Whether there will be any VAT payable on the sale of an aircraft is determined by the physical location of the aircraft at the point of sale. If the aircraft is physically located in Ireland at the time of sale, the place of supply for Irish VAT purposes will be Ireland. As a result, the seller will be liable for any Irish VAT chargeable on the supply, at 23%. However, if the aircraft will be used outside the EU or by a transport undertaking operating for reward chiefly on international routes, Irish VAT will apply at 0%. The seller will be obliged to be registered for VAT in Ireland, regardless of whether the 0% or 23% rate applies.
Irish stamp duty legislation provides an exemption in respect of the lease, transfer and sale of an aircraft, regardless of where the aircraft is located at the time of sale.
No customs duty will be charged on the transfer of title of the aircraft where the aircraft is on the ground in Ireland and in free circulation in the EU.
Customs duties will only apply on the importation of an aircraft into Ireland from outside the EU, or on the release of an aircraft in Ireland in circumstances where the aircraft is coming off a duty-suspended procedure such as transit or inward processing.
As a matter of Irish law, translation, certification, notarisation or legalisation is not required for the enforceability of a sale agreement against an Irish party.
Transfer of title is legally effected upon delivery of the bill of sale, which will usually include engines installed on the airframe and installed parts on its face, but does not set out the entire commercial agreement between the parties, which is usually set out in the aircraft sale and purchase agreement.
If an aircraft registered in Ireland has a new owner, a change of ownership form should be filled in and lodged with the Irish Aviation Authority (IAA); a new Registration Certificate will be issued to the new owner upon filing the form. The aircraft may not be flown until the Registration Certificate is issued by the IAA in the new entity's name and the certificate is placed on board the aircraft.
The sale of the ownership interest in an entity that owns an aircraft or engine is effectively recognised as the sale of that aircraft or engine itself, to the extent that the entity to whom the ownership interest is being transferred holds title to the aircraft or engine.
There is no formal legal requirement under Irish law that a bill of sale needs to be governed by Irish law. See 2.6.5 Domestic Courts' Approach to Foreign Laws and Judgments.
Generally, the transaction documents used in aircraft sale transactions (including bills of sale) are well-established forms and do not present a difficulty from an Irish legal perspective.
As a matter of Irish law, translation, certification, notarisation or legalisation is not required for the enforceability of a bill of sale against an Irish party.
A bill of sale cannot be registered with the IAA or any Irish government entity. No government applications or consents are prerequisite to the execution and delivery of a bill of sale in relation to an aircraft or engine registered in Ireland. See also 1.2.2 Sales Governed by English or New York Law.
VAT payable on the sale of an aircraft will depend on the physical location of the aircraft at the point of sale. If the aircraft is physically located in Ireland at the time of sale, the place of supply for Irish VAT purposes will be Ireland. As a result, the seller will be liable for any Irish VAT chargeable on the supply, at 23%. However, if the aircraft will be used outside the EU or by a transport undertaking operating for reward chiefly on international routes, Irish VAT will apply at 0%. The seller will be obliged to be registered for VAT in Ireland, regardless of whether the 0% or 23% rate applies.
Irish stamp-duty legislation provides an exemption in respect of the transfer and sale of an aircraft, regardless of where the aircraft is located at the time of sale.
Historically, the Irish Revenue Commissioners (Irish Revenue) had extended by concession the stamp-duty exemption in respect of the lease, transfer or sale of an aircraft also to apply to the sale or transfer of shares in an aircraft-owning entity (AOE). The current position regarding the transfer of shares in an AOE is that this concessionary treatment does not apply and stamp duty on the sale of shares in an Irish AOE is therefore payable at a rate of 1% (subject to any available reliefs). The duty applies on the market value of the shares or the consideration paid, whichever is higher. Irish stamp duty does not apply to the transfer of shares where the consideration payable for such shares is EUR1,000 or less.
No customs duty will be charged on the transfer of title of an aircraft where the aircraft is on the ground in Ireland and in free circulation in the EU.
Customs duties will only apply on the importation of an aircraft into Ireland from outside the EU, or on the release of an aircraft in Ireland in circumstances where the aircraft is coming off a duty-suspended procedure such as transit or inward processing.
Subject to the general legal principles of contract law, there are no types of operating/wet/finance leases or leases concerning only engines or parts that are not permissible or recognised in Ireland, as far as is known.
A lease involving either a domestic party or an asset situated in Ireland can be governed by a foreign law – see 2.6.5 Domestic Courts' Approach to Foreign Laws and Judgments.
No material restrictions are imposed on domestic lessees making rent payments to foreign lessors in US dollars.
Since 1 January 1993, there have been no foreign exchange controls in Ireland. With the removal of exchange controls, the Financial Transfers Act, 1992 has given the Minister for Finance reserve powers to introduce restrictions on financial transfers between the state and other countries in the form of regulations and prohibition orders.
No taxes/duties are payable for executing a lease physically in Ireland, or as a consequence of an original or copy of a lease being brought into Ireland, either physically or electronically.
A lessor does not have to be licensed or otherwise qualified in order to do business with a domestic lessee.
English or New York law-governed lease agreements (and ancillary documents thereto) generally follow well-established forms and do not present a difficulty from an Irish legal perspective.
Generally permissible from an Irish-law perspective, any such provisions would need to be reviewed on a case-by-case basis, the enforceability of which will depend on the governing law of the lease.
The leasing of spare engines and other parts (including any such parts as may become attached to the aircraft in the future) may be made a part of the aircraft lease. Spare parts may also be the subject of a separate lease. No special formalities are required.
This is a matter for the governing law of the lease. Under Irish law, legal and practical risk can arise when engines become attached to other aircraft in accordance with pooling agreements or if they become subject to encumbrances. Accordingly, the lease will usually provide for such eventualities and may provide for a separate recognition of rights agreement to be entered into in favour of the lessor/owner/security trustee.
The concept of a trust and the role of an owner trustee under a lease are recognised in Ireland.
The purpose of registration is solely to establish the aircraft's nationality, thereby determining which jurisdiction's regulations will apply to the aircraft, and the person who will be responsible for the airworthiness and maintenance of the aircraft. The registration of an aircraft does not establish title to the aircraft, and does not constitute actual notice or constructive notice of ownership.
An aircraft can be registered domestically in the name of the aircraft operator if the operator is not also the owner, or in the name of the owner if the owner is not also the operator.
There is no specific register for leases concerning aircraft or engines. However, if the lease is registrable under the Convention on International Interests in Mobile Equipment and the related Protocol on Matters specific to Aircraft Equipment (together, the “Cape Town Convention”), it can be registered on the International Registry (IR) as an international interest.
A lease (and a lessor’s interest therein) cannot be registered or filed in the domestic aircraft registry, and leases are not subject to consent from any government entity.
As a matter of Irish law, translation, certification, notarisation or legalisation is not required for the enforceability of a bill of sale against an Irish party.
This is not applicable in Ireland.
There are no particular alternative countries in which aircraft habitually based in Ireland are typically registered.
To register an aircraft, a registration form, as found on the IAA website, must be filed, along with supporting evidence as set out in the form. As part of the supporting evidence, an Export Certificate of Airworthiness or EASA Form 52 or an original Certificate of Airworthiness and a valid ARC must be submitted.
A foreign lessor is not required to pay any income or capital gains or other taxes upon leasing an aircraft or engine to a domestic lessee if the foreign lessor and domestic lessee are unconnected third parties. Irish legislation does contain secondary liability provisions that may need to be considered in certain group situations.
A foreign lessor cannot be deemed to be resident, domiciled or subject to any taxes as a result of it being a party to or its enforcement of the lease, provided that it is not otherwise resident in Ireland or does not have a permanent establishment or other taxable presence in Ireland, or, if the lessor is so established in Ireland, that it does not act through a branch or agency in Ireland, or other taxable presence in Ireland, in respect of its acts.
Aircraft or engine maintenance and operations are governed by the contractual provisions of the lease agreement, responsibility for which typically resides with the lessee.
See 2.4.4 Damage or Loss Caused by an Asset and 2.4.6 Priority of Third Parties' Rights.
Under Irish law, the lessor/owner is primarily liable for loss and damage caused by an aircraft to third persons and property, although liability can be passed on to the lessee. As per Section 21(1) of the Air Navigation and Transport Act, 1936, the lessor/owner would be liable as if they were at fault for any material damage or loss caused to any persons or property by an aircraft while in flight, taking off or landing.
