Convention on International Interests in Mobile Equipment and Protocol to Convention on International Interests in Mobile EquipmentSenate Consideration of Treaty Document 108-10
Treaty DocumentShow Overview
Text - Treaty Document: Senate Consideration of Treaty Document 108-10All Information (Except Treaty Text)
A Senate treaty document provides the text of the treaty as transmitted to the Senate, as well as the transmittal letter from the President, the submittal letter from the Secretary of State, and accompanying papers.
Text of Treaty Document available as:
For complete and accurate display of this text, see the PDF.
[Senate Treaty Document 108-10] [From the U.S. Government Publishing Office] 108th Congress Treaty Doc. SENATE 1st Session 108-10 _______________________________________________________________________ CONVENTION ON INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT AND PROTOCOL TO CONVENTION ON INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT __________ MESSAGE from THE PRESIDENT OF THE UNITED STATES transmitting CONVENTION ON INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT AND PROTOCOL TO CONVENTION ON INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT ON MATTERS SPECIFIC TO AIRCRAFT EQUIPMENT, CONCLUDED AT CAPE TOWN, SOUTH AFRICA, ON NOVEMBER 16, 2001 November 5, 2003.--Treaty was read the first time, and together with the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate LETTER OF TRANSMITTAL ---------- The White House, November 5, 2003. To the Senate of the United States: I transmit herewith, for Senate advice and consent to ratification, the Convention on International Interest in Mobile Equipment and the Protocol on Matters Specific to Aircraft Equipment, concluded at Cape Town, South Africa, on November 16, 2001. The report of the Department of State and a chapter-by-chapter analysis are enclosed for the information of the Senate in connection with its consideration. The essential features of the Convention and Aircraft Protocol are the establishment of an international legal framework for the creation, priority, and enforcement of security and leasing interests in mobile equipment, specifically high-value aircraft equipment (airframes, engines, and helicopters), and the creation of a worldwide International Registry where interests covered by the Convention can be registered. The Convention adopts ``asset-based financing'' rules, already in place in the United States, enhancing the availability of capital market financing for air carriers at lower cost. The Convention's and Protocol's finance provisions are consistent with the Uniform Commercial Code with regard to secured financing in the United States. This new international system can significantly reduce the risk of financing, thereby increasing the availability and reducing the costs of aviation credit. As a result, air commerce and air transportation can become safer and environmentally cleaner through the acquisition of modern equipment facilitated by these instruments. The new international system should increase aerospace sales and employment, and thereby stimulate the U.S. economy. Negotiation of the Convention and Protocol has involved close coordination between the key Federal agencies concerned with air transportation and export, including the Departments of State, Commerce, and Transportation, as well as the EXIM bank, and U.S. interests from manufacturing, finance, and export sectors. Ratification is in the best interests of the United States. I therefore urge the Senate to give early and favorable consideration to the Cape Town Convention and Aircraft Protocol, and that the Senate promptly give its advice and consent to ratification, subject to the seven declarations set out in the accompanying report of the Department of State. George W. Bush. LETTER OF SUBMITTAL ---------- Department of State, Washington, September 8, 2003. The President, The White House. The President: I have the honor to submit to you, with a view to its early transmittal to the Senate for advice and consent to ratification, the Convention on International Interests in Mobile Equipment and the Protocol on Matters Specific to Aircraft Equipment, concluded at Cape Town, South Africa on November 16, 2001 (the ``Cape Town Convention''). The Convention and the accompanying Protocol on aircraft equipment were signed by the United States in Rome on May 9, 2003 at the International Institute for the Unification of Private Law (UNIDROIT). The new treaty system will expand credit financing across the world for the acquisition of commercial aircraft, and eventually other types of equipment important to U.S. exports, by introducing modern commercial finance law already in place in the United States, which will directly benefit our manufacturers and other export interests. Enabling other countries to acquire newer aircraft will also upgrade aircraft safety around the world. By facilitating new sales and leasing transactions, the Convention will provide a needed boost for the industry, a critical factor given the effects of September 11 and more recent world events, as well as the general downturn in the air transportation market. The Cape Town Convention, when effectively implemented by other States, will bring about a substantial change in the secured transaction and leasing laws around the world. Many legal systems lack transparent priority systems of the sort in place in the United States, which will be remedied by the International Registry. Many legal systems require elaborate, time consuming and expensive enforcement procedures, which will be streamlined by the Convention's procedures. In sum, the Convention represents an opportunity for many States to