Lloyd's Maritime and Commercial Law Quarterly

Professor Francis D Rose

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THE CAPE TOWN CONVENTION AND ITS PROTOCOLS: CHALLENGES IN DEFINING THE CONVENTION'S SPHERE OF APPLICATION

Roy Goode *

One of the most significant private law treaties of recent times is the 2001 Convention on International Interests in Mobile Equipment and its associated protocols. The provision of finance for the acquisition of equipment of high unit value that commonly crosses national borders is inhibited by major differences in national laws governing secured financing, conditional sale and leasing, because prospective financiers cannot be sure that rights effectively acquired under the law of one jurisdiction will be recognised in another jurisdiction to which the equipment moves or that default remedies will be as readily available and the creditor’s priority preserved in that other jurisdiction. The ambitious goal of the Convention was therefore to establish uniform rules governing the constitution of an international interest in designated categories of equipment —aircraft objects, railway rolling stock and space assets—together with default remedies, an asset-based International Registry system to register interests and preserve creditors’ priorities and strong protection for the creditor in the event of the debtor’s insolvency. A separate Protocol governs each category of equipment and has its own sphere of application. The present article describes the difficulties encountered for each category in trying to define precisely what equipment it governs, the identification criteria to ensure unique identification for registration purposes and various related issues.

I. INTRODUCTION

1. About the Cape Town Convention

On 1 March 2001 there came into force what is proving to be one of the most successful international instruments ever concluded in the field of international private commercial law: the Convention on International Interests in Mobile Equipment, together with its associated Protocol relating to aircraft objects, later to be followed by protocols on railway

* Emeritus Professor Law in the University of Oxford and Emeritus Fellow of St John’s College, Oxford. This article is a revised and updated version of a contribution to NG Markalova and AI Muranov (eds), Arbitration and Regulation of International Trade: Russian, Foreign and Cross-Border Approaches (Moscow, 2019), a Liber Amicorum in honour of the 70th anniversary of the internationally renowned Russian jurist Professor Alexander Komarov, and is published by kind permission of Nauka Prava, omitting the tribute to the honorand.

The Cape Town Convention and its Protocols

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