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The Solution Provided by the Cape Town Convention

On many of these issues relating to the enforcement, the Cape Town Convention adopts a strong solution. It authorises parties to entertain a wide range of freedom of agreement, both with regard to the remedies available and the meaning of default. In this sense, the Cape Town Convention introduces a uniform set of rules to replace the existing domestic law, just like traditional uniform law treaties. The uniqueness may be found, though, in that the adopted solution is apparently not the middle ground of the various laws in different jurisdictions. It is closer to one end of the continuum, clear preference being given to private autonomy.

Still, the Cape Town Convention has not entirely unified the rules. An important issue of the admissibility of private enforcement is not determined by the Convention’s rule, but is left to the choice of Contracting States to be made through declarations under Article 54(2). Under that provision, a Contracting State must declare whether or not the remedies are available without leave of the court. Until now, only a few States, including Brazil, China, Mexico and Spain, chose to require leave of the court and, therefore, the rules are highly uniform. Still, it is a result of choices of Contracting States and not the uniformity through the provisions of the Convention.

Further, as a result of not deeming a title-based security as equal to a security interest, the rules on the remedies available to a chargee of a security interest and those available to a conditional seller and lessor are different under the Cape Town Convention. In this respect also, the unification achieved by the Cape Town Convention has remained modest.

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