Implementing the Cape Town Convention and the Domestic Laws on Secured Transactions PDF
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Ius Comparatum – Global Studies in Comparative Law Souichirou Kozuka E ditor Implementing the Cape Town Convention and the Domestic Laws on Secured Transactions Ius Comparatum – Global Studies in Comparative Law Volume 22 Series Editors Katharina Boele-Woelki, Bucerius Law School, Germany Diego P. Fernández Arroyo, Institut d’Études Politiques de Paris, Sciences Po, France Founding Series Editors Jürgen Basedow, Max Planck Institute for Comparative and International Private Law, Germany George Bermann, Columbia University School of Law, USA Editorial Board Bénédicte Fauvarque-Cosson, Université Panthéon-Assas, Paris 2, France Joost Blom, University of British Columbia, Canada Giuseppe Franco Ferrari, Università Bocconi, Milan, Italy Toshiyuki Kono, Kyushu University, Fukuoka, Japan Marek Safjan, Court of Justice of the European Union, Luxembourg Jorge Sanchez Cordero, Mexican Center of Uniform Law, Mexico Ulrich Sieber, Max Planck Institute for Foreign and International Criminal Law, Germany More information about this series at http://www.springer.com/series/11943 Académie Internationale de Droit Comparé International Academy of Comparative Law Souichirou Kozuka Editor Implementing the Cape Town Convention and the Domestic Laws on Secured Transactions Editor Souichirou Kozuka Faculty of Law Gakushuin University Toshima-ku, Tokyo, Japan ISSN 2214-6881 ISSN 2214-689X (electronic) Ius Comparatum – Global Studies in Comparative Law ISBN 978-3-319-46468-8 ISBN 978-3-319-46470-1 (eBook) DOI 10.1007/978-3-319-46470-1 Library of Congress Control Number: 2016961277 © Springer International Publishing AG 2017 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. Printed on acid-free paper This Springer imprint is published by Springer Nature The registered company is Springer International Publishing AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Foreword The 2001 Cape Town Convention on International Interests in Mobile Equipment, with its associated Protocols relating to aircraft objects, railway rolling stock and space assets, is undoubtedly one of the most important private commercial law con- ventions of recent times. The Convention has now received 72 ratifications and the Aircraft Protocol (the only one currently in force) 65 ratifications, an astonishing achievement in under 15 years. Now a new Protocol, devoted to agricultural, mining and construction equipment, is on the horizon, and the first meeting of a UNIDROIT Committee of governmental experts is to be held in the first half of 2017. There has been a growing amount of literature devoted to the analysis of the Convention and its economic impact, including numerous doctoral theses, but rela- tively little has been written on the mode and adequacy of its implementation in the legislation of Contracting States. The appearance of this volume, which is based on the general report and national reports presented at the XIXth International Congress of Comparative Law held at Vienna in July 2014, is therefore most timely. An open- ing chapter by Professor Jeffrey Wool, who himself played a leading role in the development of these instruments, notes the importance of ensuring that they are properly implemented and given priority over domestic law, a point which he has previously developed in a series of articles. Skilfully introduced and edited by Professor Souichirou Kozuka, who was also heavily involved in the Cape Town project, Implementing the Cape Town Convention and the Domestic Laws of Secured Transactions contains an incisive general report by Professor Kozuka outlining the key features of the Convention and Protocols. This is followed by contributions from leading scholars, government lawyers and legal practitioners in private prac- tice, which examine the existing national laws governing security and title-retention interests in nine Contracting and nine non-Contracting States, the impact of the Convention on the existing laws of Contracting States and the techniques adopted to implement the Convention and Aircraft Protocol. v vi Foreword This volume provides both a rich comparative law feast and an examination of the Cape Town instruments from a variety of national law viewpoints which serve to emphasise the remarkable degree to which they have proved responsive to the needs of widely differing legal systems. Implementing the Cape Town Convention and the Domestic Laws of Secured Transactions is essential reading for all those with a serious interest in Cape Town, and I warmly recommend it. Oxford Roy Goode 28 July 2016 Contents Part I Introduction 1 Implementation of the Cape Town Convention into and Its Relationship with National Law ............................................... 9 Jeffrey Wool Part II General Report 2 The Cape Town Convention and Its Implementation in Domestic Law: Between Tradition and Innovation ......................... 15 Souichirou Kozuka Part III National Reports 3 Les sûretés sur des aéronefs en droit canadien, la Convention relative aux garanties internationales portant sur des matériels d’équipement mobiles et son Protocole aéronautique ............................................................................ 59 Frédérique Sabourin 4 The Law of England and Wales on Secured Transactions as Compared with the Cape Town Convention .................................... 79 George Leloudas 5 Indonesia’s Report: The Implementation of The Cape Town Convention 2001 ............................................................................. 109 Prita Amalia 6 Implementation of the Cape Town Convention in Malaysia ............... 119 Mary George and See Eng Teong vii viii Contents 7 The Cape Town Convention on International Interests in Mobile Equipment and Its Implementation in the Netherlands and on the Dutch Caribbean Islands ............................... 143 Sjef van Erp 8 Russian Legislation and the Cape Town Convention ........................... 157 Natalia Doronina 9 The Cape Town Convention and Its Implementation in South African Air Law ....................................................................... 163 Phetole Sekhula 10 The Cape Town Convention and Its Implementation in Spanish Law ........................................................................................ 173 Teresa Rodríguez de las Heras Ballell 11 United States of America: Reconsidering the Transaction Document Filing Requirement for National Registry.......................... 197 Charles W. Mooney Jr. 12 Finnish Mortgage System for Means of Transport: Outdated and Overly Complex? ............................................................ 207 Teemu Juutilainen 13 La Convention du Cap et sa reconnaissance en droit français ...................................................................................... 227 Philippe Delebecque 14 Security Interests in Mobile Equipment Under German Law – Some Notes on the Similarities and Differences in Relation to the Cape Town Regime ....................... 237 Benjamin von Bodungen 15 The Greek Law on Security Interests Burdening Transport Vehicles as Compared with the Cape Town Convention ..................... 243 Elina N. Moustaira 16 The Cape Town Convention and Italian Law on Secured Transactions ............................................................................................. 253 Anna Veneziano 17 The Security Interest in Transport Vehicles in Japan .......................... 273 Haruna Fujisawa 18 The Cape Town Convention and Polish Law on Security Interests..................................................................................... 281 Maria Dragun-Gertner, Zuzanna Pepłowska-Dąbrowska, and Jacek Krzemiński Contents ix 19 Security Interests in Transport Vehicles: The Cape Town Convention and Portuguese Law ................................................. 291 Maria Helena Brito 20 Rapport suisse sur le thème « Les sûretés grevant les moyens de transport – La Convention du Cap et sa transposition en droit national » ................................................................................... 317 Bénédict Foëx Part IV Comments from the Practice 21 Analysing the Effects of the Cape Town Convention on Four Selected Issues That Hinder the International Financing and Leasing of Aircraft and Engines ................................... 337 B. Patrick Honnebier 22 The Luxembourg Rail Protocol to the Cape Town Convention: Some Practical Differences from the Aviation Protocol .................................................................................................... 363 Howard Rosen 23 Entering into Force: Promoting Unidroit’s Space Protocol Among Emerging Space Actors .............................................. 369 Daniel A. Porras Appendix: Questionnaire to National Reporters ......................................... 373
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