quickly upgrade their legal infrastructure, thereby attracting capital to aircraft equipment, a major U.S. export and source of employment. Prompt and wide adoption of these instruments will also add momentum to other law reform initiatives that promote other U.S. trade objectives. BACKGROUND The Convention and Protocol were negotiated over a five- year period under the auspices of UNIDROIT, an international body dealing with private law conventions, and ICAO, the International Civil Aviation Organization. They were concluded in November 2001 at a Diplomatic Conference at Cape Town, South Africa, attended by 68 States and 14 international organizations, and involved the active participation at all stages of the Conference by private sector air transportation and finance interests. Negotiations were intended to track existing air finance practices in the major capital markets and thereby facilitate new transactions, especially in developing and emerging countries, which will be increasingly significant in coming decades. Analyses of the markets indicated that a treaty extending financing methods which are already in place in the United States through the Uniform Commercial Code (UCC) would benefit other countries as well as U.S. manufacturing, employment, finance and export interests. Key federal agencies concerned with civil aviation and U.S. exports, including the FAA, EXIM Bank, and the Departments of Transportation, Commerce and State were fully involved in negotiation of the Convention and in preparation for its implementation. U.S. signature and ratification was endorsed by these agencies in a recommendation made in October 2002 by the Interagency Group on International Aviation (IGIA), administered by the Federal Aviation Administration (FAA). SCOPE OF THE CONVENTION AND PROTOCOL Major Provisions The Convention, which relates to air transportation and interstate and foreign commerce, provides for the creation of internationally recognized finance rights and enforceable remedies designed to give greater security to financiers of highly mobile equipment, particularly in markets where country or business risk would not otherwise support such transactions. This will boost transactions and directly benefit U.S. manufacturers and other export interests. Increased aircraft and engine sales, in turn, will contribute to more rapid use of newer and thus safer and environmentally cleaner aircraft and engines in all regions. In many cases, the use of asset-based financing under the Convention will reduce sovereign debt for developing States, and can assist them to attract capital generally to upgrade their transportation infrastructure. The Cape Town Convention can produce significant macroeconomic benefits in the United States, principally by enhancing (i) aerospace sales and increasing employment in the aerospace sector, (ii) risk reduction for U.S. private sector financial institutions, (iii) risk reduction to EXIM Bank, which has already evidenced its firm support by offering financing advantages to airlines located in States that ratify the Convention, and (iv) operational and fleet flexibility for airline operators with crossborder routes or interests. Importantly, U.S. leadership will bolster and significantly accelerate wide adoption of these instruments. The Convention is designed as a ``multi-equipment'' treaty system, an outcome strongly supported by the United States. The protocol being submitted is the Aircraft Protocol, which applies to airframes, aircraft engines and helicopters above a minimum size or power threshold. The establishment of such thresholds maximized the U.S. ability to achieve consensus on the fundamental issues addressed in the Convention. The Convention can apply to other categories of high-value mobile equipment defined in additional protocols adopted through diplomatic procedures and that would be subject in the United States to ratification. Such protocols to the Convention would most likely recognize specialized forms of financing applicable to the category of equipment covered. This would permit the development of best practices consistent with the needs of different sectors. Key Financing Concepts The Cape Town Convention creates an international secured finance system that may be summarized by the following points: 1. The Convention establishes an ``international interest'', that is, a secured credit or leasing interest with defined rights. Those rights consist principally of (a) the ability to repossess and sell or lease the equipment in the case of default by an airline operator (remedies), and (b) the holding of an objectively determined and transparent finance priority in the equipment, where competing claims are made against such equipment (priority). 2. Quiet possession rights attached to an international interest will be enforced and recognized in all States party to the Convention and Protocol, thus assuring airline operators of continued rights of usage of the equipment absent default or contrary agreement. 3. Priority of interests will be established through a ``notice-based'' filing system, recorded in a high-technology international registry, which will determine the priority of competing interests on a first-in-time basis, subject to certain exceptions. Pursuant to a declaration recommended below, the FAA will serve as the authorizing entry point to the International Registry for aircraft having or intended to have U.S. nationality (this Convention does not deal with nationality of aircraft). 4. Associated rights, such as future payment rights and receivables in aircraft financing arising under contracts directly related to the financing arising under contracts directly related to the financing of equipment, are subject to rules similar to those applicable to international interests. 