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Enforcement of International Interests—In a Debtor’s Insolvency Proceedings

Article XI of the Aircraft Protocol outlines a creditor’s remedies if its debtor becomes insolvent. A Contracting State that is a debtor’s “primary insolvency jurisdiction”[1] may use a declaration to opt for either Alternative A or Alternative B of Article XI, or it may decide not to make a declaration at all.[2]

Alternative A closely resembles section 1110 of the United States Bankruptcy Code.[3] Alternative A is substantially more protective of a creditor’s interests than Alternative B. Under Alternative A, the debtor’s “insolvency administrator”[4] must give possession of the relevant aircraft object to the creditor holding an international interest in the object before the expiration of the “waiting period.”[5] Instead of specifying a period of time following the commencement of insolvency proceedings, such as the 60 day period provided by section 1110, Alternative A permits a Contracting State, in its declaration, to specify the applicable “waiting period” that will apply when the Contracting State is a debtor’s primary insolvency jurisdiction.[6] However, as under section 1110, if the insolvency administrator or debtor “cures all defaults . . . and has agreed to perform all future obligations under the agreement,” the insolvency administrator or debtor “may retain possession of the aircraft object.”[7]

Because Section 1110 of Chapter 11 of the United States Bankruptcy code specifies a 60-day period and is substantially to the same effect as Alternative A of Art. XI, the United States has not made a declaration relating to Art. XI of the Aircraft Protocol.

  • [1] Aircraft Protocol art. I(2)(n) (defining “primary insolvency jurisdiction” as “the ContractingState in which the centre of the debtor’s main interests is situated”).
  • [2] Aircraft Protocol arts. XI(1) (Article XI applies only if a declaration is made under ArticleXXX(3)); XXX(3) (declarations concerning Article XI). There are similar provisions under theRail Protocol and the Space Protocol. See Rail Protocol art. IX (Alternatives A, B, and C); SpaceProtocol art. XXI (Alternatives A and B).
  • [3] 11 U.S.C. § 1110.
  • [4] .Convention art. 1(k) (defining “insolvency administrator” as “a person authorised to administerthe reorganisation or liquidation, including one authorised on an interim basis, and includes adebtor in possession if permitted by the applicable insolvency law”).
  • [5] Aircraft Protocol art. XI(2) (Alternative A).
  • [6] Id. art. XI(3) (Alternative A).
  • [7] Id. art. XI(7) (Alternative A). However, “a default constituted by the opening of insolvency proceedings” need not be cured. Id.
 
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