AIRCRAFT TRANSACTIONS WITH IRAN FOLLOWING THE EASING OF SANCTIONS
Article by Mark Bisset
Decades of sanctions have left Iran with one of the oldest fleets in the world, in desperate need of major fleet renewal. Following the recent easing of sanctions this process should now start, but because the sanctions regime is not yet fully lifted a myriad of issues remain that require careful review when dealing with Iran.
On 16 January 2016 the International Atomic Energy Association (IAEA) issued a report confirming that Iran had completed the necessary preparatory steps (i.e. reduction in stockpiles of low-enriched uranium) to start the implementation of the Joint Comprehensive Plan of Action (JCPOA), which is a plan for the reduction of Iran's nuclear program agreed by Iran, China, France, Germany, the Russian Federation, the US and the UK reached in Vienna in July 2015. This triggered much awaited sanctions relief from the EU and the US and a major move towards the end of a sanctions regime that commenced in 1979 and has been in place in relation to Iranian aviation since 1995. Iran's economy of 80 million people, already the second largest in the MENA region even after years of sanctions, stands to benefit hugely, as do many foreign investors looking for growth in an otherwise sluggish international economy.
In January the European Union lifted all sanctions which had targeted, amongst others, Iran's oil, gas, shipping, petrochemicals, insurance and financial sectors. Over 400 entities that had previously been designated for asset freezes by the EU were de-listed.
The US broadly lifted "nuclear-related secondary sanctions" which had targeted non-US companies/persons dealing with Iran's energy, shipping, financial, shipbuilding and automotive sectors, Iran's port operators, providers of related insurance, Iran's trade in gold and other precious metals, and trade with Iran in graphite and raw or semi-finished metals, such as aluminium, steel and coal. The US also de-listed a number of "specially designated nationals" (SDNs). Further relief was also offered to Iran's aviation sector which will benefit from a Statement of Licensing Policy establishing a favorable licensing policy regime to request specific authorization from OFAC. This will allow the provision of US civilian aircraft and parts to Iran for the first time in decades and to foreign subsidiaries of US companies, which ought in some circumstances to be able to deal with Iran without exposing their parent company to penalties. A number of Iranian banks will be reconnected to the SWIFT network, facilitating the electronic transfer of funds, and helping to inject cash from Iran's frozen assets into the country's economy. About USD 30 billion of Iran's estimated USD 100 billion of frozen assets are expected to be released.
However, caution must still be exercised. Not all of the EU and US sanctions against Iran are being lifted. There are residual asset freezes in place against individuals and entities linked to Iran's ballistic missile program and human rights violations, and foreign businesses must carry out proper due diligence on their counterparts before concluding contracts. Furthermore, the US "primary" sanctions will continue to prohibit US persons in general from carrying out business with Iran outside the few exempted areas such as food, medicine and the newly liberalised aviation sector. Banks will still be unable to clear US dollars for Iran-related business and financial institutions generally are likely to tread carefully before re-engaging wholesale with Iran and Iranian related business.
As a brief summary therefore of the progress which has been made in reconnecting Iran to the global economy:
- The EU's "nuclear" sanctions and US secondary sanctions have been lifted
- Legal restrictions on doing business in Iran's oil, gas, petrochemical and shipping sectors have been lifted
- Iran can sell its oil on the open market and repatriate its foreign currency earnings
- Iranian banks are no longer cut off from the world's banking sector
- The SWIFT financial messaging system has been reconnected to Iran
- Foreign investors can make capital investments in Iran's estimated USD 250 billion projects market
- IP rights to protect brands can be registered
The new normal is not an unfettered ability to trade with Iran
There are many residual restrictions still in force and businesses need to be aware of these restrictions before entering Iran. Restrictions connected with ballistic missile and human rights violations remain. There are also a number of designations on Iranian entities. For example, both the EU and the US have maintained the designation of the Islamic Revolutionary Guard Corps ("IRGC") which has interests in many areas of the Iranian economy. Businesses are unable to deal with these entities under these residual sanctions.
Iran remains designated by the United States as a "state sponsor of terrorism". The Financial Action Task Force reiterated its concerns in February 2016 about Iran's failure to address anti-money laundering and combatting financing of terrorism deficiencies. The threat this poses to the integrity of the international financial system was highlighted.