The lessor and lessee are independently responsible for their own negligence in relation to the aircraft, both through their acts and through their omissions. Liability for this can be restricted or excluded via contract, but such terms will be subject to reasonableness. It is not possible to restrict or exclude liability for death or personal injury due to negligence.
The lessee may have allowed certain liens to accrue against an aircraft (eg, a possessory lien arising from a third party having worked on the aircraft to improve its condition). See 2.4.6 Priority of Third Parties' Rights.
Under the Irish Air Navigation and Transport Acts, certain third parties are granted a right to detain and, in some cases, to sell an aircraft (or cause it to be forfeited) in certain circumstances, whether or not the aircraft is registered in Ireland. These include, for example, airport charges, air navigation charges, customs duties and unpaid tax.
Other common liens include those that arise in the context of storage, repair, maintenance or other services to aircraft, tax liens and judgment liens. The lessee, usually in breach of the terms of the lease, may have allowed certain liens to accrue against the aircraft – for example, a possessory lien arising from a third party having worked on the aircraft to improve its condition. A lien for the salvage of an aircraft may also arise.
Since liens cannot be registered at the Irish Companies Registration Office (CRO), and since there is no Irish aircraft mortgage register, liens may often arise without the lessor's knowledge.
Laws Governing Detention, Restricted Use and Sale of an Aircraft
Pursuant to the Irish Aviation Authority (Nationality and Registration of Aircraft) Order 2015 and the Air Navigation and Transport Acts, 1936–2005 (as amended), the IAA and Dublin Airport Authority can detain or restrict the use of an aircraft and, if necessary, sell it in certain circumstances – eg, where the aircraft is not in compliance with safety standards, where airport charges have not been paid or if the IAA considers it necessary to secure compliance with statutes and statutory instruments.
Customs officers may detain an aircraft in respect of imported uncleared cargo remaining on board after a stipulated period until certain expenses for the safeguarding and removal of the goods have been paid. In the case of an item liable to forfeiture, any aircraft carrying it may also be liable to forfeiture, and the owner and commander of the aircraft may also be liable to a penalty. The Air Navigation and Transport Act, 1988 makes provision for enforcing the detention of that aircraft by authorised persons. A party who ignores such a detention order will be guilty of a summary offence.
Revenue may seize and sell the aircraft for unpaid taxes owed by the owner.
Pursuant to Section 5 of the Criminal Assets Bureau Act, 1996 (as amended), the Criminal Assets Bureau may confiscate assets identified or suspected as deriving directly or indirectly from criminal conduct.
Pursuant to Section 4 of the Proceeds of Crime Act, 1996 as amended, the Irish High Court may (on application) make a disposal order in respect of property that constitutes directly or indirectly the proceeds of crime.
In an emergency, the IAA can give directions as to the use or possession of an aircraft.
It is not mandatory for all or part of the insurances to be placed with domestic insurance companies.
The EU regulation setting out minimum levels of insurance requires that insurance cover exists for each and every flight, in compliance with the regulations.
Professional underwriters' insurance can be placed outside of Ireland up to 100% coverage.
The general view is that “cut-through” clauses (under which a reinsurer undertakes a direct relationship of indemnity with the original insured under a reinsured policy) are not thought to be effective under Irish law on account of the doctrine of privity and under insolvency law.
Assignments of insurances/reinsurances are permitted.
The Irish courts recognise self-help remedies, and typically recognise and enforce contractual arrangements between parties.
In addition to the self-help remedy under Irish law, the owner will have the remedies available to it under the Cape Town Convention, including taking possession of the aircraft without a court order and deregistering and exporting an aircraft by exercising its rights under an irrevocable deregistration and export request authorisation (IDERA).
However, it should be noted that, in the majority of cases, the aircraft will not be located in Ireland and the lease is likely to be governed by English or New York law. The effectiveness of these actions will therefore be determined by general principles of enforceability under the governing law of the lease and in the jurisdiction in which the aircraft is located.
The termination of a lease should entitle the lessor to seek repossession of the aircraft as a matter of contract without a court order. It is important that the lessor strictly complies with such a procedure, as described in the lease, to take valid possession of the aircraft. If the lessee resists repossession, the lessor can apply to the court for an order of delivery and possession of the aircraft.
The Irish Commercial Court is the forum for the determination of substantial commercial disputes in Ireland, and it has jurisdiction in respect of a claim or counterclaim relating to any business document, contract and dispute where the claim involved is greater than EUR1 million.
The Irish Commercial Court has previously accepted jurisdiction of substantive causes of action in disputes relating to registrations originating entirely outside Ireland under the provisions of the Cape Town Convention. This was given effect in Ireland pursuant to the International Interests in Mobile Equipment (Cape Town Convention) Act, 2005 as in PNC Equipment Finance LLC v Aviareto Limited and Link Aviation LCC (unreported, High Court 17 December 2012) and, more recently, Unicredit Global Leasing Export gmbh v Business Aviation Ltd and another (2019) IEHC 139.
If the lessor wishes to sue the lessee for the debt, this may be done by way of summary summons. Possession cannot be effected by way of summary judgment.
An injunction may be sought from the courts and in an extreme emergency, for example, the aircraft may be taken outside the jurisdiction; this can be done without notice to the other party to the proceedings.
The purpose of the injunction is to require a party to perform (mandatory) or refrain from doing (prohibitory) some act. Injunctive relief is equitable in nature and is a remedy rather than a cause of action. Injunctions are generally sought to protect a person's rights where those rights have been breached or where an imminent breach of those rights can be identified.
If an interim injunction is granted, it will be served on the other party along with the summons, the notice of motion and any affidavits submitted. The notice of motion will fix a date for the hearing of an interlocutory injunction at which both sides will be heard. If it declines to grant an interim injunction, it could grant leave to the applicant to serve notice on the other party of its intention to apply for an interlocutory injunction, and the court may allow a shorter notice of that application than is usual.
The court must be satisfied of a number of elements prior to granting an injunction:
The lessor, like any applicant for injunctive relief, will be required to provide an undertaking and/or security for damages to the court against a wrongful claim.
For disputes within the EU, a choice of law clauses is recognised pursuant to Regulation (EC) 593/2008 (the Rome I Regulation).
For non-EU disputes, the courts will generally recognise and respect choice-of-law clauses under common-law rules.
Limited exceptions to the above general position arise where the courts may refuse to recognise choice-of-law clauses for public policy reasons, or where there are mandatory Irish-law considerations – eg, with respect to consumer-law matters.
For disputes within the EU, choice-of-jurisdiction clauses are recognised under the Brussels I Regulations as transposed into Irish law under the Civil and Commercial Judgments Regulations 2002 and, for disputes in proceedings commenced on or after 10 January 2015, Regulation (EU) 1215/2012 (the Recast Brussels I Regulation) as transposed into Irish law by the Civil and Commercial Judgments Regulations 2015.
Where the dispute involves parties domiciled in countries that are not signatories to the Recast Brussels I Regulation, its predecessor or the Lugano Convention, the common-law rules of "most appropriate forum" apply.
Limited exceptions to this general position arise where the courts may refuse to recognise choice-of-jurisdiction clauses where there are mandatory Irish-law considerations – eg, with respect to consumer-law matters or for public policy reasons.
The means of enforcing a foreign court judgment depend mainly on the country or state that has handed down the judgment, and the nature of the judgment or order.
Judgments of EU Member States
The process of enforcing judgments of EU Member States is governed by one of the following:
Depending on the applicable rules, an application must be made to the Master of the High Court. Once the foreign judgment is recognised, it is considered by the Irish court as if it had been delivered by a court in Ireland, and the usual methods of enforcement can be used.
Other Foreign Judgments
For foreign judgments that fall outside the aforementioned rules, the lessor/mortgagor must issue fresh proceedings in Ireland to enforce the judgment. However, the plaintiff will be able to obtain summary judgment in a new action in Ireland on the grounds the defendant has no defence to the claim if the relevant judgment satisfies the following conditions that it is:
Refusal to Recognise and Enforce a Foreign Judgment
The Irish courts retain discretion to refuse to recognise and enforce a foreign judgment in the following circumstances:
The enforcement of foreign arbitral awards in Ireland is governed by the Arbitration Act, 2010.
A lessor under an aircraft lease can obtain a judgment in a foreign currency.
There are common-law limitations on lessors' actions following termination. For example, a contractual provision conferring or imposing a remedy or an obligation following default may not be enforceable if it was construed by an Irish court as being a penalty, particularly if it involved enforcing an additional pecuniary remedy (such as default or overdue interest) referable to that default. Recovery may be limited by laws requiring mitigation of loss suffered.
