Delivering international regulations to ensure efficient rail transportation
Aleksandr Kuzmenko, Head of the Legal Department of the Intergovernmental Organisation for International Carriage by Rail (OTIF) provides some highlights on the current development of international railway law.
During 2018, the Intergovernmental Organisation for International Carriage by Rail (OTIF) is celebrating 125 years of application of its rules on the carriage of goods by rail (including dangerous goods) and 90 years of its rules on the carriage of passengers. These tried and tested rules originate from the end of the 19th and beginning of the 20th century and are now applied on three continents: Europe, Asia and Africa.
The aim of OTIF is now broadly defined as: “to promote, improve and facilitate, in all respects, international traffic by rail, in particular by contributing to the removal, in the shortest time possible, of obstacles to the crossing of frontiers in international rail traffic, while taking into account special public interests, to the extent that the causes of these obstacles are within the responsibility of States”.
To achieve this general aim, specific instruments are available under the Convention concerning International Carriage by Rail (COTIF): The development of systems of uniform law (appendices to the Convention) or ‘soft law’ in the form of non-binding instruments, including recommendations and best practices, etc.
OTIF’s supreme body, the General Assembly, will take decisions at its 13th session on 25-26 September 2018 on the development of unified railway law. It will adopt amendments to the Convention and give directions for the further development of railway law.
Timely decision-making and responsiveness to the needs of railway transport
COTIF establishes systems of uniform law (contracts of carriage, transport of dangerous goods, technical admission of vehicles, etc.) which is constantly developed by OTIF. Some important parts of this uniform law, such as the provisions on liability of the parties to a contract of carriage, are in the competence of the General Assembly and are currently subject to a lengthy revision procedure. Experience shows that it takes around six years for amendments adopted by the General Assembly to enter into force. In addition to the lengthy procedures, there is also uncertainty about the date of entry into force of such amendments.
With a view to ensuring the flexibility and continued relevance of the uniform railway law, the 13th General Assembly will take decisions on introducing a new revision procedure. The new procedure will ensure legal certainty and expedite the entry into force of amendments adopted by the General Assembly. As a general rule, modifications will enter into force 36 months after their notification by the Secretary General. This solution ensures that both the Member States and the private sector would be aware of a precise and reasonable timeframe for the implementation of revised rules.
Contract of Use of Railway Infrastructure
The COTIF Appendix on the Contract of Use of Railway Infrastructure (CUI UR) governs the contractual relationships between the infrastructure manager and the carrier. The 13th General Assembly will take decisions that will help clarify the scope of application which, at present, is somewhat ambiguous and thus hinders application and certainty for users, particularly infrastructure managers.
The clarified scope is designed to ensure that the CUI UR are applied where absolutely necessary, i.e. in international railway traffic (freight corridors, international passenger trains). International railway traffic is that which requires the use of an international train path or several successive national train paths situated in at least two states and coordinated by the infrastructure managers or the bodies in charge of allocating the train paths concerned.
Even though the CUI UR will not apply to the use of railway infrastructure for domestic traffic, the Member States are nevertheless free to apply the same legal system to domestic traffic.
Safe operation of trains in international traffic
[bf] The 13th General Assembly will supplement the existing set of uniform law systems with new rules on the safe operation of trains in international traffic, including safety certification and supervision. According to the draft provisions, state authorities would issue safety certificates for (foreign) railway undertakings based on harmonised criteria, as proof that they are able to operate trains safely in the state concerned.
International railway network access conditions
One of the obstacles to international railway traffic that still remains outside the areas covered by regional economic integration organisations, such as the EU and EAEU, is that there are no multilateral agreements or multilateral legally non-binding guidelines addressing access to a foreign state’s railway infrastructure by a railway undertaking for the purpose of international traffic. It is therefore essential to establish access conditions in order to improve transport efficiency. In this respect, the 13th General Assembly will take decisions and provide guidelines on developing a non-binding framework for international railway network access.
Working group of legal experts
COTIF is an important international instrument providing uniform international railway law for approximately 50 states in Europe, Asia and Africa. These states represent different legal traditions and railway market organisation structures, both economically and technically. It is therefore necessary to ensure a uniform approach with regard to the preparation and application of international rules. With this in mind, and based on COTIF and the relevant practices of OTIF and other intergovernmental organisations, OTIF’s Secretary General is planning to establish a consultative and advisory working group of legal experts. The 13th General Assembly will consider this initiative and consider the assignment of specific tasks to this group.
The working group of legal experts will be of a preparatory and advisory nature and activities will be limited to the legal field and will cover international public and transport law, in particular all general legal areas in so far as they are relevant to international rail traffic. In the short-term, the draft work programme could include the following priority subjects, among others:
- Develop a scheme to monitor and assess the application and implementation of COTIF – firstly, this would make it possible to assess the relevance of and need to revise particular rules, and secondly, it would promote the uniform interpretation and application of COTIF
- Assess the interfaces between customs and transport regulations in order to ensure efficient international railway traffic – this issue is of particular importance to freight transport
- Assess the digitalisation of international transport, particularly transport documents, etc.
The working group will give stakeholders and business associations the opportunity to raise relevant issues of international regulations for the attention to OTIF and contribute to the development of international railway law.
International railway transport regulations have been developed for 125 years and this process is becoming even more dynamic and partnership-based. As at the beginning, OTIF continues to deliver appropriate and relevant international regulations designed to ensure that rail transport functions efficiently.
Aleksandr Kuzmenko has been the Head of the Legal Department of OTIF since 2016. He is a graduate of Mykolas Romeris University, Vilnius, with a Bachelor of Laws and Master of Laws. Before joining OTIF, Aleksandr had a number of different roles and occupied various posts within Lithuanian Railways (AB ‘Lietuvos geležinkeliai’).