The regulation of security interests over Maltese aircraft and the legal challenges encountered following Malta’s accession to the Cape Town Convention and the Aircraft Protocol

Abstract

This thesis concerns the regulation of security interests over aircraft in light of the new legislative developments by virtue of the Aircraft Registration Act (Hereinafter referred to as 'ARA'), pursuant to Malta's accession to the Cape Town Convention and Aircraft Protocol (Hereinafter referred to as 'CTC' and 'AP' respectively). In carrying out such study, the various legal challenges encountered by Malta following such accession are highlighted and examined. The first Chapter provides a general introduction to the subject, analysing the subject-matter of a security interest in terms of the ARA and defining the legal nature and essential elements of the various security interests over aircraft. Chapter two consists of an in-depth study of the creation and registration of mortgages in the National Aircraft Register, as well as the special privileges arising over aircraft under the ARA. The third Chapter examines the provisions of the CTC and AP as incorporated into national law by virtue of the First Schedule to the ARA. Both Chapters two and three aim at obtaining a proper understanding of security interests over aircraft in terms of their effects and the chain of rights and duties they establish. Throughout these chapters, the various challenges and conflicting issues that Malta faced upon accession to the CTC and AP are examined and the regulation of the co-existence of the 'domestic' and 'Cape Town' systems of security is discussed. Chapter four examines the declarations lodged by the European Community and subsequently by Malta in acceding to the CTC and AP. In chapter five, the various amendments made to ancillary laws in order to effectively implement the provisions of the CTC and AP into domestic law are discussed, focusing on the Civil Code and the Code of Organisation and Civil Procedure. Both Chapters four and five analyse the manner in which the challenge of implementing these international instruments was overcome by making the right choices and effecting the necessary amendments 4 to Maltese law in order to create a sound foundation for the operation of the CTC and AP in Malta. In conclusion, all the topics discussed in the various chapters are brought together, focussing on the innovative features introduced into Maltese law as well as the mechanisms adopted to regulate the 'marriage' of the domestic and international legal regimes. The conclusion highlights the suggestions and amendments to the ARA proposed by the author throughout the thesis in order to achieve greater consistency with the international legal regime established by the CTC and AP and to increase clarity and predictability for all parties concerned in aviation financing transactions involving Malta.