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There are some commonalities between the aviation and rail industries, but there are also important differences deriving both from the divergent domestic rules, and applicable private international law, as well as from the varying characteristics of the equipment being financed. Consequently there are also legal differences between the Aircraft Protocol and the Luxembourg Rail Protocol) and practical differences in the way the two protocols are applied.
Amongst the key legal considerations are the additional options available to a contracting state when weighing creditor and debtor rights on debtor insolvency, the specific, but highly restricted, public service limitation on creditor repossession rights and the treatment of pre-existing interests.
On the practical side, the Luxembourg Rail Protocol has had to deal with the absence of any globally recognised system for determining what constitutes railway rolling stock and its identification as well as the general lack of any national railway rolling stock registries recording ownership or secured creditor rights, searchable against the respective assets.
As a result in most jurisdictions the Luxembourg Rail Protocol will not just be upgrading a system for recording, prioritising and enforcing security interests because in most cases it will actually be creating the system. When in force it will transform the rail industry by fundamentally and irrevocably changing the way railway rolling stock is financed in the coming decades.
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- The Luxembourg Rail Protocol to the Cape Town Convention: Some Practical Differences from the Aviation Protocol
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