Insel Air International B.V. has been granted temporary bankruptcy protection

Insel Air international B.V. has requested and has been granted temporary bankruptcy protection status by the Court of First Instance of Aruba until at least June 9th, 2017. This request was introduced as a consequence of a request for bankruptcy filed by creditor(s). With this measure the bankruptcy request(s) have been frozen pending the bankruptcy protection period.

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On June 9th, 2017 the Court will have to decide if the bankruptcy protection is extended beyond that date. Such protection can last up to one year and a half. The consequences for the airline is that an independent administrator has been appointed to Insel Air International B.V. and that the managing-directors of the company can’t legally bind the company without consent of the administrator. During this timeframe creditors can consider whether or not to further pursue their claims against the company.

Last week Insel Air Aruba N.V. filed for similar bankruptcy protection https://wordpress.com/read/feeds/2091762/posts/1366876024

#arubaguy #thearubaguy #arubalawyer #lincolngomez

Insel Air Aruba has been granted temporary bankruptcy protection

Insel Air Aruba N.V. has requested and has been granted temporary bankruptcy protection status by the Court of First Instance of Aruba until at least June 7th, 2017. On June 7th, 2017 the Court will have to decide if the bankruptcy protection is extended beyond that date. Such protection can last up to one year and a half. The consequences for the airline is that an independent administrator has been appointed to Insel Air Aruba and that the managing-directors of the company can’t legally bind the company without consent of the administrator. During this period the company enjoys certain protection from creditors. During this timeframe creditors can consider whether or not to further pursue their claims against the companyinsel.

At this point it is not known if Insel Air International B.V., based in Curacao, will also request such bankruptcy protection from the Court of Curacao.

#arubaguy #thearubaguy #arubalawyer #lincolngomez

Transfer of business operations in Aruba or not? The Court provides (needed) clarity.

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This Spijkers v Gebroeders Benedik Abbatoir CV, 1986 case has led to what is referred to in Europe as “Spijkers Criteria”. These are to be considered when it comes to deciding whether there has been a transfer of a business operation (“an undertaking”) or not. The criteria are:
1 was the undertaking a stable undertaking with an ongoing life of its own?

2 has the entity retained its identity?

3 have some or all of the staff been taken over by the new employer?

4 has the customer base transferred?

5 are the activities post transfer similar to those carried on before the transfer?

6 whether there was an interruption of the activity will be a factor

7 has there been a transfer of assets?

In a February 28th, 2017 decision of the Court of First Instance, in so far as I am aware, introduced these criteria in the Aruba labor law system. In the case in question, a local union vs a local casino operator, the court used this criteria to determine that in this specific case there was no transfer of a business operations and as such the claim(s) made by the union we’re rejected. This case resulted due to amendments brought to the Aruba labor legislation in 2013 where a “transfer of business operations”-provisions in order to protect employees from the transferring entity.

Having read the decision of the court I believe the decision will not be turned over in appeal and that as of today this case will help resolve disputes in cases where a transfer of operations is claimed by a union or group of employees. I also believe this decision contributes to a healthier business climate in Aruba.

#arubaguy #thearubaguy #arubalawyer #lincolngomez

Some tips on the Cape Town Convention & Mobile Protocol

 

The Cape Town Convention (“CTC”) and the Mobile Protocol (“MP”) (collectively “Convention”) are 2 legal instruments that were created to facilitate the financing of aircraft and aircraft engines. These instruments only are applicable if there is a financing of some sort involved including a lease arrangement. In case of a straight out sale-purchase of an aircraft without any financing or lease involved these instruments don’t play a role. To determine if these instruments are applicable you need to look at the transaction or the envisioned transaction. If the aircraft is going to be registered in a country that is a party to the Convention this is an indication that you could structure a Convention transaction, meaning that the financing of the aircraft can be reinforced by creating so-called International Interest, which is an international security interest right that is recorded in the International Registry (IR) In Ireland. Here is a list of the countries: http://www.unidroit.org/status-2001capetown.

