REU, Alm.del - 2014-15 (1. samling) - Bilag 138: Udkast til forslag til lov om internationale sikkerhedsrettigheder i flymateriel sendt i høring, fra justitsministeren

Retsudvalget 2014-15 (1. samling)
REU Alm.del Bilag 138
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CONVENTION

ON INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT

Signed at Cape Town on 16 November 2001

COPY CERTIFIED AS BEING

IN CONFORMITY WITH THE ORIGINAL

THE SECRETARY GENERAL

JOSE ANGELO ESTRELLA FARIA

CAPE TOWN

16 NOVEMBER 2001

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CONVENTION

ON INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT

THE STATES PARTIES TO THIS CONVENTION,

AWARE of the need to acquire and use mobile equipment of high value or particular economic

significance and to facilitate the financing of the acquisition and use of such equipment in an

efficient manner,

RECOGNISING the advantages of asset-based financing and leasing for this purpose and desiring to

facilitate these types of transaction by establishing clear rules to govern them,

MINDFUL of the need to ensure that interests in such equipment are recognised and protected

universally,

DESIRING to provide broad and mutual economic benefits for all interested parties,

BELIEVING that such rules must reflect the principles underlying asset-based financing and leasing

and promote the autonomy of the parties necessary in these transactions,

CONSCIOUS of the need to establish a legal framework for international interests in such equipment

and for that purpose to create an international registration system for their protection,

TAKING INTO CONSIDERATION the objectives and principles enunciated in existing Conventions

relating to such equipment,

HAVE AGREED upon the following provisions:

Chapter I

Sphere of application and general provisions

Article 1 — Definitions

In this Convention, except where the context otherwise requires, the following terms are employed

with the meanings set out below:

(a)

“agreement” means a security agreement, a title reservation agreement or a leasing

agreement;

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(b)

“assignment” means a contract which, whether by way of security or otherwise, confers

on the assignee associated rights with or without a transfer of the related international

interest;

“associated rights” means all rights to payment or other performance by a debtor under

an agreement which are secured by or associated with the object;

“commencement of the insolvency proceedings” means the time at which the insolvency

proceedings are deemed to commence under the applicable insolvency law;

“conditional buyer” means a buyer under a title reservation agreement;

“conditional seller” means a seller under a title reservation agreement;

“contract of sale” means a contract for the sale of an object by a seller to a buyer which

is not an agreement as defined in (a) above;

“court” means a court of law or an administrative or arbitral tribunal established by a

Contracting State;

“creditor” means a chargee under a security agreement, a conditional seller under a title

reservation agreement or a lessor under a leasing agreement;

“debtor” means a chargor under a security agreement, a conditional buyer under a title

reservation agreement, a lessee under a leasing agreement or a person whose interest in

an object is burdened by a registrable non-consensual right or interest;

“insolvency administrator” means a person authorised to administer the reorganisation or

liquidation, including one authorised on an interim basis, and includes a debtor in

possession if permitted by the applicable insolvency law;

“insolvency proceedings” means bankruptcy, liquidation or other collective judicial or

administrative proceedings, including interim proceedings, in which the assets and

affairs of the debtor are subject to control or supervision by a court for the purposes of

reorganisation or liquidation;

“interested persons” means:

(i)

(ii)

the debtor;

any person who, for the purpose of assuring performance of any of the obligations

in favour of the creditor, gives or issues a suretyship or demand guarantee or a

standby letter of credit or any other form of credit insurance;

any other person having rights in or over the object;

(c)

(d)

(e)

(f)

(g)

(h)

(i)

(j)

(k)

(l)

(m)

(iii)

(n)

“internal transaction” means a transaction of a type listed in Article 2(2)(a) to (c) where

the centre of the main interests of all parties to such transaction is situated, and the

relevant object located (as specified in the Protocol), in the same Contracting State at the

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time of the conclusion of the contract and where the interest created by the transaction

has been registered in a national registry in that Contracting State which has made a

declaration under Article 50(1);

(o)

(p)

“international interest” means an interest held by a creditor to which Article 2 applies;

“International Registry” means the international registration facilities established for the

purposes of this Convention or the Protocol;

“leasing agreement” means an agreement by which one person (the lessor) grants a right

to possession or control of an object (with or without an option to purchase) to another

person (the lessee) in return for a rental or other payment;

“national interest” means an interest held by a creditor in an object and created by an

internal transaction covered by a declaration under Article 50(1);

“non-consensual right or interest” means a right or interest conferred under the law of a

Contracting State which has made a declaration under Article 39 to secure the

performance of an obligation, including an obligation to a State, State entity or an

intergovernmental or private organisation;

“notice of a national interest” means notice registered or to be registered in the

International Registry that a national interest has been created;

“object” means an object of a category to which Article 2 applies;

“pre-existing right or interest” means a right or interest of any kind in or over an object

created or arising before the effective date of this Convention as defined by Article

60(2)(a);

“proceeds” means money or non-money proceeds of an object arising from the total or

partial loss or physical destruction of the object or its total or partial confiscation,

condemnation or requisition;

“prospective assignment” means an assignment that is intended to be made in the future,

upon the occurrence of a stated event, whether or not the occurrence of the event is

certain;

“prospective international interest” means an interest that is intended to be created or

provided for in an object as an international interest in the future, upon the occurrence of

a stated event (which may include the debtor’s acquisition of an interest in the object),

whether or not the occurrence of the event is certain;

“prospective sale” means a sale which is intended to be made in the future, upon the

occurrence of a stated event, whether or not the occurrence of the event is certain;

“Protocol” means, in respect of any category of object and associated rights to which

this Convention applies, the Protocol in respect of that category of object and associated

rights;

(q)

(r)

(s)

(t)

(u)

(v)

(w)

(x)

(y)

(z)

(aa)

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(bb) “registered” means registered in the International Registry pursuant to Chapter V;

(cc)

“registered interest” means an international interest, a registrable non-consensual right or

interest or a national interest specified in a notice of a national interest registered

pursuant to Chapter V;

(dd) “registrable non-consensual right or interest” means a non-consensual right or interest

registrable pursuant to a declaration deposited under Article 40;

(ee)

“Registrar” means, in respect of the Protocol, the person or body designated by that

Protocol or appointed under Article 17(2)(b);

