The Belgian Cour de Cassation decided in 2004 that CMR is only applicable when carriage by road is agreed upon contractually (contractual scope). This decision excludes a considerable number of contracts from CMR's scope, given the increasing integration of the transport chain, whereby the mode of transport is left to the discretion of the carrier. Moreover, the decision of the Cour de Cassation might allow parties under the contract to opt out of CMR altogether. However, as the Cour de Cassation accepted that the transport mode can also be agreed upon implicitly, this seems to leave a considerable margin of discretion to the lower courts to decide whether a contract falls within the scope of CMR or not. The first judgments by the lower courts adopted a strict interpretation and allowed parties to contract out of CMR. However, in this article it is suggested that the decision of the Cour de Cassation follows on automatically from the carrier's option to select the mode of transport and from the contractual interpretation given to the scope rule of CMR. Consequently the current position will most likely be upheld in future cases and will be assessed here in the light of the considerable criticism it has provoked.
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