GETTING THROUGH THE DEAL Rail Transport Rail Transport Contributing editor Matthew J Warren 2019 2019 © Law Business Research 2018 Rail Transport 2019 Contributing editor Matthew J Warren Sidley Austin LLP Reproduced with permission from Law Business Research Ltd This article was first published in October 2018 For further information please contact [email protected] Publisher Law The information provided in this publication is Tom Barnes general and may not apply in a specific situation. [email protected] Business Legal advice should always be sought before taking Research any legal action based on the information provided. Subscriptions This information is not intended to create, nor does James Spearing Published by receipt of it constitute, a lawyer–client relationship. [email protected] Law Business Research Ltd The publishers and authors accept no responsibility 87 Lancaster Road for any acts or omissions contained herein. 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Printed and distributed by First published 2018 Encompass Print Solutions First edition Tel: 0844 2480 112 ISBN 978-1-78915-119-0 © Law Business Research 2018 CONTENTS Global overview 5 Mexico 45 Matthew J Warren Jorge Guadarrama, Eduardo Bravo, Luis Amado, Mario Facio Sidley Austin LLP and Pamela Lemus Baker McKenzie Belgium 7 Michael Jürgen Werner Netherlands 50 Norton Rose Fulbright LLP V J A (Viola) Sütő LegalRail Canada 12 Douglas Hodson QC, Ryan Lepage and Kristen MacDonald Poland 56 MLT Aikins LLP Marcin Bejm and Mikołaj Markiewicz CMS France 17 Marc Fornacciari Russia 60 Dentons Europe Karina Chichkanova and Valentin Yurchik Dentons Germany 23 Michael Jürgen Werner Singapore 65 Norton Rose Fulbright LLP Adrian Wong, Joseph Yeo and Christopher Kang CMS Cameron McKenna Nabarro Olswang (Singapore) LLP India 29 Vishnu Sudarsan, Ashish Suman and Kartikeya GS United Kingdom 70 J Sagar Associates Martin Watt, Jonathan Smith and Rebecca Owen-Howes Dentons UK and Middle East LLP Indonesia 34 Fabian Buddy Pascoal, Mika Isac Kriyasa and Peter Christopher United States 78 Hanafiah Ponggawa & Partners Matthew J Warren, Donald H Smith, Marc A Korman and Morgan Lindsay Sidley Austin LLP Japan 40 Kyosuke Momoi Sidley Austin Nishikawa, Foreign Law Joint Enterprise 2 Getting the Deal Through – Rail Transport 2019 © Law Business Research 2018 PREFACE Preface Rail Transport 2019 First edition Getting the Deal Through is delighted to publish the first edition of Rail Transport, which is available in print, as an e-book and online at www.gettingthedealthrough.com. Getting the Deal Through provides international expert analysis in key areas of law, practice and regulation for corporate counsel, cross- border legal practitioners, and company directors and officers. Throughout this edition, and following the unique Getting the Deal Through format, the same key questions are answered by leading practitioners in each of the jurisdictions featured. Getting the Deal Through titles are published annually in print. Please ensure you are referring to the latest edition or to the online version at www.gettingthedealthrough.com. Every effort has been made to cover all matters of concern to readers. However, specific legal advice should always be sought from experienced local advisers. Getting the Deal Through gratefully acknowledges the efforts of all the contributors to this volume, who were chosen for their recognised expertise. We also extend special thanks to Matthew J Warren of Sidley Austin LLP, the contributing editor, for his assistance in devising and editing this volume. London September 2018 www.gettingthedealthrough.com 3 © Law Business Research 2018 Sidley Austin LLP GLOBAL OVERVIEW Global overview Matthew J Warren Sidley Austin LLP From the very outset, railways have been a global phenomenon. When need to construct and maintain track over every mile of the transport the Liverpool and Manchester Railway, the world’s first intercity rail route. This distinguishes rail transport from other modes, such as service, premiered in 1830, construction had already started across motor carriers (which can take advantage of publicly available roads), the Atlantic on the United States’ first railway, the Baltimore and and air and water transport (which can traverse the seas and the skies Ohio Railroad. As detailed by railway historian Christian Wolmar in between ports and terminals). The high infrastructure costs inherent Blood, Iron and Gold, within a decade of the Liverpool and Manchester in rail transport thus require a revenue stream that covers the incre- Railway’s successful debut, railways were spreading across Europe to mental operating costs of running individual trains and provides suffi- nations such as France, Belgium and Italy. By the 1840s the new tech- cient additional funds to support that infrastructure. nology was being introduced in Asia and South America, and was well Railways’ need for adequate revenue to support both operations on its way to revolutionising transport around the globe. This rapid and infrastructure has often been at odds with political pressure for expansion is not surprising. While for centuries (and indeed millen- railways to charge lower rates or to maintain unprofitable routes. Both nia), waterways provided the only avenues for low-cost, high-volume the United States and Canada have undergone significant changes to transport, the advent of the iron road opened up new opportunities for their legal regimes in an effort to strike the right balance. In the United transporting people and goods across virtually any terrain. States, the most significant reforms were made in the late 1970s and But as this unique new technology was adopted around the world, early 1980s in response to serious financial difficulties in the railway the burgeoning rail industries in different nations often took divergent industry, including multiple bankruptcies. In a series of legislation paths. Geography, political circumstances and economic needs have culminating in the Staggers Rail Act of 1980, railways were given gen- led to significantly different approaches in the structure of the industry eral freedom to price their services without government approval, the and the laws that govern it. Many of these distinctions endure to the ability to more easily abandon unprofitable lines and the option to present day. transfer unprofitable passenger service to the government-supported Nearly two centuries after railways were established internation- passenger provider Amtrak. Shippers retained the ability to challenge ally, they remain a key part of the global transport network. The chap- the quality of a railway’s services or the level of rates in certain circum- ters in this volume illustrate the significant jurisdictional differences in stances, but it was generally recognised that railways had the right to the laws regulating the rail transport industry. But all jurisdictions face set rates at a level sufficient to support their infrastructure costs. The some of the same issues related to technology and economics, which result of these successful reforms was the financial recovery of the US permits some observations about the legal frameworks governing the freight rail system, which continues to flourish today. industry and what the future may hold. Canada’s regulatory system also underwent significant changes The first observation that the reader will note is that the basic in recent decades, reflected in legislation such as the National structure of the rail industry and the regulations governing it varies Transportation Act of 1987 and the Canada Transportation Act of significantly from jurisdiction to jurisdiction. Systems dominated 1996, and in the 1995 privatisation of the Canadian National Railway. by privately run, vertically integrated railways (such as in the United While Canadian and US practitioners can identify myriad differences States and Canada) have starkly different rules for licensing and eco- in the details of the two regulatory systems, from a wider perspective nomic regulation than systems where infrastructure management there are many parallels: they feature large privately owned freight and rail operations are conducted by different entities (such as those railways that each control their own infrastructure (supplemented in Europe). And both types of systems are themselves quite different by a number of short-line carriers); they generally give railways the from those where a single state entity has responsibility for conducting freedom to price their services as they deem appropriate, but provide rail operations and managing infrastructure. a mechanism for shippers to challenge rates that they believe to be In general, rail legal systems fall into one of the following basic unreasonable (through final offer arbitration in Canada and Surface models: vertically integrated railways; separated infrastructure and Transportation Board rate complaints in the United States); they pro- operating railways; and centralised state operations. Each of these vide mechanisms for shippers to challenge the quality of service they models has distinct approaches to licensing and