“regulations” means regulations made or approved by the Supervisory Authority

pursuant to the Protocol;

(ff)

(gg) “sale” means a transfer of ownership of an object pursuant to a contract of sale;

(hh) “secured obligation” means an obligation secured by a security interest;

(ii)

“security agreement” means an agreement by which a chargor grants or agrees to grant

to a chargee an interest (including an ownership interest) in or over an object to secure

the performance of any existing or future obligation of the chargor or a third person;

“security interest” means an interest created by a security agreement;

(jj)

(kk) “Supervisory Authority” means, in respect of the Protocol, the Supervisory Authority

referred to in Article 17(1);

(ll)

“title reservation agreement” means an agreement for the sale of an object on terms that

ownership does not pass until fulfilment of the condition or conditions stated in the

agreement;

(mm) “unregistered interest” means a consensual interest or non-consensual right or interest

(other than an interest to which Article 39 applies) which has not been registered,

whether or not it is registrable under this Convention; and

(nn) “writing” means a record of information (including information communicated by

teletransmission) which is in tangible or other form and is capable of being reproduced

in tangible form on a subsequent occasion and which indicates by reasonable means a

person’s approval of the record.

Article 2 — The international interest

This Convention provides for the constitution and effects of an international interest in certain

categories of mobile equipment and associated rights.

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For the purposes of this Convention, an international interest in mobile equipment is an

interest, constituted under Article 7, in a uniquely identifiable object of a category of such objects

listed in paragraph 3 and designated in the Protocol:

(a)

(b)

(c)

granted by the chargor under a security agreement;

vested in a person who is the conditional seller under a title reservation agreement; or

vested in a person who is the lessor under a leasing agreement.

An interest falling within sub-paragraph (a) does not also fall within sub-paragraph (b) or (c).

The categories referred to in the preceding paragraphs are:

(a)

(b)

(c)

airframes, aircraft engines and helicopters;

railway rolling stock; and

space assets.

The applicable law determines whether an interest to which paragraph 2 applies falls within

subparagraph (a), (b) or (c) of that paragraph.

An international interest in an object extends to proceeds of that object.

Article 3 — Sphere of application

This Convention applies when, at the time of the conclusion of the agreement creating or

providing for the international interest, the debtor is situated in a Contracting State.

The fact that the creditor is situated in a non-Contracting State does not affect the applicability

of this Convention.

Article 4 — Where debtor is situated

For the purposes of Article 3(1), the debtor is situated in any Contracting State:

(a)

(b)

(c)

(d)

under the law of which it is incorporated or formed;

where it has its registered office or statutory seat;

where it has its centre of administration; or

where it has its place of business.

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A reference in sub-paragraph (d) of the preceding paragraph to the debtor’s place of business

shall, if it has more than one place of business, mean its principal place of business or, if it has no place

of business, its habitual residence.

Article 5 — Interpretation and applicable law

In the interpretation of this Convention, regard is to be had to its purposes as set forth in the

preamble, to its international character and to the need to promote uniformity and predictability in its

application.

Questions concerning matters governed by this Convention which are not expressly settled in it

are to be settled in conformity with the general principles on which it is based or, in the absence of

such principles, in conformity with the applicable law.

References to the applicable law are to the domestic rules of the law applicable by virtue of the

rules of private international law of the forum State.

Where a State comprises several territorial units, each of which has its own rules of law in

respect of the matter to be decided, and where there is no indication of the relevant territorial unit, the

law of that State decides which is the territorial unit whose rules shall govern. In the absence of any

such rule, the law of the territorial unit with which the case is most closely connected shall apply.

Article 6 — Relationship between

the Convention and the Protocol

This Convention and the Protocol shall be read and interpreted together as a single instrument.

To the extent of any inconsistency between this Convention and the Protocol, the Protocol

shall prevail.

Chapter II

Constitution of an international interest

Article 7 — Formal requirements

An interest is constituted as an international interest under this Convention where the agreement

creating or providing for the interest:

(a)

(b)

is in writing;

relates to an object of which the chargor, conditional seller or lessor has power to

dispose;

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(c)

(d)

enables the object to be identified in conformity with the Protocol; and

in the case of a security agreement, enables the secured obligations to be determined, but

without the need to state a sum or maximum sum secured.

Chapter III

Default remedies

Article 8 — Remedies of chargee

In the event of default as provided in Article 11, the chargee may, to the extent that the chargor

has at any time so agreed and subject to any declaration that may be made by a Contracting State under

Article 54, exercise any one or more of the following remedies:

(a)

(b)

(c)

take possession or control of any object charged to it;

sell or grant a lease of any such object;

collect or receive any income or profits arising from the management or use of any such

object.

The chargee may alternatively apply for a court order authorising or directing any of the acts

referred to in the preceding paragraph.

Any remedy set out in sub-paragraph (a), (b) or (c) of paragraph 1 or by Article 13 shall be

exercised in a commercially reasonable manner. A remedy shall be deemed to be exercised in a

commercially reasonable manner where it is exercised in conformity with a provision of the security

agreement except where such a provision is manifestly unreasonable.

A chargee proposing to sell or grant a lease of an object under paragraph 1 shall give

reasonable prior notice in writing of the proposed sale or lease to:

(a)

(b)

interested persons specified in Article 1(m)(i) and (ii); and

interested persons specified in Article 1(m)(iii) who have given notice of their rights to

the chargee within a reasonable time prior to the sale or lease.

Any sum collected or received by the chargee as a result of exercise of any of the remedies set

out in paragraph 1 or 2 shall be applied towards discharge of the amount of the secured obligations.

Where the sums collected or received by the chargee as a result of the exercise of any remedy

set out in paragraph 1 or 2 exceed the amount secured by the security interest and any reasonable costs

incurred in the exercise of any such remedy, then unless otherwise ordered by the court the chargee

shall distribute the surplus among holders of subsequently ranking interests which have been registered

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or of which the chargee has been given notice, in order of priority, and pay any remaining balance to

the chargor.

Article 9 — Vesting of object in satisfaction; redemption

At any time after default as provided in Article 11, the chargee and all the interested persons

may agree that ownership of (or any other interest of the chargor in) any object covered by the security

interest shall vest in the chargee in or towards satisfaction of the secured obligations.

