CNUDMI - A-CN.9-1214-Add. 1

United Nations A/CN.9/1214/Add.1

General Assembly

Distr.: General 11 June 2025

English only

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United Nations Commission on International Trade Law Fifty-eighth session Vienna, 7–23 July 2025

Compilation of comments on the draft convention on negotiable cargo documents

Addendum 1

Contents Page

III. Comments received from organizations ......................................... 2

A. Intergovernmental organizations .......................................... 2

1. United Nations Conference on Trade and Development .................... 2

B. International non -governmental organizations ............................... 4

2. Comité Martime International ........................................ 4

3. Joint submission by Global Shippers Forum (GSF), International Federation of Freight Forwarders Associations (FIATA) and International Chamber of Commerce Banking Commission (ICC) ................................ 5

4. International and Comparative Law Research Center (ICLRC) .............. 8

5. Joint Submission by the International Chamber of Shipping (ICS), the International Group of Protection and Indemnity Clubs (IGP&I) and the Baltic and International Maritime Council (BIMCO) ........................... 15A/CN.9/1214/Add.1

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III. Comments from organizations

A. Intergovernmental organizations

1. United Nations Conference on Trade and Development (UNCTAD)

[Original: English] [Date: 5 June 2025] The draft Convention on Negotiable Cargo Documents (NCDs) ( A/CN.9/1213 ) aims to address the expanding needs of financing in international trade by establishing legal

[Original: English] [Date: 5 June 2025] The draft Convention on Negotiable Cargo Documents (NCDs) ( A/CN.9/1213 ) aims to address the expanding needs of financing in international trade by establishing legal recognition of negotiable transport documents (and electronic records) as transferable documents of title, similar to the negotiable marine/ocean bill of lading (b/l) enabling performance of sale of goods in transit and providing independent documentary security. However, in contrast to the b/l, the NCD is not a transport document but an entirely new type of document, conceptually distinct from the (unimodal/multimodal) transport document which ‘evidences or contains the transport contract’ (see Art. 2 (5) and (7)) . This novel approach differs from existing international transport conventions which all establish mandatory cargo liability regimes: the draft Convention regulates the NCD as a ‘document of title’ (and addresses assignment of rights to the holder) and as a ‘receipt’, but does not regulate the underlying (unimodal/multimodal) transport contract or the liability of the carrier (Art. 1(1)). As noted by UNCTAD from the outset of the related preparatory UNCITRAL work, given that for multimodal transport (MT), no international convention providing for mandatory minimum standards of carrier liability is in force, from the perspective of potential cargo claimants under a MT contract covered by an NCC, it will be important to ensure that their interests are adequately protected against the potential of a unilateral exclusion of carrier liability contained in the standard terms of contract of a multimodal transport operator (MTO), i.e. the transport contract. The applicable substantive law in a cargo claim arising from multimodal transportation depends on a number of factors including (a) the law governing the contract; (b) any mandatory law applicable as a matter of lex fori; (c) whether a loss or damage can b e localized to a particular unimodal stage of the carriage and triggers

transportation depends on a number of factors including (a) the law governing the contract; (b) any mandatory law applicable as a matter of lex fori; (c) whether a loss or damage can b e localized to a particular unimodal stage of the carriage and triggers the application of an international unimodal transport convention. In cases where no international or national mandatory cargo liability regime is found to be applicable to the claim in question (e.g. in the cases of MT where loss or damage cannot be localized and no national mandatory law applies, or in case of shipments that fall outside the territorial scope of potentially applicable unimodal conventions), there is the potential for unfair standard terms of the carrier/MTO, which could undermine the independent documentary security inherent in a document of title - which is vital for banks and traders and provides the rationale for sale of goods on shipment terms/documentary sales ena bling the performance of sale of goods in transit along a chain of contracts. As will be recalled, it is axiomatic in international sale of goods on shipment terms (C and F terms) that the buyer bears the risk of loss/damage of the goods in transit. Each buyer pays his seller in full against conforming documents (evidencing shipment in accordance with the contract) and if goods are lost, damaged or short -delivered during transit, the final consignee (or any other holder of the b/l, e.g. a bank) can bring a claim against the carrier. The seller need not worry about the fate of the goo ds after shipment/dispatch as its responsibility for the physical condition of the goods (and their delivery) under the sale contract ends at this point. It is on this basis that the system of documentary sales has developed and has flourished. If, as intended, the new NCD Convention ensures full legal recognition of multimodal transport documents (and electronic equivalents) as negotiable documents of title, these documents could be traded/used for sale of goods in transit (string sales, Cterms), similar to negotiable b/ls, with the buyer bearing the risk of loss of or damage

transport documents (and electronic equivalents) as negotiable documents of title, these documents could be traded/used for sale of goods in transit (string sales, Cterms), similar to negotiable b/ls, with the buyer bearing the risk of loss of or damage to the goods in transit and left to seek redress, if any, from the carrier. Against thisA/CN.9/1214/Add.1

