Cape Town Convention Research Articles

The Cape Town Convention aircraft protocol’s substantive insolvency regime: a case study of Alternative A

Following a brief history of insolvency law, including a summary of a provision (Section 1110) of the US Bankruptcy Code that inspired Alternative A of Article XI of the Aircraft Protocol to the Cape Town Convention, the authors outline the content, development, and intended impact of Alternative A. Section 1110 and Alternative A are then compared, as an aid to interpretation of the latter. Finally, the authors provide a case study applying Alternative A, designed to set out the intended application, interpretation, and effect of Alternative A. That case study – and such intended outcomes – underscores that the economic value of Alternative A is linked to the commercial predictability it provides, which is the main reason why courts have no discretion to modify its terms.

Comparative analysis of aircraft, rail and space international registries and their regulatory provisions

This article discusses the common and different aspects of International Registries under the three Protocols to the Cape Town Convention. As matters applicable to all three International Registries, it examines: the basic elements of the International Registry, implications of the Registrar’s centre of administration, the role of the Supervisory Authority and liability of the Registrar, as well as common aspects of transactional and operational aspects of the International Registry. It then proceeds to analyse the differences among the International Registries by examining key transactional and operational aspects of each. This article concludes with lessons learnt from designing of the three International Registries and implications for future registries to be set up under additional Protocols to the Cape Town Convention or other instruments.

Cape Town Convention Academic Project Update

Cape Town Convention Academic Project Update

Commentary on ‘Assessing the legal and economic case for a shipping protocol to the Cape Town Convention’

Commentary on ‘Assessing the legal and economic case for a shipping protocol to the Cape Town Convention’

Security Interests Burdening Transport Vehicles: The Cape Town Convention on International Interests in Mobile Equipment and its Implementation in the Netherlands and on the Dutch Caribbean Islands

The Cape Town Convention on International Interests in Mobile Equipment (Cape Town Convention) creates a very workable regime even in a Civil Law setting, although it may be more inspired by the Common Law (particularly Article 9 of the US Commercial Code) than the Civil Law tradition. As such the Convention is a good example to show the impact of globalisation on national law and how such impact can be beneficial. Uniform rules create more certainty, particularly in the area of mobile equipment, which by its very nature may cross borders. The number of countries which are now a party to the Convention is clear evidence to show the correctness of this statement. The Dutch Caribbean islands, no doubt because of their size, their location and the nature of the commercial activities in which they are involved, seem to have understood this better than the Netherlands.

The World According to Or - First and Foremost a Tribute to Henri A. Wassenbergh but also Flagging some Strange Inconsistencies in Aviation Law

In the area of aircraft finance practice one may encounter strange inconsistencies in the legal framework or one may find that certain legal concepts are really not appropriate for the industry as it has developed. In this publication, some of those inconsistencies and outdated legal concepts are described. First, there is the question of the fate of a right of pledge on an aircraft which is registered as to nationality in the Netherlands and which is subsequently recorded in the Dutch Public Registry, being the register maintained pursuant to the 1948 Geneva Convention. Second, the author takes the view that the 1933 Rome Convention on the precautionary arrest of aircraft is outdated and totally out of sync with today's aviation industry. Third, we see the strange situation that the Cape Town Convention, while it does not apply to the European part of the Netherlands, applies to certain special municipalities of the Netherlands, i.e., the BES Islands. This leads to a peculiar situation because the domestic laws of the BES Islands take a different view on, e.g., accession of engines than the Convention. This subject is closely connected with the view expressed by the author that accession rules, to the extent they relate to aircraft engines, should be abolished.

The relationship between the Geneva and Cape Town conventions

This article examines the relationship between the Cape Town Convention (insofar as it relates to aircraft) and the Geneva Convention. The latter continues to apply to rights not constituting international interests under, and to rights in aircraft below the minimum threshold set out in, the former. The Geneva Convention provides that the law of the state of registration of the aircraft in question is the applicable law for rights and interests covered by it but gives no guidance as to whether such law is the domestic law only of that state or includes that state's private international law rules. The Cape Town Convention provides that references in it to applicable law are to the domestic law of the state in question but, in fact, relevant references therein to applicable law are few and international interests under the Cape Town Convention are sui generis interests not dependent on national law.

