I. The Cape Town Convention provides the regulation of a sector where there is a special need for the adoption of uniform material law. That objective is achieved through a set of rules detached from national legislations.
The area covered by the Cape Town Convention - property law - has been commonly away from the efforts towards uniform law. So, this is the first important merit of this Convention.
In order to reach its fundamental aim - to facilitate financing transactions regarding equipment with high value - the Cape Town Convention rules the creation and the effects of international security interests concerning mobile equipment with high value, so as to permit their recognition in all Contracting States. It also establishes an electronic international registry system that ensures the publicity of international security interests pertaining to that equipment and the priority of competing interests. Finally, it determines the rights and remedies to the creditor in case of default of the debtor.
The international security interest and the electronic international registry system correspond to original constructions of the Cape Town Convention.
The program is ambitious and appropriate to the intended purpose. Correctness and technical quality of the approved provisions are evident.
The option for regulation at the level of material law simplifies the complex problems of conflict of laws emerging from the recognition in different States of security agreements concerning mobile equipment.
The 1948 Geneva Convention on the International Recognition of Rights in Aircraft - in a restrict scope - intended to solve some problems regarding the international recognition of rights in aircraft. But it was a Convention based on conflict of laws rules, which refers, in many aspects, to the competent applicable law of a Contracting State.
On the other hand, under the Geneva Convention, rights in aircraft were registered in national records and consequently the creditors should consult the registration system of various Contracting States in order to know if certain aircraft was burdened with any security right. Instead, we have now a worldwide registration.
Therefore, the Cape Town Convention brings a very significant progress when compared to the 1948 Geneva Convention in what concerns predictability and transparency of financing civil aviation.
II. However, the Cape Town Convention contains some elements of complexity.
First, it is not easy to determine the rules governing the security interests concerning mobile equipment with high value, because, regarding each question, it is necessary to coordinate the dispositions of the Convention and those of the relevant Protocol. Such difficulty is the result of the option on the structure for this international treaty, based on two instruments (one Convention and, for each category of equipment, a separate Protocol). The Convention contains only the basic rules and it will be completed by different Protocols and regulations.
Afterwards, the approved regime, which is believed to be uniform, may eventually differ from a State to another, regarding the possibilities of opting in and opting out offered by the Convention and by the Protocols.
III. The decision of Portuguese authorities in view of the accession to the Cape Town Convention implies a detailed examination of the Convention and the Protocols and a careful valuation about the Declarations to be made by Portugal.
Essentially, there is no significant incompatibility between the Convention and Portuguese law. However, in my opinion, it is necessary that in a clear Declaration made at the time of ratification of the Cape Town Convention, under Article 54(2), Portugal states that the remedies available to the creditor may be exercised only with leave of the court, thus expressly excluding the pactum commissorium, incompatible with Portuguese public policy.