On the occurrence of an event of default by the lessee under the lease, the lessor will generally retake possession of the aircraft in accordance with the express terms of the lease. If damages are additionally claimed by the lessor, a summons may also be served.
Where the lessee is not prepared to hand over the aircraft, the lessor will usually seek an injunction in which the Irish court will order the aircraft to be returned to its owner. It is unlikely that such an order will be made at the interlocutory stage; normally, the court would only be prepared to make an order detaining the aircraft pending the trial of the action.
While the actual cost payable to the state for the filing of injunctive papers is not great, the legal costs of the issue of injunctive proceedings can be significant, as the proceedings will most likely be time-sensitive and require a great amount of detail to be set out in the grounding papers.
The procedure for the termination of a lease will be determined by the terms agreed between the parties to that lease.
Whether the lessee is entitled to claim any immunity from suit, execution, attachment or other legal process will depend on its actual identity. If the lessee is a sovereign body or other government organ (whether autonomous or quasi-autonomous), it may be able to claim sovereign immunity.
The New York Convention has force of law in Ireland by virtue of the Arbitration Act, 2010. Assuming the arbitration award of an arbitrator comes within the scope of the New York Convention, subject to the 2010 Act and the terms of the New York Convention, an Irish court would recognise and enforce an arbitral decision without any retrial or examination of the merits of such award, subject to certain exceptions.
There are no issues.
Ireland recognises the concepts of contractual assignment and novation.
Assuming a lessor transferring its rights under an aircraft lease is assigning or novating its rights under that lease to a new lessor pursuant to a New York or English-law governed assignment and assumption agreement or novation agreement (or deed), either agreement (or deed) will be held valid by a domestic court, assuming the assignment and assumption agreement or novation agreements constitute in all respects legal, valid and binding obligations of each party thereto enforceable under all the laws of New York and England. See 2.6.5 Domestic Courts' Approach to Foreign Laws and Judgments.
Lessee consent is not required under domestic law, but it may be required as a matter of contract.
Generally, the transaction documents used in aircraft finance are well-established forms and do not present a difficulty from an Irish legal perspective.
There are no mandatory terms that Irish law requires to be included in that agreement/deed.
Translation might be advisable if the contract was drafted in a language other than English. The absence of translation, certification, notarisation or legalisation will not affect the enforceability of the contract under Irish law.
This is not applicable in Ireland.
No taxes/duties are payable in respect of such an assignment and assumption/novation agreement, or as a consequence of an original or copy of it being brought into Ireland, either physically or electronically.
See 1.2.4 Registration, Filing and/or Consent from Government Entities.
The registered owner can apply for the deregistration of the aircraft. Where an IDERA has been lodged with the IAA, the "authorised party" specified in the IDERA can procure the deregistration of the aircraft.
To deregister (and export) an aircraft, the following are required:
An aircraft owner, mortgagee or lessor can apply for the deregistration of the aircraft without the lessee’s or operator’s consent.
See 2.8.1 Deregistering Aircraft in this Jurisdiction.
Assuming the tasks in 2.8.1 Deregistering Aircraft in this Jurisdiction have been completed to the satisfaction of the IAA, deregistration can be completed by the IAA in a matter of days. If the co-operation of the lessee is not forthcoming, this will result in the deregistration of the aircraft being delayed until such point as the lessor has possession and has completed the required deregistration tasks. Where an IDERA is invoked by an "authorised party" with respect to the deregistration and export of an aircraft, the IAA may not make the deregistration conditional on actions within the control of the lessee, such as returning the original certificate of registration or airworthiness, or changing the aircraft’s transponder codes, etc, as this would frustrate the provisions of the Cape Town Convention.
Interactions with the IAA usually occur prior to the deregistration of the aircraft, and documentation can be pre-positioned with the IAA to the fullest extent possible. See 2.8.1 Deregistering Aircraft in this Jurisdiction.
Where an Export Certificate of Airworthiness is required, the applicant should submit the prescribed fee, which is governed by Irish legislation (Irish Aviation Authority (Fees) Order, 2015) and calculated by reference to the weight of the aircraft. The rates charged can be found under the registration fees section of the IAA website at https://www.iaa.ie/commercial-aviation/registration-fees-1.
The IAA will not record a deregistration power of attorney (DPOA). The filing and recording of an IDERA has largely replaced transaction-specific deregistration powers of attorney where the aircraft is registered in Ireland. A DPOA does not need to be translated, certified, notarised, legalised or lodged in advance.
See 2.8.7 Deregistration Power of Attorney.
A DPOA does not have to be governed by the laws of Ireland.
If the DPOA is expressed to be irrevocable and granted to secure an obligation, the grantor should not in practice be able to revoke it until the secured obligations have been discharged.
See 2.8.1 Deregistering Aircraft in this Jurisdiction, noting that lessee consent is not required.
Where the owner is not the registered owner of the aircraft or where there is a mortgagee, at the time of negotiating the lease a requirement should be included in the lease that an IDERA should be executed by the entity listed as registered owner with the IAA. As long as the IDERA is in effect, the “authorised party” can make a request to the IAA to deregister the aircraft, pursuant to the provisions of Article 15 of the Consolidated Text. Provision should also be made for the payment of a "security deposit" by the lessee to cover any fees, costs or expenses associated with a breach of the lease agreement by the lessee.
The aircraft does not need to be located in Ireland at the time of deregistration and/or export. To take an aircraft outside Ireland, an Export Certificate of Airworthiness in respect of Aircraft may be required from the IAA.
See 2.8.1 Deregistering Aircraft in this Jurisdiction and 2.8.6 Costs, Fees and Taxes Relating to Deregistration, noting that an export permit/licence is not issued by the IAA.
See 2.8.6 Costs, Fees and Taxes Relating to Deregistration. The 0% rate of VAT applies to the supply of an aircraft transported directly by or on behalf of the seller to a destination outside the EU, and to the supply of an aircraft that is dispatched or transported directly outside the EU by or on behalf of the purchaser where that purchaser is established outside Ireland.
See 2.8.1 Deregistering Aircraft in this Jurisdiction.
The governing piece of legislation in Ireland applicable to corporate restructurings and insolvencies is the Companies Act 2014 (the Companies Act).
The principal procedures set out in the Companies Act are examinership (a corporate rescue or restructuring procedure, liquidation (winding up of companies) and receivership (security enforcement). There are two further restructuring procedures available under the Companies Act: a Part 9 Scheme of Arrangement (identical in all material ways to the UK Part 26 Scheme of Arrangement), and a Part 11 Scheme of Arrangement, which is available to companies that are being or are about to be wound up. All of these have been used on a pre-pack basis to bring about a pre-determined outcome.
Examinership is a statutory preventive (debtor-in-possession) restructuring tool for the rescue of a company or group of companies. It usually comprises three main components, namely:
The criteria to enter into examinership are threefold:
It is necessary to furnish a detailed report prepared by an independent expert on any application for the appointment of an insolvency practitioner, the examiner who will set out, amongst other things, a statement of opinion by that expert that the company has a reasonable prospect of survival.
Part 9 Scheme of Arrangement
A scheme of arrangement is provided for under Part 9 of the Irish Companies Act 2014. It is a court-approved arrangement between a company and its shareholders or its creditors, or both. It can be used to effect a solvent reorganisation of a company or group structure as well as to effect insolvent restructurings. A Part 9 scheme is not an insolvency proceeding under the EU Recast Insolvency Regulation. It is open to both Irish companies and non-Irish companies that are deemed to have a sufficient connection to Ireland.
For a scheme of arrangement to be binding, the following criteria must be met:
Part 11 Scheme of Arrangement
Where a company is in the course of being wound up or is about to be wound up and it enters into an arrangement with its creditors, then, subject to the right of appeal of those creditors, it is binding on the company if sanctioned by special resolution and binding on the creditors if approved by three quarters in number and in value of the creditors.
A right to appeal exists for 21 days from the date of completion of the arrangements, allowing creditors to appeal against it and allowing courts, if it is just to do so, to amend, vary or confirm the arrangement.
In addition to there being no court sanction process, a Part 11 scheme has the additional benefit of having no requirement to allocate the creditors into different classes.
Neither a Part 9 nor a Part 11 Scheme of Arrangement is considered an insolvency proceeding for the purposes of the EU Recast Insolvency Regulation.
There are three distinct types of statutory liquidations in Ireland:
The MVL is used for solvent liquidations, whereas the CVL and OL are used for insolvent liquidations.
