关于可转让货物单证(negotiable cargo documents)新文书的草案正在审议中,该项工作由联合国国际贸易法委员会(UNCITRAL)第六工作组负责,顺利的话,应该会在未来的一年内定稿。这项开创性工作的背后,正是源于一份中国政府于2019年7月在联合国国际贸易法委员会第52届会议上提交的“关于就解决铁路运单不具备物权凭证属性带来的相关问题开展工作的建议”,即“中国建议”。该建议注定将被载入史册。
Proposal by the Government of the People’s Republic of China on UNCITRAL’s Future Work: Solving the problems of railway consignment notes which are not of the same nature as documents of title
1. At present, on a global scale, countries have realized that interconnection between different countries and regions through various means of transportation is an effective way to promote international economic and trade development and boost global economic growth. Among various means of transportation, railway transportation has many advantages such as shorter transportation distance, faster speed and is less affected by weather. Since many countries are connected by land, railway transportation has an enormous development potential as an important means for close economic and trade exchanges among different countries.2. In recent years, due to continuous improvement in railway construction capabilities, international railway transportation has been developing rapidly, among which the CHINA RAILWAY Express (CR Express) has become one of the main transportation modes for Euro-Asian trade. In 2018, CR Express made 6,300 trips, with a year-on-year increase of 72 per cent, including 2,690 return trips with an increase of 111 per cent. As of now, CR Express has made more than 12,000 trips cumulatively, connecting 56 Chinese cities with 49 cities in 15 European countries. The total volume of goods transported by CR Express is growing rapidly, and the types of goods have also been constantly diversified. The development of railway transportation has provided a new and convenient channel for economic and trade exchanges among countries, contributed to global trade growth and provided new vitality into the global economy.3. In practice, however, an international railway consignment note is only of the same function as a railway transport contract and a cargo receipt, rather than as a document of title. It cannot be used for the settlement and financing of letter of credit (L/C) as an ocean bill of lading (B/L) does, thus limiting the ability of banks and other institutions to provide financing services, and increasing the financial pressure on importers and the risk of payment collection for exporters. Specifically, as a railway consignment note is not a document of title and is required to accompany cargo, it cannot be transferred or pledged, and it is impossible for the holder to claim the right to possession and disposal of cargo by virtue of a consignment note. Due to risk management, banks are reluctant to treat a railway consignment notes as a negotiable document under L/C, leaving buyers and sellers unable to settle with financing through their railway consignment notes. Therefore, buyers have to make advance payment for goods under huge financial pressure while sellers are unable to receive payment in time. Apart from these, the non-negotiable nature of railway consignment notes makes it impossible for buyers to resell the goods in transit, which further limits the transfer of goods and efficiency of transactions. For the above reasons, the further development of inland trade was hindered to some extent.II. Current Rules and Latest Practices4. At present, there are two major intergovernmental railway organizations. One of them is the Intergovernmental Organization for International Carriage by Rail (OTIF), with more than 50 member States mainly in Europe, North Africa and the Middle East. Its governing instrument, the Convention concerning International Carriage by Rail (COTIF 1999), is composed of the treaty text itself and its seven appendices. The Uniform Rules concerning the Contract of International Carriage of Goods by Rail (CIM) (Appendix B to COTIF), expressly provides, in article 6, paragraph 5, that “the consignment notes shall not have effect as a bill of lading”. The other organization is the Organization for Co-operation between Railways (OSJD), with membership of 29 countries mainly in Asia and Eastern Europe. Agreement on International Railway Freight Communications (SMGS) of the OSJD is composed of the treaty text, rules of procedure and six annexes. The text does not specify whether a consignment note is of the same nature as a document of title, but its article 6 stipulates that a railway consignment note shall be accompanied by the goods from the departure station to the arrival station throughout the whole course of the carriage, and article 7 provides that a stamped railway consignment note may be used to confirm the conclusion of a contract of carriage.5. In order to harmonize the railway transport documents, the two major railway organizations formulated the CIM/SMGS Consignment Notes. However, due to various reasons, CIM/SMGS Consignment Notes have not been widely used in practice. Point 2 of the CIM/SMGS Consignment Notes Manual stipulates that the CIM/SMGS Consignment Notes are documents certifying the conclusion of the contract of carriage for international railway transportation among CIM/SMGS countries. Point 19 provides that the original(s) of the CIM/SMGS Consignment Notes shall be delivered to the consignee. The CIM/SMGS Consignment Notes still lacks the same functionality and is therefore not of the same nature as documents of title.6. In addition, the United Nations Economic Commission for Europe (UNECE) established an expert group in 2011 to draft a unified railway law. The relevant provisions on railway consignment notes in the draft proposed by the expert group did not make substantive revisions with respect to the CIM/SMGS requirements, and the railway consignment notes are still regarded as a contract of carriage rather than a document of title.7. Recognizing the transferable nature of multimodal transport documents under certain circumstances, the United Nations Convention on International Multimodal Transport of Goods of 1980 (not in force) and the UNCTAD/ICC Rules for Multimodal Transport Documents of 1992 and other international rules on multimodal transport apply to international carriage