Aicraft Title & Registrations

20. Has this location ratified the Cape Town Convention on International Interests in Mobile Equipment and the related Aircraft Protocol? Has this location made any declarations to better determine the scope of application of the Convention / Protocol in this location? If so, what is the impact of such declarations on aircraft registration issues? Are there any specific aspects relating to the enforcement of IDERA’s to be considered?

Austria

Austria has not ratified the Cape Town Convention. Therefore, IDERA is not applicable in Austria. There are no specific aspects relating to the enforcement of IDERAs. However, please note that traditional deregistration powers of attorney suffice according to Austrian law and would be respected by Austro Control.

Colombia

The Colombian legal system recognizes foreign security interests over an aircraft. Article 1798 of the Colombian Commerce Code states that contracts validly celebrated abroad shall have all its effects in Colombian territory. This disposition is limited to aircraft which are registered abroad.  

In order to register the security interest in the Aeronautical National Registry, the document should be officially translated, if it comes in a language different than Spanish, and apostilled.  

Germany

The Cape Town Convention has not been ratified by Germany.

India

India acceded to the Cape Town Convention on International Interests in Mobile Equipment and the Protocol to the Cape Town Convention on International Interests in Mobile Equipment (Protocol) on March 31, 2008. However, only specific provisions of the Cape Town Convention and the Protocol became effective on July 1, 2008. From February 2015, the Indian Aircraft Rules were amended to give the Central Government of India the power to cancel the registration of an Indian-registered aircraft, to which the provisions of the Cape Town Convention or the Protocol apply, by way of an application from the irrevocable deregistration and export request authorisation (IDERA) holder. At the time of entering into a lease transaction, an IDERA can be filed with the DGCA and the acknowledgment of the DGCA can be obtained. While there is no requirement that the IDERA be countersigned by the DGCA, it is advisable that the acknowledgment of the DGCA be obtained as this ensures that the DGCA will note the fact of issuance of the IDERA by the operator and that the owner or lessor is entitled to exercise its rights under the IDERA. 

Israel

Israel ratified the Cape Town Convention on International Interests in Mobile Equipment and the related Aircraft Protocol in 2006. No declarations with respect to the scope of application of the Convention / Protocol have been made.

Kenya

Kenya ratified the Cape Town Convention and the related Aircraft Protocol on 13 October 2006. Kenya has also lodged several declarations relating to both the Cape Town Convention and the Aircraft Protocol.7 The declarations do not affect aircraft registration and do not affect the enforcement of IDERAs. 

Malta

The Cape Town Convention is in force in Malta and a consolidated text of the Cape Town Convention and Protocol has been reproduced in the First Schedule of the ARA and has force of law in Malta in relation to matters to which they apply and shall prevail over any other law, in a case of conflict.   

(1) Pursuant to Article 39 1(a) of the Convention, it is declared that the following categories of non-consensual right or interest; 

1. Judicial costs incurred in respect of the sale of the aircraft and the distribution of the proceeds thereof pursuant to the enforcement of any mortgage or other executive title;
2. Fees and other charges due to the Director General arising under applicable law of Malta in respect of the aircraft;
3. Wages due to crew in respect of their employment on the aircraft;
4. Any debt due to the holder of a possessory lien for the repair, preservation of the aircraft to the extent of the service performed on and value added to the aircraft;
5. The expenses incurred for the repair, preservation of the aircraft to the extent of the service performed on and value added to the aircraft; and
6. Wages and expenses for salvage in respect of the aircraft, have priority under the laws of Malta over an interest in an object equivalent to that of the holder of certain registered international interests and shall have priority over such registered international interests whether in or outside insolvency. 

(2) Pursuant to Article 39 (4) of the Convention, it is declared that all categories of non-consensual rights or interests which under Maltese law constitute a special privilege on an aircraft shall have priority over an international interest registered prior to the date of its deposit of its instrument of accession. 

(3) Pursuant to Article 40 of the Convention, it is declared that the following categories of non-consensual right or interest; 

1. taxes, duties and/or levies due to the Government of Malta in respect of the aircraft; and 
2. wages and expenses for assistance or recovery in respect of the aircraft shall be registrable under the Convention as regards aircraft objects as if the right or interest were an international interest and shall be regulated accordingly. 

(4) Pursuant to Article 53 of the Convention, it is declared that the First Hall of the Civil Court is the relevant court for the purposes of Article 1 and Chapter XII of the Convention. 

(5) Pursuant to Article 54 (2) of the Convention, it is declared that all remedies available to the creditor under the Convention or Protocol which are not expressed under the provision thereof to require application to the court, may be exercised without leave of the court or other court action. 