Counterparty risks and KYC remain significant issues
The first key step for any international investor in Iran will be to identify not only whether its counterpart is designated in any way, but whether that counterpart is owned or controlled by persons who are designated. That is likely to be a difficult conversation for a foreign investor (particularly a Western investor) to have with an Iranian counterpart. Without a culture or history of "client due diligence" in Iran, requests for information about shareholders and directors of Iranian companies, not to mention passport copies, are likely to be met by strong resistance.
Banking issue remains a key concern
There was no relief for US clearing banks, or for foreign financial institutions who deal in US dollars. The potential for settlements such as those agreed by BNP Paribas and Commerzbank for allegedly engaging in US dollar transactions with Iran has not diminished. Indeed, it has arguably increased as more business is anticipated to be carried out with Iran. This is a major problem for the aviation industry, which is of course a predominantly dollar-dominated industry: current US sanctions ensure that no transactions in Iran can be dollar-dominated. All dollar payments need to be cleared through a US clearing bank and therefore have an intrinsic US nexus. Banks that can work in euros are likely therefore to be the initial beneficiaries of the sanctions relief, provided they can structure deals to entirely avoid any dollar payments.
Whilst Iranian banks are connected to the SWIFT financial messaging system, few, if any, tier one financial institutions are listening at the other end. There is a reluctance to support business with Iran in any currency because of the risks associated with accidentally handling US dollars. Whether that reluctance translates into a substantial handbrake on the potential for trade with Iran is the great unknown.
Foreign subsidiaries of US companies are now permitted to engage in business with Iran. This is provided that it does not conflict with the purposes of the JCPOA and that it is not with the Government of Iran. The US parent company will need to be wary of unwittingly "facilitating" trade with Iran by giving any approvals for its subsidiary to carry out such business. General Licence H permits US parent companies to pass the necessary approvals to divest themselves of the decision making authority for the entry of that business, allowing the foreign subsidiaries to take the ultimate decision to engage in that business themselves. Understanding General Licence H is therefore a means by which conglomerates with links to, or even headquarters in, the US could carry on business with Iran, via their subsidiaries.
Selling and leasing aircraft to Iran
We turn now to looking at the impact on transactions involving aircraft.
In implementing the Joint Comprehensive Plan of Action, the US has opened the door for sales and leasing of US aircraft and related parts and services to Iran. It is of course well known that following years of isolation the Iranian commercial aircraft fleet requires substantial upgrading: to take but one example, Iran Air owns three of the last four 747-200Ms in existence, aged up to 40 years old. Iran's fleet of 273 commercial aircraft has an average age of 23.8 years.
The re-exportation of goods to Iran is regulated by the US Department of Treasury through the US Office of Foreign Assets Control ("OFAC") and by the US Department of Commerce through the Export Administration Regulations.
The Iran Transactions and Sanctions Regulations address transactions with Iran. These Regulations do not define the term "reexport". However, the EAR provide a definition, which is illustrative as to how OFAC likely would interpret the term. The EAR broadly define "reexport" to include the shipment of an item subject to the EAR from one foreign country to another foreign country.
On 16 January 2016, OFAC issued a "Statement of Licensing Policy for Activities Related to the Export or Reexport to Iran of Commercial Passenger Aircraft and Related Parts and Services" (the "SLP"). The SLP establishes a favorable licensing policy under which US and non-US persons may request specific authorization from OFAC to engage in transactions for the sale of commercial passenger aircraft and related parts and services to Iran, provided such transactions do not involve any person on OFAC's Specially Designated Nationals and Blocked Persons List ("SDN List"). It should be noted that the SDN List still includes Mahan Air, Iran's second largest carrier, "for providing financial, material and technological support to the Islamic Revolutionary Guard Corps-Qods Force (IRGC-QF)".
Under the SLP, US companies and, where there is a nexus to US jurisdiction, non-US companies may apply for licenses to engage in transactions for the (i) export, reexport, sale, lease or transfer to Iran of commercial passenger aircraft for exclusively civil aviation end use, (ii) export, reexport, sale, lease or transfer to Iran of spare parts and components for commercial passenger aircraft; and (iii) provision of associated services, including warranty, maintenance and repair services and safety-related inspections, for all the foregoing, provided that licensed items and services are used exclusively for commercial passenger aviation.
