Advance relief under the Cape Town Convention and its Aircraft Protocol: A comment on Gilles Cuniberti's interpretative proposal

Abstract

In the inaugural issue of this journal Gilles Cuniberti addressed the question of the nature of the relief pending final determination under the Cape Town Convention. One of his contentions is that the Convention leaves open the question of the nature of the relief provided in Article 13, which has to be seen as a ‘hybrid’ between an interim relief and a final remedy. In the present paper a different approach to the interpretation of Article 13 is presented. It is suggested that the qualification as a speedy enforcement remedy to obtain the anticipated satisfaction of creditors' claims is more convincing than the alternative of focusing on the interim nature of the relief. This suggestion is based on the specific conditions set forth for the exercise of the relief in the Convention, as well as the changes to Article 13 introduced in the Protocols to the Convention (and in particular the Aircraft Protocol). Advance relief in the Convention and its Protocols should be seen as a sui generis remedy the regime of which is dictated by the treaties themselves and should be interpreted autonomously from any existing domestic counterpart.