The Cape Town Convention and Its Implementation in Spanish Law
Teresa Rodriguez de las Heras Ballell
Introductory Remarks: Convention Without Protocols
The analysis of national law on security interests on transport vehicles and the implications of Cape Town Convention (Convention and Protocols) is significantly conditioned by the fact whether the country is a Party jurisdiction or a non-Party jurisdiction. Whereas in the former case, reforms in domestic law aimed to implement uniform rules upon ratification can be identified and explained; in the latter one, only expected changes, both in material and registry issues, in preparation of the ratification in the future or possible conflicts of uniform rules with the domestic legal framework in case of ratification may be anticipated.
Spanish legal system represents at present a particular case in relation to the Cape Town Convention. On 28 June 2013, Spain deposited with UNIDROIT, together with several declarations, the instrument of accession to the Convention on International Interests in Mobile Equipment (hereinafter, the Convention).  Afterwards, the instrument of accession was published in the Official State Bulletin dated on 4 October 2013, along with the entire text of the Convention, the list of Contracting States and all declarations made to date. Nevertheless, no Protocol was ratified either simultaneously or as a continuation of the accession until 27 November 2015 with the deposit of the instrument of accession with UNIDROIT to the Aircraft Protocol.  Consequently, Spain is a Contracting Party of the Convention since October 2013 but no instrument of ratification, approval, acceptance or accession to any of the Protocols was deposited until 2015. On 1 March 2016, the Convention as regards aircraft objects has entered into force for Spain and is now part of the Spanish legal system. Before the depositing of the instrument of accession to the Protocol, on May 22, 2015, new Regulations for the Aircraft Register (Registro de Matriculation de Aeronaves Civiles)4 were adopted. The new legal text presumed the prompt accession to the Aircraft Protocol and the designation by Spain of a national entry point. Accordingly, in an additional provision (Disposition Adicional 6°), rules and procedures aimed to govern the relationship between the future national entry point (Registro de Bienes Muebles, hereinafter, RBM), the Aircraft Register and the International Registry are laid down. As per the instrument of accession, the designation of the RBM as the national entry point has been confirmed.
Due to the original and pragmatic multidivisional structure under which the Cape Town system works, the staggered ratifying process followed by Spain resulted in an anomalous situation, as further explained below, to the extent that the expected ratification of any of the Protocols was deferred. Today, the transitional situation is totally concluded and the CTC is effective in Spain, but it might well be worth analysing the effects that derived from the staggered and prolonged process of ratification.
The functioning of the Cape Town system is based on a brilliant combination of general rules at the Convention level and equipment-specific rules provided for by each Protocol. Many practical advantages in the drafting process and in the application stage derive from that original structure. As a result, sector needs could be more properly met, negotiations and adoption processes might progress at different pace and the long-term benefits of formulating uniform general rules for all the categories of equipment were not compromised by a multi-centred negotiation. Likewise, the Cape Town system, thanks to its modular structure, may grow to cover new categories of objects in other sectors other than the originally contemplated (aeronautic, space and rail industries).
The “multidivisional” Convention/Protocol design operates according to several criteria that confer upon the Protocol a significant controlling role. So, the Protocol does not merely elaborate on the Convention provisions but adapt them to each sector particularities, control the coming into force of the Convention in relation to the corresponding category of mobile equipment and specify the material scope of the latter in each case. Article 6(1) on interpretation rules, Article 6(2) confirming the prevalence of the Protocol over the Convention in case of discrepancy, and meaningfully Article 49(1) controlling the entering into force underpin the important role of the Protocol. As a matter of fact, the Convention entered into force on the 1st of March of 2006, along with the Aircraft Protocol (Article XXVIII). As a matter of law, the Convention cannot work independently.
Accordingly, along the whole transitional period until the last accession, Spanish position in relation to the Cape Town Convention displayed dysfunctional effects. The Convention was considered to enter in force for Spain from 1st of October of 2013 and Spain is treated as a Contracting State for the purposes of the Convention; but in practical terms, the Convention could not be applied to any category of mobile equipment within its sphere of application and its provisions remained inactive as from the time of the entry into force of the Protocol for Spain (Aircraft Protocol, on March 2016) and then as regards of the corresponding category of equipment (aircraft objects). For the Convention provisions cannot have any effect unless linked to a specific category of equipment as covered by a Protocol. Although there are a few provisions that are not object-related (Arts. 47, 48, 51, 52, 59 and 61).
