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Erschienen in:
2017 | OriginalPaper | Buchkapitel
20. Rapport suisse sur le thème « Les sûretés grevant les moyens de transport – La Convention du Cap et sa transposition en droit national »
verfasst von : Bénédict Foëx
Erschienen in: Implementing the Cape Town Convention and the Domestic Laws on Secured Transactions
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Abstract
20.1. Switzerland has signed the Cape Town Convention on international interests in mobile equipment as well as the Aircraft Protocol and the Rail Protocol. However, it has not ratified these instruments (yet) and has not signed the Space Protocol either.
20.2.1 There is a limited number of rights in rem under Swiss law. The main security rights which can be created in a movable are : pledges, transfers of ownership for security purpose and financial leases (all of which require that possession of the asset be transferred to secured creditor), as well as retentions of title (whose validity require a registration in a public registry); mortgages may encumber only certain categories of movables (aircraft, ships, cattle, etc.).
Switzerland keeps an Aircraft Records Register (not to be confounded with the Swiss Aircraft Registry maintained in accordance with Sect. 17 et seq. of the Chicago Convention on international civil aviation, of December 7, 1944) enabling the registering of rights in rem (and of certain personal rights) concerning aircrafts. If an aircraft is registered in this Records Register (which is not compulsory), it may be encumbered by way of filing the security rights in the register (mortgage, transfer of ownership for security purpose and financial lease [including lease-back]).
Aircrafts which are not registered in the Aircraft Records Register, railway rolling stock and space assets may be encumbered by possessory security rights (pledge, transfer of ownership for security purposes and financial lease) or be subject to a retention of title clause.
20.2.2 Under Swiss law, ownership of a secured creditor (be it a lessor or an acquirer for security purpose) is a full ownership, whereas a mortgage is a limited right in rem. Ownership and mortgage follow different legal regimens and produce distinct effects.
20.2.3 The Swiss Aircraft Records Register is an asset-based registry. On the other hand, it is not a “notice-based” registry: rights (ownership, security rights, etc.) are filed by a registrar, upon production by the parties of the required documents (contracts, etc.); such filing is necessary to transfer ownership or to create a mortgage; in addition, a specific provision provides for the protection of the acquisition of ownership or of a mortgage relying in good faith in an entry in the Aircraft Records Register.
20.2.4 The rank of aircraft mortgages created by the parties (as opposed to those arising by operation of law) does not depend on the date of filing, but on the rank indicated by the parties upon registration. The parties may thus establish a mortgage in a second (or lower) rank, even though no other mortgage encumbers the aircraft yet, provided the amount taking precedence is specified in the entry; a mortgage may be established subsequently in the first rank and will have priority even though its date is posterior to that of the second-ranked mortgage; this system presents some similarities to that of the prospective international interests provided by Articles 16.1(a), 18.3 and 19.4 of the Cape Town Convention, although the parties are not the same (grantor and secured creditor to be subordinated under Swiss law; [prospective] chargor and [prospective] secured creditor under the Convention).
Likewise, if a mortgage is deleted from the registry, lower-ranked mortgages do not advance in rank and a mortgage may be registered in place of the one that has been deleted.
20.3.1 Under Swiss law, parties may agree “as to the events that constitute a default or otherwise give rise to the rights and remedies” (as provided by Article 11.1 of the Cape Town Convention).
20.3.2 The secured creditor may in principle realize the encumbered asset by private sale (as provided by Article 8.1(b) of the Cape Town Convention). The creditor who has acquired the ownership of the aircraft as security may sell the aircraft to a third party or keep it in payment; in either case, the creditor must account to the grantor and remit any excess proceeds resulting from the realization.
On the other hand, Swiss law is interpreted as not allowing the creditor to proceed by way of private sale if its security interest is an aircraft mortgage; in this case, the creditor must in principle resort to enforced sale proceedings (see also Article VII.1 of the Geneva Convention on the international recognition of rights in aircraft, of June 19, 1948).
20.3.3 Under Swiss law, the parties to a security agreement are at liberty to agree on other remedies in the case of an event of default, within the limit of compulsory law.
If the security at stake is a transfer of ownership for security purpose or a financial lease, the parties may in particular provide (in advance or upon the occurrence of an event of default) that the secured creditor is allowed to grant a lease of the aircraft received as security or to collect any income or profit arising from the management or use of such aircraft (cf. Article 8.1 (b) and (c) of the Cape Town Convention).
It is usually accepted that the parties may agree after default that the asset encumbered by a limited right in rem security interest shall vest to the secured creditor in satisfaction of the secured obligation (cf. Article 9.1 of the Cape Town Convention); likewise, the creditor who is entitled to realize the asset by way of private sale may acquire it itself, provided it accounts to the grantor and remits any excess proceeds resulting from such sale. It can be argued that the beneficiary of an aircraft mortgage may be contractually allowed to resort to these two remedies provided no enforcement proceedings have been initiated yet.
20.4.1 Security interests encumbering an aircraft, if validly created, are effective and enforceable towards third parties in enforcement proceedings (cf. Article 30 of the Cape Town Convention).
20.4.2 Aircraft mortgages are not immune to insolvency proceedings; the remedies under Alternative A or Alternative B of Article XI of the Aircraft Protocol are not fully compatible with the present state of Swiss law.