Cape Town Convention Research Articles

Analysis of Non-Consensual Rights and Interests under Article 39 of the Cape Town Convention

Analysis of Non-Consensual Rights and Interests under Article 39 of the Cape Town Convention

Analysis of Non-Consensual Rights and Interests under Article 39 of the Cape Town Convention

This article will analyse how Article 39 entitled ‘Rights having priority without registration’ should be understood and applied under the Convention to aircraft objects. It begins with a review of the general history and policies behind both generic and aircraft-specific non-consensual rights and interests, and rights of detention with respect to aircraft, and how they have related in terms of priority to consensual interests. The article discusses the Article 39 policy objectives and conflicts within the purposes and intended benefits of the Convention and the Aircraft Protocol. It then compares the priority rules in Articles 29, 39 and 40 in relation to non-consensual rights and interests and describes how Article 39 works within the Convention. We then focus on the differing categories of non-consensual rights or interests that have been declared to date and conclude with policy suggestions for Contracting States in making their declarations under Article 39. The final section analyzes practical examp...

Generation II Of The International Registry Website The Closing Room: A Transactional Approach to Registrations

The International Registry, established pursuant to the Cape Town Convention and its Aircraft Protocol, will be establishing a new generation of its website during its eighth year of operations. The most significant change that will occur is the establishment of a closing room facility for assembling registrations. The closing room facility is expected to be in operation by mid-year 2014. The closing room facility will enable registry users to assemble all the data required to make the full set of registrations for a transaction, and will give the transaction participants the opportunity to review and agree to revise a complete set of planned registrations, all in advance of conducting a closing and placing such registrations into the International Registry data base. This article will examine the concepts underlying the closing room facility, describe the process for using this new facility and consider some expected practices and questions.

The Role of Experts in the Elaboration of the Cape Town Convention: Between Authority and Legitimacy

AbstractGlobalisation and the development of fast transport and communications have multiplied transnational situations that States, at times, appear ill equipped to handle. Private actors, taking advantage of these new opportunities to claim their authority, are now key actors in the production of transnational law. Since their place in the production process does not have legal grounds, this paper intends to ‘transnationalise’ the legitimacy discourse by comparing its fundamental criteria to the claim to authority of a particular group of private actors—the aviation experts—during the elaboration of the Cape Town Convention. This article challenges this expertise‐based legitimation process which, despite being grounded on the ability of private actors to develop effective solutions, reveals a limited output and input legitimacy. Finally, the article suggests that the EU is well placed to carry out a legitimacy test to block the reception of undemocratic claims to authority made by influential private actors.

How Many Engines on a Boeing 737? An Analysis of Accession Rules in Relation to Aircraft Engines

Accession rules based on or similar to Article XVI of the 1948 Geneva Convention still affect the position of aircraft engine lessors and financiers. There is further uncertainty caused by the different conflict of laws rules in relation to aircraft, i.e. the lex situs, the lex registri and the lex actus. The outcome of a dispute regarding the title to an aircraft engine may depend on the rules of private international law of the lex fora. The status of an aircraft engine will be assessed differently if the dispute is brought before an English court (applying the lex situs), a US court (applying the lex actus) or a Dutch court (applying the lex registri). In addition, the different treatment of aircraft engines under the 1948 Geneva Convention and the Cape Town Convention (CTC) respectively underlines the potential problems for engine lessors and financiers. In this publication, the author examines and analyses accession rules, the main conflict of laws rules and the undesirable implications of the absence of a uniform body of rules regarding the property regime for aircraft.

Teresa RODRIGUEZ DE LAS HERAS BALLELL, Security rights upon aircraft equipment in international trade: The Cape Town Convention and its Protocol

Teresa RODRIGUEZ DE LAS HERAS BALLELL, Security rights upon aircraft equipment in international trade: The Cape Town Convention and its Protocol

Collateralisation of Contracts

The article deals with “collateralisation” in a twofold sense, i.e. the use of contracts as collateral and the use of other (mainly tangible) property as security for contractual claims. If carried out in an international, EU-wide setting, parties to both kinds of transactions are facing numerous difficulties, which stem from private international and the divergencies of national substantive law alike. The author criticises that until now, on both levels, the EU legislator has done next to nothing to support cross-border financing of or against contractual claims. As first steps, she calls for a speedy amendment of Art. 14 Rome I Regulation and for ratification by Member States of the UN Convention on Assignment of Receivables in International Trade and the Cape Town Convention on International Interests in Mobile Equipment with its supplementing Protocols.