The accession to the Convention is a critical decision for Spanish strategic economic sectors that has to be applauded. Upon the deposit of the instrument of accession, Spain confirms a firm support for the Cape Town system as a stimulus of strategic industries and an enabler of a modernization process in domestic legislation. The deferred ratification of any of the Protocols, presumably, the Aircraft Protocol, already in force and widely ratified, in the first place (as it has finally been confirmed), was arguably justified by the need to carry out a prior reform of domestic legislation (both in material rules and in registry system) dealing with issues involved in and related to secured transactions over mobile equipment in order to be prepared for adopting the Protocols subsequently.
Certainly, the proposal for a modernisation of the existing system on secured transactions is timely and very convenient, but it has proved to require a longer time and entail a complex process. Notwithstanding this, from the outset an early adoption of the Protocols was highly desirable without making it dependant on the success of an all-embracing reform. Even more importantly, the CTC and the Protocol can reasonably work in Spain with a limited number of amendments to domestic rules.
As a matter of fact, the CTC is already in force considering that the actions adopted so far aimed to implement the uniform system have been essentially focused on and led to enable the functioning of the designated national entry point. Although a profound and comprehensive reform of the secured transactions domestic framework has to be encouraged and is still an urgent undertaking that the Spanish legislator should not avoid, it proved not to be a conditio sine qua non for the Convention to take effect. Even if it is our understanding that a truly effective implementation of the Convention does still require further reform regarding certain issues. In particular, to align insolvency provisions with Alternative A of Article XI of the Protocol aiming to produce an equivalent result, to review domestic rules in the light or Article X, to ensure that procedural rules are suitable for the exercise of all remedies provided for by the Convention and the Protocol, and to amend the inadequate rules applicable to the national entry point.
For the purposes of the present study, Spain will have to be considered as a hybrid jurisdiction at an unusual midway position between a Party jurisdiction and a non-Party jurisdiction until the effective date of entering into force on 1 March 2016. Since then, Spain constitutes a proper Party jurisdiction in the terms of the initial and subsequent declarations made to the Convention and the declarations made to the Aircraft Protocol.
-  Publication elaborated within the framework of the Research Project La modernization delderecho espanol de garantias mobiliarias para facilitar el acceso al crddito y a la financiacion enun contexto international (DER2013-46070-P) funded by the Spanish program to promote excellent research.
-  Published in the Official Bulletin (Boletin Oficial del Estado) num. 238, of 4 October of 2013(www.boe.es).
-  During the second semester of 2015, the accession to the Aircraft Protocol was expected soon. InAugust 2015, Spanish Government requested the Parliament approval to proceed to deposit theinstrument of accession to the Protocol. On August 25, 2015, the Committee on InternationalAffairs of the Spanish Parliament issued its opinion favourable to the granting of the requestedapproval. As published in the Official Bulletin of Spanish Parliament (BOCG), Serie C: Tratadosy Convenios Internacionales, Congreso de los Diputados, X Legislatura, 5 de agosto de 2015,Num. 207-1, pag. 1, 110/000184 (available at http://www.congreso.es/public_oficiales/L10/CONG/BOCG/C/BOCG-10-C-207-1.PDF)
-  Royal Decree 384/2015, published in the Official Bulletin, BOE num. 144, June 17th, 2015.
-  Following my description of the system in Teresa Rodriguez de las Heras Ballell, Las garantiasmobiliarias sobre equipo aeronautico en el comercio international. El Convenio de Ciudad delCabo y su Protocolo, Marcial Pons, Madrid, 2012, Chapter I.F (p. 42).
-  Further analysed in Teresa Rodriguez de las Heras Ballell, ‘The accession by Spain to the CapeTown Convention: a first assessment’, Uniform Law Review, 2014, pp. 1-23.