Editorial Board

Cape Town Convention Journal, 2018 Vol. 7 Editorial Board General Editor Jeff rey Wool – Universities of Washington and Oxford Editor Anton Didenko – University of New South Wales Notes for contributors Manuscripts for consideration should be sent to [email protected]. All submissions should follow the OSCOLA citation standard. 2018 Cape Town Convention Journal i Cape Town Convention Journal, 2018 Vol. 7 Editorial Jeff rey Wool Universities of Washington and Oxford – General Editor Anton Didenko University of New South Wales – Editor Th is year’s edition of the Cape Town Con vention Journal (the ‘CTC Journal’) follows the 97th session of the UNIDROIT Governing Council, which approved the convening of a Diplomatic Conference in 2019 to adopt a new protocol to the Cape Town Convention (the ‘CTC’, ‘Convention’) on mining, agricultural and construction equipment (the ‘MAC Protocol’). If fi nalised in Pretoria in November 2019, the MAC Protocol will signal the fi rst expansion of the CTC regime to cover mobile equipment not expressly listed in the Convention (aircraft objects, railway rolling stock and space assets). In the light of the possible adoption of the fourth CTC protocol, two articles published in this issue focus on the set up of an International Registry under the upcoming treaty: a comparative legal analysis of the Aircraft Protocol and the draft MAC Protocol (W. Brydie-Watson) and an outline of key challenges in designing the new International Registry (R. Cowan). Beyond refl ecting the increasing level of interest towards the MAC Protocol, this year’s issue in- cludes scholarly articles relevant for the Cape Town Convention system as a whole – in line with the journal’s focus on in-depth, qualitative analysis of important, diffi cult or complex topics related to the Convention and its protocols. B. Whittaker looks at the extent to which fl oating security structures are possible under the CTC and each of its protocols (including the upcoming MAC Protocol). K. Gray and J. Wool off er a detailed analysis of the legal implications of the use of trusts in aircraft fi - nance and leasing transactions subject to the Aircraft Protocol. A. Veneziano explores the contours of ‘commercial reasonableness’ in the CTC. Th is issue is concluded by two articles focusing on is- sues of jurisdiction and enforcement of court judgments under the Convention: G. Cuniberti argues that the CTC should be interpreted as entailing an implicit obligation to enforce foreign judgments, whereas senior asset fi nance experts (S. Kennedy and G. Carey) examine in their short study the bases on which the Irish courts assume jurisdiction in cases involving challenges to registrations under the Aircraft Protocol. As in previous years, all papers in this issue of the CTC Journal were the subject of a conference held in Oxford under the auspices of the Cape Town Convention Academic Project. Th e format of the conference is designed to facilitate intensive discussion, with a presenter (the author or co-authors of the paper) and one or more commentators. We were joined by senior academics, practitioners, representatives of international organisations and other offi cials, who off ered their insightful com- ments and enriched the debate. Th e resulting scrutiny of each author’s arguments and methodology by the key professionals in the area of secured transactions laws and asset fi nancing ensures that only the highest quality materials are published in the CTC Journal. © 2018 Th e Author(s). 2018 Cape Town Convention Journal 1 2 Cape Town Convention Journal 2018 Cape Town Convention Journal, 2018 Vol. 7 If It Ain’t Broke, Don’t Fix It! Th e Development of the Draft MAC Protocol William Brydie-Watson* Abstract Once adopted, the MAC Protocol will extend the operation of the Cape Town Convention to the mining, agricultural and construction sectors. In attempting to replicate the outstanding success of the Aircraft Protocol, the draft MAC Protocol has retained the earlier instrument’s core legal rules. However, the draft MAC Protocol also contains additional rules to accommodate practices in the manufacture, use and fi nancing of mining, agricultural and construction equipment. Th is article provides a comparative legal analysis of the Aircraft Protocol and the draft MAC Protocol. By tracking the instrument’s development, consideration is given to how the draft MAC Protocol satisfi es the criteria set out in Article 51 of the Cape Town Convention which govern the negotiation of future protocols. By retaining a policy of adherence to the Aircraft Protocol, the MAC Protocol is well positioned to provide a stable, clear and predictable international regime for the fi nancing of mining, agricultural and construction equipment. As the fourth protocol to the 2001 Convention on International Interests in Mobile Equipment (the ‘Cape Town Convention’ or ‘Convention’), the MAC Protocol1 is in many respects the beginning 2 of a new chapter in the treaty’s venerable history. Of