Volume 11 - Issue 60
/ December 2022
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DOI: https://doi.org/10.34069/AI/2022.60.12.21
How to Cite:
Sirko, R., Kyslyak, L., Beznosiuk, O., & Bodnarchuk, M. (2022). The improvement of the institution of railway transportation in the
context of modern challenges. Amazonia Investiga, 11(60), 197-205. https://doi.org/10.34069/AI/2022.60.12.21
The improvement of the institution of railway transportation in the
context of modern challenges
Вдосконалення інституту перевезення залізничним транспортом в контексті
викликів сучасності
Received: December 3, 2022 Accepted: December 30, 2022
Written by:
Rostyslav Sirko95
https://orcid.org/0000-0002-1439-5811
Lesya Kyslyak96
https://orcid.org/0000-0001-7552-9134
Oleh Beznosiuk97
https://orcid.org/0000-0002-4447-9901
Mykhaylo Bodnarchuk98
https://orcid.org/0000-0002-0533-5550
Abstract
Globalization transformations and the military
aggression of the Russian Federation on the
territory of Ukraine, as well as the blocking of
seaports, have significantly changed the sphere
of railway transportation. On the one hand, there
were new tasks for the railway as one of the
transport options for the export/import of
products and the organization of passenger
transportation, and on the other hand, the need to
bring legislative regulation in accordance with
European requirements. Therefore, in this
context, it is important to analyze the possibilities
for improving the institution of railway transport,
to pay attention to the problematic aspects and
nuances of railway work. The purpose of the
work is to study the prospects for improving
railway transportation in modern conditions and
to consider problematic issues and challenges
related to railway communication. The research
methods are the dialectical method, the logical
method, the concrete-historical method, the
comparative-legal method, the formal-dogmatic
method, the method of functional-structural
analysis and theoretical-pragmatic analysis. As a
result of the research, the current state of the
railway industry in Ukraine was analyzed. The
95
Doctor of Legal Sciences, Professor of the Department of Jurisprudence in Chernivtsi Institute of International Humanitarian
University, Director of Chernivtsi Institute of International Humanitarian University, Ukraine.
96
Candidate of Philological Sciences, Senior Lecturer of the Department of General Law and Humanities of Ivano-Frankivsk
Educational and Scientific Law Institute of the National University «Odesa Law Academy», Ukraine.
97
Candidate of Historical Sciences, Senior Lecturer of the Department of General Law and Humanities of Ivano-Frankivsk
Educational and Scientific Law Institute of the National University «Odesa Law Academy», Ukraine.
98
Candidate of Legal Sciences, Senior Lecturer of the Department of Criminal Process and Criminalistics of Ivano-Frankivsk
Educational and Scientific Law Institute of the National University «Odesa Law Academy», Ukraine.
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peculiarities of investment, the dynamics of
passenger traffic, the volume of cargo
transportation, and the consequences of the war
on the territory of Ukraine for Ukrainian railways
are considered.
Keywords: railway transport, natural
monopolies, freight and passenger transport
markets, digitalization, passenger traffic.
Introduction
Thanks to the transport system, it is possible to
ensure connections between industries,
enterprises, regions of the country, and foreign
countries. At the same time, modern transport is
characterized by its variety of types. Among all
the diversity of transport in Ukraine, as in many
countries, an important place is occupied by
railway transport, which is quite universal and
able to satisfy the needs of the population and
business in various conditions.
Railway transport is one of the basic branches of
the economy. The importance of railway
transport lies in the fact that Ukraine is on the
way between the rapidly developing countries of
Europe and Asia. Transport corridors such as
East-West and Baltic-Black Sea pass through the
territory of Ukraine. In addition, low tariffs are
attractive. However, there is currently a question
about the safety of transportation in wartime
conditions.
One of the main functions of railway transport is
the transportation of mass industrial and
agricultural goods over long distances. In
addition, the regularity of traffic is not affected
by weather conditions, and railway tracks can be
laid in any direction.
Also, an important role in solving the problems
faced by railway transport is played by the
correct application of legal norms related to
transportation. These rules of law mainly belong
to civil law. Most of the norms governing civil
relations that arise from transportation by rail
belong to one of the main sections of civil law –
the law of obligation.
