CONGO BRAZZAVILLE Law and Practice Contributed by: Claudy Monja and Sarah Razafindrafito, John W Ffooks & Co
3.2.2 Types of Security Not Available It is understood that pledges cannot be taken over an aircraft or related collateral such as engines, warran - ties or insurances. 3.2.3 Trust/Trustee Concepts The concept of a trust and the role of a security trustee are recognised under the Uniform Act on Securities. 3.2.4 Assignment of Rights to an Aircraft by a Borrower to a Security Trustee The law is unclear on the assignment of rights to an aircraft by a borrower to a security trustee. However, the authors believe that a borrower may assign to a third party, including a security trustee ( agent de sûreté , under the Uniform Act on Securities), its rights to the aircraft or under an aircraft lease, pursuant to a security assignment or a mortgage. 3.2.5 Assignment of Rights and Benefits Without Attendant Obligations It is understood that it is possible to assign rights and benefits only, without also assigning the atten - dant obligations of the lessor. However, the lessor is required to notify the lessee of such agreement. The transferee is therefore required to comply with the les - sor’s obligation under the lease agreement. 3.2.6 Choice of Foreign Law A security assignment or a guarantee can be gov - erned by English or New York law. Parties are free to choose the governing law of their contract. 3.2.7 Formalities/Mandatory Terms to Create and Perfect Security Assignments It would be advisable to have a security assignment translated (if not already in French) and certified, notarised or legalised to be enforceable against a domestic party. 3.2.8 Domestic Law Security Instruments It is a requirement to have a written contract duly signed by the authorised signatories of the parties to such contract. The assignment deed must provide information that allows individualisation and identifica - tion. The registration of the assignment deed is also advisable in order to be enforceable. While not man - datory, it is advisable for a security assignment written
in a foreign language to be accompanied by a French translation made by a Congolese sworn translator.
3.2.9 Domestic Registration of Security Assignments Governed by Foreign Laws
Assignments of security interests governed by Eng - lish or New York law over an aircraft registered in the Republic of Congo are permitted. 3.2.10 Transfer of Security Interests Over Aircraft/ Engines The law is silent regarding the transfer of security interests over an aircraft and/or engines. However, the authors believe that there should be no issue if the parties have so agreed. 3.2.11 Effect of Changes in the Identity of Secured Parties The security interests should not be jeopardised if the identity of the secured parties under a security assign - ment changes after its execution. 3.2.12 “Parallel Debt” Structures The authors have not yet come across this type of structure in the Republic of Congo. 3.2.13 Effect of Security Assignments on Residence of Secured Parties A secured party under a security assignment would not be deemed to be resident, domiciled or carrying on business in the Republic of Congo, or subject to taxes as a result of its being a party to, or its enforce - ment of, such security assignment. 3.2.14 Perfection of Domestic Law Mortgages A domestic law mortgage over an aircraft or engine should be registered at the tax authority and the ANAC in order to be perfected/produce legal effect. 3.2.15 Differences Between Security Over Aircraft and Spare Engines There is no difference between the form of security (or perfection) taken over an aircraft and that taken over spare engines.
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