Public and private features of the Cape Town Convention

The mechanism of the Cape Town Convention (CTC) – with its two instruments approach, public and private actors, the declarations system, and involving a single International Registry with global reach – is a complex one. Both public and the private features in the CTC interface closely to achieve the objective of facilitating asset-based financing at the international level across national borders. The public features of the Convention include the International Registry System with treaty status, the declaration system, the designated entry points and the jurisdiction provisions. They essentially serve the purpose of enabling the remedies set out in the CTC and the Protocol to be exercised in an appropriate and effective manner. The private features of the Convention include the remedies themselves, including the default remedies, remedies of speedy relief, self-help remedies, and remedies in insolvency. They are exercised by private parties in their own right. The purpose of the following article is to focus on the duality of public and private features in the CTC.

Cape Town Convention and international sanctions: the case of European Union sanctions against Russia

The Cape Town Convention, while focused on a relatively specialised area of international finance, forms part of the broader system of international law and interacts in various ways with the other rules of that system, including international sanctions. This article explores the relationship between sanctions and the Cape Town Convention regime, taking as a case study the implications of the recent EU sanctions regime against Russia for the Registry established under the Aircraft Protocol and based within the EU. The increasing prominence of sanctions as a tool within the international legal system requires those who interact with the Convention regime, and their advisers, to keep international sanctions under review. In the case of EU sanctions against Russia, notwithstanding their very wide reach, the sanctions appear to have very limited effect on the activities of the Registry. Moreover, the privileged status of the Convention within the EU legal order arguably provides a significant level of protect...

The MAC Protocol: we aren't there yet – how far do we have to go?

This article examines the proposed MAC protocol to the Cape Town Convention. This proposed fourth protocol covers mining, agricultural and construction equipment. The proposal for this protocol was originally made in 2006, but a study committee was not appointed until 2014. This article considers the scope of the proposed protocol, its likely economic impact and the major practical hurdles that will be necessary for it to be a viable protocol. With regard to scope, the initial drafts have focused on the Harmonized Commodity Description and Coding System, an internationally recognized categorization of equipment that is used in international trade and customs. The article examines whether this system is adequate to meet the mobility and internationality aspects that are essential to the framework of the Cape Town Convention. This article also notes that, among other issues to be resolved, until the scope of the equipment that will be covered by the proposed protocol is finalized, a serious estimation of the economic impact of the MAC protocol is premature.

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

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...

Cape Town Convention closing opinions in aircraft finance transactions: custom, standards and practice

One of the most significant challenges facing the practitioner in an aviation finance transaction is determining the scope and substance of a Cape Town Convention closing opinion. This article attempts to assist in the development of a global standard for Cape Town Convention closing opinions in aircraft finance transactions by viewing and analysing such opinions through the lens of current global Cape Town Convention closing opinion custom and practice.

The MAC Protocol: some comments and a challenge

Professor Henry Gabriel's paper11 See Henry Deeb Gabriel, ‘The MAC Protocol: We Aren't There Yet: How Far Do We Have to Go?’ (2015) 4 Cape Town Convention Journal [this issue]. asks the right quest...

The Cape Town Convention and The Risk of Renationalization: A Comment in Reply to Jeffrey Wool and Andrej Jonovic

This comment is in response to an article by Jeffrey Wool and Andrej Jonovic in which they explore the relationship between transnational commercial treaties and national law at the moment of implementation of those treaties within a State's domestic legal system. This comment argues that, in reality, national law poses the greatest danger to the predictability and uniformity intended by transnational commercial treaties at the later-occurring stages of interpretation and enforcement. The comment first considers how the framework developed by Wool and Jonovic for identifying the proper boundaries of national and transnational law does not account for the eventual shifting of those boundaries over time through the “renationalization” of supposedly transnationalized laws. The comment cites examples of that shift that are already taking place in certain States' enforcement of the Convention on International Interests in Mobile Equipment (The Cape Town Convention). It goes on to describe the circumstances under which courts further renationalize treaty law through a variety of interpretive choices they must inevitably confront. The comment then examines the two most commonly employed safeguards against renationalization and applies them to the Cape Town Convention. The first safeguard is autonomous interpretation, a doctrine which is in fact written into the Cape Town Convention. The comment summarizes some of the research on the doctrine's effectiveness in the enforcement of another transnational commercial treaty, the Convention on the International Sale of Goods, and contemplates what that history may presage for autonomous interpretation of Cape Town. Finally, the comment turns to the second commonly utilized safeguard against renationalization, investor-State dispute settlement, which pertains mostly to the State administration and enforcement of a treaty's provisions rather than their judicial or agency interpretation. Because these dispute settlement clauses have become increasingly controversial in recent years, the comment surveys the prospects for bringing Cape Town claims under the dispute resolution provisions of existing international investment treaties as an alternative to amending the Convention to include a freestanding investor-State dispute settlement mechanism.