the existing protocols, the Aircraft Protocol was adopted simultaneously with the mother Convention, while the Luxembourg Rail Protocol3 and Space Protocol4 were both expressly recognised in the text of the Convention fi nalised at the 2001 diplomatic conference in Cape Town.5 As such, the MAC Protocol is the fi rst expansion of the Cape Town Convention that moves it outside the boundaries initially contemplated at the Convention’s inception. From the outset, the MAC Protocol had to resolve a confl ict between two competing principles. First, the instrument needed to create a legal framework that would improve the international land- scape for the fi nancing of mining, agricultural and construction (MAC) equipment. Second, it had * Legal Offi cer, International Institute for the Unifi cation of Private Law (UNIDROIT). Th e views expressed in this chapter are strictly those of the author. Th ey do not purport to represent the views of UNIDROIT. 1 Future Protocol to the Convention on International Interests in Mobile Equipment on Matters Specifi c to Mining, Agri- cultural and Construction Equipment. 2 Protocol to the Convention on International Interests in Mobile Equipment on Matters Specifi c to Aircraft Equipment adopted on 16 November 2001 in Cape Town. 3 Luxembourg Protocol to the Convention on International Interests in Mobile Equipment on Matters Specifi c to Railway Rolling Stock, adopted on 23 February 2007 in Luxembourg. 4 Protocol to the Convention on International Interests in Mobile Equipment on Matters Specifi c to Space Assets, adopted on 9 March 2012 in Berlin. 5 Article 2(3) of the Convention expressly lists ‘airframes, aircraft engines and helicopters’, ‘railway rolling stock’ and ‘space assets’ as categories over which an international interest can be constituted under the treaty. © 2018 Th e Author(s). 2018 Cape Town Convention Journal 3 If It Ain’t Broke, Don’t Fix It! The Development of the Draft MAC Protocol to do so without moving too far beyond the conceptual framework of the Cape Town Convention, which has so successfully established an international asset-based fi nancing regime for certain categories of high value, mobile and uniquely identifi able objects. Th e fundamental tension between these two goals was carefully negotiated over a period of 13 years by UNIDROIT, resulting in a draft MAC Protocol approved by the UNIDROIT Governing Council (‘Governing Council’) in May 2018 for transmission to a diplomatic conference for adoption in 2019.6 In advance of the diplomatic conference, this article provides an examination of both the development of the draft MAC Protocol and an analysis of the articles of the draft instrument through the comparative lens of the Aircraft Protocol. Th e purpose of this analysis is to scrutinise how the draft MAC Protocol attempts to resolve the two competing goals, and whether the instrument has achieved an appropriate balance. Th is article is based upon a presentation delivered at the seventh Cape Town Convention Aca- demic Project Conference at the University of Oxford in September 2018. It provides a comparative legal analysis of the substantive articles in Chapters I and II of the Aircraft Protocol and the MAC Protocol. Section I provides an analytical framework for this paper, based on Article 51 of the Cape Town Convention. Section II briefl y discusses the historical development of the MAC Protocol project, in order to establish the two competing goals in more detail, and to identify the approach adopted to resolve the confl ict. Section III provides an article-by-article comparative analysis of Chapters I and II of the two protocols, comprised of 13 provisions in the draft MAC Protocol and 16 provisions in the Aircraft Protocol. Th e purpose of this analysis is to provide an overview of the major similari- ties and diff erences between the substantive provisions of the two instruments. In the few instances where the draft MAC Protocol signifi cantly diverges from the Aircraft Protocol,7 this article notes the rationale behind the divergence but does not exhaustively explain the operation of each of the relevant provisions. Where appropriate, this article also discusses the corresponding provisions of the Luxembourg Rail Protocol and Space Protocol to provide further context. Th is article suggests that by adopting a policy of adherence to the Aircraft Protocol’s principles and provisions, the experts involved in the preparation of the draft MAC Protocol have prepared a workable treaty. Th is policy of adherence, or consistency with the Aircraft Protocol (which can be casually summarised as ‘if it ain’t broke, don’t fi x it’) has resulted in a draft instrument that fi ts well within the Cape Town Convention framework. More importantly, this article anticipates that the draft instrument will replicate the success of the Cape Town Convention and Aircraft Protocol in providing a stable, clear and predictable international regime for the fi nancing of mobile equipment.

Load more