The relations that arise between carriers,
consignors, and consignees during railway
transport are mainly civil-law relations and are
regulated by the method of legal equality of the
parties, and if there are rights and requirements,
then only as a result of a direct indication of the
law or contract. Legal relations arising from
transportation by rail transport are established as
a result of interaction between the participants of
these legal relations with their subjective rights
and duties assigned to them.
However, the work of railway transport
enterprises, which carry out mass transportation
by rail transport, is so diverse and has such
specific features, different from the work of other
enterprises, that it makes it necessary to regulate
relations by special norms.
In the conditions of a full-scale invasion of the
Russian Federation into Ukraine, the structure of
transportation has changed. Thus, more than 70%
of all merchandise exports from our country were
carried out through sea ports. However, the ports
are currently blocked. This led to the
reorientation of cargo flows to other modes of
transport, in particular rail. Also, the increase of
export railway transportation is extremely
important for ensuring the functioning of the
national economy in the conditions of a
protracted war (Cabinet of Ministers of Ukraine,
2022).
In modern conditions, limiting the capacity of
western cross-border crossings, railway transport
of Ukraine began to receive much more cargo
than this capacity could allow or absorb.
Moreover, the need for rapid transportation of
products makes it necessary to reform and
quickly adapt railway transport to the challenges
of security and economic stability.
Thus, the issue of improving the institution of rail
transport in the context of modern challenges is
relevant, urgent and in need of research.
Theoretical Framework or Literature Review
Such scholars as Zatvornytska, Kolisnichenko,
Kuzyo, Zatvornytska, Yablonovskyi, Lawrence,
Sirko, R., Kyslyak, L., Beznosiuk, O., & Bodnarchuk, M. / Volume 11 - Issue 60: 197-205 / December, 2022
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Lukasevich-Krutnyk, Melnyk, Nikiforuk,
Stasyuk, Chmyryova, Fedyai, Yasynchuk were
engaged in the research of the institute of railway
transportation.
Thus, the work of Zatvornytska (2019) analyzed
competitive rules for the Ukrainian railway. The
author analyzed possible changes in the field of
railway transportation, and, in particular,
emphasized the fact that the creation of a railway
transportation market requires a regulatory and
legal environment, market institutions, and the
willingness of private operators to come to the
Ukrainian market and adhere to the rules of work
on it. The main tasks on this path are the creation
of a transport regulator, drawing up a reference
document for the railway, determining the
principles of tariff formation for access to
infrastructure and approving the ownership
policy of Joint Stock Company "Ukrainian
Railways" (JSC “UZ”).
The peculiarities of railway financing and its
restoration are analyzed in the article by
Kolisnichenko (2022).
The question of the liberalization of the rail
transport market in Ukraine using the example of
the European Union is considered in the work of
Kuzyo, Zatvornytska & Yablonovskyi (2019).
The authors consider it necessary to implement
the following measures: before opening the rail
transport market, the government should
implement measures aimed at ensuring that the
financing of the future infrastructure operator
was sufficient to maintain the railway network of
Ukraine in working order; Ukrzaliznytsia must
ensure a clear separation of accounting (and
economic activity) for infrastructure
management from other services – passenger and
freight transportation, as well as – independent
management of each of the companies; in
accordance with the demonopolization strategy
of state-owned companies, the government
should decide whether Ukrzaliznytsia will be a
vertically integrated holding with separate
subsidiaries (infrastructure operator and
transport operators), or whether the model of
complete separation of the infrastructure operator
and transport operators will be applied; before
the opening of the market, the government
should implement measures to cancel cross-
subsidization of freight and passenger
transportation; it is necessary to establish the
National Commission for the Regulation of
Railway Transport and to transfer from the
Ministry of Infrastructure of Ukraine to its
competence the issue of tariff regulation.