(6) Pursuant to Article XXX (1) of the Aircraft Protocol, it is declared that Article XIII of that Protocol applies to and in respect of Malta. 

Mexico

Yes. Mexico has ratified the Cape Town Convention on International Interests in Mobile Equipment and the related Aircraft Protocol.  

Mexico’s Declarations have limited the scope of the Convention and made the enforcement of the remedies set out in the Convention potentially impractical or inapplicable as no remedies can be exercised without the leave of a court since “alternative B” was chosen under Article XI of the Protocol with regards to remedies on insolvency. IDERAs are therefore not enforceable in Mexico.  

Norway

Norway is a party to the Convention on International Security Rights in Mobile Property and the Protocol to the Convention on Special Conditions for Aircraft. 

Norwegian ratification of the Cape Town Convention will not have any consequences for the Norwegian Aircraft Register. It will still be possible to register encumbrances in the Norwegian Aircraft Register. The ratification of the Cape Town Convention means that an option for the registration of security rights, including liens, has been established in the International Registry of Mobile Assets. It is up to the individual licensee to assess whether this should be done, instead of, or in addition to, registration in the Norwegian Aircraft Register, if the conditions for this are met. 

Norway’s aircraft register is an owner register. The regulations for registration are given in the Civil Aviation Act, Chapter 3, and Regulations of 5 February 2004 no. 393 on the registration of aircraft, etc. Aircraft must still be registered in the Norwegian Aircraft Register and thus must obtain a Norwegian registration mark, even if it is not relevant to register encumbrances in the aircraft. 

Norway has not declared that Article 60 of the Convention will apply. This means that Norwegian ratification of the Cape Town Convention has no significance for existing liens and other liabilities registered in the Norwegian Aircraft Register. 

The Cape Town Convention allows for the appointment of national contact agency (Entry Points). No such agency has been appointed for Norway. This means that the individual licensee, bank, lawyer or similar agency must register as a direct user in the international register. The Norwegian Aircraft Register will not provide guidance on the procedure for registration etc. in the international register. 

Norway has declared that Article XIII of the Protocol shall apply. This means that it is possible for the debtor to issue an irrevocable power of attorney to request deregistration and export permission, cf. Article XIII no. 2. Since the Norwegian Aircraft Register is an owner register, such a declaration must be given by the owner. 

Such irrevocable Power of Attorney (IDERA – Irrevocable Deregistration and Export Request Authorization) must essentially be in a form that follows the Annex to the Protocol. Original IDERA, signed by the owner with a pen, must be sent to Norway’s aircraft register in duplicate. The registered IDERA will be returned to the person who has received the authorization. 

When an IDERA is received by the Norwegian Aircraft Register, this will be registered in the Aircraft Register in connection with the aircraft in question. There is a fee for the registration of IDERA (see the fee regulations § 12). 

When IDERA has been issued, this means that only the authorized person can apply for an export permit and request that the aircraft be deleted from the Norwegian Aircraft Register. The requirements of the Civil Aviation Act and the Registration Regulations for the design of such a request for cancellation will apply as normal. 

Revocation of registered IDERA can only take place on the basis of written consent from the authorized party, preferably on the authorized person’s copy of the registered IDERA. 

Pakistan

Yes. Pakistan has implemented the Cape Town Convention and the related Aircraft Protocol by way of the Implementation Rules. These rules govern the scope of application of the Cape Town Convention. With respect to the enforcement of an IDERA in Pakistan, please note that an IDERA is fully recognized and enforceable under the laws of Pakistan. 

Pakistan has lodged the following declarations under the Cape Town Convention at the time of the deposit of its accession instrument: 