The court may on the application of the chargee order that ownership of (or any other interest

of the chargor in) any object covered by the security interest shall vest in the chargee in or towards

satisfaction of the secured obligations.

The court shall grant an application under the preceding paragraph only if the amount of the

secured obligations to be satisfied by such vesting is commensurate with the value of the object after

taking account of any payment to be made by the chargee to any of the interested persons.

At any time after default as provided in Article 11 and before sale of the charged object or the

making of an order under paragraph 2, the chargor or any interested person may discharge the security

interest by paying in full the amount secured, subject to any lease granted by the chargee under Article

8(1)(b) or ordered under Article 8(2). Where, after such default, the payment of the amount secured is

made in full by an interested person other than the debtor, that person is subrogated to the rights of the

chargee.

Ownership or any other interest of the chargor passing on a sale under Article 8(1)(b) or

passing under paragraph 1 or 2 of this Article is free from any other interest over which the chargee’s

security interest has priority under the provisions of Article 29.

Article 10 — Remedies of conditional seller or lessor

In the event of default under a title reservation agreement or under a leasing agreement as provided in

Article 11, the conditional seller or the lessor, as the case may be, may:

(a)

subject to any declaration that may be made by a Contracting State under Article 54,

terminate the agreement and take possession or control of any object to which the

agreement relates; or

apply for a court order authorising or directing either of these acts.

(b)

Article 11 — Meaning of default

The debtor and the creditor may at any time agree in writing as to the events that constitute a

default or otherwise give rise to the rights and remedies specified in Articles 8 to 10 and 13.

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Where the debtor and the creditor have not so agreed, “default” for the purposes of Articles 8

to 10 and 13 means a default which substantially deprives the creditor of what it is entitled to expect

under the agreement.

Article 12 — Additional remedies

Any additional remedies permitted by the applicable law, including any remedies agreed upon by the

parties, may be exercised to the extent that they are not inconsistent with the mandatory provisions of

this Chapter as set out in Article 15.

Article 13 — Relief pending final determination

Subject to any declaration that it may make under Article 55, a Contracting State shall ensure

that a creditor who adduces evidence of default by the debtor may, pending final determination of its

claim and to the extent that the debtor has at any time so agreed, obtain from a court speedy relief in

the form of such one or more of the following orders as the creditor requests:

(a)

(b)

(c)

(d)

preservation of the object and its value;

possession, control or custody of the object;

immobilisation of the object; and

lease or, except where covered by sub-paragraphs (a) to (c), management of the object

and the income therefrom.

In making any order under the preceding paragraph, the court may impose such terms as it

considers necessary to protect the interested persons in the event that the creditor:

(a)

in implementing any order granting such relief, fails to perform any of its obligations to

the debtor under this Convention or the Protocol; or

fails to establish its claim, wholly or in part, on the final determination of that claim.

(b)

Before making any order under paragraph 1, the court may require notice of the request to be

given to any of the interested persons.

Nothing in this Article affects the application of Article 8(3) or limits the availability of forms

of interim relief other than those set out in paragraph 1.

Article 14 — Procedural requirements

Subject to Article 54(2), any remedy provided by this Chapter shall be exercised in conformity with the

procedure prescribed by the law of the place where the remedy is to be exercised.

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Article 15 — Derogation

In their relations with each other, any two or more of the parties referred to in this Chapter may at any

time, by agreement in writing, derogate from or vary the effect of any of the preceding provisions of

this Chapter except Articles 8(3) to (6), 9(3) and (4), 13(2) and 14.

Chapter IV

The international registration system

Article 16 — The International Registry

An International Registry shall be established for registrations of:

(a)

international interests, prospective international interests and registrable non-consensual

rights and interests;

assignments and prospective assignments of international interests;

acquisitions of international interests by legal or contractual subrogations under the

applicable law;

notices of national interests; and

subordinations of interests referred to in any of the preceding sub-paragraphs.

(b)

(c)

(d)

(e)

Different international registries may be established for different categories of object and

associated rights.

For the purposes of this Chapter and Chapter V, the term “registration” includes, where

appropriate, an amendment, extension or discharge of a registration.

Article 17 — The Supervisory Authority and the Registrar

There shall be a Supervisory Authority as provided by the Protocol.

The Supervisory Authority shall:

(a)

(b)

(c)

establish or provide for the establishment of the International Registry;

except as otherwise provided by the Protocol, appoint and dismiss the Registrar;

ensure that any rights required for the continued effective operation of the International

Registry in the event of a change of Registrar will vest in or be assignable to the new

Registrar;

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(d)

after consultation with the Contracting States, make or approve and ensure the

publication of regulations pursuant to the Protocol dealing with the operation of the

International Registry;

establish administrative procedures through which complaints concerning the operation

of the International Registry can be made to the Supervisory Authority;

supervise the Registrar and the operation of the International Registry;

at the request of the Registrar, provide such guidance to the Registrar as the Supervisory

Authority thinks fit;

set and periodically review the structure of fees to be charged for the services and

facilities of the International Registry;

do all things necessary to ensure that an efficient notice-based electronic registration

system exists to implement the objectives of this Convention and the Protocol; and

report periodically to Contracting States concerning the discharge of its obligations

under this Convention and the Protocol.

(e)

(f)

(g)

(h)

(i)

(j)

The Supervisory Authority may enter into any agreement requisite for the performance of its

functions, including any agreement referred to in Article 27(3).

The Supervisory Authority shall own all proprietary rights in the data bases and archives of the

International Registry.

The Registrar shall ensure the efficient operation of the International Registry and perform the

functions assigned to it by this Convention, the Protocol and the regulations.

Chapter V

Other matters relating to registration

Article 18 — Registration requirements

The Protocol and regulations shall specify the requirements, including the criteria for the

identification of the object:

(a)

for effecting a registration (which shall include provision for prior electronic

transmission of any consent from any person whose consent is required under Article

20);

for making searches and issuing search certificates, and, subject thereto;

for ensuring the confidentiality of information and documents of the International

Registry other than information and documents relating to a registration.

(b)

(c)

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The Registrar shall not be under a duty to enquire whether a consent to registration under

Article 20 has in fact been given or is valid.

Where an interest registered as a prospective international interest becomes an international

interest, no further registration shall be required provided that the registration information is sufficient

for a registration of an international interest.