Peculiarities of attracting investments in
Ukrainian infrastructure are studied in the article
by Lawrence (2020). According to the expert,
Ukrzaliznytsia is a very essential organization in
Ukraine, and over time it will have to abandon
commercial freight rail transportation, and at the
same time, it is necessary to pay attention to the
development of a comprehensive and transparent
legal framework; a detailed cost analysis
containing long-term capital costs and
development costs; sustainable and effective
development of labor and operational resources,
as well as state support for the provision of
passenger services — a valuable commitment to
the provision of public services. Also, the expert
noted that the World Bank supports the
government's activities aimed at carrying out
reforms in the railway transport sector and in
case of success of the legislative reform,
restructuring and division of functions within the
company, the state will have the prerequisites for
the creation of a freight and transport enterprise.
The legal regulation of transportation contractual
relations in the codified acts of civil legislation of
individual European countries was analyzed by
Lukasevich-Krutnyk (2018).
The directions of the state strategy for the
development of railway transport in Ukraine are
disclosed in the work of Tokmakova,
Ovchynnikova & Korin (2020). In particular, the
author noted that for the formation of strategic
advantages of railway transport, based on the
intellectual leadership of the industry, state
support is necessary. Based on this, the author
formed the directions of state regulation of the
development of railway transport, which take
into account the strategic guidelines of the
development of the industry and reveal the tools
of state support for the processes of forming
strategic advantages according to such
components of development as innovation-
production, investment, energy, environmental,
social and international components.
Analytical research on the progress of the rail
transport association with the EU was carried out
by Melnyk (2022).
The challenges of liberalization for natural
monopolies are discussed in detail in the article
by Nikiforuk (2018). Among the conclusions
drawn by the author, the issues regarding the two
polar approaches to transport policy deserve
attention, namely, complete non-interference or
liberalization of the transport sector and the
paternalistic approach, which involves strict
regulation of tariffs and a single form of
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ownership, the combined approach looks like an
alternative in modern conditions in which the
principles of liberal (for commercial activities
and tariffs) and paternalistic approaches are
combined. According to the researcher, the
development of a competitive environment in the
field of rail freight transportation in Ukraine will
depend on the following conditions: the
introduction of EU directives on rail transport,
further separation of regulated and unregulated
activities and reorganization of potentially
competing segments.
Stasyuk, Chmyryova & Fedyai (2020)
investigated problematic issues and prospects for
cargo and passenger transportation in Ukraine.
Innovations at Ukrzaliznytsia became the object
of research by Yasynchuk (2019). Also, the joint
work of Nikiforuk, Stasyuk, Chmyryova &
Fedyai (2019) considered the features of digital
transformation in the field of railway
transportation.
As can be concluded from the above analysis of
the literature, the issue of rail transportation and
the reform of this type of natural monopoly
arouses interest among scientists and, at the same
time, the improvement of the institution of rail
transportation in the context of modern
challenges has not been sufficiently studied.
Methodology
The dialectical method was used during the study
of the transportation institute. Legal relations of
transportation were analyzed taking into account
the principles of formal logic in connection with
other legal relations and factors of a legal nature,
from the point of view of the dialectics of their
development and mutual influence due to
historically conditioned dependence. Based on
the application of the basic laws of dialectics, the
peculiarities of the functioning of transport
mechanisms in different countries are
characterized from the following points of view:
the sequence of cause-and-effect interaction of
its qualitative, quantitative and ordinal
parameters; the result of the interaction of the
interests of the relationship; sequence of
transportation transformations in the field of
railway transport. The use of the basic categories
of dialectics made it possible to reveal
problematic issues of the institution of railway
transportation, as well as to distinguish functions.
The use of the logical method made it possible to
develop theoretical ideas or put forward new
theoretical assumptions. Considering that the
logical method of research is a method of
reproducing the historical object as a result, the
result of a certain process, during which the
necessary conditions for its further existence and
development as a stable systemic formation were
formed, it allowed to get an idea of the
"theoretical history" of the object.
Understanding the tools for improving the
institution of transportation became possible
thanks to the use of the comparative legal
method. Thus, this method was utlized when
comparing the norms of the national legal
systems of Ukraine and some foreign countries
that regulate legal relations on transportation. In
its essence, the comparative legal method made
it possible to select the best samples from legal
experience based on comparison for the
improvement of national legal systems. In this
regard, the comparative legal method has gained
the widest application in the process of rule-
making, law-enforcement activities, as well as in
the field of interpretation of legal norms.
