Home Law Implementing the Cape Town Convention and the Domestic Laws on Secured Transactions
Enforcement of a Security Interest
A mortgagee who has a preferred mortgage on a Greek aircraft may take possession of the aircraft when his claim becomes due and payable, without any court process provided that the mortgagee is in the form of a notarial deed.
Various issues cause concerns to the jurists of the non-common law countries. One of them is the “Relief pending final determination”, of the article 13. As it is very well described by a commentator, it “does not seem to correspond to any relief traditionally found in national legal systems” and, among other problems, one can have strong doubts whether there could be a harmonized procedural remedy, when there is the international customary rule that procedure is governed by the lex fori.
Furthermore, there are doubts about this article’s qualities: Is it an interim relief or not? For example, the Aircraft and the Luxembourg Protocols allow contracting states to add to the remedies of Article 13 the sale of the object, an issue that had caused heated discussions during the Cape Town Diplomatic Conference, since the sale of the object had been initially included in the remedies. In common law systems, a sale may be a form of interim relief, while in other systems of law it is not the case. “Selling the object is not an interim measure”, “it actually enforces the interest”.
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