Compliance with Transnational Commercial Law Treaties—A Framework as Applied to the Cape Town Convention

Abstract

Modern commercial law treaties are designed to produce economic benefit. Yet their ability to do so depends on whether transacting parties and risk assessors can reasonably assume that contracting states comply with their treaty obligations. That includes where precedent is absent, which is always the case in the early period of a treaty system. This article sets out a core conceptual framework to assist in understanding commercial law treaty compliance. It starts with threshold questions such the nature and meaning of compliance, then turns to measuring compliance, and, absent sufficient data to do so, to modelling expectations of compliance. It addresses the consequences of non-compliance, and, finally, what can be done in practice to enhance compliance, all in the context of modern commercial law treaties. The article then applies this framework to the specific case of the Cape Town Convention and its Aircraft Protocol, and concludes that, while country specific, expectations of compliance should generally be high for these instruments, and could be made higher by select action, much of which is actively being undertaken.