An MVL is commenced by using the Irish company law summary approval process (SAP) and entails the directors executing a declaration of solvency to the effect that the company will be able to pay all its debts within 12 months of the commencement of the liquidation. As part of the SAP process to appoint a liquidator, the directors will prepare a statement of assets and liabilities of the company, which is subject to independent verification by accountants. Once a liquidator is appointed, he or she has the primary duty of administering and distributing the property of the company.
A CVL is commenced by the directors resolving to recommend to the members that, as the company cannot pay its debts as they fall due, the company should be placed in liquidation. The members then execute a resolution to this effect. On the same day or the next day as the passing of the resolution, a meeting of the creditors of the company must be held, which affords the creditors the opportunity to nominate an alternative liquidator and to ask questions of the directors as to the reasons for the company’s insolvency. To address the logistical difficulties caused by the COVID-19 pandemic, legislation was passed to allow for the holding of virtual creditors meetings.
Where commenced by a creditor, the first step is usually to deliver a statutory demand (for a liquidated amount in excess of EUR10,000). If this demand is not met within 21 days, a company is deemed unable to pay its debts. A petition may then be presented to the court for the winding-up of the company.
In all three cases, a liquidator is appointed to the company and has the primary duty of administering and distributing the property of the company.
The mechanics of enforcement of a secured claim will depend upon the nature of the security package.
The relevant security documentation will normally allow the secured creditor as security-holder on the occurrence of an event of default in the underlying loan (or upon demand where the loan is a demand facility) to appoint a receiver to realise the security.
The receiver’s primary duty is to take reasonable care to obtain the best price reasonably obtainable for the secured asset as at the time of sale.
Receivership is technically not an insolvency process and is not defined as such for the purposes of the EU Recast Insolvency Regulation.
As Ireland is a Member State of the European Union, Irish insolvency proceedings are capable of automatic recognition throughout other EU Member States (with the exception of Denmark), provided the requirements in the EU Recast Insolvency Regulation are satisfied. As such, the opening of insolvency proceedings in Ireland affords a debtor entity extensive recognition throughout the EU.
Ireland is not currently a signatory to the UNCITRAL Model Law on Insolvency. As such, the recognition of Irish insolvency proceedings in non-EU jurisdictions will be determined by local recognition laws. While each case will be dependent upon its individual circumstances and local laws, Irish insolvency proceedings have been recognised in the US under Chapter 15 of the US Bankruptcy Code.
Examinership is a specified procedure under the EU Recast Insolvency Regulation. Accordingly, the appointment of an examiner and any proposals under an examinership scheme of arrangement that have been confirmed by the Irish court are, subject to certain limited exceptions, automatically recognised and enforceable throughout the EU. This is subject to the condition that a company application for examinership can satisfy the Irish court that its Centre Of Main Interests (COMI) within the meaning of the EU Recast Insolvency Regulation is in Ireland. It is also now increasing common in cross-border cases to get recognition of the order sanctioning the examinership recognised in the US under Chapter 15 of the US Bankruptcy Code.
Schemes of Arrangement
By contrast with examinership, a company is only required to demonstrate a sufficient connection to Ireland to avail itself of a Part 9 Scheme of Arrangement. It has recently been confirmed by the Irish courts that an order sanctioning a Part 9 Scheme is a court order for the purposes of the Recast Brussels I Regulation and will be automatically recognised throughout the EU.
Liquidations (both OL and CVL) are specified insolvency proceedings under the EU Recast Insolvency Regulation.
Recognition of Foreign Insolvency Proceedings and Co-ordination
As the EU Recast Insolvency Regulation has effect in Ireland, insolvency proceedings commenced in other EU Member States will be automatically recognised in Ireland. In respect of non-EU countries, the insolvency office-holder will be required to apply to the Irish High Court for such recognition under general principles of comity. Ireland is not currently a signatory to the UNCITRAL Model Law on Insolvency.
There is no formal process set down as regards the co-ordination of foreign proceedings in Ireland. However, Irish courts have shown a willingness to approve such protocols on a case-by case basis. The EU Recast Insolvency Regulation provides, at Articles 41–43, regulations in respect of co-operation across EU Member States.
Foreign creditors are entitled to claim in an Irish insolvency process in the same manner as Irish creditors.
The liquidation of an Irish incorporated lessee would not void or terminate the IDERA, and would usually lead to an event of default under the relevant lease agreement, pursuant to which the lessor/mortgagee could enforce its rights.
An Irish law-governed power of attorney may, in limited circumstances, be revoked by the winding-up of the donor company. However, under Section 20 of the Powers of Attorney Act, 1996, a power of attorney will not be revoked by the winding-up or dissolution of the donor (except with the consent of the donee) if it is expressed to be irrevocable and given to secure either a proprietary interest of the donee or the performance of an obligation owed to the donee, as long as the donee has that interest or the obligation remains undischarged.
The following transactions by a company that subsequently becomes insolvent are capable of being set aside.
Section 604 of the Companies Act, 2014 (the Act) seeks to prevent companies from granting a preference to one creditor over another. A preference arises where a company enters into a transaction that puts a creditor in a better position than that creditor would have been in if the transaction had not taken place. Preferences that took place within six months before the company's liquidation can be set aside. This time limit is extended to two years where the disposal was in favour of a connected party. A connected party is any person who, at the time of the transaction was:
If a disposition by a company has the effect of perpetrating a fraud on the company, its creditors or members, the High Court can order the return of the property to the liquidator, examiner or receiver on any terms or conditions it deems fit (Section 608 of the Act). In determining whether this order should be made, the court does the following:
The effect of the appointment of an examiner is that the rights of the creditors, including secured creditors, are frozen for the period of the examinership, which is up to 70 days, extendable to 150 days, and also subject to the possibility of a further extension where the court requires further time to consider the examiner's final report, which is usually only relevant where the examinership is complex. During this period, the lessor would not be able to recover the aircraft without the consent of the examiner.
Disclaimer of Onerous Contracts by the Liquidator
Regarding whether the aircraft can be deemed part of the lessee’s property in a liquidation of the lessee, the general position in Ireland is that a liquidator of a company cannot obtain better title to an asset than that of the company prior to liquidation. Thus, if the aircraft is held as a lease, the liquidator will not be able to treat the aircraft as being owned by the lessee company.
Section 615 of the Act confers power on a liquidator, with leave of the court, at any time within 12 months of the commencement of the liquidation, to disclaim any property of the company being wound up which consists of, among other things, unprofitable contracts or any property that is unsellable or not readily saleable because it binds the possessor to the performance of any onerous act or to the payment of money.
Repudiation of Certain Contracts by the Company in Examinership
Under Section 537 of the Act, where proposals for a compromise or scheme of arrangement are to be formulated in relation to a company, the company may, subject to the approval of the relevant court, affirm or repudiate any contract under which some element of performance other than payment remains to be rendered both by the company and by the other contracting party or parties. While the Irish courts have not specifically held that an aircraft lease would constitute a contract under which some element of performance other than payment remains to be rendered both by the company and by the other contracting party or parties, the Irish courts have held that an occupational lease of real property does constitute such a contract and have made repudiation orders in respect of leases.
Any person who suffers loss or damage as a result of such a repudiation order stands as an unsecured creditor for the amount of that loss or damage. Where the relevant court approves the affirmation or repudiation of a contract under this section, in giving such approval it may make any such orders as it deems fit for the purposes of giving full effect to its approval, including orders as to notice to, or declaring the rights of, any party affected by that affirmation or repudiation.
Priority of Claims
Whether the liquidator could impose the rights of any other creditors in priority to the lessor, to the extent that the lessor is due any outstanding payments under the lease, the lessor will rank as an unsecured creditor in the liquidation. Irish insolvency law operates a waterfall of payments, with certain classes of preferential creditors ranking ahead of the unsecured creditor class. The likelihood of the unsecured creditor classes receiving full payment or a substantial payment in respect of the outstanding amount due and owing to each unsecured creditor varies on a case-by-case basis, and is dependent upon the assets in the company and the liquidator's ability to realise those assets.
See 2.9.5 Other Effects of a Lessee's Insolvency.
See 2.9.5 Other Effects of a Lessee's Insolvency re examinership.
There is a moratorium on the commencement or continuation of legal proceedings against a company in liquidation, without first obtaining the consent of the Irish High Court to such proceedings.
See 2.9.5 Other Effects of a Lessee’s Insolvency in respect of examinership. If the proposals are not confirmed by the court, it can then make such an order as it deems fit, which is most likely to be an order for the winding up of the company.