which includes two or more modes of transportation. Their provisions on the rights and obligations of the parties concerned, and liability for damages as well as other aspects mainly apply to maritime carriage. The characteristics of railway and other modes of transportation have not been fully taken into account.8. Although it is provided in the Uniform Customs and Practice for Documentary Credits (UCP600) that banks can accept railway consignment notes, these notes are not of the same nature as documents of title, which therefore makes it impossible to address the issue of controlling and taking delivery of cargo by presentation. As banks are exposed to huge risks, they are basically unwilling to accept railway consignment notes to engage in L/C business in practice, therefore railway consignment notes cannot be used for the purposes of financing and settlement.9. Certain legal instruments developed by the United Nations Commission on International Trade Law (UNCITRAL) have relevance to this issue. For instance, in the field of international transport, the United Nations Convention on the Contracts of International Carriage of Goods Wholly or Partly by Sea (the “Rotterdam Rules”) covers both negotiable and non-negotiable transport documents in connection with formality requirements and the carrier’s delivery obligations, but does not touch upon the ownership of cargo. Although applicable to door-to-door cargo transport, the Convention cannot be applied where non-maritime segment is regulated under other uniform international regimes (e.g., international railway rules). In the field of electronic commerce, the rules on the transfer of electronic documents under the UNCITRAL Model Law on Electronic Transferable Records are based on the premise that the documents are negotiable. Therefore, only after the issue of negotiability of railway consignment notes is solved can the Model Law come into play in the field of railway transport. When it comes to secured transactions, although UNCITARL has developed a series of legal instruments on secured transactions for financing purposes, their scopes are limited to secured financing and do not address the issue of application of railway consignment notes.10. Chinese enterprises and their trading counterparts in other countries have explored ways to solve the problems of railway consignment notes which are not of the same nature as documents of title. They mainly use contractual agreements in which the carrier or freight forwarder issues a “bill of lading” in addition to the railway consignment notes. The “bill of lading” is used as the sole proof of delivery and the freight is controlled by the carrier or freight forwarder throughout the whole process. The consignor will use the “bill of lading” for financial settlements with the bank, such as negotiation, foreign exchange settlement and bill purchase. The consignee will obtain the “bill of lading” from the issuing bank after fulfilling its obligations and take delivery of goods from the issuer accordingly.11. Although the method mentioned above has been applied in some transactions, the attributed function that such a contractual “bill of lading” has as a document of title is valid only to the contracting parties. As a result, not only the rights and obligations of the parties concerned are unstable, but also the “bill of lading” is largely limited in terms of negotiability and the financing security function. Also, issues such as issuer’s qualifications, conditions for issuance, the intended users, as well as the format and validity of issuance cannot be resolved through the contract. Therefore, it is imperative to provide institutional safeguards at the level of legal rules.12. By creating new rules to address trade barriers caused by the fact that a railway consignment note is not of the same nature as a document of title, trading risks and transaction costs can thus be reduced, and sustainable economic development and trade prosperity can also be promoted, which will benefit both inland countries and countries around the world. This demand may not only exist in railway transport, but also in road and air transport. Documents of title used for international trade and transport services need to be circulated and applied among different countries. Since one country’s legislation alone cannot solve this problem, the parties concerned are calling for the formulation of new international rules.13. UNCITRAL has rich work experience in the harmonization and modernization of commercial rules in the field of international trade. Therefore, the Chinese Government recommends that UNCITRAL introduce in its work programme of solving the problems of the railway or other consignment notes which are not of the same nature as documents of title and start exploratory work on drafting a possible international instrument for this purpose. For instance, possibilities could be explored by creating rules on a unified bill of lading(B/L), which would apply to railway, road and air transport in one or more modes, so as to achieve the goal of using a single through B/L for controlling and taking delivery of cargo. Such an attributed function would enable B/L to perform settlement-financing function. Rules on issuer’s qualifications, conditions for issuance, the intended users, as well as the format and validity of issuance could also be considered. It is worth noting that such new rules are not intended to change the current substantive rules on transportation.14. Given the wide-ranging and complex issues involved, it is recommended that the Commission authorize the Secretariat to conduct research on legal issues related to the use of railway or other consignment notes, and coordinate with other relevant organizations such as the Intergovernmental Organization for International Carriage by Rail (OTIF), the Organization for the Collaboration between Railways (OSJD), the International Rail Transport Committee (CIT), the relevant United Nation regional commissions, the International Federation of Freight Forwarders Associations (FIATA), and the International Chamber of Commerce (ICC). China is willing to provide its support to the exploratory work on this issue.
