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PRIVATE COMMERCIAL LAW CONVENTIONS AND PUBLIC AND PRIVATE INTERNATIONAL LAW: THE RADICAL APPROACH OF THE CAPE TOWN CONVENTION 2001 AND ITS PROTOCOLS

Published online by Cambridge University Press:  08 July 2016

Roy Goode
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Extract

It is a remarkable circumstance that with a few honourable exceptions all writers on international law in general and treaty law in particular focus exclusively on public law treaties. Private law conventions, including those involving commercial law and the conflict of laws, simply do not come into consideration. Yet such conventions, like public law conventions, are treaties between States and are governed by the 1969 Vienna Convention on the Law of Treaties and many of them are of great significance. Their distinguishing feature is, of course, that while only States are parties, private law conventions deal primarily, and often exclusively, with the rights and obligations of non-State parties. So while the treaty is international it does not for the most part commit a Contracting State to any obligation other than that of implementing the treaty in domestic law by whatever method that State's law provides, if it has not already done so prior to ratification.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 65 , Issue 3 , July 2016 , pp. 523 - 540
Copyright
Copyright © British Institute of International and Comparative Law 2016 

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References

1 For example, JG Sprankling, The International Law of Property (OUP 2014); Basedow, J, ‘Uniform Private Law Conventions and the Law of Treaties’ (2006) 11(4) UnifLRev 731Google Scholar.

2 Adopted 16 November 2001.

3 Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment (adopted 16 November 2001, entered into force 1 March 2006) (the Aircraft Protocol).

4 Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Rolling Stock (adopted 23 February 2007) (the Luxembourg Protocol).

5 Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Space Assets (adopted 9 March 2012) (the Space Protocol).

6 The UN Treaty Series (2307 UNTS 285) wrongly gives the date of entry into force as 1 April 2004 by reference to the deposit of the third instrument of ratification but this overlooks art 49(1)(a) of the Convention under which all the provisions apart from those that become operative under the Vienna Convention before entry into force of the Convention as a whole come into force only when the relevant Protocol comes into force.

7 Fermat's last theorem postulates that xn + yn = zn is an equation having no solutions in positive integers greater than 0 for any integer value of n greater than two.

8 Convention on International Civil Aviation (adopted 7 December 1944, entered into force 4 April 1947).

9 Art I Aircraft Protocol.

10 See Sir Roy Goode, Official Commentary on the Convention on International Interests in Mobile Equipment as Applied to Railway Rolling Stock (2nd edn, UNIDROIT 2014) para 3.8.

11 Art I Space Protocol.

12 Arts 2, 7 Cape Town Convention.

13 Art 3(1) and 4 Cape Town Convention.

14 Art IV Aircraft Protocol.

15 Art 8(1) Cape Town Convention.

16 Art 13 Cape Town Convention.

17 Art IX(1) Aircraft Protocol.

18 Art IX(1) Aircraft Protocol, Art VII(1) Luxembourg Protocol.

19 Pursuant to art 16 Cape Town Convention.

20 Art 29(1).

21 Art 39. The same article preserves the right of arrest or detention of an object enjoyed by a State or State entity, intergovernmental organization or private provider of public services, for payment of amounts directly relating to those services in respect of the object in question or another object (eg the so-called ‘fleet lien’ enjoyed in the UK by Eurocontrol).

22 Art 30 Cape Town Convention and art XI Aircraft Protocol.

23 US Bankruptcy Code Chapter 11, Title 11.

24 For example on 25 June 2013 ‘British Airways raised funds through its first-ever enhanced equipment trust certificates (EETCs) offering to finance the purchase of 14 new Airbus and Boeing aircraft’—Reuters. ‘British Airways launches debut EETC offering to finance planes’ available at <http://uk.reuters.com/article/newstory-idUSL2N0F11TH20130625>.

25 The latest set of rules prescribing the qualifying declarations is contained in the Arrangement on Officially Supported Credits (TAD/PG (2016) 1, dated 1 February 2016) Annex III, Sector Understanding on Export Credits for Civil Aircraft (ASU), Appendix II, Annex 1.

26 Such was the impact of the Convention and Aircraft Protocol that one of the first States to ratify, in the middle of a war, was—Afghanistan!

27 See, for example, Aircraft Protocol art XXX (1) – (3).

28 See, for example, Convention, art 55, Aircraft Protocol art XXX (5).

29 Sprankling, The International Law of Property (n 1) 63.

30 ‘Creating’ in the case of a security agreement, ‘providing for’ in the case of a title reservation or leasing agreement, since in these last two cases the interest of the seller or lessor does not derive from the agreement but typically precedes it.

31 This may arise under the applicable or by inference from the provisions of the Convention. The provision for registration of an interest held by a conditional seller or lessor implies that the conditional buyer or lessee has a power of disposal, for only the conditional seller or lessee in possession is likely to be in a position to dispose of the object, so that it is only against such a disposal that registration serves any purpose.

32 In the case of an aircraft object the identification criteria are the manufacturer's serial number, the name of the manufacturer and the (generic) model designation (art VII).

