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I Introduction

About This Book: Why National Implementation of the Cape Town Convention Matters

Souichirou Kozuka

The Cape Town Convention as a Successful Uniform Law Instrument

History of the Cape Town Convention

The Cape Town Convention is a uniform law instrument initiated by the International Institute for the Unification of Private Law (UNIDROIT). It is one of the most recent instruments, but has become one of the most successful.

The drafting of the Cape Town Convention dates back to 1992. Following the adoption of two UNIDROIT Conventions on leasing and factoring,[1] it was one of the projects of UNIDROIT on unification of finance law.[2] The original idea was to draft a general convention on security interests in mobile equipment, broadly covering every kind of high-value mobile assets. However, this approach was abandoned in 1997, and the “umbrella” structure of the Base Convention and three Protocols was adopted instead.[3] The Base Convention (Convention on International Interests in Mobile Equipment) and the first Protocol on Aircraft (Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment) were adopted at the Diplomatic Conference in Cape Town in 2001. Since then, the Convention has been known by the popular name after the name of the city. The second Protocol relating to the Railway Rolling Stock (Luxembourg Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Railway Rolling Stock) was adopted in 2007 at the Diplomatic Conference hosted by the Grand Duchy of Luxembourg and features Luxembourg as part of its name. The third Protocol (Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Space Assets), which applies the rules of the Cape Town Convention with necessary adaptations to the space business, was adopted in Berlin in 2012 and is known as the Space Protocol.

Since 2014, a fourth Protocol on mining, agricultural and construction equipment (MAC Protocol) has been discussed by the MAC Study Group.[4] With the preliminary draft text having been finalised, the Governing Council of UNIDROIT found it “sufficiently developed to warrant the convening of a Committee of Governmental Experts in early 2017”.[5] It has also been argued that a Protocol on ship might be worth considering.[6]

Because of the umbrella structure, the following terms are employed throughout this book. The term “Cape Town Convention” is used to refer to the Convention and its Protocols as a whole. When referring specifically to the Convention itself and not Protocols, the term “the Base Convention” is used. The use of these terms is justified by the requirement that the Convention and Protocol should be read and interpreted together as a single instrument (Art. 6 of the Base Convention). The three Protocols are, respectively, mentioned by the common names “Aircraft Protocol”, “Luxembourg Rail Protocol” and “Space Protocol”.

  • [1] The UNIDROIT Convention on International Financial Leasing, 1988; the UNIDROITConvention on International Factoring, 1988.
  • [2] Herbert Kronke (2011), Financial Leasing and its Unification by UNIDROIT - General Report,[2011-1/2] Uniform Law Review p.23; also published in: K.B. Brown and D.V. Snyder (eds.),General Reports of the XVIIIth Congress of the International Academy of Comparative Law(Springer, 2012).
  • [3] It was the proposal made by the aircraft manufacturing industry and airlines industry on the initiative of Lorne S Clark, then General Counsel of the International Air Transport Association (IATA).See Lorne S. Clark, The 2001 Cape Town Convention on International Interests in MobileEquipment and Aircraft Equipment Protocol: Internationalizing Asset-Based Financing Principlesfor the Acquisition of Aircraft and Engines, Journal of Air law and Commerce, vol. 69, p.3, at p.5(2004); Roy Goode, From Acorn to Oak Tree: the Development of the Cape Town Convention andProtocols, [2012] Uniform Law Review p.599, at p.603. S. Kozuka (*) Faculty of Law, Gakushuin University, Toshima-ku, Tokyo, Japane-mail: This email address is being protected from spam bots, you need Javascript enabled to view it
  • [4] Henry Deep Gabriel, The MAC Protocol: we aren’t there yet - how far do we have to go?, TheCape Town Convention Journal Vol.4, p.67 (2015); Charles W. Mooney Jr, The MAC Protocol:some comments and a challenge, The Cape Town Convention Journal Vol.4, p.76 (2015).
  • [5] Unidroit 2016 - C.D. (95) Misc.2, para.7.
  • [6] Ole Boger, The Cape Town Convention and Proprietary Security over Ships, [2014] Uniform LawReview p.24.
 
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