Within only 12 days from the SLP, on 28 January, Airbus announced an order by Iran Air for 118 new aircraft (made up of 21 A320ceo family, 24 A320neo family, 27 A330ceo family, 18 A330-900neos, 16 A350-1000s and 12 A380s) in a deal worth USD 25 billion at list prices, signed in the presence of presidents Hassan Rouhani of Iran and Fran.ois Hollande of France. The first deliveries are said to be scheduled to take place as early as July 2016, with the A380s beginning to arrive in 2019 and the entire order to be fulfilled by 2022. Iran's flagship carrier, Iran Air, has said that it will require as many as 580 new aircraft (including the Airbus order) over the next ten years, with 300 of those required in the next five years. It is not publicly available knowledge how these aircraft will be financed, although Airbus has said that it might provide some temporary finance. It should also be noted that it is uncertain how committed this transaction is, and that because the aircraft have more than 10% US-origin equipment on them OFAC approval will be required (we discuss this further below).
Despite the deputy head of Iran's Civil Aviation Organization being quoted as specifying that 80 new aircraft will be purchased each year, to be split between Airbus and Boeing, it is unclear how soon a deal with Boeing would be agreed. Boeing was given clearance in February by the US government to hold talks with Iranian airlines about potential deals, and has conducted talks over the past few months. Aside from Airbus and Boeing, Iran Air agreed on 1 February to purchase 40 ATR-600s turboprops from ATR, the French-Italian manufacturer. This deal, valued at USD 1.1billion at list prices, included firm orders for 20 aircraft and 20 options.
It is important to note that OFAC has not issued a general license, which would have permitted the above transactions to take place without any further authorization from OFAC. Rather, OFAC will evaluate and provide case-by-case licensing of the export, reexport, sale, lease or transfer to Iran of commercial passenger aircraft, spare parts and components for such aircraft, and associated services, all for exclusively commercial passenger aviation. Specific licenses issued pursuant to the SLP will include appropriate conditions to ensure that licensed activities do not involve, and no licensed aircraft, goods or services are resold or retransferred to, any person on OFAC's SDN List.
The SLP addresses US-origin commercial passenger aircraft or commercial passenger aircraft that contain 10% or more US-origin content (i.e. where US-origin goods comprise more than 10% of the total value of the foreign-made goods). The affected aircraft include: wide-body, narrow-body, regional and commuter aircraft used for commercial passenger aviation. The types of aircraft not eligible for licensing under the SLP include cargo aircraft, state aircraft, unmanned aerial vehicles, military aircraft and aircraft used for general aviation or aerial work. The 10% US-origin issue is a major consideration when proposing to deal with Iran: prospective sellers and lessor are well aware that most aircraft have at least 10% US-origin equipment on them, so they will need OFAC approval for any sale/lease (including a wet lease). This rule applies to both second-hand and new aircraft – OFAC has yet to approve the Airbus and ATR deals with Iran referred to above.
US persons are authorized to engage in transactions that are "ordinarily incident to a licensed transaction and necessary to give effect thereto". According to the FAQs issued by OFAC, such services include transportation, legal, insurance, shipping, delivery and financial payment services provided in connection with the licensed export transaction. An example provided by OFAC of a service ordinarily incident to the licensed export transaction service would be where a US person provides insurance to cover the shipment of a licensed component from a US manufacturer to an Iranian customer. In contrast, a US person's provision of insurance to cover the component over a period of years after it has been exported to Iran would not be ordinarily incident to the licensed export transaction and would require separate authorization from OFAC.
Finally, as previously mentioned, the SDN List and the Department of Commerce's Denied Persons List and Entity List should be consulted in connection with compliance due diligence procedures.
Transactions authorized by OFAC pursuant to the SLP generally do not need separate authorization from the Department of Commerce, which regulates exports of US-origin and US-content goods pursuant to the US Export Administration Regulations ("EAR"). The Bureau of Industry and Security (BIS) maintains licensing requirements on exports and reexports to Iran under the EAR. The EAR could be implicated irrespective of the percentage of US origin content in the Aircraft. The EAR provides a list of categories of items that cannot be reexported to Iran without a license. To avoid duplication, exporters or reexporters are not required to seek separate authorization from BIS for an export or reexport subject both to the EAR and to OFAC's Iranian Transactions Regulations. Therefore, if OFAC authorizes an export or reexport, such authorization is considered authorization for purposes of the EAR as well. Transactions that are not subject to OFAC regulatory authority may require BIS authorization.