Another thing to look at is for example in case of a lease is if one of the parties is established in a Convention country. For the Convention to be applicable you need at least 1 of the parties i.e. debtor or creditor to be established in a Convention country. Once you have classified the transaction under the Convention you can create the International Interests and that will give you the benefit of being able to enforce the International Interest in all those (70) countries. Note that some countries have chosen certain reservations when the accepted the Convention so that it is not one size fits all. In some of these countries you may also have the advantage of other conventions such as the Geneva Convention.

Besides the IR you can also file an IDERA, which stands for Irrevocable De-Registration and Export Request Authorization. This form is/can be filed at the time of registering the aircraft and gives the party who has registered the aircraft i.e. the owner or the lessee the option to grant a designated party, typically the financier an irrevocable authorization to de-register the aircraft. This empowers the financiers or the lessor to be able to de-register the aircraft at will/in case of a default and limits the ability of the lessee or the operator to de-register the aircraft without the consent of the financier.

#arubaguy #thearubaguy #arubalawyer #lincolngomez

 

 

 

P4-CLA: Comlux is granted EASA TCO approval facilitating operations on its B767 VVIP

Comlux the Aviation Group is pleased to announce that Comlux Aruba, one of the Fly Comlux operational centers, has been granted an EASA TCO (Third Country Operator) approval which will facilitate its operation, specifically on the 767-200. This approval provides the Comlux wide body with the highest standard of compliance with European Union safety standards, therefore shortening the operating approval process.

The EASA TCO came as a result of the European Commission paving the way for airlines traveling from outside the European Union to obtain a single safety authorization for anyone flying within, to or from the EU. This approval is rapidly becoming a mandatory prerequisite to obtain operating permits for commercial operations to and from EASA member states, and it allows Comlux Aruba to apply for individual operating permits to perform commercial air transport operations for the 767 and the rest of the charter fleet.

“Our Comlux 767 operation is now more efficient than ever,” stated Andrea Zanetto, CEO Fly Comlux. “Once again Comlux is leading the path with a VVIP wide body aircraft available for charter with the EASA TCO approval already in place.”

Comlux The Aviation Group is one of the leaders in VIP aviation services, operating worldwide with the highest standards of safety and quality. Beyond VIP charter operations, Comlux offers a comprehensive set of services to VIP customers who wish to have their own aircraft managed personally and professionally. This includes exclusive aircraft management, sales and acquisitions, cabin design and completion as well as maintenance and engineering services.

#arubaguy #thearubaguy #arubalawyer #lincolngomez

THE WORLD AIRCRAFT REPOSSESSION INDEX 2015 CONFIRMS THAT ARUBA IS THE LEADING ‘REGISTRY OF CHOICE’

The first edition of the World Aircraft Repossession Index, including 57 important jurisdictions worldwide, has been published on October, 30th, 2015. The initiative to realise this unique work was undertaken by the law firm Pillsbury Winthrop Shaw Pittman LLP and it is available free-of-charge. See the websites below. The publication is a most workable tool for risk rating agencies, export credit institutions, lessors, financiers, practicing lawyers, academics, students and the international aviation finance and lease practice at large. Lincoln Gomez and I of the law firm Gomez & Bikker had the pleasure to be invited to participate as the counsel for the jurisdiction Aruba in regard to providing the local expert analysis. The final outcome of the local research is based on seven special criteria, which numerically establish the legal and practical success of repossessing aircraft in each contributing country. Besides, the index provides for an overview and a worldmap which highlight the overall score of each participating jurisdiction. We are delighted to emphasize that worldwide Aruba has the highest score of all the 57 contributing states. In addition, it is particularly noteworthy that the competing ‘aircraft nationality registries of choice’ have obtained much lower aggregate scores. While worldwide Aruba is the only country having an overall 100 % score, the latter off-shore aviation finance jurisdictions have scored between 58 and 91 %. In summary, the publication clearly confirms that Aruba is the leading registry of choice!

http://www.pillsburylaw.com/stageFiles/Publications/Publication_1029_Final.pdf

By: B. Patrick Honnebier

#arubaguy #thearubaguy #arubalawyer #lincolngomez

 

Successful aircraft repossession in Aruba: Aruba a registry and a judicial system of choice!

