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The Sixth Section of Private International Law

The Sixth Section of Private International Law of the Royal Academy of Jurisprudence and Legislation of Spain is organising an online session on 08 March 2023 at 19.00 hours and coordinated by the Honourable Ana Fernández-Tresguerres, Academic...

International notifications through consular channels

The service of civil and commercial documents through diplomatic or consular channels is provided for in both the 1965 Hague Service Convention and Regulation (EU) 2020/1784 on the same subject, which applies to the service of civil and commercial documents...

Implementation in Spain of the aviation warranty system.
Feb 15, 2016

On 1 March 2016, the system of international guarantees established by the Cape Town Convention - Unidroit, 16 November 2001 - will enter into force in Spain in general terms. To this end, Spain recently acceded to the Protocol on aviation collateral of the same date, which forms a regulatory package with the Convention and which had already been acceded to in 2013. This accession is of paramount importance for the Spanish aeronautical sector. It aims to make it easier and cheaper to finance aeronautical equipment and, therefore, to insure it. It is therefore good news. However, it raises a number of doubts and will need to be implemented. The direct consequence is that the so-called "Cape Town discount". which applies to companies based in signatory countries of the Convention + Protocol will not yet apply to our industry. The system, which is technically very complex, is governed by a number of key elements: the first is the creation of an International Collateral Registry.

The second is the legal neutrality with regard to the national guarantees that will in theory coexist, and finally, the variable geometry that has been established in order to facilitate the incorporation of as many States as possible, by means of various opt-in/opt-out declarations. It is further complicated, if possible, by the mixed nature of the Convention in relation to the competences of the European Union, which prevents the Member States, in accordance with a 2009 decision, - following the exchange of letters on Gibraltar - from making declarations that could affect the tangentially applicable legal instruments (Rome I Regulations, insolvency, and to some extent Brussels I Recast). Firstly, in addition to the institutional declarations on Gibraltar, it has designated a single point of entry to the International Registry. It is the eighth state to do so, in a very minority position overall, but it really is a sovereign legislative policy choice. That point of entry, as is the case in the other seven States, enables obtaining a code which is essential for registration in the International Register. Registration is applied for directly by the interested parties, but on the basis of the code assigned by the entry point. Spain has decided that the enabling access point is the Registry of Movable Property. The Madrid registry is the only one that has an Aircraft Book. rectius aeronautical material: airframes, engines and helicopters. In addition to this characteristic and essential element, the instrument of ratification accepts the so-called IDERAs, irrevocable authorisations or powers of attorney with a typical content, which are in fact guarantees in themselves, included in an annexed form, which allow, without judicial intervention and except for limited reasons of national interest, the transfer of the aircraft, its deregistration and export. These IDERAs are also subject to registration in the International Register of Guarantees and, until now, the same (or similar) powers were recorded in the Aircraft Registration Register, a body which is part of the Ministry of Development. In addition, Spain establishes a generic preference or pari-pasu, (Art. 39.1 a) in favour of all non-contractual guarantees, present and future. This means that an updated list will be required of any privilege, tacit mortgage or administrative or legal guarantee without contractual origin. Likewise, state concessions, even privately managed concessions, are preferential (such as Eurocontrol) (art. 39.1.b). It is the maximum discount to the guarantee allowed by the Convention. What does this description imply for the interpreter? Firstly, that Spain has not made - it can excuse itself in the European decision, but it could have used any of the many laws passed in 2015 - any statement on what really matters, which is the position of the guarantees in the insolvency proceedings, offering a maximum waiting period of 60 days after which the creditor would not be affected by any decision in this regard in the signatory State (Art. XI, Alternative A). Secondly, except for IDERA, it maintains the intervention of the Court in the enforcement of the guarantees, which will have to be assessed whether it is a case included in Law 15/2015, on voluntary jurisdiction; thirdly, the legal opinion on the risk of preferential guarantees and difficulties of enforcement on the guaranteed objects will be very complex, extending the competence of the single point of entry in Spain to the national domicile of the debtor or to the situation of the property.. From what has been said so far, it is easy to see that the core element of the accession is really the decision to make the MBR the enabling access point. How will it work? This is something that will have to be decided within days. With the Convention + Protocol in hand - and given its hierarchy, which, let us not forget, is above an Organic Law - no internal requirement can be established that would alter the functioning of the guarantee as formulated in the international standard. This means that, without prejudice to the maintenance of the internal requirements for national guarantees, international guarantees, probably one hundred percent of those that are agreed - mind you, they are not created but agreed -, cannot be subject to additional requirements of form, nor of national registration, nor much less of control of their content. It is enough that they are established in writing. To obtain a code in the USA or Brazil, an application to the administrative body stating the guarantee and a notice of disclosure (object, holder, creditor and debtor, in total ten lines). The application should be ready by 1 March. An important part of it is the management of the code authorisation with the Irish Registry, for its recognition, which must be done without delay. But, the legal aspects? A clue can be found in the 6th additional provision of RD 384/ 2015 which, in anticipation of accession, regulates electronic communication between the Aircraft Registration Register and the Movable Property Register. This generic provision, "International registrations"is inapplicable here since, among other things, it requires the prior registration of the guarantee in the national register. An unfeasible solution, as would be a possible homologation of contractual models that would limit business autonomy.

Or is it feasible? The consequence of incorrect implementation will be non-compliance with the Convention and thus the risk of relocation of our industry in the lawful pursuit of the "green economy".discount Cape Town".