De-registration and Export Remedies under the Cape Town Convention

De-registration and export remedies under the Cape Town Convention on International Interests in Mobile Equipment and its Aircraft Protocol are integral components of the overall suite of remedial rights provided under the treaty and address some of the legal and procedural shortcomings of otherwise available applicable law. This article provides a critical analysis of the key provisions of the Convention and Protocol dealing with de-registration and export remedies and also identifies some of the key areas where the Convention and Protocol may need a broader interpretation in order to give effect to their desired goals. This article also identifies questions surrounding the use of the Irrevocable De-registration and Export Request Authorization (or “IDERA”) and provides suggested guidance for its implementation and use.

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

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.

CTC and International Research and Information Systems

There is a long history of creating digital libraries of legal materials in general and of international legal materials in particular. This article highlights the history of several noteworthy examples of earlier digital libraries. It then describes the creation of the Cape Town Convention Academic Project digital library. Finally, the article applies lessons learned from the histories of the earlier libraries to analyse issues the Cape Town Convention library may face in the future.

The Cape Town Convention and the Law of Outer Space: Five Scenarios

The adoption of the Space Assets Protocol to the Cape Town Convention marked a new era in the evolution of the law of outer space by providing the first space treaty regarding private international law. This Protocol was not created in a legal vacuum, but was drafted against the background of the existing United Nations space treaties that were drafted in the 1960s and 1970s. Although the existing UN treaties address public international law and therefore cover subject matter that is quite distinct from the private law issues addressed by the Space Assets Protocol, there are still points at which the Protocol intersects with the existing treaties. This article explores these intersections, and even potential conflicts, between the Protocol and the existing treaties. Five hypothetical scenarios are presented to illustrate these intersections between the new and old laws and suggestions are made for how existing space law may either interfere with the operation of the Protocol or, in some cases, facilitate ...

Article 13 of the Cape Town Convention and Article 31 of Regulation No. 44/2001—An EU Law Perspective

This article considers Article 13 of the Convention on International Interests in Mobile Equipment (‘Convention’) and the Protocol thereto on Matters Specific to Aircraft Equipment (‘Aircraft Protocol’) in the context of Article 31 of EU Regulation 44/2001 (the ‘Brussels Regulation’) 1 from an EU law perspective. In particular, the focus of this article is on the effect of EU accession to the Convention and the EU law interpretation of Article 31 of the Brussels Regulation (which allows provisional, including protective, measures granted by a Member State to be enforced by any other Member State) in the context of seeking to enforce a remedy under Article 13 of the Convention in the EU. This article is divided into the following parts: (i) an analysis of Articles 13 and 43 of the Convention;(ii) accession of the EU to the Convention and the Brussels Regulation; (iii) Article 31 of the Brussels Regulation and key aspects of its interpretation by the European Court of Justice (‘Court of Justice’); (iv) the ...

The Cape Town International Rail Registry and the Development of State Registries

The International Rail Registry, established pursuant to the Cape Town Convention on International Interests in Mobile Equipment, will be a new global electronic commerce system for recording and establishing the relative priority of security interests in railway rolling stock. Although there is a history of national rail registries recording operational details of railway rolling stock there are few examples of registries in which security interests can be recorded. However, in recent years a significant number of countries have begun to establish state registries for recording security interests in movable assets. This article surveys the progress being made around the world with respect to such registries. This article will also consider some of the discussions which arose around how the International Rail Registry will interface with national registries as well as the evolution of the numbering system to identify specific items of railway rolling stock.