PP317
Analítico de Periódico
DE LAS HERAS BALLELL, Teresa Rodríguez
Complexities arising from the expansion of the Cape Town Convention to the other sectors : The MAC Protocol's challenges and innovative solutions / Teresa Rodríguez de las Heras Ballell
Uniform Law Review, Oxford, v.23 n.2 (2018), p.214-241
DIREITO INTERNACIONAL PRIVADO, DIREITO COMERCIAL INTERNACIONAL, UNIDROIT, CONVENÇÕES INTERNACIONAIS, FINANCIAMENTO, EQUIPAMENTO, AGRICULTURA, MINÉRIO, CONSTRUÇÃO
The elaboration of a fourth Protocol to the 2001 UNIDROIT Convention on International Interests in Mobile Equipment (Cape Town Convention) on matters specific to mining, agricultural, and construction equipment (MAC Protocol) represents the first step beyond the original material borders of the Cape Town Convention—aircraft equipment, railway rolling stock, and space assets—and, accordingly, provides a valuable opportunity to test the soundness and flexibility of the Cape Town system and the feasibility of a sector-by-sector expansion of the uniform legal framework. Article 51(1) lays the basis for extending the application of the Convention to other categories of objects and defines the ‘control variables’ to keep the expansion consistent with the Cape Town Convention’s philosophy: high-value, mobile, and uniquely identifiable equipment. The MAC Protocol project poses relevant challenges in the application of the Article 51(1) criteria and offers very original and innovative solutions to deal with old problems in the new context as well as some new ones. The aim of this contribution is to map the process of elaboration of the MAC Protocol, identify the main challenges that the project has encountered throughout its development, and analyse selected innovative solutions adopted in the draft Protocol. These solutions preserve the Cape Town system’s fundamental tenets and consistency with the uniform system and, at the same time, effectively face intricacies and ensure the suitability of Protocol rules for facilitating the financing and the leasing of high-value, mobile, and uniquely identifiable mining, agricultural, and construction equipment. Particular attention is given to a selection of key topics: scope of application, treaty design, immovable-associated equipment, and inventory financing. It is concluded that the MAC Protocol’s experience gives the opportunity to reflect on the merits of an original and effective bottom-to-top harmonization strategy: a modular, sector-by-sector harmonization of secured transactions by expanding the success of the Cape Town Convention to other sectors.