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background it is important to ensure that a final consignee in any cargo claim against the transport operator would be protected by mandatory minimum standards of carrier liability, as is already the case for claims under a negotiable b/l (Hague, Visby and Hamburg Rules). This consideration is particularly important from the perspective of SMEs, especially (but not only) in developing countries who are in no position to negotiate on equal terms with a carrier. The problem is new, as so far only negotiable marine b/ls are universally recognized as documents of title and used for performance of sale of goods in transit/documentary sales. Marine negotiable b/ls, contain or incorporate a carrier’s standard terms of contract which are not negotiated and may therefore be considered ‘contracts of adhesion’. Typically, these contracts are covered by one of the mandatory sea -carriage conventions (Hague, Hague -Visby or Hamburg Rules) which provide minimum standards of carrier liability, thus protecting the rights of a final consignee or bank against potentially unfair standard terms in the carrier’s b/l. Once the new Convention is in force internationally, and NCDs can be traded like bills of lading, larger, potentially unscrupulous operators, may decide to unilaterally exclude or unreasonably limit their liability by way of standard term contract provisio n1. In the absence of an international convention providing for mandatory minimum standards of liability, a MTO/carrier would potentially be free to exclude or limit its liability unilaterally as part of its standard contract terms, except in cases where:

provisio n1. In the absence of an international convention providing for mandatory minimum standards of liability, a MTO/carrier would potentially be free to exclude or limit its liability unilaterally as part of its standard contract terms, except in cases where: (a) the loss in question can be attributed to a particular stage of the transport (localized) and a mandatory unimodal cargo liability regime is applicable; or (b) a national mandatory multimodal liability regime is applicable. Thus, in all other cases, where no international or national mandatory liability regime is found to be applicable to the claim in question, a cargo claimant (including (a) a final consignee under a string of C - contracts – who bears the transit risk and mu st therefore pay his seller in full against conforming documents - , (b) a seller whose buyer does not pay / rejects the document, (c) a bank who holds an NCD as a security and does not get reimbursed under the letter of credit, or (d) a subrogated cargo insurer) could be left empty handed. The state of affairs, in turn, would undermine a key objective of the NCD Convention: to enable the performance of sale of goods in transit and the raising of finance against the security inherent in a document of title, ultimately, facilitating international multimodal transport and trade. Put simply: why would anyone accept (and pay against) a document under a sale contract, or as a security/collateral, if the they may end up without either the goods or a residual right of effective redress against a carrier? Against this background, to ensure the NCD accords with commercial needs and provides the holder with genuine documentary security, a possible stop-gap solution that could address the abovementioned concerns to a considerable extent 2 may be to include a new provision in the draft Convention, potentially at the end of or after Art. 1(3), to provide for the statutory application of the UNCTAD/ICC Rules on Multimodal Transport Documents, as a fallback, in cases where no international or national liability regime applies. __________________

include a new provision in the draft Convention, potentially at the end of or after Art. 1(3), to provide for the statutory application of the UNCTAD/ICC Rules on Multimodal Transport Documents, as a fallback, in cases where no international or national liability regime applies. __________________ 1 While the UNCTAD/ICC Rules for Multimodal Transport Documents may continue to be used (see e.g. FIATA FBL ), it is important to note that they are contractual in nature (do not override conflicting terms) 2 The focus of this submission is multimodal transport. However, it should be noted that established international conventions on road, rail, air, maritime or inland waterways transport, respectively, are not universally in force and do not cover unimodal transport contracts that fall outside their geographical scope. Therefore, similar problems could arise in the context of some unimodal transport contracts covered by an NCD which are not subject to any mandatory international Convention.A/CN.9/1214/Add.1