5. The Convention promotes predictable and timely remedies in the case of default, reflecting basic principles underlying asset-based financing and leasing. This permits reliance on the value of the asset to reduce overall transactional risk, thereby reducing the cost of credit. States are given a number of options, in the form of permitted declarations, which directly relate to the timing of remedies, both in and out of insolvency. These include certain basic concepts found in U.S. law, such as the availability of non-judicial remedies, the timing of remedies in the event of airline insolvency, and efficient deregistration and export of aircraft in the event of default, subject to national safety and airworthiness rules and regulations. 6. Transaction party autonomy, the ability of creditors and debtors to agree as among themselves on basic elements of their contract and its enforcement, is central to the Convention. 7. The international finance Registry, a basic component of the Convention, is similar to notice filing systems in the United States and Canada. Unlike a documentary system, where transaction documents are vetted before filing, a notice system involves posting minimal information only, so that other potential financing interests can make inquiries of possible superior interests prior to financings. ICAO will supervise the International Registry. A Preparatory Commission, in which the United States is a very active member, will establish the requirements for and determine the initial host State of the Registry. The host State is expected to fund the creation of the International Registry and users will pay sustaining use fees, which are expected to be low since the system is wholly electronic. The feasibility of the system has already been tested by a prototype developed by a body affiliated with airline associations. Effect on Other Treaties The relationship of the Cape Town Convention to existing aviation conventions was carefully worked out. The 1948 Convention on the International Recognition of Rights in Aircraft (``Geneva Convention'') is the only convention in force for the United States to which the relationship rule will initially apply. As between parties to the Aircraft Protocol, the Cape Town Convention will supersede the Geneva Convention, to the extent matters are covered or affected by the new instrument. The Geneva Convention will continue to apply to matters not covered by the Cape Town Convention and will remain fully in force as between States party to it which are not parties to the Cape Town Convention. Related International Developments The Cape Town Convention would represent a change in the financing laws for many other States. However, two new related international legal texts have recently been negotiated in other bodies, by some of the same States--one at UNCITRAL (a new Convention on Accounts Receivable Financing, approved by the UN General Assembly in December 2001), and the other at the Organization of American States (an Inter-American Model Law on Secured Financing, completed at an OAS Diplomatic Conference in February 2002). Both adopted an approach to secured financing similar to that in the Cape Town Convention. DECLARATIONS IN CONNECTION WITH U.S. RATIFICATION In order to allow States to tailor the Convention to particular economic needs, a number of declarations are provided for, consistent with practice in international private law conventions. Since the United States already has a well functioning capital market for air finance, only a limited number of declarations are needed for the United States. The situation differs for many other States, where the economic value of the Convention is linked to the making of declarations designed to substantially upgrade the substantive law in that State, especially where that is needed to lower country and credit risk. Seven declarations (three for the Convention and four for the Protocol) proposed for the United States were approved by the Departments of Transportation, Commerce, State and DOD through the FAA's Interagency Group on International Aviation (IGIA), as well as by EXIM Bank. Where possible, the declarations follow the recommended UNIDROIT form in order to promote uniformity. The Department of State recommends that the Senate give advice and consent to the Convention and the Protocol subject to the declarations that follow: 1. Declaration for Convention Article 39(1)(a): Priority of non-consensual rights and interests arising by law Pursuant to Article 39(1)(a), the United States declares that all categories of non-consensual rights or interests which under United States law have and will in the future have priority over an interest in an object equivalent to that of the holder of a registered international interest shall to that extent have priority over a registered international interest, whether in or outside insolvency proceedings. Purpose: This declaration preserves current U.S. practice. Article 39(1)(a) allows States to identify non-consensual rights and interests arising by law that, having priority against consensual security interests without registration under national law, shall maintain such priority as against international interests registered under the Cape Town Convention. United States federal and state law contain a variety of such priorities which would be difficult to harmonize (e.g., liens in favor of repairers of equipment and taxing authorities). This declaration gives priority to all such rights. 