There are three types of winding-up.
Members’ voluntary winding-up
For a members’ voluntary winding-up, the company must be solvent (so it is not strictly an insolvency procedure). The members of the company must resolve by 75% majority to have the company wound up. The directors of the company must make a statutory declaration that they have made a full investigation into the affairs of the company and, having done so, are of the opinion that the company can pay its debts in full within a period of 12 months from the commencement of the winding-up. Failure to do so may leave the directors open to personal liability in respect of the debts owed.
Creditors’ voluntary winding-up
Where a company is insolvent, the directors may convene a meeting of the members with a view to the members passing a resolution to wind up the company and appoint a liquidator. A meeting must also be convened of all creditors of the company, to inform the creditors of the winding-up resolution passed by the shareholders. Once appointed, the liquidator realises all of the company’s assets and distributes the proceeds to the creditors.
The High Court has the power to order the winding up of a company and appoint a liquidator. A creditor who is not paid monies due to it may present a petition to the High Court that the company is insolvent and unable to pay its debts as they fall due. The insolvency procedure in a compulsory winding-up differs in that the appointment of a liquidator arises not from meetings of members and creditors, but by order of the High Court. It is the obligation of the liquidator to take control of all the company's assets, to realise the assets so as to discharge the company’s liability, and to pay the company's creditors.
See 2.9.5 Other Effects of a Lessee's Insolvency.
See 2.9.5 Other Effects of a Lessee's Insolvency.
The winding-up of the lessee or another insolvency event would usually constitute an event of default under the lease agreement, which would entitle the lessor to enforce its rights with regard to the return of the aircraft, dealing with the security deposit, maintenance reserves, etc. Where an examiner is appointed to the company, the lessor would not be able to repossess the aircraft without the consent of the examiner.
In a liquidation, the aircraft may not be attached by unsecured creditors of the lessee. The lessee only has a right to possession of the aircraft pursuant to the lease agreement, and its rights are subject to the proprietary and security interests of the lessor and its secured creditors.
As noted in 2.9.5 Other Effects of a Lessee's Insolvency, if any outstanding lease rental payments were due to the lessor when the lessee was being wound up, the lessor would claim as an unsecured creditor of the lessee and would rank behind the preferential creditors of an insolvent lessee.
The Cape Town Convention is in force in Ireland. The International Interests in Mobile Equipment (Cape Town Convention) Act, 2005 is the domestic legislation that enacted the Cape Town Convention. Authorised entry point (AEP) codes are not necessary.
In accordance with Article 39 of the Cape Town Convention, Ireland has declared that:
In accordance with sub-article 2 of Article 54 of the Cape Town Convention, it is declared that a creditor who wishes to exercise a remedy that is available to the creditor under a provision of the Cape Town Convention is not required to make an application to the High Court of Ireland for leave to exercise that remedy, unless the provision expressly requires the creditor to make such an application.
In accordance with Article XXX of the Aircraft Protocol, it is declared that Articles VIII, XII and XIII, and sub-article 3 of Article X, of that protocol apply to and in respect of Ireland.
The practical steps for submitting an IDERA are as follows:
It is hoped that IDERAs that meet all the requirements, including using the correct format, will be returned to the registered owner duly annotated within ten working days.
Since the International Registry’s establishment in Ireland, the Irish courts have had exclusive jurisdiction to deal with certain disputes under the Cape Town Convention, in particular those seeking an amendment to or deletion of entries on the International Registry where the registrant refuses to do so. The Irish courts have showed willingness, in appropriate circumstances, to make orders directed to the International Registry to delete invalid or improper registrations. See 2.6.2 Lessor Taking Possession of the Aircraft.
Ireland is a signatory to the Geneva Convention but has not yet ratified it. It is not a signatory to the Rome Convention.
As far as is known, there are no restrictions on foreign lenders financing an aircraft locally or on borrowers using the loan proceeds.
See 2.1.4 Exchange Controls.
No restrictions on granting security to foreign lenders exist.
These are permissible under Irish law, provided the company granting those guarantees is permitted to do so under its constitution.
It is important to note that the directors of Irish companies have a fiduciary duty to act in the best interests of the company, and in doing so must have regard to the interests of the shareholders collectively.
Section 82(2) of the Act sets out the prohibition on an Irish company providing financial assistance for the acquisition of its own shares. Noting that the term "acquisition" in relation to shares is defined as meaning "by subscription, purchase, exchange or otherwise", the acquisition of shares frequently occurs within Irish aircraft acquisition and financing structures. The prohibition on financial assistance applies irrespective of whether the financial assistance is given directly or indirectly, with typical examples including the making of guarantees and the provision of security by a target company.
While a number of exceptions to the prohibition exist, including principal purpose, lawful incurrence of liability by a company and lending in the ordinary course of business, each transaction structure should be considered on a case-by-case basis. The principal exception to the prohibition is the summary approval procedure (SAP), or "whitewash" procedure, contained in chapter 7 of part 4 of the Act. Activities that may otherwise amount to prohibited financial assistance, such as upstream guarantees, may be whitewashed or permitted if the procedure as set out in the Act is adhered to.
It is advisable for a lender to take share security over the domestic special-purpose vehicle that owns the financed aircraft.
A share pledge by way of equitable charge and/or mortgage is the most typical type of pledge, and is granted by the deposit of the share certificates and signed undated stock transfer forms with the lender. The charging document will contain provisions that any such deposit is made by way of security, and the terms on which that security may be enforced.
Negative pledge provisions are typically included in share security documents in Ireland; a negative pledge cannot be specifically registered or noted with the Companies Registration Office (CRO).
No material restrictions or requirements imposed on inter-creditor agreements exist under Irish law. Inter-creditor agreements are typically governed by English or New York law.
Agency is a recognised concept under Irish law.
Subject to general qualifications regarding enforceability, any method of subordination permitted by the transaction documents governed by English or New York law would be permissible and recognised under Irish law.
In the event of the insolvency of the borrower company, leading to examinership or company voluntary arrangements, the debt owed to subordinated lenders may be written down, particularly if it is unsecured.
Subject to general qualifications as to enforceability, the courts of Ireland would recognise as effective a New York law- or English law-governed assignment that is effective under that law.
See 2.6.5 Domestic Courts' Approach to Foreign Laws and Judgments.
There are no applicable usury or interest-limitation laws in Ireland. Irish tax legislation provides that interest payable on a loan or other security which is in excess of a reasonable commercial return will generally be treated as a distribution and will accordingly be non-deductible.
Aviation finance transactions are typically governed by English or New York law. If the AOE is an Irish-registered company, the typical forms of Irish law-governed security that the AOE or its parent would be party to include a charge over the shares in the AOE, an aircraft mortgage, an assignment of the lease, and a charge over the accounts into which rent receivables, maintenance reserve and security deposits are paid, assuming the accounts are in Ireland.
As far as is known, there are no restrictions on types of security under Irish law, although it should be noted that the registration and perfection requirements may differ – see 3.2.16 Form and Perfection of Security over Bank Accounts.
Any restrictions would arise under the governing law of the security documents (typically English or New York law) or the law of the jurisdiction in which that collateral is located.
The concept of trust and the role of a security trustee are recognised.
A borrower can assign its rights to the aircraft or under an aircraft lease (including in relation to insurances) to a security trustee, pursuant to a security assignment or a mortgage.
The common-law position is that the burden of a contract cannot be assigned without the consent of the other party to the contract, in which event that consent will give rise to a novation.
A security assignment or guarantee can be governed by English or New York law, and is not required to be governed by Irish law in order to be enforceable, provided that the law of the jurisdiction governing the security assignment or guarantee recognises a valid security assignment. See 2.6.5 Domestic Courts' Approach to Foreign Laws and Judgments.
No statutory requirements relating to the terms of a security assignment exist under Irish law. On aircraft finance transactions, the security assignment is typically governed by New York or English law. A common form of security assignment provided by an Irish-incorporated company would contain the following:
Under Irish law (and typically under the governing law of the security assignment), the assignor should provide notice of the security assignment to the other party to the underlying contract being assigned by way of security. An acknowledgement of such a notice should be requested from the counterparty, although this is not a perfection requirement.
If the assignor is a company, a Form C1 containing particulars of the security assignment executed on behalf of both the assignor and assignee should be filed in the CRO within 21 days of the date of its creation.
Failure to register within 21 days of the creation of the security assignment by a company renders the security assignment void against the liquidator and any creditor of the company.
