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The Registration System

General Remarks

I. The establishment of an International Registry is one of the essential aspects of the Cape Town Convention (chapters IV to VII).

The objective of the system is to protect the creditor against third parties; in fact, registration is not necessary to protect the creditor against his own debtor.

The registration system intends, basically, to give public notice of international interests and so it enables the creditor to preserve its priority and the effectiveness of such international interests in insolvency proceedings against the debtor.

The registration shall not focus on the property of the equipment. Only in an indirect way the registration relates to property rights, since the rules on priority contained in the Convention determine that, in certain circumstances, the interest of the creditor is not effective against third parties if the registration was not made or was subsequent to that of a competing interest. In any case the registration may not base a presumption of property in favour of the creditor. The question of property is, in principle, ruled by the applicable national law.

On the other hand, the registration of “prospective international interests” and of “prospective assignments” of international interests (admitted in Article 16 of the Convention) is very important, as it is possible to fix a position of priority concerning the registered international interest. Indeed, pursuant to Articles 19(4) and 29, the relevant moment for the establishment of the priority is the date of the registration and not the date of the conclusion of the contract which creates the international interest. In addition, under Article 41 of the Convention, Article III of the Aircraft Equipment Protocol adopts the same solution concerning “contracts of sale” and “prospective sales” of aircraft equipment.[1]

After all, the International Registry under the Cape Town Convention is a system based on registration against an asset, not against a debtor (it is an asset-based registry, not a debtor-based registry[2]).

II. Different international registries may be established for different categories of object and associated rights (Article 16(2) of the Convention).

There shall be a Supervisory Authority as provided by the Protocol, and that Authority shall, in particular, establish or provide for the establishment of the International Registry, appoint and dismiss the Registrar and, after consultation with the Contracting States, make or approve and ensure the publication of regulations pursuant to the Protocol dealing with the operation of the International Registry (Article 17).

The Protocol and the regulations shall specify the requirements, including the criteria for the identification of the object, in order to further the objectives defined in the Convention (Article 18(1)).

Articles 19 and 20 of the Convention define the conditions for the validity and time of registration.

Any person may, in the manner prescribed by the Protocol and the regulations, make or request a search of the International Registry by electronic means concerning interests or prospective international interests registered therein (Article 22).

Article 24 relates to the evidentiary value of certificates: a document in the form prescribed by the regulations which purports to be a certificate issued by the International Registry is prima facie proof: (a) that it has been so issued; and (b) of the facts recited in it, including the date and time of a registration.

The registration of an international interest remains effective until discharged or until expiry of the period specified in the registration (Article 21); Article 25 describes the situations for discharge of registration.

  • [1] In the same sense, Article IV of the Space Assets Protocol in what concerns “contracts of sale”and “prospective sales” of space assets. In this aspect, the system of the Railway Rolling StockProtocol seems to be different (Article XVII).
  • [2] Comparing to the system created by Article 9 of the Uniform Commercial Code, L.M. Leitao, “AConvengao do Cabo...”, p. 622.
 
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