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This could be worded along the following lines: In cases where, under the law applicable to the transport contract, no relevant mandatory international convention or national law applies to govern the rights and obligations of the transport operator, consignor and consignee and their liability, the obligations and liability of the transport operator under the transport contract shall in no event be less than as provided for in the UNCTAD/ICC Rules on Multimodal Transport Documents, irrespective of whether the UNCTAD/ICC Rules on Multimodal Transport Docu ments have been effectively incorporated into the transport contract. Any terms of the transport contract which [derogate from these Rules to the detriment of the shipper or the consignee] [are in conflict with these Rules, except insofar as they increase the obligations or liability of the transport operator] shall be null and void and of no effect. Art. 4(1) of the draft convention could be amended to include a clause e.g. sub -section

they increase the obligations or liability of the transport operator] shall be null and void and of no effect. Art. 4(1) of the draft convention could be amended to include a clause e.g. sub -section (k) to ensure that the NCD includes: an express reference to [the above -mentioned provision] This ‘fallback’ provision, effectively giving statutory effect to the UNCTAD/ICC rules - but only in cases where no mandatory international or national regime applies - should in substance be uncontroversial, given that the UNCTAD/ICC rules are well established and widely used as a matter of contract. As deemed appropriate, additional refinement of the wording proposed above, or alternative wording, could, however, also be considered. The addition of a provision along the abovementioned lines would be consistent with the overall limited substantive scope the draft NCD Convention but, importantly, would serve to address the potential set of problems outlined in this submission and, ultimately, facilitate and help promote the use of NCDs in international trade, as well as the widespread ratification of the Convention, once finalized.

B. International nongovernmental organizations

2. Comité Martime International (CMI)

[Original: English] [Date: 5 June 2025] It was clarified at the UNCITRAL WG VI session which took place between 17th and 21st March 2025 that the Draft Convention on Negotiable Cargo Documents (NCD Convention) was intended to apply also to documents issued in respect of maritime cargoes and that it will be up to the issuer and consignor to decide whether to issue a bill of ladin g or a negotiable cargo document (NCD) governed by the NCD Convention in respect of these cargoes. CMI would like to express its concern about the impact of the Draft NCD Convention on transactions involving maritime cargoes for the following reasons:

1. While the CMI acknowledges the desirability of promoting party autonomy, transferable documents of title are designed to affect the rights of third parties to the

the impact of the Draft NCD Convention on transactions involving maritime cargoes for the following reasons:

1. While the CMI acknowledges the desirability of promoting party autonomy, transferable documents of title are designed to affect the rights of third parties to the original agreement to issue the document, i.e. subsequent holders. The rights of subsequent holders of a NCD will be determined by the NCD Convention not by wellestablished bill of lading law. The provisions of the convention require interpretation before their meaning can become established. Of particular concern is Article 7(1) whereby a subseq uent holder acquires ‘the rights under the transport contract to the extent that these rights are incorporated in the negotiable cargo document.’ It is not clear what it would take for rights to be “incorporated” into the NCD, or whether the rights set out in the International Conventions of mandatory application will be acquired by the third party holder in the absence of such incorporation. Neither will Article 1(2), which provides that ‘this Convention does not affect the application of any international convention or national law relating to the regulation and control of transport operations’ assist in this context because Article 1(3) has the effect that in case of inconsistency the NCD convention overrides any other InternationalA/CN.9/1214/Add.1

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Convention or rule of domestic law. This could place the States that are party to two different conventions (the NCD Convention and any of the maritime conventions) in a situation of formal breach as against States parties to the maritime conventions that are not also party to the NCD Convention. With regard to the transfer of liabilities under Article 9(2) the words “that arises in connection with the exercise of that right” are likely to cause a lot of uncertainty with respect to the application of standa rd Merchant clauses.

2. With regard to the Rotterdam Rules, although a NCD would likely fall under the RR definition of “negotiable transport document” or “negotiable electronic transport

are likely to cause a lot of uncertainty with respect to the application of standa rd Merchant clauses.

2. With regard to the Rotterdam Rules, although a NCD would likely fall under the RR definition of “negotiable transport document” or “negotiable electronic transport record”, the effect of Article 1(3), noted above, would be that the NCD provisions would override those of the RR wherever there is inconsistency or overlap (even if in principle consistent). This can disrupt the careful framework constructed in the RR and the inter-relationships among the different provisions.

For the above reasons, the CMI supports the efforts of State Delegations that are considering proposing to UNCITRAL that (i) States be allowed to reserve their position regarding documents issued in respect of cargoes being transported wholly or partly by sea and (ii) the provisions of maritime transport conventions, where they apply mandatorily, take priority over the provisions of the NCD convention in case of inconsistency. The inclusion of such provisions would remove the risk that ratification would disrupt settled law or create conflicting international obligations for States. CMI therefore considers that such provisions would encourage more States to ratify the NCD Convention.

