The relationship to national law
The relation to the rules of the Contracting States’ national law were of outmost importance creating the Convention, providing the conditions for it to be as successful as possible. Even after a state has acceded, and made the declarations of its choice, there are a number of matters not touched by the Convention or the Aircraft Protocol, and thereby to be settled by the national law.
First, the Convention only provides remedies concerning rights and obligations in private law; thereby impact on national criminal law, tort law and regulatory public law is excluded.
Secondly, securities created by national law are still recognized, they exist, but are subordinated to registered ones.
Thirdly, the fact whether an agreement alleged to create an International Interest is valid or not and from what point in time it is valid is governed by national law. This is important to determine the existence of the interest and if the interest falls within the sphere of the Convention regarding the Connecting factor.
Because of the different ways to treat agreements like leasing and retention of title in different legal-systems it was recognized that it would not be possible to reach an agreement on a uniform Convention characterization. Therefore, this is to be determined by the applicable law. Whether an interest falls within the Convention at all is to be determined by the Convention itself. In the first instance, it is necessary to determine if the interest invoked falls within the Conventions definition of a security interest or the interest of a conditional seller or a lessor under a title retention or leasing agreement. If it does, then it is for the applicable law to decide whether the interest is to be recharacterized for the purpose of subsequent provisions of the Convention.83 So if X is a kind of interest that falls under the scope of the Convention at all is to be determined by applying the rules of the Convention, but whether X will be treated as a security agreement, a conditional sale or a leasing agreement will be determined by how it would be characterized by the applicable law.
82 Seminar Report – EU and the CTC.
83 Official commentary, p. 33.