The Cape Town Convention and Polish Law on Security Interests

Abstract

There are many methods of securing creditor’s interest in Polish civil law. Authors of this text suggest that a registered pledge is a suitable method most closely resembling security system under the Cape Town Convention. All movable objects may be subjected to the registered pledge, including transport vehicles. It is a limited proprietary right that allows a creditor (pledgee) to satisfy his claim from an object regardless of whose property it has become and with priority over the personal creditors of the owner of the thing, save for those who under the law hold special priority. Contrary to a regular pledge in case of the registered pledge the debtor maintains possession of the object. Instead, a record in a special registry is instituted. As in the Cape Town Convention the creditor who files for registration first entertains priority. There are however broad differences between the system of registration under the Polish law and the convention. Also, concept of security under the Polish law does not reflect a functional approach adopted under the Cape Town Convention. Under the Convention the enforcement methods depend on the type of security chosen by the creditor. In cases of the registered pledge the creditor entertains limited latitude as to ways of enforcing his claims. Priority is given to the judicial enforcement, however other methods are allowed in certain situations which are discussed in the text. Furthermore, Polish insolvency law recognizes the same rule of effectiveness of the security interests as the Convention. Therefore, in case of the security interest in a form of the registered pledge, the creditor has a right to take over ownership or sell the secured asset pending insolvency proceedings. Authors suggest however that some security agreements are ineffective in regard to the bankruptcy estate.