3. Joint submission by Global Shippers Forum (GSF), International Federation of Freight Forwarders Associations (FIATA) and International Chamber of

Commerce Banking Commission (ICC)

[Original: English] [Date: 4 June 2025]

Introduction

1. GSF (Global Shippers Forum), FIATA (International Federation of Freight Forwarders Associations) and ICC (International Chamber of Commerce) Banking Commission write as the global representatives of cargo owners, freight forwarders, logistics providers and trade financing banks to commend the draft Convention on Negotiable Cargo Documents (NCD) that has been presented for adoption by the Commission at its Vienna meeting from 7 July 2025. (Document reference

A/CN.9/1213)

2. GSF represents the interests of businesses that are importing and exporting cargo by all modes of transport and represents shippers of goods at international

Commission at its Vienna meeting from 7 July 2025. (Document reference A/CN.9/1213)

2. GSF represents the interests of businesses that are importing and exporting cargo by all modes of transport and represents shippers of goods at international regulatory organisations.

3. FIATA is the oldest and widest representation of freight forwarders and logistics providers worldwide, representing some 40,000 freight forwarders in over 150 territories operating across all transport modes.

4. ICC, an institutional representative of more than 45 million companies in over 170 countries, is the world’s largest business organisation promoting international trade, responsible business conduct and a global approach to regulation. With more than 600 members in over 100 countries, the ICC Banking Commission is the essential rulemaking body for banks worldwide, with particular focus on the financing of international trade.

5. Our respective organisations have all been longstanding observer delegations to the UNCITRAL Working Group VI to support the development of the draft Convention and to advise on the desirability and the practical application of negotiable cargo documents in international trade. We believe the draft Convention will make a material and endu ring contribution to the facilitation of international trade. We welcome the important work done to develop a flexible and pragmatic opt -A/CN.9/1214/Add.1

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in solution for the use of negotiable documents of title for both multimodal and unimodal international shipments. The new draft Convention proposed by Working Group VI will enable today’s complex supply chains to adapt to the unpredictable and fast-changing conditions in international trade.

6. We encourage national delegations to UNCITRAL to support the adoption of the draft NCD Convention at the forthcoming session of the Commission and offer the following observations in support of our case for adoption.

Legal certainty for negotiable cargo documents in multimodal transport

7. The issuing of negotiable cargo documents by a carrier of goods is a way for buyers of goods in international trade to sell them on to another buyer during their

the following observations in support of our case for adoption.

Legal certainty for negotiable cargo documents in multimodal transport

7. The issuing of negotiable cargo documents by a carrier of goods is a way for buyers of goods in international trade to sell them on to another buyer during their journey from the original seller. They are used to prove entitlement to take possession of the goods upon delivery. They also grant rights to ownership of a cargo by the bank financing a trade transaction, in event of default by the intended buyer. Negotiable cargo documents in the form of negotiable maritime bills of lading are a longestablished customary means of providing flexibility and opportunity for trade, especially in those commodities and bulk cargoes moving by sea. However, there has never been an international convention or uniform law governing such documents when they act as documents of title to the goods.

8. Until now, the negotiability of cargo documents has been limited to journeys subject to a maritime bill of lading. This is due to prohibitions in national laws, regional or international conventions for road and rail transport against making their contract s of carriage serve as negotiable documents of title as well. This has created a legal gap in the treatment of negotiable cargo documents in the multimodal context, despite multimodality being critical for end-to-end transportation in modern global supply chains. The draft NCD Convention fills this gap, facilitating legal recognition of negotiable cargo documents when used in unimodal or multimodal transport.

Facilitation of trade and market access in complex global supply chains

9. With the growth in international trade, new markets have emerged in regions remote from ports or with no direct access to deep -sea shipping services. Trade with these regions has been facilitated by the development of new road and rail infrastructure, dry ports and other intermodal facilities. As these markets develop a need for the negotiability of cargoes being transported to and from them has emerged, either to facilitate wider trading opportunities or to support the financing of trade by sponsoring bank s and other providers of trade finance.

infrastructure, dry ports and other intermodal facilities. As these markets develop a need for the negotiability of cargoes being transported to and from them has emerged, either to facilitate wider trading opportunities or to support the financing of trade by sponsoring bank s and other providers of trade finance.

10. To meet this growing need in emerging markets and to overcome the limitations on negotiability of transport documents in some transport modes, UNCITRAL has undertaken the development of a draft Convention which provides a uniform and consistent legal framework for the issuance, transaction and fulfilment of trade in goods during an international multimodal (or unimodal) journey.

11. The draft Convention includes many features that build on the accumulated experience of commerce in issuing and transacting negotiable documents. It also accommodates the interchangeability of roles that are performed by different commercial parties.