No additional domestic law security instruments are needed. With respect to IR filings, where the security assignment creates a registrable assignment of associated rights under the Cape Town Convention, such an assignment may be recorded on the IR established under the Cape Town Convention.
No additional domestic law security instruments or filings are required in order to make Cape Town filings.
Registration of a Form C1 with the CRO, as mentioned in 3.2.7 Formalities/Mandatory Terms to Create and Perfect Security Assignments, costs EUR40.
An English or New York law-governed security assignment or a domestic law security instrument granted by an Irish-registered company can be registered domestically, as per the procedure outlined in 3.2.7 Formalities/Mandatory Terms to Create and Perfect Security Assignments.
It is possible to transfer security interests over an aircraft by way of assignment of contractual rights or novation. In the event of a transfer of security interests, there are a number of considerations that are not specific to Irish law, such as whether consent from the security-provider is required, the existence of covenants to pay the debt in favour of the transferor, and cross-collateralisation of the debt.
In the assignment of security interests that have previously been registered with the CRO, a Form C17 must be filed noting the change of charge-holder. If the security interest is novated, a new security interest is deemed to be created and, as such, novation may require registration, depending on the type of interest.
A transfer of security interest can be registered with and therefore recognised by the IR.
If the identity of the secured parties under a security assignment changes after its execution, the security interests are not jeopardised, provided the security assignment is in favour of a security trustee, and the security assignment (or related finance documents) contemplates that the secured parties may change from time to time.
These are not typically used in Ireland.
A secured party under a security assignment would not be deemed to be resident, domiciled or subject to any taxes as a result of its being a party to or its enforcement of such a security assignment, provided that the secured party is not otherwise resident in Ireland and does not have a permanent establishment or other taxable presence in Ireland, or, if the secured party is so established in Ireland, provided it does not act through a branch or agency in Ireland or other taxable presence in Ireland in respect of its acts.
As per 3.2.7 Formalities/Mandatory Terms to Create and Perfect Security Assignments, if the mortgagor is an Irish-incorporated company, a Form C1 containing particulars of the mortgage executed on behalf of both mortgagor and mortgagee should be filed in the CRO.
Assuming that the mortgage satisfies the requirements for classification as an "international interest" pursuant to the Cape Town Convention, IR filings can be made in respect of such mortgage.
There is no difference in the forms of security or perfection taken over an aircraft or over spare engines.
Charges are typically taken over Irish rent accounts, maintenance reserves accounts, or accounts into which supplemental rent, security deposits, insurance and sales proceeds are paid. To perfect the charge, the account bank must be notified of the charge. An acknowledgement of the notice would typically be obtained from the account bank, but this is not necessary for its perfection.
The Act exempts charges over cash, funds in a bank account or securities from CRO registration.
See 2.4.5 Attachment by Creditors and 2.4.6 Priority of Third Parties' Rights.
A security interest created by a company is released or discharged upon the execution and dating of the relevant deed of release or release agreement, and the release or discharge becomes effective at this point. The discharge is effected with the CRO by the submission of a Form C6 to the CRO, verifying the satisfaction of the secured debt. The filing of a Form C6 in respect of such a release or discharge will appear on Irish company searches within a number of weeks of filing the Form C6 (this is an administrative matter for the CRO). There is no time-limit on when a Form C6 should be filed in respect of a release or discharge of a mortgage, and it does not have an impact on the effectiveness of the release.
Aside from security registrations to be made at the CRO, there is no specific aircraft mortgage registry in Ireland, and it is not possible to note the interest of a mortgagee in the IAA's register of aircraft. The creation of a mortgage or charge over an aircraft by an Irish AOE must be registered in the CRO in accordance with Section 409 of the Act, as noted in 3.2.7 Formalities/Mandatory Terms to Create and Perfect Security Assignments.
See 2.4.5 Attachment by Creditors and 2.4.6 Priority of Third Parties' Rights.
A potential purchaser of an aircraft could search the IR and CRO to verify that an aircraft is free of encumbrances.
Enforcement will depend on the terms of each such instrument.
Subject to certain qualifications regarding recognition of the governing law of the security assignment by the Irish courts, and assuming all other necessary factors to bring proceedings against the lessee are in place (eg, cause of action, etc), an acknowledgement and notice of assignment would assist the security trustee in pursuing any action or claim against the lessee that may arise pursuant to a security assignment.
See 2.6.5 Domestic Courts' Approach to Foreign Laws and Judgments.
See 2.6.5 Domestic Courts' Approach to Foreign Laws and Judgments.
Enforcement will be determined by the provisions of the relevant security agreement.
Domestic Irish courts are competent to decide enforcement actions. See 2.6.6 Domestic Courts' Recognition of Foreign Judgments/Awards.
See 2.6.4 Summary Judgment or Other Relief.
A secured party under a security agreement/aircraft mortgage can obtain a judgment in a foreign currency.
A secured party is not required to pay taxes or fees in connection with the enforcement of a security agreement/aircraft mortgage.
There are none at present.
There are none at present.
EU Anti-Tax Avoidance Directive
Similarly to all EU Member States, Ireland is required to implement a number of corporation tax measures as a result of the EU Anti-Tax Avoidance Directives (ATAD) – the EU's response to the OECD's base erosion and profit-shifting (BEPS) project of corporation tax reform. Of the measures proposed in the ATAD, the "interest limitation rule" (BEPS Action Item 4) and the "hybrid mismatch rules" (BEPS Action Item 2) could have an impact on Irish aircraft-leasing structures by restricting or denying a deduction for interest in certain circumstances.
Hybrid Mismatch Rules
The Irish Finance Act 2019 (effective since 1 January 2020) contained legislation implementing the hybrid mismatch rules. The rules seek to counteract no tax outcomes from payments made on, or after, 1 January 2020 under cross-border arrangements between "associated enterprises" which result in deduction without inclusion or double-deduction outcomes.
Irish leasing platforms financed by EU or treaty-resident investors should be unaffected by the hybrid mismatch provisions on the basis that such investors should be taxed on their returns in their home jurisdiction. Similarly, interest payments which are made to non-tax jurisdictions or tax-exempt entities may also be unaffected by the hybrid mismatch provisions on the basis that the non-inclusion is not as a result of hybridity.
Under the ATAD, Ireland is also required to introduce rules to neutralise the effects of reverse-hybrid mismatches by 31 December 2021. The rules would apply to "reverse-hybrid entities", which are entities that are treated as transparent under the laws of the jurisdiction where they are established but as opaque under the laws of the jurisdiction of their investor(s). A deductible payment made to a reverse-hybrid entity can give rise to a mismatch outcome where that payment is not included in the jurisdiction where the payee is established or in the jurisdiction of any investor in that payee. The rule neutralises such mismatch outcomes by denying a deduction on a payment to a reverse-hybrid entity. It is expected that the Irish Department of Finance will commence a stakeholder consultation shortly and legislation transposing the reverse-hybrid rules is due to be included in the Irish Finance Bill 2021 with effect from 1 January 2022.
The interest-limitation rule operates to limit deductible interest expenses in a tax period to up to 30% of EBITDA. Deductible net interest expenses (referred to as exceeding borrowing costs) are restricted to excess borrowing costs over taxable interest revenues and other economically equivalent taxable revenues according to national law.
Once implemented, the rule will be particularly relevant for leveraged leasing companies in Ireland which have a substantial annual interest expense. However, the manner in which Ireland will implement the rule has yet to be confirmed. It is expected that Ireland will avail of various options provided for under the ATAD which could limit its scope and exclude many common financing transactions. For example, if taxable revenues consist entirely of interest income or income economically equivalent to interest income (such as income arising from a finance-lease arrangement), there should be no excess, so the rule should not apply. SPVs engaged in finance-lease arrangements are therefore unlikely to be affected by the rules. While it is possible that income arising from an operating lease may also be regarded as economically equivalent to interest income, this is currently unclear pending draft implementing legislation.
The implementation date for the interest limitation rule in Ireland will be 1 January 2022. Given the complexity of the interest limitation rule, a two-stage approach to the development of Ireland's interest-limitation rule is being taken whereby the Irish Department of Finance commenced a consultation process in December 2020 seeking taxpayer and industry views as to how the rule should be implemented into Irish legislation and the practical aspects of its application. The closing date for submissions was March 2021. A second consultation and feedback process is expected to commence shortly. Legislation implementing the interest limitation rule will be included in the Irish Finance Bill 2021 with effect from 1 January 2022.