From Acorn to Oak Tree: the Development of the Cape Town Convention and Protocols

The preparation of any international uniform law is a long and arduous business. The Cape Town project began as a relatively modest venture on a proposal made in June 1988 by Mr T.B. Smith QC, the Canadian member of the UNIDROIT Governing Council, to build on the UNIDROIT Convention on International Financial Leasing, which had been adopted the same year, and prepare an instrument focused on mobile equipment but otherwise broader in scope than the Leasing Convention. The new instrument would deal with security interests in mobile equipment, covering not only security in the traditional sense but also the interests of conditional sellers and lessors. Now experience over the years has shown the vital importance of establishing three key factors before embarking on a project of uniform law. First, is there a problem? That may seem an obvious question but I can recall the time when UNIDROIT was very much influenced by academics – which, of course, is an excellent thing, there can never be too many academics – and the Governing Council had on its work programme a large range of projects most of which had appeared in the programme because a member of the Governing Council had had a bright idea! The existence of a problem was assumed to arise simply from differences in national laws. That rather happygo-lucky approach was long ago abandoned, and the Governing Council will

Treaty Design, Implementation, and Compliance Benchmarking Economic Benefit - a Framework as Applied to the Cape Town Convention

This article provides an overview of the design and implementation of the Convention on International Interests in Mobile Equipment and its Protocol on Matters specific to Aircraft Equipment, as well as compliance with these instruments, in each case, benchmarking economic benefit. It proposes a framework designed to maximise prospects that international commercial law treaties will produce economic benefits.

International interest in space assets under the Cape Town Convention

Private human access to outer space is impossible without space equipment. Nowadays space equipment is increasingly being financed by private sector. Private sector financiers, naturally, seek to secure their interest in space equipment. At the same time, increasing international cooperation in space industry leads to some problems of legal character. Thus, space equipment involved in international cooperation programs crosses national borders and is subject to a certain jurisdiction in a given period of time. The problem is that when an interest is created in one jurisdiction, it may not necessarily be recognised in another one. In order to provide a unified approach to interests vested in space equipment an international legal instrument is necessary. The Cape Town Convention represents an international instrument designed to provide a unified approach to interests vested in mobile equipment, including space assets.

The availability of a new form of financing for commercial space activities: the extension of the Cape Town Convention to space assets

The third and latest Protocol to the Cape Town Convention, on Matters specific to Space Assets, was opened to signature in Berlin on 9 March 2012, at the conclusion of a diplomatic Conference held at the kind invitation of the Government of Germany. Three of the 40 States represented at the Conference, namely Burkina Faso, Saudi Arabia and Zimbabwe, signed the Protocol at the closing ceremony of the Conference. The new Protocol will enter into force—and, with it, the Cape Town Convention as applied to space assets—on the later of the date of the deposit of the tenth instrument of ratification, acceptance, approval or accession and the date of the deposit by the Supervisory Authority with the Depositary of a certificate confirming that the International Registry for space assets is fully operational. In this article the author, first, reports on the Berlin Conference, focusing in particular on the principal issues that fell to be resolved at the Conference, secondly, recounts the history of the project, th...

L<I>ex</I> Blue September 2012 <I>Lex situs</I> after <I>Blue Sky</I>: is the Cape Town Convention the solution?

English law is one of the leading systems of law selected by parties to govern aircraft leasing and financing transactions, on the basis that it is a robust, yet flexible, regime under which creditors have clear rights and remedies. However, the recent Blue Sky litigation has highlighted the complexity of the conflict of laws position in many aviation deals and the English High Court's decision has confirmed that a different approach is required to meet the commercial expectations of industry participants and to maintain English law's competitive position. The Cape Town Convention is an international treaty designed to facilitate the crossborder financing and leasing of aviation equipment, by reducing creditor risk and enhancing legal predictability. This article considers whether its ratification by the UK will resolve the issues arising out of the Blue Sky litigation and the extent to which supplemental measures are required.