The Registrar shall arrange for registrations to be entered into the International Registry data

base and made searchable in chronological order of receipt, and the file shall record the date and time

of receipt.

The Protocol may provide that a Contracting State may designate an entity or entities in its

territory as the entry point or entry points through which the information required for registration shall

or may be transmitted to the International Registry. A Contracting State making such a designation

may specify the requirements, if any, to be satisfied before such information is transmitted to the

International Registry.

Article 19 — Validity and time of registration

A registration shall be valid only if made in conformity with Article 20.

A registration, if valid, shall be complete upon entry of the required information into the

International Registry data base so as to be searchable.

A registration shall be searchable for the purposes of the preceding paragraph at the time when:

(a)

(b)

the International Registry has assigned to it a sequentially ordered file number; and

the registration information, including the file number, is stored in durable form and may

be accessed at the International Registry.

If an interest first registered as a prospective international interest becomes an international

interest, that international interest shall be treated as registered from the time of registration of the

prospective international interest provided that the registration was still current immediately before the

international interest was constituted as provided by Article 7.

The preceding paragraph applies with necessary modifications to the registration of a

prospective assignment of an international interest.

A registration shall be searchable in the International Registry data base according to the

criteria prescribed by the Protocol.

Article 20 — Consent to registration

An international interest, a prospective international interest or an assignment or prospective

assignment of an international interest may be registered, and any such registration amended or

extended prior to its expiry, by either party with the consent in writing of the other.

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The subordination of an international interest to another international interest may be registered

by or with the consent in writing at any time of the person whose interest has been subordinated.

A registration may be discharged by or with the consent in writing of the party in whose favour

it was made.

The acquisition of an international interest by legal or contractual subrogation may be

registered by the subrogee.

A registrable non-consensual right or interest may be registered by the holder thereof.

A notice of a national interest may be registered by the holder thereof.

Article 21 — Duration of registration

Registration of an international interest remains effective until discharged or until expiry of the period

specified in the registration.

Article 22 — Searches

Any person may, in the manner prescribed by the Protocol and regulations, make or request a

search of the International Registry by electronic means concerning interests or prospective

international interests registered therein.

Upon receipt of a request therefor, the Registrar, in the manner prescribed by the Protocol and

regulations, shall issue a registry search certificate by electronic means with respect to any object:

(a)

stating all registered information relating thereto, together with a statement indicating

the date and time of registration of such information; or

stating that there is no information in the International Registry relating thereto.

(b)

A search certificate issued under the preceding paragraph shall indicate that the creditor named

in the registration information has acquired or intends to acquire an international interest in the object

but shall not indicate whether what is registered is an international interest or a prospective

international interest, even if this is ascertainable from the relevant registration information.

Article 23 — List of declarations and

declared non-consensual rights or interests

The Registrar shall maintain a list of declarations, withdrawals of declaration and of the categories of

nonconsensual right or interest communicated to the Registrar by the Depositary as having been

declared by Contracting States in conformity with Articles 39 and 40 and the date of each such

declaration or withdrawal of declaration. Such list shall be recorded and searchable in the name of the

declaring State and shall be made available as provided in the Protocol and regulations to any person

requesting it.

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Article 24 — Evidentiary value of certificates

A document in the form prescribed by the regulations which purports to be a certificate issued by the

International Registry is prima facie proof:

(a)

(b)

that it has been so issued; and

of the facts recited in it, including the date and time of a registration.

Article 25 — Discharge of registration

Where the obligations secured by a registered security interest or the obligations giving rise to

a registered non-consensual right or interest have been discharged, or where the conditions of transfer

of title under a registered title reservation agreement have been fulfilled, the holder of such interest

shall, without undue delay, procure the discharge of the registration after written demand by the debtor

delivered to or received at its address stated in the registration.

Where a prospective international interest or a prospective assignment of an international

interest has been registered, the intending creditor or intending assignee shall, without undue delay,

procure the discharge of the registration after written demand by the intending debtor or assignor which

is delivered to or received at its address stated in the registration before the intending creditor or

assignee has given value or incurred a commitment to give value.

Where the obligations secured by a national interest specified in a registered notice of a

national interest have been discharged, the holder of such interest shall, without undue delay, procure

the discharge of the registration after written demand by the debtor delivered to or received at its

address stated in the registration.

Where a registration ought not to have been made or is incorrect, the person in whose favour

the registration was made shall, without undue delay, procure its discharge or amendment after written

demand by the debtor delivered to or received at its address stated in the registration.

Article 26 — Access to the

international registration facilities

No person shall be denied access to the registration and search facilities of the International Registry

on any ground other than its failure to comply with the procedures prescribed by this Chapter.

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Chapter VI

Privileges and immunities of

the Supervisory Authority and the Registrar

Article 27 — Legal personality; immunity

The Supervisory Authority shall have international legal personality where not already

possessing such personality.

The Supervisory Authority and its officers and employees shall enjoy such immunity from

legal or administrative process as is specified in the Protocol.

(a)

The Supervisory Authority shall enjoy exemption from taxes and such other privileges

as may be provided by agreement with the host State.

For the purposes of this paragraph, “host State” means the State in which the

Supervisory Authority is situated.

(b)

The assets, documents, data bases and archives of the International Registry shall be inviolable

and immune from seizure or other legal or administrative process.

For the purposes of any claim against the Registrar under Article 28(1) or Article 44, the

claimant shall be entitled to access to such information and documents as are necessary to enable the

claimant to pursue its claim.

The Supervisory Authority may waive the inviolability and immunity conferred by paragraph

Chapter VII

Liability of the Registrar

Article 28 — Liability and financial assurances

The Registrar shall be liable for compensatory damages for loss suffered by a person directly

resulting from an error or omission of the Registrar and its officers and employees or from a

malfunction of the international registration system except where the malfunction is caused by an event

of an inevitable and irresistible nature, which could not be prevented by using the best practices in

current use in the field of electronic registry design and operation, including those related to back-up

and systems security and networking.

The Registrar shall not be liable under the preceding paragraph for factual inaccuracy of

registration information received by the Registrar or transmitted by the Registrar in the form in which

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it received that information nor for acts or circumstances for which the Registrar and its officers and

employees are not responsible and arising prior to receipt of registration information at the

International Registry.