The formal-dogmatic method in combination
with others was used in the study of various
positions regarding the concept, the legal nature
of the contract of carriage by rail, the grounds and
conditions of liability. Although this method is
usually associated only with the study of law and
its essence is that the law is studied as such that
nothing is compared, does not agree with the
economy, politics, morality and other social
phenomena.
The use of a concrete-historical method helped to
study the specifics of the state-legal phenomenon
of a specific historical period, to trace the
dynamics of its development, for example, the
peculiarities of the social regulation of the
institution of railway transportation in different
historical periods. Thus, researching the
peculiarities of the legal regulation of the
institution of railway transport in different
historical periods became possible thanks to the
use of this method. Moreover, it made it possible
to analyze how specific external circumstances
affect the legal regulation of transportation in
Ukraine and the world.
Using the method of functional-structural
analysis, the peculiarities of the elements of legal
relations during transportation by railway
transport and the mechanism of their legal
regulation under the legislation of Ukraine were
established, and proposals for their improvement
were developed using the theoretical-prognostic
method. It is the prognostic method through its
set of techniques, that made it possible to make
scientifically based forecasts about the future
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state of legal phenomena, as well as to develop
proposals on ways to improve the regulation of
the institution of rail transport in accordance with
the challenges of modernity.
Results and Discussion
Transportation by rail transport is regulated on
the basis of the provisions of the Constitution of
Ukraine (Law 254к/96-VR, 1996), the
Convention on the Protection of Human Rights
and Fundamental Freedoms (Council of Europe,
1950), the Convention on international rail
transport (COTIF) dated 05/09/1980 (European
Union, 1980), the Law of Ukraine "On railway
transport" (Law 40, 1996), of the Law of Ukraine
"On the Transportation of Dangerous Goods"
(Law 28, 2000), provisions of civil legislation, as
well as special orders regarding rail
transportation and communication (Order 18,
1997; Order 297, 1998).
In general, the legal relationship arising from rail
transportation is a single, structurally complex
entity consisting of two relatively independent
obligations, including the first preceding the
second, i.e. the fulfillment of the first obligation
acts as a legal fact that causes the emergence the
second The first obligation is the so-called
organizational prerequisites of the contract of
carriage, which are the mutual actions of the
subjects of legal relations to fulfill the assumed
duties arising from the application agreed upon
and accepted by the carrier. The second
obligation is a contract for carriage (of a specific
cargo, luggage, passenger, mail, etc.). Legal
relations arising from rail transport, regardless of
the reason for their origin, according to their
construction of relations, exist in an obligatory
legal form and, in terms of content, are bilateral
complex legal relations, each of the parties of
which, possessing a whole set of rights and
obligations, acts in front of another at the same
time as authorized and obligated. Moreover, a
characteristic feature of these legal relations is
the relationship between the rights of one subject
and the duties of another, and between the duties
of both subjects of the specified legal relations.
First of all, we are talking about a special subject
composition – participants in legal relations
arising from transportation by rail transport.
These are railway transport enterprises that
provide transportation services, the consignor,
the consignee, as well as the "owner of the
railway track", "the owner of the infrastructure
complex of railway transport for general and
non-general use". Also, as of today, the carrier
(Ukrzaliznytsia JSC) and the owner of the
railway infrastructure are the same person. That
is, three participants of the transportation process
are actually observed.
Legal relations arising in connection with the
contract of carriage of goods by rail transport are
characterized by great complexity and
originality. It is generally accepted that the
subjects of the railway cargo transportation
contract are:
1) the consignor;
2) carrier;
3) consignee.
However, it should be remarked that the subjects
of the railway cargo transportation contract
should not be equated with the parties to this
contract, because the parties to the railway cargo
transportation contract are only the consignor
and the carrier. In accordance with the provisions
of the specified regulatory legal acts, regulatory
relations of rail transport should be considered as
legal relations that regulate property, material,
non-property (personal) relations in the field of
rail transport, on the basis of which the
participants of such relations act within the
framework of the legal field in accordance with
the requirements of the current legislation of
Ukraine, i.e. lawfully carry out their activities in
the field of railway transportation.
Let's consider the international experience of
regulation of railway transportation (Table 1).
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Table 1.
