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The Aim of This Book

The Significance of Implementation of the Cape Town Convention

This book is a study on the domestic implementation of the Cape Town Convention. The subject has both practical and theoretical significance. The practical significance of examining the national implementation is obvious when the effective implementation of the Convention is focused. Even before deciding to become a Party to the Convention, a State needs to know in what respects the Cape Town Convention differs from the domestic law and what steps are required, if it is to ratify and implement the Convention. Furthermore, there are several options in the provisions of the Cape Town Convention, many of them enabling the State to opt in by making a declaration, but a few providing for the possibility to opt out. A State may wish to examine carefully the differences between the rules of the Cape Town Convention and domestic law to decide which option to choose.

The theoretical significance of looking into the national implementation derives from the nature of the Cape Town Convention as an international treaty for the unification of private law. The international instruments to unify private laws, by their very nature, stand on the interface of the international law and private law. Examining the domestic implementation will reveal the actual functions of the uniform private law: whether, and how, it affects the national laws of the States. As a uniform law instrument, the primary function of the Cape Town Convention is to provide for a set of rules to replace divergent existing laws. However, it does not stop there.

The traditional idea about the unification of law is that it is beneficial to overcome the divergences among laws of various countries. The technique used for this aim has been to codify a set of compromised rules acceptable to all the countries.[1] Contrary to such a traditional idea, the Cape Town Convention is designed by a problem-solving approach and aims to introduces rules based on the new concept that are considered more suitable to the modern type of transactions and more efficient in generating the economic benefits than the existing rules. In this context, implementation forms part of the mechanism of generating economic benefits and has greater importance than in the case of a traditional uniform law. Thus, the goal of this book is to identify the uniqueness of the Cape Town Convention and, more generally, to find out the functions of uniform law in the modern world, through the examination of the national implementation of the Convention.

  • [1] There can be a few reasons why States accept the compromised rules produced in this way(Souichirou Kozuka, The Economic Implications of Uniformity in Law, in: Jurgen Basedow andToshiyuki Kono (eds.), An Economic Analysis of Private International Law (Tubingen: MohrSiebeck, 2006); reprinted with slight modifications in: [2007-4] Uniform Law Review p.683). Inthe simplest case, the divergence itself causes significant costs in transactions across the borders,while it makes little difference among the various rules. In other words, everyone benefits fromagreeing to a single rule, but which rule it is does not matter. Another scenario is that the uniformrule is, though not considered as the best one, accepted as better than some other rule, which wouldbe applicable if the uniform rule were not agreed on.
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