Download - Legal Issues Framework

Legal Issues Framework

Ravi NATHRavi NATH

RNCRNClegal/ legal/ Rajinder Narain & Co.Rajinder Narain & Co. t: + 91 11 4122 5000t: + 91 11 4122 5000 f: + 91 11 4122 5001f: + 91 11 4122 5001c: + 91 98110 27193c: + 91 98110 27193

e: e: [email protected]@rnclegal.com

General Aviation: The Next Steps

Indo-American Chamber of Commerce Seminar

PHD House, March 6, 2013, New Delhi

Indian Aviation Market

Duopoly

Ravi NATH / rnclegal.com

189 Aircraft

181 Aircraft (As per DGCA website)

Other Manufacturers


Legislative Framework

• Aircraft Act, 1934

• Aircraft Rules, 1937

• Civil Aviation Requirements (CAR) & Aeronautical Information Circulars (AIC)

• Bilateral Treaties


Regulator and Other Authorities

DGCA

Registration – Aircraft Register.

Does not establish legal ownership. Raises presumption of ownership and Security Interest.

AAI

Customs


Indo-US Agreements

The International Air Transport Agreement, 1944 – Fifth Freedom Agreement

Air Transport Agreement 2005 (‘Open Skies’)

Bilateral Aviation Safety Agreement

India-US Aviation Cooperation Program

Indo-US DTAA


FDI


FDI

Equity investments by foreign airlines up to 49%.

Only through ‘Approval Route’.

Chairman and two-thirds of the Directors must be citizens.

Deals: Jet-Etihad / AirAsia-TATA

Kingfisher ??? !!!


Aviation Finance and Leasing

Purchase / Financing options

Leases

Wet or Dry

Operating Leases/ Finance Leases/ Hire Purchases

− RBI Permission ?


Owners/ Lessors and Security Interest Holder Issues

Enforcement of Foreign Decrees

&

Arbitral Awards

Deregistration & Repossession

Choice of Jurisdiction

&

Choice of Law


Enforcement of Foreign Decrees

From Higher Courts of Reciprocating Territories

Section 13, CPC

Section 44A , CPC

From Non-Reciprocating Territories

Suit based on the foreign judgment/ decree.

Implications?


Arbitral Award Enforcement Foreign awards under New York and Geneva Conventions enforceable

(Part II of Arbitration and Conciliation Act, 1996.)

Enforcement can be refused if, for e.g.:

Parties under incapacity, Arbitration Agreement invalid.Improper notice of Arbitrator appointment/ Arbitral

proceedings improper. Arbitration not conducted in accordance with the

Agreement or Governing Law.Party otherwise unable to present its case.

Award on matter beyond scope of Arbitration Agreement.Subject not arbitral under Indian Law.Award set aside/ suspended by competent authority.Public policy.


Deregistration

Bureaucracy - DGCA issues Consent of the Indian Lessee

Role of IDERA / DPoA

Liens - AAI / Mechanic’s Lien: Rights?

Taxes - Service and other taxes : Rights?

Recent Experience – DVB et al.


Cape Town Convention

Ratified by India in 2008. Ratified by 56 countries.

Registration of International Interest, Remedies for Default, Repossession, IDERA

Aviation Authorities are enjoined to act in accordance with the holders of IDERAs without the necessity of a Court Order.

But no underpinning Legislation in India. Therefore, conflicts arise.


Treaty Conflicts

Self-help – Art. 8 - ???

Speedy Relief – Art. 13 - ???

Registration of Charges at IR and the ROC under Section 125 of the Companies Act.


Q & A


Download - Legal Issues Framework

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