Compensation under paragraph 1 may be reduced to the extent that the person who suffered the

damage caused or contributed to that damage.

The Registrar shall procure insurance or a financial guarantee covering the liability referred to

in this Article to the extent determined by the Supervisory Authority, in accordance with the Protocol.

Chapter VIII

Effects of an international interest as against third parties

Article 29 — Priority of competing interests

A registered interest has priority over any other interest subsequently registered and over an

unregistered interest.

The priority of the first-mentioned interest under the preceding paragraph applies:

(a)

even if the first-mentioned interest was acquired or registered with actual knowledge of

the other interest; and

even as regards value given by the holder of the first-mentioned interest with such

knowledge.

(b)

The buyer of an object acquires its interest in it:

(a)

(b)

subject to an interest registered at the time of its acquisition of that interest; and

free from an unregistered interest even if it has actual knowledge of such an interest.

The conditional buyer or lessee acquires its interest in or right over that object:

(a)

subject to an interest registered prior to the registration of the international interest held

by its conditional seller or lessor; and

free from an interest not so registered at that time even if it has actual knowledge of that

interest.

(b)

The priority of competing interests or rights under this Article may be varied by agreement

between the holders of those interests, but an assignee of a subordinated interest is not bound by an

agreement to subordinate that interest unless at the time of the assignment a subordination had been

registered relating to that agreement.

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Any priority given by this Article to an interest in an object extends to proceeds.

This Convention:

(a)

does not affect the rights of a person in an item, other than an object, held prior to its

installation on an object if under the applicable law those rights continue to exist after

the installation; and

does not prevent the creation of rights in an item, other than an object, which has

previously been installed on an object where under the applicable law those rights are

created.

(b)

Article 30 — Effects of insolvency

In insolvency proceedings against the debtor an international interest is effective if prior to the

commencement of the insolvency proceedings that interest was registered in conformity with this

Convention.

Nothing in this Article impairs the effectiveness of an international interest in the insolvency

proceedings where that interest is effective under the applicable law.

Nothing in this Article affects:

(a)

any rules of law applicable in insolvency proceedings relating to the avoidance of a

transaction as a preference or a transfer in fraud of creditors; or

any rules of procedure relating to the enforcement of rights to property which is under

the control or supervision of the insolvency administrator.

(b)

Chapter IX

Assignments of associated rights and international interests;

rights of subrogation

Article 31 — Effects of assignment

Except as otherwise agreed by the parties, an assignment of associated rights made in

conformity with Article 32 also transfers to the assignee:

(a)

(b)

the related international interest; and

all the interests and priorities of the assignor under this Convention.

Nothing in this Convention prevents a partial assignment of the assignor’s associated rights. In

the case of such a partial assignment the assignor and assignee may agree as to their respective rights

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concerning the related international interest assigned under the preceding paragraph but not so as

adversely to affect the debtor without its consent.

Subject to paragraph 4, the applicable law shall determine the defences and rights of set-off

available to the debtor against the assignee.

The debtor may at any time by agreement in writing waive all or any of the defences and rights

of set-off referred to in the preceding paragraph other than defences arising from fraudulent acts on the

part of the assignee.

In the case of an assignment by way of security, the assigned associated rights revest in the

assignor, to the extent that they are still subsisting, when the obligations secured by the assignment

have been discharged.

Article 32 — Formal requirements of assignment

An assignment of associated rights transfers the related international interest only if it:

(a)

(b)

is in writing;

enables the associated rights to be identified under the contract from which they arise;

and

in the case of an assignment by way of security, enables the obligations secured by the

assignment to be determined in accordance with the Protocol but without the need to

state a sum or maximum sum secured.

(c)

An assignment of an international interest created or provided for by a security agreement is

not valid unless some or all related associated rights also are assigned.

This Convention does not apply to an assignment of associated rights which is not effective to

transfer the related international interest.

Article 33 — Debtor’s duty to assignee

To the extent that associated rights and the related international interest have been transferred

in accordance with Articles 31 and 32, the debtor in relation to those rights and that interest is bound

by the assignment and has a duty to make payment or give other performance to the assignee, if but

only if:

(a)

the debtor has been given notice of the assignment in writing by or with the authority of

the assignor; and

the notice identifies the associated rights.

(b)

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Irrespective of any other ground on which payment or performance by the debtor discharges

the latter from liability, payment or performance shall be effective for this purpose if made in

accordance with the preceding paragraph.

Nothing in this Article shall affect the priority of competing assignments.

Article 34 — Default remedies in respect of assignment

by way of security

In the event of default by the assignor under the assignment of associated rights and the related

international interest made by way of security, Articles 8, 9 and 11 to 14 apply in the relations between

the assignor and the assignee (and, in relation to associated rights, apply in so far as those provisions

are capable of application to intangible property) as if references:

(a)

to the secured obligation and the security interest were references to the obligation

secured by the assignment of the associated rights and the related international interest

and the security interest created by that assignment;

to the chargee or creditor and chargor or debtor were references to the assignee and

assignor;

to the holder of the international interest were references to the assignee; and

to the object were references to the assigned associated rights and the related

international interest.

(b)

(c)

(d)

Article 35 — Priority of competing assignments

Where there are competing assignments of associated rights and at least one of the assignments

includes the related international interest and is registered, the provisions of Article 29 apply as if the

references to a registered interest were references to an assignment of the associated rights and the

related registered interest and as if references to a registered or unregistered interest were references to

a registered or unregistered assignment.

Article 30 applies to an assignment of associated rights as if the references to an international

interest were references to an assignment of the associated rights and the related international interest.

Article 36 — Assignee’s priority with respect to associated rights

The assignee of associated rights and the related international interest whose assignment has

been registered only has priority under Article 35(1) over another assignee of the associated rights:

(a)

if the contract under which the associated rights arise states that they are secured by or

associated with the object; and

to the extent that the associated rights are related to an object.

(b)

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For the purposes of sub-paragraph (b) of the preceding paragraph, associated rights are related

to an object only to the extent that they consist of rights to payment or performance that relate to:

(a)

(b)

a sum advanced and utilised for the purchase of the object;

a sum advanced and utilised for the purchase of another object in which the assignor

held another international interest if the assignor transferred that interest to the assignee

and the assignment has been registered;

the price payable for the object;

the rentals payable in respect of the object; or

other obligations arising from a transaction referred to in any of the preceding

subparagraphs.