Ireland was also among the first group of countries to sign the BEPS Multilateral Instrument (MLI) in June 2017 which will see the majority of Ireland's 74 double tax treaties updated to be BEPS-compliant. The MLI seeks to implement changes to double tax treaties on a multi-lateral basis to counteract treaty misuse that results in base erosion and profit-shifting. The MLI entered into force in Ireland on 1 May 2019. It took effect for Ireland's double tax treaties in respect of withholding tax on 1 January 2020. For all other taxes, the MLI came into effect on 1 November 2019 at the earliest; however, the date on which the MLI modifies Ireland's double tax treaties will depend on when a relevant treaty partner deposits its instrument of ratification with the OECD. Ireland is adopting a principal-purpose test (PPT) as an anti-avoidance measure to prevent treaty abuse. This test will operate to deny the benefit of the treaty if obtaining that benefit was one of the principal purposes of any arrangement or transaction, unless it is established that granting that benefit would be in accordance with the object and purpose of the relevant tax-treaty provisions.
As many aircraft financing transactions rely on double tax treaties to ensure there is no withholding tax on payment flows (eg, lease rentals and loan payments), parties will need to understand the impact of the changes to relevant double-tax treaties, given the importance of tax-treaty relief. Structures that incorporate intermediate lessor entities in order to make use of a particular double-tax treaty may be affected by the MLI.
The changes introduced by the MLI could result in more scrutiny where intermediate lessors rely on treaty protection to avoid withholding tax being imposed on lease rentals. The risk of withholding taxes under an aircraft lease is generally allocated to the lessee on the basis that withholding taxes are generally imposed by the jurisdiction of the payor. Under the MLI a restriction on treaty benefits may also occur due to a lack of substance or commercial rationale for the lessor entity. Irish leasing platforms should not be affected by the provisions of the MLI on the basis that such platforms generally have significant substance and operations in Ireland.
The aviation industry has shown remarkable resilience in the last 12 months. The recovery is taking shape and coming within reach for many, although certain areas are still feeling pain from the grounding of the global fleet due to COVID-19. Ireland is at the heart of developments in the aviation industry and has played a key role over the past 12 months. It will continue to do so, as the sophisticated ecosystem of experienced talent, advisers and friendly business environment will be vital to a successful recovery.
We predict many new developments will fall out of the current shake-up of the industry across various aspects of the market. In this article, we focus on Ireland's role in the industry, some of the financing trends for raising capital and also recent restructuring activity.
Ireland's Role in the Industry Recovery as the Global Hub of the Aircraft-Leasing Industry
Ireland's long-established role as the global hub of the aviation leasing and financing industry means that it will play a critical part in its recovery as the world begins to emerge from the COVID-19 pandemic. Many analysts continue to predict that the percentage of leased aircraft will rise to meet 50% of the global fleet. Some even see this threshold being met faster, with the option of leasing aircraft looking more attractive to airlines that continue to manage serious capital and liquidity challenges.
Stability is needed and no jurisdiction has proven more stable than Ireland in terms of operating a leasing business or structuring aircraft leasing and financing transactions. Since the birth of the industry with Tony Ryan's Guinness Peat Aviation (GPA) in Shannon in the 1970s, most of the key players in the industry are headquartered in Ireland. We have seen their operations go from strength to strength as they have evolved beyond being significant only in the aviation industry to being key corporate players in Ireland.
Investment Opportunities and Strong Investor Demand
Access to capital is a distinguishing feature for successful companies in this industry. The current crisis has really spotlighted the importance of funding. Recent trends demonstrate the strong investor confidence in aircraft as an asset class, notwithstanding the unprecedented challenges presented by the pandemic. Ireland has featured in most of this activity and in our experience, there are a number of routes for savvy investors to take.
There has been no better example of investor confidence in aircraft as an investment asset class as air travel recovers than the access of larger investment-grade aircraft lessors to the unsecured debt markets. The last twelve months have seen Irish aircraft lessors such as AerCap, Air Lease Corporation, Dubai Aerospace Enterprise, China Development Bank, Aircastle and others successfully issue billions of dollars in unsecured notes in the market at increasingly competitive and, at times, even historically low prices. A very recent example is that SMBC Aviation Capital, having had its grade A-rating confirmed by S&P and Fitch, has announced the issue of USD500 million unsecured seven-year notes priced at US Treasury plus 110 basis points, representing its lowest credit spread achieved in a bond issuance.
We have now also seen the return of the aircraft asset-backed securitisation (ABS) market with the successful and oversubscribed launch of the CLAS 2021-1 ABS by Castlelake in January of this year. Many aircraft lessors have viewed access to funding through the ABS market over the last decade as a crucial component to their financing strategy. The market response to CLAS was very positive. The transaction was heavily oversubscribed, prompting Castlelake almost immediately to bring a C-note issuance to the market. The CLAS 2021-1 ABS did not fundamentally alter the aircraft ABS structural model in response to the challenges faced by the pandemic. It instead demonstrated the strength of existing models by creating some new structural features and enhancing existing structural protections using the lessons that were learned in 2020. For example, it reduced the look-back period from six months to three months in the debt service coverage ratio test, providing a more responsive sweep or trapping of cash trigger in the event that incoming cash-flow through aircraft lease rentals is not sufficient to meet debt requirements.
June 2021 has seen a burst of activity in the ABS market. Sky Leasing announced its USD663 million A and B secured notes issue through SLAM 2021-1 against a portfolio of 16 predominantly narrow-body aircraft valued at approximately USD885 million. That portfolio features the youngest-ever average age for aircraft ABS at 1.6 years and a weighted average lease term of 11.1 years. This was followed by the successful launch of the MAPS 2021-1 ABS by Apollo Global Management, serviced by Merx Aviation, of USD540m A, B and C notes secured against a portfolio of 20 predominantly narrow-body aircraft with two freighters subject to 12 initial leases in ten countries. As of the time of writing, Blackbird Capital II, a joint venture of Air Lease and Napier Park Global Capital, has also just priced an issue of USD745m of A and B notes secured against a portfolio of 18 aircraft (approximately two thirds narrow-body) with Air Lease and ALC Aircraft acting as servicer. Ireland plays a key role in most ABS transactions and will play a key role in the ABS market, as the jurisdiction where the issuer of the debt, the servicer and the aircraft-owning and leasing companies are located and managed.
Sale and leasebacks (SLB)
The result from the closure of air travel routes in 2020 is that normal financial metrics in airlines were disregarded and the focus became cash burn and building liquidity. Stronger credit airlines such as Southwest Airlines have been able to raise capital successfully in the unsecured debt markets while others such as United Airlines have raised funds through innovative note issues backed against loyalty programmes and IP such as its Mileage Plus programme. Lower-tier airlines with higher levels of leverage may be disadvantaged in lacking this access to capital.
The market saw a rise in SLB activity, particularly in stronger credit and higher-tier airlines which previously did not operate in this sector. Many commentators see this SLB trend continuing. As airlines look at their order books, the option to lease, rather than buy, an aircraft looks increasingly more attractive. Leasing provides airlines with the reduced capital expenditure, and balance sheet and fleet flexibility, to navigate better the uncertainty of the current crisis. Reducing carbon emissions in the sector remains a key industry goal. This, together with any potential green incentives from regulators, will likely drive airline demand for newer, more fuel-efficient aircraft. SLB transactions have the potential to provide capital-strained airlines with access to such technology by way of lease without substantial upfront capital expenditure. While lessors are now dealing with a larger SLB market, some concerns remain that increased competition will result in smaller profit margins for leasing companies.
New leasing platforms and alternative lending vehicles
The challenges of any crisis are often viewed as opportunities by investors who can partner with the right experience and talent. The aviation leasing and finance industry has seen many examples of new investment in the last twelve months in different forms.
New aircraft-leasing platform, Vmo Aircraft Leasing, launched in January 2021, backed by Ares Management with former Vx Capital Partners management team, Bob Brown, Will Hudson and Sean Sullivan. It entered the market with an initial equity capital of USD500 million to buy a diversified portfolio of commercial aircraft. Some investors have preferred to establish partnerships, joint ventures or sidecars by partnering with established aircraft lessors as a means to access the market, with different levels of more limited exposure compared to forming a new leasing platform. PIMCO and GECAS last year partnered to create a new USD3 billion aviation-leasing platform with a focus on new and young fuel-efficient aircraft and operating initially in the narrow-body market. Kennedy Lewis and Arena Aviation Capital more recently partnered to launch a new USD1.5 billion aircraft-leasing platform called KLA Aviation Finance, with a focus on young and new narrow-body aircraft.
