Home Law Implementing the Cape Town Convention and the Domestic Laws on Secured Transactions
The Scope of the Declaration Under Article 54(2)
Framing the declaration under Article 54(2) within the Spanish legal context, some unexpected results might arise. Should the scope of the declaration be literally meant that only pure judicial remedies can be applied in the enforcement of security interests, an undesirable consequence might result. Out-of-the-court enforcement as enshrined by domestic legislation would be deactivated in the international context. It make no sense, and it unlikely leads Spain’s instrument of accession, an intentional decision to grant a worse treatment to international security interests than the one provided for by domestic rules. Considering that Notary-supervised proceedings are purportedly preferable in terms of agility and efficiency, it might be contented instead that, either under Article 13 as additional remedies permitted by the applicable law or under Article 14, creditors would benefit from exercising any remedy provided by the Convention, subject to Article 54(2), in conformity with the procedure prescribed by the law of the place where the remedy is to be exercised, and, consequently, following the procedural requirements of those enforcement procedures to be conducted before a Public Notary when applicable. It is my contention is that the latter interpretation should take priority.
On the occasion of depositing an instrument of ratification, further declarations to the Convention can be made. Specifically, according to Article 53 a Contracting State may, at the time of ratification, acceptance, approval of, or accession to the Protocol, declare the relevant ‘court’ or ‘courts’ for the purposes of Article 1 and Chapter XII of the Convention. Hence, in the instrument of ratification Spain has rightly declare that all of the competent courts of the Kingdom of Spain, as determined in accordance with the Spanish laws and regulations, are the relevant courts for the purposes of Article 1 and Chapter XII of the Convention. The circular expression ‘all the competent courts’ is not particularly transparent but at least provides a helpful interpretative instrument to avoid the exclusion of notary-supervised proceedings by the declaration under Article 54(2) insofar as any organ, tribunal or authority empowered to enforce security interests in accordance with Spanish laws and regulations will be covered by the ‘leave of the court’ requirement. The aim of the declaration under Article 53 seems to be to defuse the undesirable rigidity of the previous declaration under Article 54(2); nevertheless, it is doubtful whether it is enough to satisfy Article X of the Protocol with a substantially similar domestic solution. It has to be pointed out here that, as a subsequent declaration, the declaration under Article 53 did not become effective until 1 June 2016.
That extension is particularly pertinent and absolutely coherent in light of the recently enacted Law on Voluntary Jurisdiction (15/2015, July 2) that modernizes and systematizes the Spanish system of protection mechanisms and allocates power and jurisdiction in certain civil and commercial issues among courts, judicial secretaries, notaries and registrars.
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