(c)

(d)

(e)

In all other cases, the priority of the competing assignments of the associated rights shall be

determined by the applicable law.

Article 37 — Effects of assignor’s insolvency

The provisions of Article 30 apply to insolvency proceedings against the assignor as if references to the

debtor were references to the assignor.

Article 38 — Subrogation

Subject to paragraph 2, nothing in this Convention affects the acquisition of associated rights

and the related international interest by legal or contractual subrogation under the applicable law.

The priority between any interest within the preceding paragraph and a competing interest may

be varied by agreement in writing between the holders of the respective interests but an assignee of a

subordinated interest is not bound by an agreement to subordinate that interest unless at the time of the

assignment a subordination had been registered relating to that agreement.

Chapter X

Rights or interests subject to declarations by Contracting States

Article 39 — Rights having priority without registration

A Contracting State may at any time, in a declaration deposited with the Depositary of the

Protocol declare, generally or specifically:

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(a)

those categories of non-consensual right or interest (other than a right or interest to

which Article 40 applies) which under that State’s law have priority over an interest in

an object equivalent to that of the holder of a registered international interest and which

shall have priority over a registered international interest, whether in or outside

insolvency proceedings; and

that nothing in this Convention shall affect the right of a State or State entity,

intergovernmental organisation or other private provider of public services to arrest or

detain an object under the laws of that State for payment of amounts owed to such entity,

organisation or provider directly relating to those services in respect of that object or

another object.

(b)

A declaration made under the preceding paragraph may be expressed to cover categories that

are created after the deposit of that declaration.

A non-consensual right or interest has priority over an international interest if and only if the

former is of a category covered by a declaration deposited prior to the registration of the international

interest.

Notwithstanding the preceding paragraph, a Contracting State may, at the time of ratification,

acceptance, approval of, or accession to the Protocol, declare that a right or interest of a category

covered by a declaration made under sub-paragraph (a) of paragraph 1 shall have priority over an

international interest registered prior to the date of such ratification, acceptance, approval or accession.

Article 40 — Registrable non-consensual rights or interests

A Contracting State may at any time in a declaration deposited with the Depositary of the Protocol list

the categories of non-consensual right or interest which shall be registrable under this Convention as

regards any category of object as if the right or interest were an international interest and shall be

regulated accordingly. Such a declaration may be modified from time to time.

Chapter XI

Application of the Convention to sales

Article 41 — Sale and prospective sale

This Convention shall apply to the sale or prospective sale of an object as provided for in the Protocol

with any modifications therein.

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Chapter XII

Jurisdiction

Article 42 — Choice of forum

Subject to Articles 43 and 44, the courts of a Contracting State chosen by the parties to a

transaction have jurisdiction in respect of any claim brought under this Convention, whether or not the

chosen forum has a connection with the parties or the transaction. Such jurisdiction shall be exclusive

unless otherwise agreed between the parties.

Any such agreement shall be in writing or otherwise concluded in accordance with the formal

requirements of the law of the chosen forum.

Article 43 — Jurisdiction under Article 13

The courts of a Contracting State chosen by the parties and the courts of the Contracting State

on the territory of which the object is situated have jurisdiction to grant relief under Article 13(1)(a),

(b), (c) and Article 13(4) in respect of that object.

Jurisdiction to grant relief under Article 13(1)(d) or other interim relief by virtue of Article

13(4) may be exercised either:

(a)

(b)

by the courts chosen by the parties; or

by the courts of a Contracting State on the territory of which the debtor is situated, being

relief which, by the terms of the order granting it, is enforceable only in the territory of

that Contracting State.

A court has jurisdiction under the preceding paragraphs even if the final determination of the

claim referred to in Article 13(1) will or may take place in a court of another Contracting State or by

arbitration.

Article 44 — Jurisdiction to make orders

against the Registrar

The courts of the place in which the Registrar has its centre of administration shall have

exclusive jurisdiction to award damages or make orders against the Registrar.

Where a person fails to respond to a demand made under Article 25 and that person has ceased

to exist or cannot be found for the purpose of enabling an order to be made against it requiring it to

procure discharge of the registration, the courts referred to in the preceding paragraph shall have

exclusive jurisdiction, on the application of the debtor or intending debtor, to make an order directed to

the Registrar requiring the Registrar to discharge the registration.

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Where a person fails to comply with an order of a court having jurisdiction under this

Convention or, in the case of a national interest, an order of a court of competent jurisdiction requiring

that person to procure the amendment or discharge of a registration, the courts referred to in paragraph

1 may direct the Registrar to take such steps as will give effect to that order.

Except as otherwise provided by the preceding paragraphs, no court may make orders or give

judgments or rulings against or purporting to bind the Registrar.

Article 45 — Jurisdiction in respect of insolvency proceedings

The provisions of this Chapter are not applicable to insolvency proceedings.

Chapter XIII

Relationship with other Conventions

Article 45

bis

— Relationship with the

United Nations Convention on the

Assignment of Receivables in International Trade

This Convention shall prevail over the

United Nations Convention on the Assignment of Receivables in

International Trade,

opened for signature in New York on 12 December 2001, as it relates to the

assignment of receivables which are associated rights related to international interests in aircraft

objects, railway rolling stock and space assets.

Article 46 — Relationship with the

NIDROIT

Convention

on International Financial Leasing

The Protocol may determine the relationship between this Convention and the

NIDROIT

Convention

on International Financial Leasing,

signed at Ottawa on 28 May 1988.

Chapter XIV

Final provisions

Article 47 — Signature, ratification, acceptance, approval or accession

This Convention shall be open for signature in Cape Town on 16 November 2001 by States

participating in the Diplomatic Conference to Adopt a Mobile Equipment Convention and an Aircraft

Protocol held at Cape Town from 29 October to 16 November 2001. After 16 November 2001, the

Convention shall be open to all States for signature at the Headquarters of the International Institute for

the Unification of Private Law (U

NIDROIT

) in Rome until it enters into force in accordance with Article

49.

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This Convention shall be subject to ratification, acceptance or approval by States which have

signed it.

Any State which does not sign this Convention may accede to it at any time.

