The interaction between Cape Town Convention repossession remedies and local procedural law: a civil law case study

Abstract

The economic benefits of the Cape Town Convention and its Aircraft Protocol derive, in substantial part, from the availability of prompt and predictable repossession remedies in the case of default by a debtor. While the treaty sets out these substantive remedies with clarity, the texts contemplate, and practice requires, recourse to local procedural law to exercise them. In some jurisdictions, the treaty's remedies do not find direct and/or sufficiently defined supportive procedural law. That is to be expected given that the treaty contains sui generis concepts, creates new, often aircraft-specific, remedies, and may require contracting states to change their substantive law. This article examines three potential challenges, where such procedural law may be absent or limited. It then sets out a central case study, using the Canadian ratification of the treaty and its application to aircraft and engine repossessions in the Province of Quebec, a civil law jurisdiction, as an example of how these gap-fillin...