It is clear from Iran's recent orders with Airbus and ATR that its appetite for new aircraft is high and, with the recent lifting of sanctions, there is a clear opportunity for suppliers of both aircraft and aircraft parts and providers of related services to do business with Iran. One risk concerning lessors in particular is snap back – the possibility of Iran violating the conditions of the sanctions lifting regime, leading lessors to be forced to repossess aircraft from a jurisdiction where repossession rights are not yet fully defined. For this reason many market participants are saying that for now they are more comfortable with selling rather than leasing. Many market commentators believe that lessors will lease aircraft into Iran but will begin wet leasing them before dry leasing them.
MONTREAL CONVENTION: TO WHOM IS THE CARRIER LIABLE IN THE EVENT OF DELAY?
Article by John Balfour and Tom van der Wijngaart
It is clear from Article 19 of the Montreal Convention 1999 that the "carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo", but it is less clear to whom the carrier is liable in the case of passenger delay – only to the passenger or also to other parties who may suffer damage? In a judgment delivered on 17 February 2016, the Court of Justice of the EU confirmed the latter alternative.
The CJEU held, in response to a request for a preliminary ruling from the Supreme Court of Lithuania, in Case C-429/14 Air Baltic v Special Investigation Service of the Lithuanian Republic (SIS), that the Montreal Convention was to be interpreted as meaning that a carrier which has concluded a contract of carriage with an employer of persons carried as passengers is liable to that employer for damage occasioned by delay in the carriage by air of those passengers.
The main proceedings and the questions referred
The reference arose from a claim brought by the SIS against Air Baltic for reimbursement of an amount equivalent to about Euro 338 which SIS had paid to two of its agents in respect of travel expenses and social security contributions, as required by Lithuanian law, in the light of delay which the two agents suffered in travelling on business for the SIS. The SIS had bought tickets for its two agents to travel from Vilnius to Baku via Riga and Moscow, with the first two sectors on Air Baltic and the last on another carrier. The late arrival of the flight at Moscow meant that they missed the connection to Baku, and Air Baltic put them on another flight, which arrived in Baku the following day.
The first instance court held that Air Baltic was liable to pay the SIS for the amount claimed. Air Baltic appealed to the Supreme Court, arguing that under Article 19 of the Montreal Convention the carrier can be held liable only to the passengers themselves and not to other persons, especially when they are not natural persons and hence not consumers.
The Lithuanian Supreme Court decided to refer to the CJEU the question whether Articles 19, 22 and 29 of the Montreal Convention are to be understood as meaning that an air carrier is liable to third parties, inter alia to the passengers' employer, a legal person with which a transaction for the international carriage of passengers was entered into, for damage occasioned by a flight's delay, on account of which the employer incurred expenditure. The Court also referred a second question, but as this was only to apply in the case of a negative answer to the first question, it became irrelevant.
The CJEU's reasoning
The Court started by stating that, as a result of Article 31 of the Vienna Convention, an international treaty must be interpreted in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose.
As to the ordinary meaning of the provision in question, the Court found that, as Article 19 refers to "any damage occasioned by delay...", and does not specify who may have suffered that damage, although it does not explicitly so provide, it lends itself to being interpreted as applying not only to damage suffered by passengers themselves but also to damage suffered by an employer.
The Court then examined whether such an interpretation is supported by the context and objectives, and concluded that it is, for the following reasons:
- The Convention exists in six authentic language versions (French, English, Arabic, Chinese, Spanish and Russian). Although the French language version in Article 22(1) restricts the concept of damage occasioned by delay to damage "for each passenger", the English, Spanish and Russian versions differ, in that they refer to damage caused by delay, without restricting the damage to that suffered by passengers
- Article 1(1) of the Convention, which defines its scope of application, provides that it "applies to all international carriage of persons, baggage or cargo performed by aircraft...". While it does not define the persons who retain the services of an air carrier for such purposes, it is to be interpreted in the light of the third recital in the preamble, which mentions "the importance of ensuring protection of the interests of consumers in international carriage by air", and consumers for such purposes are not necessarily the same as passengers and may include persons who are not passengers. Given this objective, Article 1(1) cannot be construed as excluding consumers of international carriage by air, even though they may not be passengers
- Several provisions of the Convention (eg, Article 1(2), which refers to "the agreement between the parties", Article 3(5), which provides that the carrier's noncompliance with the ticketing requirements shall not affect the existence or validity of the contract of carriage, Article 25, which provides that the carrier may stipulate that the contract of carriage shall be subject to higher limits of liability, and Article 33(1), which provides that one of the available jurisdictions is the court where the carrier has a place of business through which the contract has been made) establish a link between the carrier's liability and a contract of carriage, and it is not relevant for such purposes whether or not the other party to such contract is a passenger
Finally, the Court pointed out that, given the provision in Article 22(1) of a monetary limit for the liability of the carrier for each passenger, the amount of the carrier's liability to a non-passenger in respect of the delay of passengers cannot exceed "the cumulative amount of compensation that could be awarded to all of the passengers if they were to bring proceedings individually".