On the financing side, the decline in levels of funding from traditional sources, such as commercial banks in the aviation market, has seen the emergence of a number of new, more flexible alternative lending vehicles to meet the demands of the market. Castlelake, partnering with Boeing, launched its Aviation Lending Programme in November 2020 with a focus on providing a variety of financing solutions to aircraft purchasers through mezzanine financing, senior secured financing and high loan-to-value (LTV) financing. More recently, KKR announced the launch of AV AirFinance, a new commercial aviation lending and servicing platform, led by former Volito Aviation CEO, Siggi Kristinsson, which has agreed to purchase an USD800 million portfolio of aviation loans from CIT Group. Volofin has also been active in addition to new entrant Valkyrie as a source of funding. The various government-supported ECA financing and other credit-supported structures have also played, and will continue to play, an important part in supporting the industry to ensure aircraft deliveries.
Mergers and acquisitions (M&A)
Many commentators are forecasting an increase in M&A and consolidation activity in the industry. The availability of funding to airlines and lessors in the unsecured capital markets, together with the substantial governmental support the industry has received across the globe, is perhaps the reason for a restraint in M&A activity to date. A number of investors may target aircraft lessors operating in the middle or lower end of the market, which may not have the support of a strong parent bank or fund backing it, or look to acquire aircraft portfolios from capital-strained airlines or lessors.
2021 has already seen the announcement of the USD30 billion merger between the world's two largest aircraft-leasing companies, AerCap and GECAS. This monumental market event could see further consolidation as competitors react to the new lessor market landscape and has potential for significant secondary market activity in portfolio and targeted business sales as the new leasing behemoth takes shape.
A further demonstration of the industry's resilience in the last 12 months has been its efforts to find restructuring solutions to problems posed by COVID-19. To implement those solutions and, given the central role that Ireland plays in the industry, it is unsurprising that aviation professionals have had to reacquaint themselves with Irish restructuring processes.
Prior to the pandemic, in other sectors of the economy, Ireland had established itself as a venue in which stakeholders can have confidence in the restructuring options available as well as the manner of implementation via the courts. Since Ireland made a declaration in 2017 adopting Alternative A under the Aircraft Protocol to the Cape Town Convention, the additional protections afforded to aircraft creditors in an insolvency had not come before the Irish courts. 2020 brought these provisions of the Aircraft Protocol (and their practical application) into sharp focus. Ultimately, the last 12 months have shown that those restructuring options can be effectively relied upon by the aviation industry, as it continues to grapple with the fall-out from the pandemic.
Voyager Aviation is an aircraft-leasing company with assets of approximately USD2 billion consisting of primarily young and modern aircraft. Voyager Aviation Holdings, LLC is a US company but the group has a significant presence in Ireland. As a consequence of the pandemic, it was anticipated that Voyager would be unable to refinance or repay balloon repayments on its 8.5% senior notes due in August 2021.
Voyager successfully restructured its senior notes through an out-of-court US exchange offer on 9 May 2021, thereby avoiding any default under the senior notes. The restructuring proposal to creditors included an option for Voyager to pivot to an in-court restructuring to implement the senior note exchange, by way of a scheme of arrangement of a dormant Irish (non-issuer) subsidiary.
A scheme of arrangement (under Part 9 of the Companies Act 2014) provides a mechanism for a company to reach agreement with its shareholders and/or creditors in relation to the restructuring of its obligations. A scheme is an effective way of overriding voting thresholds in finance documents. If 75% in value and a majority in number of creditors (in each class) vote in favour of the scheme, the scheme will become binding on all creditors, with court sanction (even if the amendments proposed would have required unanimous creditor consent under the financing documents).
While the Irish scheme of arrangement was not ultimately needed by Voyager, the threat of the Irish scheme was essential to the successful implementation of the out-of-court restructuring as it demonstrated to creditors a clear route to implementation if the requisite consent threshold for the out-of-court Exchange Offer was not reached. Voyager offered note-holders an "early bird" fee to support the amendments out of court and obtained support from 98.49% of holders of the senior notes for the out-of-court exchange offer. While it is not particularly unusual for the implementation of out-of-court restructurings to be eased by clearly communicated contingency planning, this was the first time that an Irish scheme was used to facilitate the "carrot-and-stick" implementation of a US exchange offer. Although the voting threshold needed to implement an Irish scheme (75% in value) is greater than that needed for a Chapter 11 plan (66.66%), the speed and lower costs involved in implementing through a scheme made it an attractive contingency to an out-of-court agreement.
Nordic Aviation Capital
Shortly following the outbreak of the pandemic, the world’s largest regional aircraft lessor, Nordic Aviation Capital DAC, was faced with anticipated breaches of financial covenants, the subsequent triggering of acceleration events and defaults within its wider group. 65 out of the group's 75 customers had officially requested various degrees of lease concessions, extending all the way to a complete standstill in payments. This resulted in the group collecting just 23%, 20% and 34% of billed payments for April, May, and June, respectively.
Nordic sought to implement a series of arrangements with its lenders to defer the payment of principal and interest and final maturity amounts under its financing agreements and to waive any enforcement events which had already arisen or which might otherwise arise. After lengthy negotiations with principal stakeholders, Nordic successfully applied to the Irish High Court to restructure its financial position by way of a scheme of arrangement. The scheme was approved by the requisite statutory majority, before being sanctioned by the Court, thereby binding all creditors. The court process (which lasted less than six weeks) resulted in Nordic’s creditors acceding to Nordic’s request for a 12-month standstill of financial covenants and a deferral of approximately USD6 billion of secured and unsecured debt.
The waiver and deferral has afforded Nordic breathing space to negotiate a further more substantive restructuring with lenders - at the time of writing, these negotiations are ongoing. The means of implementation remains to be seen, but it is possible that the Irish scheme could again feature.
Nordic raised a point to the court that, for purposes of the Cape Town Convention and, in particular, the applicability of the enhanced creditor protections afforded where the primary insolvency jurisdiction has made an Alternative A declaration, Irish schemes of arrangement do not constitute insolvency proceedings or insolvency-related events. However, on the basis that no creditor of Nordic voted against the scheme, nor did any of them assert a Cape Town Convention protection, the Irish Court exercised judicial restraint and elected not to make any determination on the question.
Airline restructurings – Norwegian Air and CityJet
Whereas schemes of arrangement provide a useful means of restructuring financial obligations, examinership is a more attractive option where an operational as well as a financial restructuring is required, all within a prompt timeframe. In addition, examinership requires a lower support threshold of 50% in value and number of creditors in one impaired class only. The examinerships of Norwegian Air Group and CityJet are good examples of where the process was used to implement deep operational restructurings with significant fleet reductions.
Norwegian Air Group's revenue in the third quarter of 2020 was down by 91% as against 2019, with passenger numbers falling by approximately 78% year-on-year compared to 2019. Compounding this was the Norwegian government's decision in November 2020 to withdraw financial support to the group, leading to an examinership filing in Ireland of a number of companies in the group, as well as the Oslo-based parent company of the group, Norwegian Air Shuttle ASA (NAS).
With the examiner's scheme becoming effective on 26 May 2021, the “New Norwegian” sees a significant scaling back on its operations and material changes to its capital structure, including:
The Irish High Court exercised its discretion to accede to the companies’ request to repudiate a wide range of contracts, including:
While various counterparties objected, the Court ultimately concluded that termination of the contracts was necessary to allow the examiner to formulate schemes of arrangement to facilitate the survival of the group.
Earlier in 2020, a slimmed-down CityJet also successfully emerged from examinership on a solid financial footing. Entering the process, CityJet had debts of EUR500 million and a net deficit of liabilities over assets on a going-concern basis of EUR186 million. CityJet emerged:
In both the Norwegian Group and CityJet examinerships, there was no argument that those proceedings did not constitute insolvency proceedings for purposes of the Cape Town Convention, so the enhanced protections afforded by the Aircraft Protocol applied to aircraft creditors. However, in reality, the prevailing market conditions meant that aircraft lessors were not incentivised to push for a quick return of their aircraft.
Despite a resumption in the flow of revenues, we are likely to see further restructuring activity in the sector as stakeholders seek to repair the damage to capital structures as a result of the pandemic. However, unlike in the 2008 financial crisis, although cash is tight for airlines, liquidity and appetite for investment is strong at the investor level and this will fuel a strong recovery. The industry has attracted new players, new structures and new business modelling in response to the crisis. The distress experienced across the sector will drive innovation as everyone tries to position themselves on the upward curve of recovery.