CONGO BRAZZAVILLE Law and Practice Contributed by: Claudy Monja and Sarah Razafindrafito, John W Ffooks & Co
2.2 Lease Terms 2.2.1 Mandatory Terms for Leases Governed by English or New York Law No mandatory terms are required to be in a lease or ancillary documents thereto governed by English or New York law that would not typically already be included. Pursuant to the Civil Aviation Code, the lease needs to be written. If the lease is concluded for a period of more than 30 days, the agreement must be registered on the Aircraft Register of the ANAC. Furthermore, in practice, the lease should provide, among other things, the following information: • the identities of the parties; • the amount of the rent; • the duration of the lease; and • information on the aircraft/engine. 2.2.2 Tax and Withholding Gross-Up Provisions Tax and other withholding gross-up provisions are recognised under Congolese law. 2.2.3 Parts Installed or Replaced After a Lease’s Execution The authors are not aware of any laws that would pre - vent a lease from covering parts that are installed or replaced on an aircraft or engine after its execution, as long as the lessor is the owner of the parts. No specific steps need be taken, but the initial lease may There is only a risk of title annexation if the aircraft engines are not indicated/considered as separate assets from the aircraft itself. 2.2.5 Recognition of the Concepts of Trust/Trustee The Republic of Congo is a member state of the regional Organisation for the Harmonisation of Busi - ness Law in Africa ( l’Organisation pour l’Harmonisation en Afrique du Droit des Affaires , or OHADA). Under the OHADA Uniform Act organising securities (the “Uniform Act on Securities”), there is the concept of fiduciary transfer of money, or transfert fiduciaire de somme d’argent , which is an agreement under which be amended to cover the parts. 2.2.4 Risk of Title Annexation
1.2.5 Taxes/Duties Payable Upon Execution of a Bill of Sale A registration fee could be payable regarding the reg - istration of the bill of sale at the tax office and the ANAC.
2. Aircraft and Engine Leasing 2.1 Overview 2.1.1 Non-Permissible Leases
The authors are not aware of any laws that would pre - vent entering into an agreement relating to the oper - ating/wet/finance leases or leases concerning only engines or parts. 2.1.2 Application of Foreign Laws The authors are not aware of any law that restricts the conclusion of a lease involving a domestic party or an asset to be governed by a foreign law. 2.1.3 Restrictions Concerning Payments in US Dollars The authors are not aware of any material restrictions imposed on domestic lessees making rental payments to foreign lessors in US dollars. In general, as long as (i) it is duly agreed by the parties in the lease agree - ment; and (ii) the requirements under the exchange regulations are respected, no material restrictions are imposed on domestic lessees making rental payments to foreign lessors in US dollars. 2.1.4 Exchange Controls The authors understand that transfers and/or receipt of funds outside CEMAC member states can only be carried out through the central bank, an approved intermediary or a manual exchange licensed agent. This should not cause any issue, provided that rental payments are carried out by approved banks. 2.1.5 Taxes/Duties Payable for Physical Execution of a Lease The leasing of an aircraft could be subject to a regis - tration fee of 5% to 10% of the total value of the lease. 2.1.6 Licensing/Qualification of Lessors A licence or other qualification of the lessor is not required to do business with a domestic lessee.
130 CHAMBERS.COM
Powered by FlippingBook