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“Relief Pending Final Determination”

Besides the remedies available to the creditor in any case, a few “speedy reliefs” are obtainable from the court unless a Contracting State excludes their application by making a declaration. At first sight it might look like interim reliefs to preserve the claimant’s position. However, the “relief pending final determination” under the Cape Town Convention differs from the ordinary structure of interim reliefs in that it requires the evidence of default, while not requiring the danger of harm to the creditor, and that the availability of reliefs depends on the agreement by the debtor.[1] It may better be viewed as a sui generis remedy to give satisfaction to the creditor in advance of the final determination on the merits.[2]

Such reliefs available under the Base Convention are: (a) preservation of the object and its value; (b) possession, control or custody of the object; (c) immobilization of the object; and (d) lease or management of the object and the income therefrom.[3] The Protocols, subject to a separate declaration to opt in by a Contracting State, add (e) sale and application of the proceeds therefrom.[4] Each Protocol also requires that the State opting in under the Protocol specify the number of working days needed for the court to grant a “speedy” relief.

Events of Default

Under the recent practice of financing, default does not simply mean the failure to pay the due monetary claim. Various covenants accompany the financing agreement and a breach of those covenants constitutes an event of default, which entitles the creditor to demand remedies. The Cape Town Convention reflects such a practice by affirming the validity of an agreement in writing between the creditor and debtor on the events that constitute “default”.[5]

  • [1] Gilles Cuniberti, Advance relief under the Cape Town Convention, The Cape Town ConventionJournal, Issue 1, p.79 (2012).
  • [2] Anna Veneziano, Advance relief under the Cape Town Convention and its Aircraft Protocol: Acomment on Gilles Cuniberti’s interpretative proposal, The Cape Town Convention Journal, Issue2, p.185 (2013). Because the remedies under the Cape Town Convention is the exercise of an international interest (property right or in rem right) and not the enforcement of a claim (right to obligations or in personam right), it is not convincing to regard the reliefs under this provision as ameasure to preserve the creditor’s position.
  • [3] Article 13 of the Base Convention.
  • [4] Article X of the Aircraft Protocol; Article VIII of the Luxembourg Rail Protocol; Article XX ofthe Space Protocol.
  • [5] Article 11(1) of the Base Convention.
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