Legal Issues Framework Ravi NATH RNClegal/ Rajinder Narain & Co. t: + 91 11 4122 5000 t: + 91 11 4122 5000 f: + 91 11 4122 5001 f: + 91 11 4122 5001 c:

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Presentation transcript:

Legal Issues Framework Ravi NATH RNClegal/ Rajinder Narain & Co. t: t: f: f: c: e: General Aviation: The Next Steps Indo-American Chamber of Commerce Seminar PHD House, March 6, 2013, New Delhi

Indian Aviation Market  Duopoly Ravi NATH / rnclegal.com 189 Aircraft 181 Aircraft (As per DGCA website)

Other Manufacturers Ravi NATH / rnclegal.com

Legislative Framework Aircraft Act, 1934 Aircraft Rules, 1937 Civil Aviation Requirements (CAR) & Aeronautical Information Circulars (AIC) Bilateral Treaties Ravi NATH / rnclegal.com

Regulator and Other Authorities  DGCA Registration – Aircraft Register. Does not establish legal ownership. Raises presumption of ownership and Security Interest.  AAI  Customs Ravi NATH / rnclegal.com

Indo-US Agreements  The International Air Transport Agreement, 1944 – Fifth Freedom Agreement  Air Transport Agreement 2005 (‘Open Skies’)  Bilateral Aviation Safety Agreement  India-US Aviation Cooperation Program  Indo-US DTAA Ravi NATH / rnclegal.com

FDI Ravi NATH / rnclegal.com

FDI  Equity investments by foreign airlines up to 49%.  Only through ‘Approval Route’.  Chairman and two-thirds of the Directors must be citizens.  Deals: Jet-Etihad / AirAsia-TATA  Kingfisher ??? !!! Ravi NATH / rnclegal.com

Aviation Finance and Leasing  Purchase / Financing options  Leases Wet or Dry Operating Leases/ Finance Leases/ Hire Purchases − RBI Permission ? Ravi NATH / rnclegal.com

Owners/ Lessors and Security Interest Holder Issues Enforcement of Foreign Decrees & Arbitral Awards Deregistration & Repossession Choice of Jurisdiction & Choice of Law Ravi NATH / rnclegal.com

Enforcement of Foreign Decrees  From Higher Courts of Reciprocating Territories Section 13, CPC Section 44A, CPC  From Non-Reciprocating Territories Suit based on the foreign judgment/ decree. Implications? Ravi NATH / rnclegal.com

Arbitral Award Enforcement  Foreign awards under New York and Geneva Conventions enforceable (Part II of Arbitration and Conciliation Act, 1996.)  Enforcement can be refused if, for e.g.: Parties under incapacity, Arbitration Agreement invalid. Improper notice of Arbitrator appointment/ Arbitral proceedings improper. Arbitration not conducted in accordance with the Agreement or Governing Law. Party otherwise unable to present its case. Award on matter beyond scope of Arbitration Agreement. Subject not arbitral under Indian Law. Award set aside/ suspended by competent authority. Public policy. Ravi NATH / rnclegal.com

Deregistration  Bureaucracy -DGCA issues Consent of the Indian Lessee Role of IDERA / DPoA  Liens - AAI / Mechanic’s Lien: Rights?  Taxes - Service and other taxes : Rights?  Recent Experience – DVB et al. Ravi NATH / rnclegal.com

Cape Town Convention  Ratified by India in Ratified by 56 countries.  Registration of International Interest, Remedies for Default, Repossession, IDERA  Aviation Authorities are enjoined to act in accordance with the holders of IDERAs without the necessity of a Court Order.  But no underpinning Legislation in India. Therefore, conflicts arise. Ravi NATH / rnclegal.com

Treaty Conflicts  Self-help – Art. 8 - ???  Speedy Relief – Art ???  Registration of Charges at IR and the ROC under Section 125 of the Companies Act. Ravi NATH / rnclegal.com

Q & A Ravi NATH / rnclegal.com