1. Form No. 1 (Specific declaration under Article 39(1)(a))
   Pakistan declares the following categories of non-consensual right or interest:
   (a) a right or interest in respect of an aircraft which, if the aircraft had been a vessel, would have resulted in a maritime lien on the aircraft and its equipment for (A) salvage and (B) damage done by that aircraft;
   (b) liens in favour of any state entity relating to unpaid taxes or other charges directly related to the use of that aircraft and owed by the owner of the aircraft; have priority under its law over an interest in an object equivalent to that of the holder of a registered international interest and shall have priority over a registered international interest, whether in or outside insolvency proceedings.
2. Form No. 4 (General declaration under Article 39(1)(b))
   Pakistan declares that nothing in the Convention shall affect its right or that of any entity of that State, any intergovernmental Organization, or other private provider of public services to arrest or detain an object under its laws for payment of amounts owed to Pakistan, any such entity, Organization or provider directly relating to the services provided by it in respect of that object or another object.
3. Form No. 5 (General declaration under Article 39(4))
   Pakistan declares that a right or interest of a category covered by a declaration made under Form No. l shall have priority over an international interest registered prior to the date of the deposit of its instrument of accession. 
4. Form No. 6 (Declaration under Article (40))
   Pakistan declares that the following categories of non-consensual right or interest:
   (a) rights of a person obtaining a court order permitting attachment of an aircraft object in partial or full satisfaction of a legal judgment; and,
   (b) liens or other rights of a state entity relating to taxes or other unpaid charges of any type whatsoever (which is not a priority non-consensual right or interest)
   shall be registerable under the Convention as regards any category of object as if the right or interest were an international interest and shall be regulated accordingly.
5. Form No. 10 (General declaration under Article 52)
   Pakistan declares that the Convention is to apply to all its territorial units.
6. Form No. 11 (Declaration under Article 53)
   Pakistan declares that the following court(s):
   – The High Court of Balochistan,
   – The Lahore High Court,
   – The Peshawar High Court, and
   – The High Court of Sindh.
   Within their respective territorial jurisdiction, are the relevant court(s) for the purposes of Article 1 and Chapter XII of the Convention.
7. Form No. 13 (Mandatory declaration under Article 54(2))
   Pakistan declares that any remedies available to the creditor under the Convention which are not expressed under the relevant provision thereof to require application to the court may be exercised without court action and without leave of the court. 

 Pakistan has also lodged the following declarations under the Aircraft Protocol at the time of the deposit of its accession instrument: 

1. Form No. 19 (Declaration under Article XXX (1) in respect of Article VIII)
   Pakistan declares that it will apply Article VIII.
2. Form No. 21 (Declaration under Article XXX (2) in respect of Article X providing for the application of the entirety of Article X)
   Pakistan declares that it will apply Article X in its entirety, and that the number of working days to be used for the purposes of the time limit laid down in Article X(2) shall be in respect of the remedies specified in Articles 13(1)(a), (b) and (c) of the Convention (preservation of the aircraft objects and their value; possession, control or custody of the aircraft objects; and immobilisation of the aircraft objects) not more than ten (10) calendar days and in respect of the remedies specified in Articles 13(1)(d) and (e) of the Convention (lease or management of the aircraft objects and the income thereof and sale and application of proceeds from the aircraft equipment) not more than thirty (30) calendar days.
3. Form No. 23 (General declaration under Article XXX (3) in respect of Article XI providing for the application of Alternative A in its entirety to all types of insolvency proceeding)
   Pakistan declares that it applies Article XI, Alternative A in its entirety to all types of insolvency proceeding and that the waiting period for the purposes of Article XI (3) of that Alternative shall be sixty days.
4. Form No. 26 (Declaration under Article XXX (1) in respect of Article XII)
   Pakistan declares that it will apply Article XII.
5. Form No. 27 (Declaration under Article XXX (1) in respect of Article XIII)
   Pakistan declares that it will apply Article XIII.
6. Form No. 34 (General declaration under Article XXIX)
   Pakistan declares that the Aircraft Protocol applies to all its territorial units. 

Panama

The Republic of Panama has adopted the Cape Town Convention and the Cape Town Protocol by means of Law No.29 of 2003 and no other action needs to take place for the Convention to be in effect in the Republic of Panama. Pursuant to the Declaration made by the Republic of Panama under Article XXX, paragraph I, with respect to Article XIII of the Cape Town Protocol, the IDERAs, once registered with the AAC, will be fully effective to authorise the party named therein to act in accordance with the terms set out therein and procure the deregistration of the aircraft from the AAC and procure the export and physical transfer of the aircraft from the Republic of Panama, provided that the terms of Article IX of Cape Town Protocol are observed. 

Peru

Yes, foreign law-governed security Agreements are valid if the parties have signed it and an aircraft Agreement is duly registered in Peru. Formalities are the same as listed in the answers to questions four and five.   

Philippines

The Philippines has not ratified the Cape Town Convention on International Interests in Mobile Equipment and the related Aircraft Protocol as of this writing. 

Poland

No, Poland has not ratified the Cape Town Convention on International Interests in Mobile Equipment and Aircraft Protocol.  It should be assumed that protections offered by the Convention do not apply and will not be enforceable in Poland.  

