Home Law Implementing the Cape Town Convention and the Domestic Laws on Secured Transactions
The Cape Town Convention and Italian Law on Secured Transactions
The subject of this book concerns the (possible) impact on national law of a uniform law instrument developed by an inter-governmental organization, the International Institute for the Unification of Private Law (Unidroit). The International Academy of Comparative Law had already specifically addressed other Unidroit’s instruments in past congresses. The 2014 session from which this volume arose focused in particular on the Cape Town Convention on International Interests on Mobile Equipment and the Protocols thereto (relating to aircraft, railway-rolling stock and space assets).
As is well known, the field of secured transactions has recently been at the centre of a number of harmonization initiatives, differing in their nature and geographical sphere of application (being both global and regional).
The Convention and the Aircraft Protocol can be counted amongst the most successful of such harmonization efforts, and indeed, more generally, of commercial law treaties so far, both in terms of ratifications and volume of transactions. On a more theoretical level, the Convention introduces a uniform and innovative regime in the field of secured transactions, which is notorious for its complexity and for the difference in the approaches developed in domestic laws. Work towards the adoption of the Convention system started from the assumption that though a wider use of cross-border asset-based financing would be beneficial, it was hampered by the interplay between the conflict-of-law regime generally applicable to proprietary rights and the existing divergences in the national legal systems. This was considered to be particularly the case for high value mobile equipment.
Italy has signed the Convention as well as the Aircraft and Rail Protocols, but has not (yet) ratified them. In the case of a non-Party jurisdiction, the questionnaire prepared by the General Reporter, Professor Kozuka (see Appendix in this volume), invited to compare domestic law with the Cape Town Convention (and its Protocols) and consider the implications of its possible future introduction in the national legal system.
Such analysis will be conducted against the backdrop of Italian general secured transactions law, the main features of which will be summarized at the outset, focusing on the regime of security devices that can be effectively created over the kind of equipment asset covered by the Convention. Specific key aspects of the Cape Town Convention will be then compared with Italian law. For the purposes of this Chapter, again referring to the scope of application of the Cape Town Convention, the term ‘security device’ will encompass a traditional security agreement (pledge or mortgage), a title reservation agreement, as well as a leasing agreement (Art. 2 (2) Conv.).
By way of conclusion, two aspects will be briefly touched upon: the economic advantages for Italy of becoming part of the Cape Town Convention system; the compatibility of the main architecture of the Cape Town Convention with principles and rules underlying general Italian secured transactions law.
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