any mandatory legislation: the contractual arrangements for the shipment are then left to contractual freedom.

The Hamburg Rules were designed for contracts of carriage: article 2 states that « the provisions of this Convention shall apply to all contracts of carriage by sea between two different States … ». But I have no confirmation of this analysis, as French courts only very rarely rule on the Hamburg Rules.

It should be pointed out that the majority of SWBs contain a paramount clause making carriage subject to the Brussels Convention as amended by the 1968 Protocol.

In order to clarify the legal regime governing SWBs and to encourage their adoption by practitioners, in 1990 the Comité Maritime International (CMI) adopted « Uniform Rules for Maritime Bills of Lading ». These rules state that the contract of carriage covered by the MLC is subject to any convention or national law which would have been applicable if the carriage had been covered by a bill of lading (rule 4): « The contract of carriage is subject to any international convention or national law which is or would have been compulsorily applicable if it had been covered by a bill of lading or similar document of title ».

However, outside the scope of this binding force and insofar as they are not contrary to them, the Uniform Rules and the carrier’s general conditions apply to a given contract. Finally, in the event of incompatibility between the carrier’s general conditions and the Uniform Rules, the latter shall prevail.

Mechanism of the contract – The mechanism of the contract subject to the sea waybill is described in simple terms. The shipper is deemed to have stipulated not only for his own account but also for that of the consignee (Rule 3-1). He is responsible for the accuracy of the particulars of the goods he supplies (Rule 5-1). The absence of reservations on the part of the carrier at the time of shipment constitutes a presumption that the goods have been properly taken over, in the absence of proof to the contrary in the carrier’s relationship with the shipper, and without proof to the contrary (in the absence of bad faith) in the carrier’s relationship with the third party consignee.

The carrier delivers the goods to the consignee designated by the shipper on proof of identity. The shipper may, until delivery and subject to certain reservations, change the identity of the consignee. In addition, as long as the goods have not been taken over by the carrier, the shipper may assign his right of disposal to the consignee, provided he notifies the consignee (Rule 6).

The advantages of the waybill – The maritime world has given a favourable reception to these Uniform Rules, which govern a simple instrument, stripped of any purely documentary aspect and which has no other function than to constitute proof of a contract of carriage. In fact, the abandonment of the « documentary » aspect is one of the steps to be taken towards the computerisation of transport documents, the ideal being to make them paperless.

The development of documents such as the SWB and short forms is a response to the need to speed up the circulation of documents and lighten the traditional procedures of international maritime trade.

The growth in international trade has prompted practitioners to devise systems for transmitting information without the need for paper documents.

Since the 1970s, shipping lines operating mainly in Europe and North America have completely computerised the preparation of LTMs and the transmission of information relating to shipments. This is the Data Freight Receipt (DFR) system: a single copy of the LTM is drawn up, which serves as a receipt for the shipper.

All the information relating to the transport undertaken is then transmitted by computer to the carrier’s agent at destination, where it is automatically printed on a document that serves as the arrival notice. However, this electronic document is not negotiable. This process cannot therefore be used in the case of documentary credit or when the goods are intended to be sold during transport and the parties therefore wish to reserve the right to give instructions to the carrier during transit.

Examples :

Data Freight Receipt – The shipping lines operating on the North Atlantic have proposed to shippers a document called « Data Freight Receipt » or « DFR » for short (Document Fret Rapide).

This is a non-negotiable Sea Waybill. According to carriers, the use of the DFR makes it possible to dispense with the need to present a properly endorsed bill of lading at destination, thereby avoiding the delivery delays that may result, once the consignee indicated by the shipper has been identified.

The Data Freight Receipt was created and has been used for over 20 years by the ACL Consortium (Atlantic Container Line, Grimaldi Group).

But it is not the only player in the eBL market.

A number of other procedures have been used in recent years. These systems are fairly similar to those set up by the ACL Consortium and the CGM.

Computerised procedures have also been introduced by shipping companies such as Sea-Land (COMDOC) and American President Lines (CMS II).

The WAVE BL platform was used by ZIM, an Israeli company, to issue its first eBL in 2017, and since 2020 the New Zealand dairy cooperative Fonterra has partnered with WAVE BL and HSBC for their eBLs.

In 2020, TradeLens, a blockchain logistics platform developed by IBM, Maersk and MSC, carried out a test at the port of Rotterdam using tokens (a non-duplicable digital asset issued and exchangeable on a blockchain) to clear goods through customs, with promising results. But the platform has been since discontinued.