Ratification, acceptance, approval or accession is effected by the deposit of a formal instrument

to that effect with the Depositary.

Article 48 — Regional Economic Integration Organisations

A Regional Economic Integration Organisation which is constituted by sovereign States and

has competence over certain matters governed by this Convention may similarly sign, accept, approve

or accede to this Convention. The Regional Economic Integration Organisation shall in that case have

the rights and obligations of a Contracting State, to the extent that that Organisation has competence

over matters governed by this Convention. Where the number of Contracting States is relevant in this

Convention, the Regional Economic Integration Organisation shall not count as a Contracting State in

addition to its Member States which are Contracting States.

The Regional Economic Integration Organisation shall, at the time of signature, acceptance,

approval or accession, make a declaration to the Depositary specifying the matters governed by this

Convention in respect of which competence has been transferred to that Organisation by its Member

States. The Regional Economic Integration Organisation shall promptly notify the Depositary of any

changes to the distribution of competence, including new transfers of competence, specified in the

declaration under this paragraph.

Any reference to a “Contracting State” or “Contracting States” or “State Party” or “States

Parties” in this Convention applies equally to a Regional Economic Integration Organisation where the

context so requires.

Article 49 — Entry into force

This Convention enters into force on the first day of the month following the expiration of

three months after the date of the deposit of the third instrument of ratification, acceptance, approval or

accession but only as regards a category of objects to which a Protocol applies:

(a)

(b)

(c)

as from the time of entry into force of that Protocol;

subject to the terms of that Protocol; and

as between States Parties to this Convention and that Protocol.

For other States this Convention enters into force on the first day of the month following the

expiration of three months after the date of the deposit of their instrument of ratification, acceptance,

approval or accession but only as regards a category of objects to which a Protocol applies and subject,

in relation to such Protocol, to the requirements of sub-paragraphs (a), (b) and (c) of the preceding

paragraph.

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Article 50 — Internal transactions

A Contracting State may, at the time of ratification, acceptance, approval of, or accession to the

Protocol, declare that this Convention shall not apply to a transaction which is an internal transaction in

relation to that State with regard to all types of objects or some of them.

Notwithstanding the preceding paragraph, the provisions of Articles 8(4), 9(1), 16, Chapter V,

Article 29, and any provisions of this Convention relating to registered interests shall apply to an

internal transaction.

Where notice of a national interest has been registered in the International Registry, the priority

of the holder of that interest under Article 29 shall not be affected by the fact that such interest has

become vested in another person by assignment or subrogation under the applicable law.

Article 51 — Future Protocols

The Depositary may create working groups, in co-operation with such relevant non-

governmental organisations as the Depositary considers appropriate, to assess the feasibility of

extending the application of this Convention, through one or more Protocols, to objects of any category

of high-value mobile equipment, other than a category referred to in Article 2(3), each member of

which is uniquely identifiable, and associated rights relating to such objects.

The Depositary shall communicate the text of any preliminary draft Protocol relating to a

category of objects prepared by such a working group to all States Parties to this Convention, all

member States of the Depositary, member States of the United Nations which are not members of the

Depositary and the relevant intergovernmental organisations, and shall invite such States and

organisations to participate in intergovernmental negotiations for the completion of a draft Protocol on

the basis of such a preliminary draft Protocol.

The Depositary shall also communicate the text of any preliminary draft Protocol prepared by

such a working group to such relevant non-governmental organisations as the Depositary considers

appropriate. Such non-governmental organisations shall be invited promptly to submit comments on

the text of the preliminary draft Protocol to the Depositary and to participate as observers in the

preparation of a draft Protocol.

When the competent bodies of the Depositary adjudge such a draft Protocol ripe for adoption,

the Depositary shall convene a diplomatic conference for its adoption.

Once such a Protocol has been adopted, subject to paragraph 6, this Convention shall apply to

the category of objects covered thereby.

Article 45

bis

of this Convention applies to such a Protocol only if specifically provided for in

that Protocol.

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Article 52 — Territorial units

If a Contracting State has territorial units in which different systems of law are applicable in

relation to the matters dealt with in this Convention, it may, at the time of ratification, acceptance,

approval or accession, declare that this Convention is to extend to all its territorial units or only to one

or more of them and may modify its declaration by submitting another declaration at any time.

Any such declaration shall state expressly the territorial units to which this Convention applies.

If a Contracting State has not made any declaration under paragraph 1, this Convention shall

apply to all territorial units of that State.

Where a Contracting State extends this Convention to one or more of its territorial units,

declarations permitted under this Convention may be made in respect of each such territorial unit, and

the declarations made in respect of one territorial unit may be different from those made in respect of

another territorial unit.

If by virtue of a declaration under paragraph 1, this Convention extends to one or more

territorial units of a Contracting State:

(a)

the debtor is considered to be situated in a Contracting State only if it is incorporated or

formed under a law in force in a territorial unit to which this Convention applies or if it

has its registered office or statutory seat, centre of administration, place of business or

habitual residence in a territorial unit to which this Convention applies;

any reference to the location of the object in a Contracting State refers to the location of

the object in a territorial unit to which this Convention applies; and

any reference to the administrative authorities in that Contracting State shall be

construed as referring to the administrative authorities having jurisdiction in a territorial

unit to which this Convention applies.

(b)

(c)

Article 53 — Determination of courts

A Contracting State may, at the time of ratification, acceptance, approval of, or accession to the

Protocol, declare the relevant “court” or “courts” for the purposes of Article 1 and Chapter XII of this

Convention.

Article 54 — Declarations regarding remedies

A Contracting State may, at the time of ratification, acceptance, approval of, or accession to the

Protocol, declare that while the charged object is situated within, or controlled from its territory the

chargee shall not grant a lease of the object in that territory.

A Contracting State shall, at the time of ratification, acceptance, approval of, or accession to

the Protocol, declare whether or not any remedy available to the creditor under any provision of this

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Convention which is not there expressed to require application to the court may be exercised only with

leave of the court.

Article 55 — Declarations regarding relief

pending final determination

A Contracting State may, at the time of ratification, acceptance, approval of, or accession to the

Protocol, declare that it will not apply the provisions of Article 13 or Article 43, or both, wholly or in

part. The declaration shall specify under which conditions the relevant Article will be applied, in case it

will be applied partly, or otherwise which other forms of interim relief will be applied.