1. 背景
(1)目前,在全球范围内,各国都认为通过各种运输方式实现不同国家和地区间的互联互通是促进国际经贸发展、拉动全球经济增长的有效途径。许多国家陆路相连,特别对于内陆国家而言,铁路运输密切了这些国家的对外经贸往来,呈现出巨大的发展潜力。(2)近年来,随着铁路通道建设能力的不断增强,国际铁路联运快速发展。比如,中欧班列的实际应用。铁路运输的发展为各国间经贸往来提供了便捷的新通道,带动了全球贸易增长,为世界经济注入了新的活力。(3)国际铁路运单仅具有铁路运输合同和货物收据的性质,而不具备物权凭证属性,无法像海运提单一样用于信用证结算和融资,从而限制了银行等机构提供金融服务,增加了进口商的资金压力,也使出口商面临回款风险。因铁路运单无法转让,也就无法实现在途货物的买卖,影响了货物的流转和交易效率。这都在一定程度上制约了各国陆上贸易的进一步发展。2. 现行规则与最新实践
(4)目前,国际上主要有两大政府间铁路组织。一是国际铁路货物运输委员会(OTIF),其适用的《关于铁路货物运输的国际公约》附件《国际铁路货物运输合同统一规则》第6条第5款规定,运单不具有提单的效力。二是铁路合作组织(OSJD),其出台的《国际铁路货物联合运输协定》(SMGS)没有具体说明运单是否与所有权凭证具有相同的性质,但其第6条规定,铁路运单应跟随货物从始发站到到达站的整个运输过程;第7条规定,盖章的铁路运单可用于确认运输合同的订立。
(5)为协调铁路运输单证,两大组织制定了CIM/SMGS运单。然而,该运单并未得到广泛应用,且缺乏物权凭证的功能。(6)联合国欧洲经济委员会(UNECE)曾于2011年组建一个专家小组,起草一份统一的铁路运输法律。提交的草案并未实质修改CIM/SMGS运单。(7)认识到在某些情形下多式联运单据的可转让性质,比如1980年的《联合国国际多式联运公约》(未生效),1992年UNCTAD/ICC的《多式联运单据规则》以及其他相关规则,但其主要权责条款针对的是海运,并未充分顾及铁路及其他运输方式。(8)虽然UCP600中规定银行可以接受铁路运单,但是铁路运单不具备物权属性,无法解决凭单控货和提货的问题,银行面临很大风险,因此在实践中银行基本不会接受铁路运单开展信用证业务,也就无法通过铁路运单实现融资结算的目的。(9)联合国贸法会制定的某些法律文件中,与这一问题具有相关性。例如,(鹿特丹规则)虽然适用于门到门的货物运输,但无法适用于非海运区段受另一国际统一制度(如国际铁路规则)调整的情形。《贸易法委员会电子可转让记录示范法》只有在铁路运单的流通性问题得到解决后,示范法才能在铁路运输领域发挥作用。(10)中国企业与相关贸易国的企业之间就解决铁路运单不具备物权凭证属性带来的相关问题进行了探索,主要是通过合同约定的方式,由承运人或货代在铁路运单之外签发“提单”,将“提单”作为唯一提货凭证并由承运人或货代全程控货,托运人凭“提单”向银行办理议付、结汇、押汇等融资结算服务,进口方履行相关义务后从开证行取得“提单”并据此向签发人提货。(11)虽然上述做法在部分贸易中得以应用,但这种合同约定的“提单”所具有的“物权凭证”属性的效力范围只能及于合同主体,不仅相关方的权利义务处于不稳定的状态,而且“提单”的流通性及融资担保功能力也受到很大限制。同时,有关签发人资格、签发条件、签发对象、签发格式、签发效力等问题也无法通过合同得以解决。因此,亟需在法律规则层面提供相应的制度保障。3. 结论
(12)解决因铁路运单不具备物权凭证属性而带来的贸易障碍,可以减少交易风险、降低交易成本、促进经济持续发展和贸易长期繁荣,这不仅有利于内陆国家,也有利于世界各国,也不同程度地存在于公路、航空等运输中。为国际贸易与运输服务的物权凭证需要在不同国家之间流通应用,单靠一国立法无法解决这一难题,相关方呼吁制定形成新的国际规则。(13)联合国国际贸易法委员会在国际贸易领域商事规则的协调统一和现代化方面拥有丰富的工作经验。因此,中国建议贸法会将解决铁路等运输单证不具备物权凭证属性带来的相关问题纳入工作方案,并就此开展拟定有关法律文书的相关研究工作。(14)由于该问题涉及面广且相对复杂,建议委员会授权秘书处就与铁路等运单使用中有关的法律问题进行研究,并与国际铁路联运组织(OTIF)、铁路合作组织(OSJD)、国际铁路运输委员会(CIT)、国际商会(ICC)等其他相关组织进行协调。中国愿意为就这一问题开展的探索性工作提供支持。