2° Other documents

As the contract of carriage by sea is a consensual contract, the drafting of a bill of lading is not a condition of its existence and formation.

For this reason, the existence of the contract of carriage is evidenced by documents other than the bill of lading and the sea waybill. There are several examples of this in case law. However, they must be distinguished from other documents also issued for a particular transaction.

Short bills of lading

Some shipowners have developed the habit of using bills of lading or, more often, sea waybills with a blank reverse side. A simple clause appears on the document indicating that the shipment is subject to the general conditions, which are available from the transport company’s offices, its agents or on its website. This transport document is commonly known as a short form. Its main purpose is to make it easier to draw up the document electronically.

Short forms are allowed in some countries, such as the United Kingdom. However, in other countries, such as the United States, the courts have ruled that reference to the general conditions is valid for standard clauses, but not for clauses that are exorbitant to ordinary law or that are not commonly used.

In civil law countries, in order to be enforceable against the shipper and the consignee, the terms and conditions of carriage must appear on the transport document. Otherwise, the clauses are not enforceable. This is the case for example, in Belgium or in France.

Delivery order

 

This document is a cut-out of the bill of lading drawn up and issued by the carrier when the goods, divided into batches, are destined for several customers. Its purpose is to individualise the goods before handing them over to the consignee.

Delivery orders are commonly used for goods that are subject to successive transactions during their journey, such as coffee or cocoa. In this case, several containers are shipped under one bill of lading, and as each sale is made, the containers are identified by delivery orders.

The clauses of the bill of lading are generally included on the delivery orders. If they are not included in these documents, the courts will not recognise them as enforceable against the holder. Delivery orders can also be used in the case of successive sales when a seller does not want to make it known to his buyer from whom he has purchased the goods. In this case, the seller can exchange the bill of lading for a delivery order.

It should be noted that delivery orders are not negotiable, but at the time of delivery they give the bearer the same rights as a traditional bill of lading, i.e. the right to have the goods delivered.

Booking note:

The freight waybill is not a document representing the goods and cannot be used as part of a documentary credit. This document was born out of practice: each shipping company has its own freight order. However, there is a model drawn up by the BIMCO and revised in 2000: the conlinebooking 2000.

The Freight Order is used mainly for the carriage of large or bulky goods (bulk or heavy parcels) for which the parties do not wish to draw up a charter party, either for convenience or because the shipment does not represent the full capacity of the vessel.

In legal terms, the circumstances determine whether the contract is a charter or a contract of carriage. The presence of clauses on loading deadlines or demurrage, for example, will help to classify the contract as a charter. However, the absence of these clauses does not mean that the contract must necessarily be classified as a contract of carriage. The circumstances take precedence, depending on the respective obligations of the parties. In general, where the carrier undertakes to provide transport capacity and carries out handling under its responsibility, the contract is classified as a contract of carriage.

CONCLUSIONS :

Countries with legal systems inherited from Roman law are reluctant to completely dematerialise a contractual chain for reasons of proof.

The dematerialisation of the signature is accepted, but I am in a position to state that in the very near future all shippers and receivers in the European Union will have the choice of a complete dematerialisation of their contract, including the signature and documentary credit. For the time being, dematerialization is a choice, not an obligation. But for how long?

[1] Hague Visby Rules article 3 – 3 : “After receiving he goods into his charge the carrier or the master or agent of the carrier shall, on demand of the shipper, issue to the shipper a bill of lading…”. The terms on demand mean that it is an obligation on the condition the shipper asks for it.

[2] Convention for the Unification of Certain Rules for International Carriage by Air signed at Warsaw on 12 October 1929.

 

[3] Convention for the Unification of Certain Rules for International Carriage by Air signed at Montreal on 28 May Warsaw 1999.

[4] Convention on the Contract for the International Carriage of Goods by Road (CMR). Geneva, 19 May 1956.

 

[5] The Rotterdam Rules have been signed by following nations: Armenia, Cameroon, Congo, Denmark, France, Gabon, Ghana, Greece, Guinea, Madagascar, Mali, Netherlands, Niger, Nigeria, Norway, Poland, Senegal, Spain, Switzerland, Togo and United States of America.

[6] CMI = Comité Maritime International.

