The text of this draft contract is based on the contract of the outgoing Director General.

Draft article 1 (q) Non negotiable electronic transport record and draft article 1(r) Contract particulars

Comments from the UNCTAD Secretariat on Freedom of Contract under the draft instrument

Scope of application and Freedom of contract (draft articles 1, 2, 88 and 89)

It was suggested that the requirement that the derogations from the draft instrument should be set forth in the contract of carriage contained in draft article 88a (2) was superfluous, since draft article 88a (1) already mandated that the derogations should be prominent in the contract.

A provision allowing for third parties to a volume contract to expressly agree to be bound by derogations from the draft instrument agreed to as between the parties to the contract should be included in the draft instrument

Structural factors included the governance and political stability within the country, the regulatory framework, the legal framework with respect to transparency, and clear enforcement of property rights and contract law.

The draft principles offered primary material for a framework convention.

It was indicated that a definition of the volume contract should be inserted in the draft instrument.

Proposed redraft of provisions regarding scope of application and freedom of contract (draft articles 1, 2, 3, 4, 88, 89 and new draft article 88a)

Commentary on scope of application draft article 1 (a) definition of contract of carriage , including the proposed definitions of liner service and non liner service Scope of application draft article 1 (a) was intended to clarify the definition of contract of carriage in draft article 1 (a) of the draft instrument as contained in para. 6 of A CN.9 WG.III WP.36.

In response, it was indicated that only selected provisions of other international agreements would be applicable to the contract of carriage under the draft instrument, and that the proposed text of draft article 88a (5) would allow derogation from these selected provisions in a volume contract.

Mr. Mitrović (Serbia and Montenegro), noting that draft article 9 referred to a communication or a contract , drew attention to the continuing importance of written authorization for the conclusion of a commercial contract.

In this context, the Commission might explain, in a note or comment to the draft Convention, the meaning of the term contract as used in the draft Convention.

However, it was also suggested that a receipt might well provide evidence of a contract, and that third party holders of a receipt would fall under the scope of application of the proposed text for draft article 4 of the draft instrument insofar as the receipt evidenced the contract.

In addition, further examination of draft articles 88 and 89, which also address freedom of contract issues, will be necessary.

Parties could simply agree not to apply the whole or a part of the draft convention to a particular contract.

A preliminary framework draft of principles and guidelines concerning human rights and terrorism

The draft outcome document is first and foremost a framework for further steps.

Clarification was sought on the use of the words terms that regulate each shipment and terms of a volume contract in proposed draft article 3 (3) of the draft instrument.

However, it was observed that draft article 88a (2) mandated that all derogations should be contained in the contract of carriage.

The fourth borehole drilling survey was launched by means of a contract signed in November 2004 in the framework of an open invitation for international tenders.

A Framework draft of principles and guidelines concerning human rights and terrorism 22 57 9

However, these form requirements would apply only where the law requires that a contract should be in writing (article 9, paragraph 2, of the draft convention), or where the law requires that a contract should be signed (paragraph 3).

The view was expressed that draft article 88a (3) required further clarification with respect to the relation between the transport document, as defined in draft article 1 (k), and the contract of carriage.

Each country applied a different regime, ranging from invalidity of the contract to administrative sanctions, penalties that would be inappropriate in the draft convention.

The view was expressed that this was achieved in proposed article 88a (1) by requiring the volume contract to contain a prominent statement that it derogated from the draft instrument, and that either the volume contract was individually negotiated under paragraph (a) or, under paragraph (b), that it prominently specified the sections of the volume contract containing the derogations.

The Working Group considered draft article 14 on the basis of liability, and freedom of contract (draft articles 1, 2, 88 and 89), including scope of application, third parties and Ocean Liner Service Agreements (OLSAs).

Further, it was thought that a contract could implicitly provide for carriage by sea, and that, in any event, the key for determining the scope of application of the draft instrument was the contract of carriage, not the actual carriage of the goods.

Conversely, the terms or stipulations of the volume contract that did not regulate individual shipments remained outside the scope of application of the draft instrument.

However, the view was also expressed that the consent of third parties to be bound by the terms of a volume contract derogating from the draft instrument was not necessary since third parties such as consignees would wilfully acquire rights under the contract of carriage, and a special regime should be envisaged only in the case of issuance of negotiable transport documents, possibly along the lines of draft article 77 of the draft instrument.

Protection of third parties when transport documents or electronic transport records are issued under a contract exempted from the scope of application of the draft instrument

The consequence of these provisions is that loading, stowing and discharging are placed within the boundaries of the contract of carriage and, therefore, under the draft Convention.

Contract award

Further, it was noted that pursuant to proposed new article 88a (4), if the volume contract in question met the listed requirements, the valid stipulations derogating from the draft instrument would cover both the volume contract and each individual shipment as specified in proposed new article 88a.

However, it was also observed that the use of the words any shipment could generate misunderstanding since only some terms of the volume contract might be subject to the draft instrument, for example in the case of a volume contract that mixes international and domestic shipments.

While draft article 18, paragraph 2, allowed States to exclude some types of contract, it did not allow them to refrain from applying certain provisions of the draft convention such as that pertaining to the notion of an original.

It was suggested that the reference in draft article 88a (5)(a) to draft article 19 of the draft instrument should be placed in a separate paragraph and expanded upon to prevent the parties to a volume contract from reducing their liability for any intentional or reckless behaviour.

A draft Law on Vocational Education and Training in Bosnia and Herzegovina, as well as the draft Framework Law on Higher Education in Bosnia and Herzegovina are both currently ongoing.

Support was expressed for the suggestion that a provision along the lines of draft article 5, as it appeared in A CN.9 WG.III WP.44, provided sufficient protection to third parties entitled to rights under the contract of carriage, and that no additional provision to protect third parties was required with respect to derogation from the draft instrument by the parties to a volume contract.

However, it was also indicated that the two provisions differed in scope, since draft article 88a (1) required that all the derogations, and the provisions affected by the derogations, should be contained exclusively in the contract of carriage and should be brought to the attention of the other contracting party, while draft article 88a (2) prevented the incorporation of derogations in the contract of carriage by reference.

It was suggested that requesting consent to be bound by the terms of a volume contract derogating from the draft instrument would provide sufficient safeguards to third parties.

The Working Group considered the general question of whether the draft instrument should allow for parties to the contract of carriage to agree to an exclusive jurisdiction clause.

It was further observed that draft article 88a (4) reflected the decision that only those terms of a volume contract regulating shipments falling under the scope of application of the draft instrument would be subject to derogation (see above, para.

If there is more than one place of business, the draft takes as the norm the place of business that has the closest relationship to the relevant contract, having regard to the circumstances known to the parties at any time before or at the conclusion of the contract.