International experience of regulation of railway transportation
Country
Legal regulation
Lithuania
Lithuanian legislation regulates the concept of a contract of carriage of goods and a contract of
carrier undertakes to transport carriage of passengers. Under the cargo transportation contract, the
the cargo received from the consignor to the destination and hand it over to the person authorized to
receive such goods (the recipient), and the sender (the recipient) undertakes to pay a certain fee for
of the cargo. Also, under the contract of carriage of passengers, the carrier the transportation
undertakes to transport passengers to the destination, and if the passengers handed over their luggage
person authorized to to him, to transport the luggage to the destination and hand it over to the
receive such luggage. Passengers undertake to pay the established fee for their transportation and for
the transportation of their luggage. Also, an independent place among transportation contracts is
rganization of transportation.occupied by the contract on the o
Czech
Republic
Under Czech law, contracts of carriage are governed by binding law. The vehicle operation contract
also plays an important role. Thus, according to the civil legislation of the Czech Republic, under the
ct for the operation of the vehicle, the operator undertakes to transport the cargo specified by contra
the customer, and for this purpose to perform at least one predetermined trip or to perform a large
the customer, and the customer number of trips within a specified period as determined by
undertakes to pay the operator a fee. At the same time, the scope of its application is not defined in
the definition of the vehicle operation contract.
Poland
ections of the Civil Code: general Polish legislation regulates the contract of carriage in three s
provisions, carriage of persons, and carriage of goods. Under the contract of carriage, the carrier
undertakes, in the field of his business, to transport people or goods for remuneration. Also, the
e of the Republic of Poland apply to the transportation of certain types of norms of the Civil Cod
transport only if such transportation is not regulated by separate rules. At the same time, the
contracts of provisions of the Civil Code of the Republic of Poland do not provide for auxiliary
carriage.
Moldova
The legislation of Moldova establishes a general definition of the concept of a contract of carriage.
Under the contract of carriage, one party (the carrier) undertakes to the other party (the passenger or
nsport the passenger and baggage or cargo to the destination in lieu of the agreed the sender) to tra
fee, which the other party is obligated to pay. Free transportation of persons or things, with the
rried out by a person who exception of transportation within the framework of business activities ca
d by the provisions of the Civil Code of the publicly provides transportation services, is not regulate
Republic of Moldova, while the carrier is only charged with the duty of prudence and diligence. In
Code of the Republic of Moldova, there are no regulations on contracts of the provisions of the Civil
an organizational nature in the field of providing transport services.
(data provided by Lukasevich-Krutnyk, 2018).
Therefore, from the above analysis of the foreign
regulation of the institution of railway
transportation, the use of different approaches to
the regulation of relations in the field of
transportation can be seen.
Based on the ratification on September 16, 2014
of the Association Agreement between Ukraine,
on the one hand, and the European Union, the
European Atomic Energy Community and their
member states, on the other, cooperation in the
field of transport is provided for the restructuring
and renewal of the transport sector of Ukraine
and gradual harmonization current standards and
policies with those existing in the EU, in
particular through the implementation of the
measures outlined in Annex XXXII to this
Agreement, and the implementation into national
legislation by 2022 of a number of directives and
regulations of the Council of the EU. It was
taking into account the requirements of this
Agreement that the draft law "On railway
transport of Ukraine" was developed.
At the same time, there are currently certain
problematic issues regarding the reform of the
legislation of Ukraine in accordance with the
requirements of the above-mentioned agreement.
In particular, the key factor in the generation of
risks of violation of the legislation on the
protection of economic competition is the
combination within one legal entity (business
entity) of activities that are carried out both in the
monopoly and in the competitive market
segments (JSC "UZ" is in a state of natural
monopoly In this context, it is important to limit
monopoly and promote the development of
competition, to create equal conditions for the
development of the economic activity of
transport enterprises in order to fulfill the
obligations of Ukraine under the Association
Agreement in terms of railway transport, which
consist in the introduction of a new market model
similar to European railway systems
(Rail.insider, 2021).
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It is equally important to change the
organizational structure of JSC "Ukrzaliznytsia".
