Clarify, Not Amend: Discussion of the Explanatory Note to the Convention on Negotiable Cargo Documents

The ICLRC experts Igor Yastrzhembsky (in person) and Olga Melnichenko (online) took part in the 47th session of UNCITRAL Working Group VI (Negotiable Cargo Documents), held in Vienna from 15 to 19 December 2025.

The session was devoted entirely to the discussion of the draft explanatory note to the Convention on Negotiable Cargo Documents prepared by the Secretariat. Notably, on the first day of the Working Group’s session, 15 December, the UN General Assembly approved the draft Convention prepared by UNCITRAL. The official signing ceremony will take place in 2026 in Accra (Ghana).

The draft explanatory note was prepared by the Secretariat (document A/CN.9/WG.VI/WP.118). The Working Group stressed that the explanatory note does not constitute an official commentary on the Convention and will be issued as a Secretariat information document, in line with UNCITRAL practice.

The fact that the explanatory note was unprecedentedly discussed throughout the entire session of the Working Group reflects the importance UNCITRAL attaches to this Convention.

The ICLRC focused its participation on the accuracy of the wording of the explanatory note and on reducing the risk of misinterpretation of the Convention’s provisions in practice. During the discussions, drafting and clarifying proposals were made with a view to removing overly categorical statements, eliminating terminological errors and describing the legal consequences of certain provisions of the Convention more accurately.

Delegations again requested clarification that the provisions of the Convention in no way affect issues relating to the provision of agency services for the organization of carriage, and that persons who do not perform carriage themselves (such as freight forwarders, logistics companies and the like) cannot fall within the concept of “carrier” under the Convention.

Several of the ICLRC’s proposals were supported and reflected in the Working Group’s report:

• an amendment removing from the text the possibility that the original consignee could demand delivery of the goods even after a negotiable document has been issued;

• an explanation that the conspicuous reference which renders a transport document negotiable must be separately signed by the transport operator;

• a clarification of the consequences of a situation where the conspicuous reference appears only on one of several originals;

• the positive broadening of the wording of paragraph 75 so as to include the “obligations” of document holders alongside their “liabilities”, which is important for legal systems that adhere to the concept of distinguishing between regulatory obligations and protective (remedial) obligations;

• the deletion of the reference to good faith in the commentary to article 7, as well as of a special definition of good faith for the purposes of the Convention in the commentary to article 6 (in view of the established traditional approaches in national law to defining good-faith conduct);

• under the rules on the substitution of an electronic document for a paper one, it was agreed, at the ICLRC’s suggestion, that it should be indicated that an agreement on the possibility of such substitution may be contained in the negotiable document itself and, accordingly, will be legally relevant for subsequent holders of the document.

One important proposal by the ICLRC (that unfortunately was not supported) was to supplement paragraph 77 with an indication that, where the place of destination of the goods is changed, this new information must be reflected in the negotiable cargo document. It is crucial for the holder of the document or a potential purchaser of the goods to have only up-to-date information and to be able to rely in good faith on the contents of the document itself, without having to inquire into the details of agreements between the carrier and the shipper or previous holders of the negotiable document. According to Mr Yastrzhembsky, the Working Group took a very formal approach to this issue: for the purposes of determining the scope of application of the Convention, it is important that only the original place of destination of the goods be indicated. Nevertheless, it is clear that the issue of an adequate mechanism for informing the holder of the information about change in the place of destination of the goods will arise as soon as negotiable cargo documents begin to be used in practice.

In consequence of the ICLRC’s involvement, the agreed amendments refined the text of the draft explanatory note and reduced the risk that the Convention’s provisions might be expanded or altered as a result of interpretation. In addition, several of the ICLRC’s proposals were reflected in the text of the Convention itself.

On the margins of the session, and as part of the preparations for the UNCITRAL Colloquium on Paperless Trade (January 2026), a preparatory event was held in hybrid format, devoted to practical issues relating to the use of electronic negotiable documents and various cross-border cargo-tracking services.