33 Art 1(w).

34 Ch IV Cape Town Convention.

35 Sprankling, The International Law of Property (n 1) 61.

36 See <https://www.internationalregistry.aero/ir-web/>.

37 Société Internationale de Télécommunications Aéronautiques.

38 See art 17(1)–(4) Cape Town Convention.

39 Cape Town Convention, art 27.

40 ibid, art 27(5).

41 See generally Clark, L ‘The 2001 Cape Town Convention on International Interests in Mobile Equipment and Aircraft Equipment Protocol: Internationalising Asset-Based Financing Principles for the Acquisition of Aircraft and Engines’ (2004) 69 Journal of Air Law and Commerce 3Google Scholar.

42 16 November 2001.

43 Adopted 11 April 1980, entered into force 1 January 1988.

44 Convention on International Factoring (adopted 28 May 1988, entered into force 1 May 1995).

45 Convention on International Financial Leasing (adopted 28 May 1988, entered into force 1 May 1995).

46 Art 30 Cape Town Convention.

47 Art XI (Alternative A) and XII Aircraft Protocol.

48 The Vienna Convention is rather inconsistent in its concept of a reservation. Art 2(1)(d) defines a reservation as ‘a unilateral statement, however, phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State’, and it is a reservation as so defined that is prohibited by the Cape Town Convention. On the other hand, as an exception to the general rule that a State may formulate a reservation, art19(b) precludes this where ‘the treaty provides that only specified reservations, which do not include the reservation in question, may be made’, which indicates that a reservation is not necessarily unilateral but may be provided by the treaty itself.

49 Art 54(2).

50 Art 55.

51 Protocol, art XI, Alternative A, which provides the debtor or insolvency administrator, as the case may, a grace period for remedying existing defaults and undertaking to perform future obligations, failing which the creditor is entitled to repossess the aircraft object without judicial intervention, delay or modification of the debtor's obligations.

52 See the Declaration lodged by The European Union under the Cape Town Convention at the Time of the Deposit of its Instrument of Accession, para 5.

53 The ingenuity of the Irish knows no bounds. Many years ago Irish bank staff went on strike. In almost every other country in the world this would have caused mayhem. Not in Ireland. The pubs offered their services as clearing houses for the trading of unpresented cheques, which were thus used to settle debts, contingently on their being met when the strike came to an end, as most of them were.

54 Which ratified the Luxembourg Protocol 31 January 2012, while the EU did so 18 December 2014.

55 Arts 31–37. ‘Associated rights’ mean ‘all rights to payment or other performance by a debtor under an agreement which are secured by or associated with the object’ (art 1(c)).

56 (Adopted 12 December 2001) 41 ILM 777.

57 Art 13 Cape Town Convention.

58 Arts IX and X(6) and (7) Aircraft Protocol.

59 Arts X and XII Aircraft Protocol

60 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (adopted 18 March 1965, entered into force 14 October 1966) 575 UNTS 159.

61 Art XXVII Space Protocol and art XXV Luxembourg Protocol.

62 Luxembourg Protocol, art XXV; Space Protocol, art XXVIII.

63 See, for example, Dicey, Morris and Collins, The Conflict of Laws (15th edn, Sweet & Maxwell 2015) Rule 133.

64 Blue Sky One Ltd v Mahan Air PK Airfinance US Inc [2010] EWHC 631 (Comm).

65 Paras 73 and 152.

66 See paras 151–185 for discussion of these issues.

67 Re ProtoStar Ltd US Bankruptcy Court for the District of Delaware, Case No 09-12659 (MFW), motion of Official Committee of Unsecured Creditors dated 21 October 2009, para 28.

68 Convention on Registration of Objects Launched into Outer Space (adopted 12 November 1974, entered into force 15 September 1976).

69 See, for example, Sir Goode, Roy, ‘The assignment of pure intangibles in the conflict of laws’ [2015] LMCLQ 289, 292–3Google Scholar; Rogerson, P ‘The Situs of Debts in the Conflict of Laws—Illogical, Unnecessary and Misleading’ (1990) 49 CLJ 441CrossRefGoogle Scholar; Dicey, Morris and Collins, The Conflict of Laws (n 63) [22–25].

70 See arts I, IX–XV.

71 See below.

72 See R Goode, ‘The Cape Town Convention and Protocols and the Conflict of Laws’ in A Commitment to Private International Law: Essays in Honour of Hans van Loon (Intersentia 2013) 221.

73 Reg No 1215/2012.

74 Regulation (EU) No 593/2008.

75 HC Gutteridge, Comparative Law (2nd edn, Cambridge University Press 1949) 157.

76 Cape Town Convention on International Interests in Mobile Equipment and its Aircraft Protocol Summary of National Implementation (February 2015) available on the AWG website.

77 Sir Roy Goode, Convention on International Interests in Mobile Equipment and Protocol Thereto on Matters Specific to Aircraft Equipment: Official Commentary (3rd edn, UNIDROIT 2013); Sir Roy Goode, Convention on International Interests in Mobile Equipment and Luxembourg Protocol Thereto on Matters Specific to Railway Rolling Stock: Official Commentary (2nd edn, UNIDROIT 2014); Sir Roy Goode, Convention on International Interests in Mobile Equipment and Protocol Thereto on Matters Specific to Space Assets: Official Commentary (UNIDROIT 2013).