Cape Town Convention and the Aircraft Protocol that will take effect in Canada on April 1, 2013
by Pierre Denis, Étienne Brassard
Canadian ratification of the Convention on International Interests in Mobile Equipment and of the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment:
This Bulletin is intended as a brief overview of the above-mentioned Convention and its Protocol and is not an in depth analysis of each of their provisions. We selected the provisions which we believe are required or useful to gain a working understanding of the CTC in the context of an overview. While drafted in layman’s terms, this overview does raise a few transactional/financing legal points. Hopefully they will not overburden the reader’s review.
Since they were concluded on November 16, 2001 at a Diplomatic Conference in Cape Town, South Africa, the Convention and Protocol have become known and referred to collectively as the “CTC” and this term will be used herein when referring to both. However, since certain terms are defined in the Convention and others in the Protocol, and given the need to read both the Convention and the Protocol in conjunction, when quoting or referring to definitions or Articles, a specific reference to the Convention or the Protocol, as the case may be, will be added. For ease of reference, the non-consolidated Convention and Protocol are readily available without cost at the web site of Unidroit3 and all quotes and references herein are to the non-consolidated version of each of them. The International Interests in Mobile Equipment (Aircraft Equipment) Act4, as amended, adopted by Canada provides that the non-consolidated texts have force of law.
We will briefly discuss the meaning of aircraft objects, the rules of form to create an international interest, the choice of forum and certain jurisdictional rules adopted under the CTC, the rules applicable to the location of the debtor (or “where the debtor is situated” to use the CTC terminology), the defaults, remedies, as well as preliminary reliefs and “self-help remedies” rules.
The main priority and registration rules of the International Register (the “IR”) will also be overviewed, as well as searches thereunder and will be followed by a few comments in respect of States and common law liens, “super priorities” and “prior claims” in the province of Québec, as well as “arrest” or “detain” rights, all of which will continue to be recognized. Priorities, assignments, accessory rights, subrogations and related defaults and priority rules will only be alluded to but not reviewed. We will finally discuss the coming into effect of the CTC in Canada, the grandfathered transactions and amendments
thereto.