2. Declaration for Convention Article 39(1)(b): Retention of Rights to Compensation for Public Services Pursuant to Article 39(1)(b), the United States declares that nothing in the Convention shall affect its right or that of any entity thereof, any intergovernmental organization in which it is a member State, or other private provider of public services in the United States to arrest or detain an aircraft object under United States law for payment of amounts owed to any such entity, organization or provider directly relating to the services provided by it in respect of that object or another object. Purpose: This declaration allows a State to preserve rights of detention or arrest by State entities in order to secure amounts owing in connection with its provision of public services relating to objects covered by the Cape Town Convention, such as air navigation and landing charges for aircraft. This declaration will ensure the continuation in the United States of governmental rights; such rights, in addition to their inherent policy importance, have not been impediments to U.S. aircraft financing transactions. 3. Declaration for Convention Article 54(2): Procedure for exercise of remedies Pursuant to Article 54(2), the United States declares that all remedies available to the creditor under the Convention or Protocol which are not expressed under the relevant provision thereof to require application to the court may be exercised, in accordance with United States law, without leave of the court. Purpose: This declaration satisfies Article 54(2) which requires States to declare whether they will permit or prohibit the exercise of non-judicial remedies in the case of default by a debtor. A declaration permitting such remedies ensures consistency with the UCC, is fundamental to the continued efficiency of U.S. secured transactions law. The Department of State further recommends that the following four declarations to the Protocol be included in the U.S. instrument of ratification: 1. Declaration for Protocol Article VIII, as authorized by Protocol Article XXX(1) Contractual choice of law The United States declares that it will apply Article VIII. Purpose: This declaration provides that parties can agree as to the law governing their contractual rights and obligations, wholly or in part. This declaration is consistent with U.S. commercial law as applied to transactions of the type covered by the Convention, and is consistent with other recent Conventions on commercial law negotiated by the United States. 2. Declaration for Protocol Article XII, as authorized by Protocol Article XXX(1): Insolvency case assistance The United States declares that it will apply Article XII. Purpose: This declaration supports cross-border judicial assistance in insolvency cases, a practice now followed by U.S. bankruptcy courts in appropriate cases. It addresses cases where multiple national bankruptcy courts and administrators may be involved in various proceedings involving the same debtor and/or the same property. It is a non-intrusive rule, only requiring maximum cooperation ``in accordance with the law'' of the declaring State. This declaration is an important signal for the United States to give other States, and will help promote broader U.S.objectives in the field of cross- border insolvency cooperation. 3. Declaration for Protocol Article XIII, as authorized by Protocol Article XXX(1): Deregistration and export requests The United States declares that it will apply Article XIII. Purpose: This declaration recognizes the effect of the power-of-attorney annexed to the Aircraft Protocol, to procure, upon default, the timely deregistration of the aircraft for nationality purposes and its export. This process is fully subject to related aviation safety laws and regulations. It is already customarily employed in the United States for transactions covered by the Convention and Protocol, and will streamline the deregistration process by establishing a procedure for certifying interests of parties in the aircraft. This U.S. declaration can set an important example for some States where deregistration procedures have been used to block the effective exercise of remedies. 4. Declaration for Protocol Article XIX (1) and (2): FAA Entry point to the International Registry 1. Pursuant to Article XIX(1), the United States designated the Federal Aviation Administration, acting through its Aircraft Registry, FAA Aeronautical Center, 6400 South MacArthur Boulevard, Oklahoma City, Oklahoma 73125, as the entry point at which information required for registration in respect of airframes or helicopters pertaining to ``civil aircraft of the United States'' or ``aircraft to become a civil aircraft of the United States'' shall be transmitted, and in respect of aircraft engines may be transmitted, to the International Registry. 2. Pursuant to Article XIX(2) of the Protocol, the United States hereby specifies that the requirements of Chapter 441 of title 49 of the United States Code and Part 49 of title 14 of the Code of Federal Regulations be fully complied with before such information is transmitted at the Federal Aviation Administration to the International Registry. 