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Legal Issues Framework. General Aviation: The Next Steps Indo-American Chamber of Commerce Seminar PHD House, March 6, 2013, New Delhi. Ravi NATH RNC legal / Rajinder Narain & Co. t: + 91 11 4122 5000 f: + 91 11 4122 5001 c: + 91 98110 27193 e: ravi.nath@rnclegal.com. - PowerPoint PPT Presentation

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  • Legal Issues Framework

    Ravi NATH

    RNClegal/ Rajinder Narain & Co. t: + 91 11 4122 5000 f: + 91 11 4122 5001c: + 91 98110 27193e: ravi.nath@rnclegal.comGeneral Aviation: The Next Steps Indo-American Chamber of Commerce Seminar PHD House, March 6, 2013, New Delhi

  • Indian Aviation Market

    Duopoly

    Ravi NATH / rnclegal.com189 Aircraft181 Aircraft (As per DGCA website)

  • Other ManufacturersRavi NATH / rnclegal.com

  • Legislative Framework

    Aircraft Act, 1934

    Aircraft Rules, 1937

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

    Bilateral Treaties

    Ravi NATH / rnclegal.com

  • Regulator and Other Authorities

    DGCA

    Registration Aircraft Register.

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

    AAI

    Customs

    Ravi NATH / rnclegal.com

  • 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

    Ravi NATH / rnclegal.com

  • FDIRavi NATH / rnclegal.com

  • FDIEquity 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 ??? !!!

    Ravi NATH / rnclegal.com

  • Aviation Finance and Leasing

    Purchase / Financing options

    Leases

    Wet or Dry

    Operating Leases/ Finance Leases/ Hire Purchases

    RBI Permission ?Ravi NATH / rnclegal.com

  • Owners/ Lessors and Security Interest Holder IssuesEnforcement of Foreign Decrees&Arbitral AwardsDeregistration & RepossessionChoice of Jurisdiction&Choice of LawRavi NATH / rnclegal.com

  • Enforcement of Foreign DecreesFrom Higher Courts of Reciprocating Territories

    Section 13, CPC

    Section 44A , CPC

    From Non-Reciprocating Territories

    Suit based on the foreign judgment/ decree.

    Implications?

    Ravi NATH / rnclegal.com

  • Arbitral Award EnforcementForeign 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.

    Ravi NATH / rnclegal.com

  • Deregistration

    Bureaucracy -DGCA issues Consent of the Indian Lessee

    Role of IDERA / DPoA

    Liens - AAI / Mechanics Lien: Rights?

    Taxes - Service and other taxes : Rights?

    Recent Experience DVB et al.

    Ravi NATH / rnclegal.com

  • Cape Town ConventionRatified 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.

    Ravi NATH / rnclegal.com

  • 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. Ravi NATH / rnclegal.com

  • Q & A

    Ravi NATH / rnclegal.com

    20th September, 2012.*Jurisdictional ClausesExclusive or non-exclusive jurisdiction of US Courts.Such jurisdictional clauses do not fall foul of Section 28 of the Indian Contract Act. Courts enforce parties choice of lawEnglish and New York law - fairly common

    *Where the concerned Court in India is satisfied that such a foreign award is enforceable under the Act, the award is deemed to be a decree of that Court and enforceable as such. The Courts will not revisit the issues involved in the arbitration or sit as a Court of appeal.

    Sections 48 and 57 of the Arbitration and Conciliation Act, 1996 lay down the conditions for the enforcement of foreign awards under the New York and Geneva Convention respectively.

    *DVB has filed a writ petition against DGCA for its inaction in respect of deregistering the aircraft leased to Kingfisher (KFA).The possession of both the Aircraft has returned to DVB but they remain on the Indian register.Since they remain on the India register the aircraft cannot be returned to a serviceable condition and used or be leased out again.

    *(as of February 19th, 2013)*