The impact of the Rotterdam Rules on International Trade Law

Abstract

The Rotterdam Rules have come to harmonise and update the law of international carriage of goods wholly or partly by sea. This Convention has been praised for being more aware of the interrelation between carriage and international sale contracts. The objective of this thesis is to investigate the impact that the Rotterdam Rules will have on international commercial sales when the applicable law is English law. The focus of the research has been placed on the provisions of the Rotterdam Rules which have been inserted to facilitate trade.

The international trade of goods heavily relies on documentary performance. The transport documents are of the utmost significance and where they are negotiable, they enable sales down a string through transfer of a document of title. The provisions of the Rotterdam Rules allowing the seller to obtain the appropriate document for tender to the buyer have been examined, to discover possible implications on CIF and FOB contracts. Thus, study of the compatibility of the Rotterdam Rules with the Incoterms is critical. Equally significant has been the research of the relation between the requirements a transport document or electronic record should satisfy under the Rotterdam Rules and a letter of credit governed by the UCP 600, as this is the preferred method of payment in modern overseas sales.

Moreover this thesis investigates the way in which the transport document can secure the seller’s and buyer’s rights under their contract of sale, if issued in an electronic form. Currently there is a particular interest in paperless contracting especially in the oil trade. Thus, whether the Rotterdam Rules can operate successfully, along with eUCP and modern registries and what law reforms need to take place to optimise trade facilitation and certainty in this area have also been examined. Finally because international sale agreements incorporate English law due to the advantages of freedom of contract, this made necessary the discussion of the trade dimensions of a volume contract that derogates from the Rotterdam Rules. The fluctuating balance between codification, consolidation of legal principles and freedom of contract as reflected by the Rotterdam Rules and texts of other rule-setting organisations underpins the findings of this thesis. Thus, not surprisingly, the way the Rotterdam Rules, which are a piece of international codification, legitimise freedom of contract in agreements that would otherwise be subject to a mandatory regime deserves special consideration. All the chapters are strongly interrelated both in conceptual and teleological legal terms.

This thesis asserts that the trade implications from the application of the Rotterdam Rules are due to the idiosyncrasies of the regulation of carriage and trade laws. Although they may touch upon common concepts, they are constituted by varied legal sources and drafted by delegations, which, due to their background and composition harmonise the law based on different priorities. This justifies the synergies identified in this thesis; it is a thesis which goes beyond the implications identified and suggests the way forward so that the Rotterdam Rules can have a positive effect on sales concluded on shipment terms.

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ORCID for Andrea Lista: orcid.org/0000-0002-4234-0914

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