3. For purposes of the designation in paragraph 1 and the requirements in paragraph 2. (a) information is transmitted at the Federal Aviation Administration in accordance with procedures established under United States law; and (b) the terms ``civil aircraft of the United States'' and ``aircraft to become a civil aircraft of the United States'' shall take their meanings from Chapters 401 and 441 of title 49 of the United States Code, respectively. Purpose: This declaration establishes the FAA as the exclusive point in the United States entitled to authorize electronic registrations relating to airframes pertaining to U.S. registered aircraft and helicopters, and as the non- exclusive point authorizing electronic registrations relating to engines. It also will ensure that all such registrations comply with 49 U.S.C. Ch. 441 and Part 49 of title 14 of the Code of Federal Regulations, as amended, in order to be valid. It will connect the FAA system and practices to the new electronic International Registry in a manner compatible with the existing FAA registry system. Proposed FAA technical legislative amendments are intended to integrate this arrangement into the FAA's existing registrysystem, and will be transmitted to the Congress separately. The FAA and DOT, together with U.S. air manufacturing and finance industries and associations which work closely with the FAA's registration facilities, collectively developed the draft legislation. U.S. statements to be made at time of ratification Owing to the fact that in large measure the Convention and Protocol reflect existing U.S. law, the declarations made by the United States are expected to be different than those made by a number of other States. However, since the particular declarations made by other States may determine the extent of economic benefits under the treaty system, the Executive Branch intends to ask the Depositary to circulate three statements of a policy nature in order to bring to the attention of other States the importance that we attach to their declarations in the fields addressed. No Senate action is requested with respect to these statements. (1) The United States made no declaration regarding Protocol Article XI, pursuant to Protocol Article XXX(1), since existing United States law, specifically 11 U.S.C. Section 1110, will continue to apply, which is substantially equivalent to Alternative A of Protocol Article XI. However, the United States notes the importance attached to declarations applying Alternative A of Protocol Article XI in attracting financing in aircraft transactions. (2) The United States notes the importance in terms of credit enhancement of the declarations under the Convention and Protocol that will ensure the timely exercise of remedies, in particular both non-judicial remedies to the extent so agreed by the debtor (Convention Article 54(2)), and relief pending final determination (Convention Article 13, as modified by Protocol Article X). (3) The United States notes the importance of circumscribing the extent of priorities for non- consensual rights and interests (Convention Article 39(1)(a)), since the absence of clear and certain limits prior to financing of this preference category may significantly restrict extensions of credit in many States. IMPLEMENTING LEGISLATION No implementing legislation is required, except for technical amendments to certain authorities of the FAA relating to the filing of interests in registries through the FAA, discussed below. Otherwise, the UCC will apply, and no changes to the Code are required. Coordinating the International Registry with U.S. Practices; Technical Amendments to FAA Statutes on the Registry System United States industry and finance sectors have recommended that the authorized entry point in the United States be through the FAA Aircraft Registry, acting through its existing facilities in Oklahoma City. FAA technical statutory amendments will be submitted to Congress for implementation of the registry provisions of the Convention. These amendments to Title 49 of the U.S. Code, Chapter 441 were prepared by DOT, FAA, and EXIM Bank, together with air finance and manufacturing industries. The technical amendments will clarify the effect of filings of financinginterests under the new computer-based system vis-a-vis filings under existing FAA procedures. The current FAA system would be merged seamlessly into the International Registry process by requiring registering parties to satisfy existing FAA requirements prior to making a registration with the International Registry. An additional filing would be added to those already recognized by the FAA system for ``prospective'' registrations which would require subsequent filing of full transaction documents. This approach, which is standard in commercial lending, including practices under the UCC, but not currently provided for under FAA's existing filing regulations, will permit the continuation of a well-established and efficient U.S. documentary system, while simultaneously linking that process to the International Registry. The FAA will assume no responsibility for the content of filings under a notice-based computer system. CONCLUSION The Convention and Protocol will provide a needed boost to our aerospace industry and provide significant benefits to many other countries as well. It will promote modernization of commercial law based on tested market practices. United States ratification can have a significant effect on actions to be taken by other countries, and will assure a U.S. lead role in international implementation of the treaty system. As prior sections of the report suggested, ratification of the Convention and Protocol are supported by all affected private interests in the United States. The Interagency Group on International Aviation (IGIA) and the American Bar Association's House of Delegates have endorsed ratification of the Convention. The Departments of Transportation and Commerce, as well as EXIM Bank and the Federal Aviation Administration join the Department of State in requesting that the Convention on International Interests in Mobile Equipment and the Protocol on Matters Specific to Aircraft Equipment be submitted to the Senate for its advice and consent to ratification as soon as possible, subject to the declaration previously described. Respectfully submitted, Colin L. Powell.