Why is the CJEU involved?
Some may wonder why the CJEU is involved in interpreting provisions of the Montreal Convention. The reason is that the EU (in addition to each of its member states individually) is a party to the Convention, and furthermore the Convention has been approved by the Council on behalf of the EU (by Council Decision 2001/539) and implemented into EU law (by Parliament and Council Regulation 889/2002, amending Council Regulation 2027/97).
Thus, as the Court points out, "the provisions of the Montreal Convention have been an integral part of the European Union legal order from the date on which it entered into force and ... consequently, the Court has jurisdiction to give a preliminary ruling concerning its interpretation". Indeed, the Court has done so on several previous occasions (e.g., in Walz v Clickair in 2009).
The Court's approach to the interpretation of the Convention generally, with its regard for the Vienna Convention principles and the different language versions, is to be welcomed (although one is left wondering how the Arabic and Chinese versions of Article 22(1) deal with the concept of damage), and is consistent with the careful approach adopted in previous cases, such as Walz v Clickair. Moreover, although some may not like it, it seems perfectly proper for the Court to interpret the Convention, for the reasons it gives.
One matter that merits some comment is that in its judgment the Court makes no mention whatsoever of any judgments of courts of other jurisdictions on the issue. It may well be that this is because the parties to the case did not raise any in their arguments, and this in turn may be due to the absence of any authoritative rulings on the issue from any courts. Although there do not appear to be have been many, the issue has arisen, and Shawcross & Beaumont reports a judgment of a New York appeal court in 1997 (in Pakistan Arts and Entertainment Corporation v PIA) holding that an employer of passengers which had bought tickets for the passengers was entitled to bring a claim in respect of delay.
Indeed, in none of the several cases in which it has examined provisions of the Montreal Convention has the Court referred to a single judgment of another court on the issue in question. As mentioned above, this may well be because the parties to the case have not cited any in their arguments. However, as the Court itself pointed out in Walz v Clickair, "in the light of the aim of [the Montreal Convention], which is to unify the rules for international carriage by air, [terms in the Convention] must be given a uniform and autonomous interpretation", and the courts of many of the main states party to the Convention have frequently stressed the desirability of comity in the interests of attaining uniform interpretation. Hence, it is to be hoped that in future references concerning the Convention the parties to the cases will cite in their arguments to the Court judgments relating to the issue from national courts of standing, and that the Court will give due consideration to such jurisprudence.
Another comment that may be made is that, although no mention of this was made by the Court, in common law jurisdictions at any rate the concept of subrogation is well known, and would permit a party other than the passenger, such as a travel insurer, to bring a claim for delay against an airline.
One questionable element of the Court's judgment is where it says that the compensation awarded to a non-passenger party cannot exceed the cumulative amount of compensation that could be awarded to all of the passengers concerned if they were to bring proceedings individually. As Article 22 of the Convention clearly provides that "In the case of damage caused by delay...in the carriage of persons, the liability of the carrier for each passenger [emphasis added] is limited to 4,694 Special Drawing Rights", it seems unequivocal that the limit applies per passenger and is not to be calculated cumulatively with regard to all passengers concerned.
Finally, lest this judgment might cause concern about this, the judgment should not open the way for other parties to bring claims against airlines in respect of passenger death and injury. There is little jurisprudence on the question of who is entitled to bring such claims, and Article 24 does leave the issue open, but, as Shawcross and Beaumont notes, provisions in the Convention, such as Article 22(1) concerning special contracts between the carrier and the passenger, suggest that the ability to bring a claim is limited to the passenger and his/her personal representatives unless a third party is clearly given such right by the substantive law of the forum.