The Two-Instrument Approach
The original plan was to have a single convention covering all three categories of equipment.
However, several problems began to emerge.
First, the aviation industry was well ahead of the rail and space industries and did not want to be held up by them.
Second, there was concern that the drafting of the Cape Town Convention, which we wanted to be as light as possible, would be encumbered by a mass of technical details
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concerning the defi nitions of aircraft, airframes and helicopters, and on what these
should contain to exclude light aircraft, not to mention defi nitions of railway rolling
stock and space assets. Third, while the first two problems could be overcome by
having separate conventions for each of the three categories, this itself would produce serious problems.
For example, there would be signifi cant time, labour and expense involved in the holding of three diplomatic conferences instead of one and the drafting of different instruments by different hands at different times could produce inconsistencies even in the drafting of provisions that were equipment-neutral.
These problems were brilliantly solved by Lorne Clark (then the General Counsel
of the International Air Transport Association (‘IATA’)) who came up with the idea
of a two-instrument approach.
This would comprise of the Cape Town Convention,
which would be equipment-neutral, and separate Protocols for each of the three
categories, which would enable each industry to proceed at its own speed without
being held up by the others and would allow the Cape Town Convention provisions
to be modifi ed to suit the needs of the particular industry concerned.
Unusually, therefore, the Protocols do not merely supplement the Cape Town Convention, they control its coming into force and they can modify it as necessary.
Despite these obvious advantages, the two-instrument approach proved controversial
and it was not until the fi rst day of the diplomatic Conference20
‘Diplomatic Conference to Adopt a Mobile Equipment Convention and an Aircraft
Protocol’ held at Cape Town from 29 October to 16 November 2001 (‘the diplomatic
Conference’).
that it quickly
became clear that it was supported by a great majority of delegates
3 Invasion of New Areas
Certain parts of commercial law had traditionally been regarded as off-limits to
private commercial law conventions, among them property rights, priority rules
and the modifi cation of national insolvency laws.
All these taboos were broken by
the Cape Town Convention and Protocols, which laid down rules for perfecting an
international interest (primarily through registration), priority rules and rules for
the protection of a creditor in the event of a debtor’s insolvency.
4 Treatment of Non-Consensual Rights or Interests
The Cape Town Convention was originally conceived as applicable only to
consensual interests. But most states have a battery of non-consensual rights and
interests, such as legal liens, statutory mortgages, preferential claims of employees
for wages and of states for taxes, judicial attachments and the like, which they
would be reluctant to subordinate to a registered international interest.
So art 39 of the Cape Town Convention makes provision for a Contracting State to make a declaration that categories of rights or interests which under that State’s law have priority over the equivalent of registered international interests are to retain such priority without themselves having to be registered in the International Registry. In this way