Article 56 — Reservations and declarations

No reservations may be made to this Convention but declarations authorised by Articles 39, 40,

50, 52, 53, 54, 55, 57, 58 and 60 may be made in accordance with these provisions.

Any declaration or subsequent declaration or any withdrawal of a declaration made under this

Convention shall be notified in writing to the Depositary.

Article 57 — Subsequent declarations

A State Party may make a subsequent declaration, other than a declaration authorised under

Article 60, at any time after the date on which this Convention has entered into force for it, by

notifying the Depositary to that effect.

Any such subsequent declaration shall take effect on the first day of the month following the

expiration of six months after the date of receipt of the notification by the Depositary. Where a longer

period for that declaration to take effect is specified in the notification, it shall take effect upon the

expiration of such longer period after receipt of the notification by the Depositary.

Notwithstanding the previous paragraphs, this Convention shall continue to apply, as if no such

subsequent declarations had been made, in respect of all rights and interests arising prior to the

effective date of any such subsequent declaration.

Article 58 — Withdrawal of declarations

Any State Party having made a declaration under this Convention, other than a declaration

authorised under Article 60, may withdraw it at any time by notifying the Depositary. Such withdrawal

is to take effect on the first day of the month following the expiration of six months after the date of

receipt of the notification by the Depositary.

Notwithstanding the previous paragraph, this Convention shall continue to apply, as if no such

withdrawal of declaration had been made, in respect of all rights and interests arising prior to the

effective date of any such withdrawal.

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Article 59 — Denunciations

Any State Party may denounce this Convention by notification in writing to the Depositary.

Any such denunciation shall take effect on the first day of the month following the expiration

of twelve months after the date on which notification is received by the Depositary.

Notwithstanding the previous paragraphs, this Convention shall continue to apply, as if no such

denunciation had been made, in respect of all rights and interests arising prior to the effective date of

any such denunciation.

Article 60 — Transitional provisions

Unless otherwise declared by a Contracting State at any time, the Convention does not apply to

a pre-existing right or interest, which retains the priority it enjoyed under the applicable law before the

effective date of this Convention.

For the purposes of Article 1(v) and of determining priority under this Convention:

(a)

“effective date of this Convention” means in relation to a debtor the time when this

Convention enters into force or the time when the State in which the debtor is situated

becomes a Contracting State, whichever is the later; and

the debtor is situated in a State where it has its centre of administration or, if it has no

centre of administration, its place of business or, if it has more than one place of

business, its principal place of business or, if it has no place of business, its habitual

residence.

(b)

A Contracting State may in its declaration under paragraph 1 specify a date, not earlier than

three years after the date on which the declaration becomes effective, when this Convention and the

Protocol will become applicable, for the purpose of determining priority, including the protection of

any existing priority, to pre-existing rights or interests arising under an agreement made at a time when

the debtor was situated in a State referred to in sub-paragraph (b) of the preceding paragraph but only

to the extent and in the manner specified in its declaration.

Article 61 — Review Conferences, amendments and related matters

The Depositary shall prepare reports yearly or at such other time as the circumstances may

require for the States Parties as to the manner in which the international regimen established in this

Convention has operated in practice. In preparing such reports, the Depositary shall take into account

the reports of the Supervisory Authority concerning the functioning of the international registration

system.

At the request of not less than twenty-five per cent of the States Parties, Review Conferences

of States Parties shall be convened from time to time by the Depositary, in consultation with the

Supervisory Authority, to consider:

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(a)

the practical operation of this Convention and its effectiveness in facilitating the asset-

based financing and leasing of the objects covered by its terms;

the judicial interpretation given to, and the application made of the terms of this

Convention and the regulations;

the functioning of the international registration system, the performance of the Registrar

and its oversight by the Supervisory Authority, taking into account the reports of the

Supervisory Authority; and

whether any modifications to this Convention or the arrangements relating to the

International Registry are desirable.

(b)

(c)

(d)

Subject to paragraph 4, any amendment to this Convention shall be approved by at least a two-

thirds majority of States Parties participating in the Conference referred to in the preceding paragraph

and shall then enter into force in respect of States which have ratified, accepted or approved such

amendment when ratified, accepted, or approved by three States in accordance with the provisions of

Article 49 relating to its entry into force.

Where the proposed amendment to this Convention is intended to apply to more than one

category of equipment, such amendment shall also be approved by at least a two-thirds majority of

States Parties to each Protocol that are participating in the Conference referred to in paragraph 2.

Article 62 — Depositary and its functions

Instruments of ratification, acceptance, approval or accession shall be deposited with the

International Institute for the Unification of Private Law (U

NIDROIT

), which is hereby designated the

Depositary.

The Depositary shall:

(a)

inform all Contracting States of:

(i)

each new signature or deposit of an instrument of ratification, acceptance,

approval or accession, together with the date thereof;

the date of entry into force of this Convention;

each declaration made in accordance with this Convention, together with the date

thereof;

the withdrawal or amendment of any declaration, together with the date thereof;

and

the notification of any denunciation of this Convention together with the date

thereof and the date on which it takes effect;

(ii)

(iii)

(iv)

(v)

(b)

transmit certified true copies of this Convention to all Contracting States;

REU, Alm.del - 2014-15 (1. samling) - Bilag 138: Udkast til forslag til lov om internationale sikkerhedsrettigheder i flymateriel sendt i høring, fra justitsministeren

(c)

provide the Supervisory Authority and the Registrar with a copy of each instrument of

ratification, acceptance, approval or accession, together with the date of deposit thereof,

of each declaration or withdrawal or amendment of a declaration and of each notification

of denunciation, together with the date of notification thereof, so that the information

contained therein is easily and fully available; and

perform such other functions customary for depositaries.

(d)

IN WITNESS WHEREOF the undersigned Plenipotentiaries, having been duly authorised, have signed

this Convention.

DONE at Cape Town, this sixteenth day of November, two thousand and one, in a single original in the

English, Arabic, Chinese, French, Russian and Spanish languages, all texts being equally authentic,

such authenticity to take effect upon verification by the Joint Secretariat of the Conference under the

authority of the President of the Conference within ninety days hereof as to the conformity of the texts

with one another.