Table Of ContentIus 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
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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