[7] e-titleTM (2015), Global Share S.A. edoxOnline, WAVE-BL98 and CargoX99 (2020), IQAX Ltd and Secro (2022). [TradeLens (2021) but platform has since been discontinued]

 

[8] Several European countries have already incorporated the MLETR into their national legislation, including Denmark, Estonia, Finland, France, Greece, Italy, the Netherlands, Norway, Spain and Switzerland.

 

[9] Cour de Cassation, 1 chambre civile 11 juillet 2018 n°17-10.458 :

 

« ALORS, D’UNE PART, QUE l’article L. 222-17 du code du sport prévoit que le contrat en exécution duquel l’agent sportif exerce l’activité consistant à mettre en rapport les parties intéressées à la conclusion d’un des contrats mentionnés à l’article L. 222-7 est « écrit » sans imposer qu’il s’agisse d’un écrit unique, ni en préciser la forme ; qu’en retenant que, parce qu’il ne regroupait pas en « un seul document » les mentions obligatoires prévues par l’article L. 222-17 du code du sport, l’échange de courriels dont se prévalait la société AGT UNIT ne valait pas mandat régulier, la cour d’appel a, en y ajoutant une condition qu’il ne prévoit pas, violé le texte précité ;

ALORS, D’AUTRE PART, QU’en retenant qu’un message électronique ne peut, par nature, pas constituer l’écrit concentrant les engagements respectifs des parties, exigé par l’article L. 222-17 du code du sport, la cour d’appel a relevé d’office un moyen sur lequel elle n’a pas invité les parties à présenter leurs observations ; qu’elle a ainsi violé l’article 16 du code de procédure civile ;

ALORS, ENFIN, QUE lorsqu’un écrit est exigé pour la validité d’un acte juridique, il peut être établi et conservé sous forme électronique, sous réserve que puisse être dûment identifiée la personne dont il émane et qu’il soit établi et conservé dans des conditions de nature à en garantir l’intégrité ; qu’en affirmant qu’un message électronique ne peut, par nature, pas constituer l’écrit concentrant les engagements respectifs des parties, exigé par l’article L. 222-17 du code du sport, la cour d’appel a violé ce texte et les articles 1108-1, 1316-1 et 1316-4 du code civil, dans leur rédaction antérieure à l’ordonnance du 10 février 2016. »

 

Free office translation

 

“WHEREAS, ON THE ONE HAND, THAT Article L. 222-17 of the Code du Sport provides that the contract under which the sports agent performs the activity of bringing together the parties interested in the conclusion of one of the contracts mentioned in Article L. 222-7 is « in writing » without requiring that it be a single document or specifying its form; that in holding that, because it did not include in « a single document » the compulsory particulars provided for by Article L. 222-17 of the Code du Sport, the exchange of e-mails relied upon by AGT UNIT did not constitute a valid mandate, the Court of Appeal, by adding a condition that it does not provide for, violated the aforementioned text;

 

WHEREAS, on the other hand, in holding that an electronic message cannot, by its very nature, constitute a written document setting out the respective commitments of the parties, as required by Article L. 222-17 of the Code du Sport, the Court of Appeal raised a plea of its own motion on which it did not invite the parties to present their observations; it thus violated Article 16 of the Code of Civil Procedure;

 

ALSO, FINALLY, THAT when a writing is required for the validity of a legal act, it may be drawn up and kept in electronic form, provided that the person from whom it emanates can be duly identified and that it is drawn up and kept under conditions that guarantee its integrity; in holding that an electronic message cannot, by its very nature, constitute a written document setting out the respective commitments of the parties, as required by Article L. 222-17 of the French Sports Code, the Court of Appeal infringed that text and Articles 1108-1, 1316-1 and 1316-4 of the French Civil Code, as they read prior to the Order of 10 February 2016.”

[10] Section 2(5) of the Electronic Trade Document Act 2023:”  When determining whether a system is reliable for the purposes of subsection (2), the matters that may be taken into account include

(a) any rules of the system that apply to its operation;

(b) any measures taken to secure the integrity of information held on the system;

(c) any measures taken to prevent unauthorised access to and use of the system;

(d) the security of the hardware and software used by the system;

(e) the regularity of and extent of any audit of the system by an independent body;

(f) any assessment of the reliability of the system made by a body with supervisory or regulatory functions;”

(g) the provisions of any voluntary scheme or industry standard that apply in relation to the system.

 

[11] DCSA : Digital Container Shipping Association https://dcsa.org

[12] CMI = Comité Maritime International.