This Registry of Aruba was the first privately managed Category-1 aircraft registry in the world as rated by the FAA. Aruba was also the first off shore aircraft jurisdiction to adopt the Cape Town Convention, as early as in 2010. Aruba’s sound legal system and sophisticated courts can also offer even more value to the business aviation community. The Courts of Aruba just evidenced the latter through recent decisions.

Aruba’s sound and efficient legal system – combined with proper application thereof – allowed for an internationally operating lessor to arrest a YV-(Venezuelan) registered aircraft in Aruba and within days obtain a favorable decision by the court ordering the lessee to release the aircraft and records and to de-register the aircraft from the YV-registry. To encourage compliance with the courts decision the court awarded an immediately payable penalty of US$ 100,000. — per day or per portion thereof up to a maximum amount of US$ 6,000,000.–.

It is noteworthy that the decision was scheduled for 2 weeks following the hearing, however in the interest of both lessor and lessee to obtain certainty over the status of the aircraft and to preserve the integrity of the aircraft the Court of First Instance of Aruba issued the decision in 1 week!

The swift process evidences that the courts realize the importance of these aircraft related matters and is consistent with the Declarations as to the meaning of the word “speedy” in articles 13(1) of the Convention and X of the Protocol although the Convention was not applicable to the lease in question since the debtor was a Venezuelan entity and Venezuela is not a party to the Convention. This shows that the Court of Aruba is reliable and efficient.

The aircraft lessee was a Venezuelan start-up airline who during the certification process had been in default for almost 2 years. The lessor was a U.S. Owner Trustee and the beneficial owner a Canadian leasing company. The aircraft came to Aruba on a test flight and the lessor was able to use Aruba as forum arresti. New York law was the law governing the lease and the Court upheld the application on NY law including the default(s) of the lessee and the termination of the lease.

I would also like to point out that the recent decision of the Court was the second issued in 2015, as earlier in the year the Court ordered, arrested and liberated a foreign registered and stolen (!) aircraft when it landed in Aruba. The difference with the earlier case is that it was a judgment by default, which would allow certain critics (and surely the skeptics) to claim that the court in these matters remains “untested”.

Well in this case the proof of the pudding is in the eating and in the opinion of the lessor and the lessor’s Aruba based attorney – yours truly – the pudding is/was delicious.

#arubaguy #thearubaguy #arubalawyer #lincolngomez

Aruba and The Kingdom of Saudi Arabia execute art. 83bis Agreement ICAO

The Department of Civil Aviation of Aruba (DCA) and General Authority of Civil Aviation of Saudi Arabia (GACA), has executed and ICAO 83bis Agreement which allows Aruba registered aircraft to operated commercially under a Saudi AOC’s issued by GACA. ARABASCO  is the first operator to place under its Ops Specs the first Aruba registered aircraft with the nationality marks P4-NOF.

Continue reading “Aruba and The Kingdom of Saudi Arabia execute art. 83bis Agreement ICAO”

RATIFICATION BY THE UNITED KINGDOM OF THE CAPE TOWN CONVENTION AND AIRCRAFT PROTOCOL

On 27 July 2015 United Kingdom’s instruments of ratification to the Convention on International Interests in Mobile Equipment and the Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Aircraft Equipment were deposited with UNIDROIT. The United Kingdom made declarations under Articles 39(1)(a)-(b), 39(4), 52, 53 and 54(2) of the Convention, and under Articles XXIX, XXX(1), XXX(2) and XXX(3) of the Aircraft Protocol. The Convention and the Aircraft Protocol will enter into force for the United Kingdom on 1 November 2015.

Continue reading “RATIFICATION BY THE UNITED KINGDOM OF THE CAPE TOWN CONVENTION AND AIRCRAFT PROTOCOL”

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