One significant consequence of this is that Polish law and authorities do not acknowledge IDERAs or export PoAs. However, this does not affect the rights of the owner (at least not significantly) because, under Polish law, the owner is always allowed to deregister and export the aircraft, even when the operator is against deregistration. This is subject to the operator’s contractual rights under the lease.  These do not affect the regulatory aspect of the situation and especially the right to deregister and process formalities concerning export.

Portugal

Portugal is not a signatory party to the Cape Town Convention. 

Romania

Romania has ratified both the Cape Town Convention on International Interests in Mobile Equipment and the related Aircraft Protocol. 

In relation with the Cape Town Convention on International Interests in Mobile Equipment Romania made two declarations: 

• Nothing in the Convention shall affect the right of Romania, of a Romanian entity, of an intergovernmental organization, or other private provider of public services to arrest or detain an object under the laws of the Romanian state for payment of amounts owed to such entity, organization or provider directly relating to those services in respect of that object or another object; 
• The remedies available to the creditor in accordance with the Convention for which their application is not expressly conditioned in the Convention by filing a court application, may be exercised only with the permission of the competent court of the Romanian State. 

As regards the Aircraft Protocol, Romania made one declaration, namely that will apply article VIII from the Protocol regulating parties’ freedom to choose the law applicable to an agreement, a sale contract, a guarantee contract or subordination agreement. 

As regards IDERA, Article XIII from the Aircraft Protocol is not applicable in Romania. 

Serbia

No, Serbia has not ratified the Cape Town Convention, so IDERA deregistration process is not applicable in Serbia and IDERA is not recognised as an instrument established by the Cape Town Convention under Serbian law.

The aircraft deregistration procedure in Serbia is conducted by the Civil Aviation Directorate upon a request of either an aircraft’s owner or an aircraft’s operator (or, in certain cases, ex officio), while in both cases an applicant (owner or operator) should submit a written and notarized statement of consent to the aircraft’s deregistration made by every person registered in the owner/operator sheet and mortgage sheet of the Aircraft Register. This means that the lessor/owner would not be able to deregister the aircraft from the Aircraft Register without the consent of the lessee. Such consent should be notarized and, depending on the country of its notarization (i.e., depending on the fact whether that country and Serbia are parties to an agreement or multilateral convention regulating the legalization of foreign decisions), could also be apostilled or fully legalized and translated into Serbian language by a sworn court translator.

Slovenia

Slovenia did not ratify the Cape Town Convention on International Interests in Mobile Equipment and the related Aircraft Protocol.  

South Africa

Yes, South Africa has acceded to, ratified and incorporated the Cape Town Convention on International Interests in Mobile Equipment and the related Aircraft Protocol into South African law. Declarations have also been made by SA. Whilst the SACAA accepts the filing of IDERAs and Deregistration Powers of Attorney, in our experience, the SACAA will not act on an IDERA without an order of court in the event of a contested repossession.

Sweden

Yes, Sweden has ratified the Convention and the aircraft protocol. Minor declaration has been implemented but they are of formal and minor importance.  

Switzerland

Although signed, the Cape Town Convention has not been ratified by Switzerland yet. 

The Bahamas

The Bahamas has not signed or ratified the Cape Town Convention on International Interests in Mobile Equipment and the related Aircraft Protocol. 

USA – Miami

None.

USA – Oklahoma City

The U.S. has ratified the Cape Town Convention on International Interests in Mobile Equipment and the related Aircraft Protocol. The U.S. lodged declarations under Sections 39(1)(a)-(b), 54(2) of the Convention and Sections XIX, XXX(1) (including Articles VIII, XII and XIII) of the Aircraft Protocol.

Registration of interests on the International Registry is necessary under U.S. law to perfect the parties’ interests in airframes, helicopters, and engines which are covered by the Cape Town Convention. The U.S. established the FAA registry as an authorising entry point to the International Registry with respect to civil aircraft of the U.S. or an aircraft for which a U.S. identification number has been assigned. In order for a registration with the International Registry to be valid as to such aircraft or helicopter, the parties must request and obtain a unique authorisation code from the FAA registry by filing (i) a completed FAA AC Form 8050-135, and (ii) any documents representing the transaction that are recordable with the FAA (such as the mortgage, lease, or bill of sale). The code is used when making registrations with the International Registry. For prospective international interests, the documents must be filed with the FAA within 60 days of the date of the filing of the FAA AC Form 8050-135.

The FAA will accept an IDERA filed against a U.S.-registered airframe in connection with a security agreement or lease which qualifies as a conditional sale contract. The FAA will not accept an IDERA filed in connection with a true, operating lease. The FAA will deregister the airframe at the request of an IDERA holder, provided that the IDERA holder provides certain written certifications regarding prior interests.