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General Considerations

During the consultation process on the ratification of the Cape Town Convention, the Government, reflecting the view of the majority of respondents, advanced the following reasons for recommending its ratification: (1) A single international regime will reduce the uncertainty of cross-border financing and leasing transactions; (2) The Cape Town Convention may increase the appeal of airlines to cheaper finance provided by Export Credit Agencies and with the use of EETCs; (3) It permits the separate registration of interests against engines (which is not an option under English law) that may reduce the cost of financing them; and (4) The continuous operation of the International Registry will reduce bureaucracy, simplify closings and increase certainty with respect to priorities: “a financier would only be checking one register rather than multiple national registers”.[1] Overall, the British government believed that “ratification of the treaty would benefit the UK economy by creating a harmonised legal framework to register interests against helicopters, aircraft frames and aircraft engines”.[2]

There is no doubt that English law provided a creditor-friendly legal framework even before the implementation of the Cape Town Convention that treasured contractual freedom and facilitated the enforcement of both security and “quasisecurity” interests. It is expected that the implementation of the Cape Town Convention will not bring a sea change to the existing legal framework. It remedies some of the admittedly few deficiencies of English law, with first among them, the limited transparency that is caused by the non-registration of title-retention agreements, the non-registration of engines alone, as well as by the multiplicity of registers. There will certainly be a period of adjustment when both lawyers and the judiciary will attempt to interpret terms like “commercial reasonableness” in the context of the Cape Town Convention’s philosophy and in light of case law from other party jurisdictions. Judging from the past experience of English courts in other fields of private international air law, it is expected that this adjustment will not take time and the transition will take place smoothly.

  • [1] Department for Business Innovation and Skills, “Convention on International Interests inMobile Equipment and Protocol thereto on Matters Specific to Aircraft Equipment. GovernmentResponse to the Call for Evidence” (2013), at [3.17].
  • [2] Ibid., at [3.19].
 
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