National judges as gatekeepers to the CMR convention

One of the great realizations of CMR lies in the fact that it provides uniform rules for contracts for carriage of goods by road. This doesn't mean however that the Convention unified the entire field of road transport logistics, as the scope of application of CMR is restricted by 10 conditions. Despite the great importance of the demarcation of the scope of application, the Convention doesn't provide any guidance as to the interpretation of these conditions. Albeit VCLT requires a treaty autonomous interpretation of the Convention, with this, the Convention gives a wide discretionary margin to individual judges. As a result, judges tend to take into account national law rules to decide upon the applicability and even turn to desirability arguments. With ongoing evolutions in logistics this discretionary margin can even further increase. Literature on VCLT permits an evolutionary evolution of Conventions, in so far the Convention itself implicitly or explicitly permits such interpretation. VCLT itself doesn't give any guidelines of such evolutionary interpretation. With this, individual judges first need to decide whether the Convention was intended to allow for an evolutionary interpretation and later they need to decide what such interpretation would mean for the applicability of the Convention. Unless a new mechanism to safeguard the uniform interpretation of article 1 can be developed, the uniformity brought by CMR is thus at risk to disappear in the future due to the absence of a uniform determination of the scope of application in national case law.

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