Thus, an essential problem is ensuring the
transition from an inefficient territorial and
sectoral management structure to a market-
based, vertically integrated organizational
structure based on the main types of activities. It
is also necessary to implement the restructuring
of JSC "UZ" in accordance with EU legislation
regarding the separation of the functions of
infrastructure management and transportation
and to create a holding structure of JSC "UZ"
according to the functional principle (Melnyk,
2022).
Table 2.
Railway transportation market models
Railway transportation market models
European
American
Private carriers compete with each other on the same
infrastructure operator routes. For this purpose, a state
and an independent regulator are created, which
monitors the observance of equal access conditions for
all carriers to the infrastructure (tracks, terminals,
shunting traction, and other services). This market
t the regulator determines the organization means tha
conditions for maintaining railway tracks, the rules for
access to them, and the distribution of bandwidth
between operators, monitors the reasonableness of the
tariff for access to the infrastructure.
e on different (parallel) routes, Private carriers compet
they own tracks and rolling stock. In order not to distort
competition, it is urgent that private carriers do not
dump (i.e. unreasonably lower the price of services). As
a result of unfair competition, carriers may lack
nvestments in upgrading infrastructure and rolling i
stock. This means that the consumer can get a lower
quality service for a lower price. To prevent this from
happening, the regulator checks compliance with
(Zatvornytska, 2019).established pricing rules
(data provided by Zatvornytska, 2019)
The legislative model of Ukraine is more
oriented towards the European model of the rail
transportation market (Table 2).
Regarding the prospects for improving the
institution of rail transport, the following areas
should be highlighted (Table 3):
Table 3.
Prospects for Improving the Institution of Rail Transport
Direction of activity
Realization
Creation of a transport regulator
The purpose of transport is to monitor compliance with the rules of operation
regulator should be independent of all operators, possess on the market. Such a
new work skills for analyzing large volumes of data (use of digital tools), and
coordinate their actions with each other.
Drawing up a reference
document for the railway
lway infrastructure requirements (access order, Contains information on rai
capacity, traffic speed) and enables planning of investments in track renewal,
modernization and maintenance.
A transparent approach to tariff
formation
t the formation of the It is important to determine which expenses will affec
tariff, and which will not belong to them.
Approval of property policy of
JSC "UZ"
Definition of the company's ownership structure, principles of their
management, tools for attracting private business/capital, work models and
ement principles.manag
Ensuring partnership with
international organizations and
transportation safety in the
conditions of military aggression
of the Russian Federation on the
territory of Ukraine
of international It is extremely important to establish cooperation and support
organizations for the safety of passenger and cargo transportation by Ukrainian
railways.
(data provided by authors).
Conclusions
As a result of the conducted research on the
improvement of the railway transport institute in
the context of modern challenges, the following
conclusions were made:
1) The Institute of Rail Transport needs to be
reformed in order to help increase the
capacity of the EU railway system to
transport goods from Ukraine, to strengthen
the capacity of Ukrzaliznytsia to ensure the
restoration and repair works of the railway
infrastructure in the volumes necessary for
carrying out export transport of goods in
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conditions of possible intensification of
shelling from the Russian Federation, and as
well as bringing railway operations up to
European standards.
2) It has been proven that in the conditions of
military aggression of the Russian
Federation, among all types of transport in
Ukraine, the leading place is occupied by
railway transport, which is used for long-
distance and mass transportation of almost
all types of products and goods, as well as
passenger transportation.
3) The main problems of railway transport that
require immediate solution are highlighted.
In particular, these are: imperfection of legal
acts, insufficient transparency of financial
activities of the industry, high level of wear
and tear of fixed assets, lack of state support
for innovative development of the industry,
lack of additional sources of funding for
investments in the development of the
material and technical base of railway
transport.
4) The main areas of activity for the
improvement of railway transportation have
been identified, including:
− the creation of a transport regulator; drawing
up a reference document for the railway;
− a transparent approach to the formation of
tariffs;
− approval of the property policy of JSC "UZ",
as well as ensuring partnership with
international organizations and
transportation safety in the conditions of
military aggression of the Russian
Federation on the territory of Ukraine.
Regarding further scientific developments in this
topic, we consider it necessary to study the
international legal experience of reforming the
sphere of railway transportation and regulation of
this type of transportation in force majeure
circumstances.
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European Union. (1980). Convention on
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