12. For example, it reflects the longstanding practice whereby a freight forwarder or logistics provider (either as a consolidator or broker of transport services) acts as the contractual carrier to the cargo owner, issuing a multimodal bill of lading to the shipper that makes the forwarder responsible for the safe transportation of the goods from end -to-end. The freight forwarder then organises the physical carriage of goods with the underlying road, rail, ocean or air transportation service providers. In 1970 , FIATA developed the FIATA Bill of Lading (FBL) to provide a globally consistent framework and documentation for such shipments, regardless of the modes of transport. FIATA estimates that forwarders globally issue more than one million FBLs annually.A/CN.9/1214/Add.1

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Opt-in solution to fit market needs

13. The draft Convention is permissive: it is left entirely to the commercial parties involved, including financing banks, to decide whether to request or issue a negotiable cargo document subject to this Convention. If a carrier does not wish to issue documents under this Convention, it is under no obligation to do so and may make

13. The draft Convention is permissive: it is left entirely to the commercial parties involved, including financing banks, to decide whether to request or issue a negotiable cargo document subject to this Convention. If a carrier does not wish to issue documents under this Convention, it is under no obligation to do so and may make this clear in its commercial terms of service.

Harmonised legal recognition of digital negotiable transport records

14. The electronic provisions of the NCD Convention will be an important driver for digital trade, by providing legal certainty for the use of electronic title records for all modes of transport through its digital provisions, which are based on the UN Model Law on Electronic Transferable Records (MLETR). Such harmonised legal framework in the digital landscape does not currently exist today either in the unimodal or in the multimodal context, despite the rise of digital trade worldwide.

FIATA, for example, has created an electronic version of the FBL, which would be recognised under the Convention. The NCD Convention therefore provides opportunities for innovatio n in the logistics and banking sectors through a clear legal framework that facilitates digital trade.

Preservation of existing liability regimes

15. The draft Convention does not address the subject of the liability of the parties for loss or damage to cargo carried under its provisions. This is deliberate. The liability of carriers in each mode of transport for cargo loss and damage is prescribed in a complex web of existing international or regional conventions and national laws, supplemented by agreements between carriers and shippers. It is the stated intent of the Convention to leave those rules intact.

16. GSF, FIATA and the ICC are confident that adequate insurance cover is available to protect the interests of the parties under the Convention. In fact, the Convention would reduce the risk and uncertainty connected with the issuance of negotiable transport documents. The Working Group VI previously considered the concerns expressed by representatives of ocean shipping carriers and certain delegat ions regarding potential conflicts between the Convention and customary maritime commercial practices. They sugges ted that maritime transport should be excluded

would reduce the risk and uncertainty connected with the issuance of negotiable transport documents. The Working Group VI previously considered the concerns expressed by representatives of ocean shipping carriers and certain delegat ions regarding potential conflicts between the Convention and customary maritime commercial practices. They sugges ted that maritime transport should be excluded from the Convention's scope. However, a broad consensus in the Working Group agreed with the views of GSF, FIATA and the ICC (see the submissions A/CN.9/WG.VI/WP.109 by FIATA and A/CN.9/WG.VI/WP.116/Rev.1 by FIATA and GSF) to Working Group VI) that exclusion of any mode of transport would defeat the Convention’s goals of consistency and uniformity. As noted, because the Convention is voluntary, an exclusion is unnecessary. Transport operators may choose not to issue documents subject to the Convention if they do not want it to apply to their shipments.

Conclusion

17. GSF, FIATA and the ICC Banking Commission respectfully invite and encourage the Commission’s support for the adoption of the draft Convention as presented to the Commission. The Commission is invited to note the benefits to international trade and multimodal transport of negotiable cargo documents that the draft Convention will facilitate, and to act accordingly.

4. International and Comparative Law Research Center (ICLRC)

[Original: English] [Date: 5 June 2025]

Article 1(1)

The proposed solution, where the geographical scope is described using “or” between sub-paragraphs 1 (a) and 1 (b), is the right one.A/CN.9/1214/Add.1

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The “or” approach in determining the scope of application of transport conventions is the correct and logical choice. It ensures a broader and more predictable application of international transport law by recognising that both the place of shipment and th e place of delivery are equally significant in defining a transport contract’s legal

The “or” approach in determining the scope of application of transport conventions is the correct and logical choice. It ensures a broader and more predictable application of international transport law by recognising that both the place of shipment and th e place of delivery are equally significant in defining a transport contract’s legal framework. This approach eliminates legal uncertainty that arises when the law applies only on the basis of the place of shipment. That limitation can exclude contracts where goods are delivered in a Contracting State but were shipped from a non -Contracting one — an il logical outcome, since the ultimate goal of the shipment is delivery, not mere loading. By incorporating both shipment and delivery locations, the “or” approach better reflects the realities of global trade and enhances legal uniformity. The approach is widely adopted in existing transport conventions