The priority rules under the Cape Town Convention and Protocols

The 2001 Cape Town Convention and associated Protocols relating to aircraft objects, railway rolling stock and space assets are among the most ambitious international instruments ever to have been concluded in the field of commercial transactional law. The Convention and Aircraft Protocol, which together consist of no fewer than 99 Articles, have been widely adopted and more ratifications are in train. Central to the Convention is the International Registry in which international interests, and, in the case of aircraft objects and space assets, sales, can be registered and secure priority over subsequently registered interests and unregistered interests. By the end of 2011, in under six years since it came into operation, the International Registry for aircraft objects in Dublin had processed 313,000 registrations. The priority rules constitute key provisions of the Convention. In this article Roy Goode, who chaired the UNIDROIT Study Group and Drafting Committee and the Drafting Committee at the Diplomat...

Advance relief under the Cape Town Convention

This article analyses the nature of the relief pending final determination that is provided for by Article 13 of the Cape Town Convention. It contends that the language and legislative history of A...

The insolvency provisions of the Cape Town Convention and Protocols: historical and economic perspectives

The insolvency provisions of the Cape Town Convention and associated Protocols are considered integral to the achievement of the economic objectives of the Convention project. This article begins with the history of the insolvency provisions, tracing their evolution from a modest rule for the recognition of Convention interests in insolvency to a robust package of substantive rules on the effectiveness, priority, avoidance, and enforcement of Convention interests in insolvency proceedings. It then turns to consider the provisions in detail, illustrating their likely application with some hypothetical scenarios featuring airline and railroad debtors. The concluding section discusses the perceived signifi cance of the insolvency provisions to the Convention project as a whole, and their predicted economic impact.

The Cape Town Convention's International Registry: decoding the secrets of success in global electronic commerce

The International Registry, established pursuant to the Cape Town Convention on International Interests in Mobile Equipment, is a new global electronic commerce system for recording and establishing the relative priority of interests in aircraft equipment. Other examples of global electronic commerce systems include the airline computer reservation system, the SWIFT financial network, and payment card networks. The International Registry may be the most successful global electronic commerce system ever built in terms of the speed with which it was implemented, its adoption rate, and the dearth of controversy surrounding its operation. The real ‘driver’ of its success is demand for a more efficient aircraft financing regime, while its design is an ‘enabler’ of the realization of that goal. This paper also will identify some other factors that have contributed to its remarkable success, and will note how the relative absence of such factors may have limited the success of other global electronic commerce sy...

An Economic Assessment of the Space Assets Protoco to the Cape Town Convention

An Economic Assessment of the Space Assets Protoco to the Cape Town Convention

Providing credibility around the world: effective devices of the Cape Town Convention

This paper analyzes the characteristics and effects of the Cape Town Convention, which provides legal protection for investors in relation to asset-based aircraft financing. Some countries lack credibility for investors, who believe that the protection level of creditor rights in the country differs before and after investment. This time inconsistency problem results in credit rationing. Airlines in such countries cannot access the credit market, particularly the international capital market. This paper first examines why developing countries have been suffering from a lack of credibility and from credit rationing, and then explores how the Convention resolves this problem. We focus on two devices: the white list system and the system of declarations. The former gives the contracting states incentive not to break the Convention. The latter is considered to promote the ratification of the Convention by potential contracting states. These devices enable the Convention to attract a number of states.

Cape Town Convention on International Interests in Mobile Equipment

Cape Town Convention on International Interests in Mobile Equipment

The Implications of the EU Accession to the Cape Town Convention

On 28 April 2009 the European Community deposited an instrument of accession to the Cape Town Convention. To understand the implications thereof, one needs to understand the scope of the powers conferred upon the Community to conclude international agreements. In this case accession by the Community implies that the Member States are bound by the Cape Town Convention to the extent the provisions thereof fall within Community competence. The Community declaration, lodged in conjunction with the accession instrument, indicates that Member States have transferred competence to the Community with respect to matters affecting the Brussels I–Regulation, the Insolvency Regulation and the Rome I–Regulation. In practice it will, however, still be difficult to determine which provisions of the Convention fall within Community competence. The Community’s accession to the Cape Town Convention is perhaps mainly to be seen as paving the way for individual Member States to ratify the Convention.