CONGO BRAZZAVILLE Law and Practice Contributed by: Claudy Monja and Sarah Razafindrafito, John W Ffooks & Co
3.2.16 Form and Perfection of Security Over Bank Accounts Security over a bank account usually takes the form of a pledge over the account. A pledge over a bank account needs to be registered with the tax authority and the Companies Registry in the Republic of Congo. 3.3 Liens 3.3.1 Third-Party Liens A third party may take or register a lien over an aircraft or engine. Liens may be registered under the Civil Aviation Code for: • the legal costs incurred in order to achieve the sale of the aircraft and the distribution of its price; • the remuneration due for the salvage of the aircraft; and • the indispensable expenses incurred for its preser - vation. The aforementioned liens are on the aircraft or on the insurance indemnity in the case of loss or damage. The liens follow the aircraft even when it passes into other hands. 3.3.2 Timeframe to Discharge a Lien or Mortgage The liens expire three months after the event that gave rise to them, unless the creditor has previously entered their claim in the registers, having had the amount acknowledged amicably or, failing that, having brought legal proceedings in respect of it. The liens may also expire further to judicial sale of the aircraft or two months from the registration of the voluntary transfer of the liens on the Aircraft Register. 3.3.3 Register of Mortgages and Charges The Aircraft Register is the register for mortgages and charges. The interests of an aircraft mortgagee or security interest can be noted on the Aircraft Reg - ister. The registration is a mandatory requirement to ensure the enforceability in respect of third parties.
3.3.4 Statutory Rights of Detention or Non- Consensual Preferential Liens Statutory rights of detention would prevail over con - sensual liens. 3.3.5 Verification of an Aircraft’s Freedom From Encumbrances A potential purchaser may check the Aircraft Register before the ANAC to verify that an aircraft is free of encumbrances. 3.4 Enforcement 3.4.1 Differences Between Enforcing Security Assignments, Loans and Guarantees There are no relevant differences between enforcing a security assignment and enforcing a loan or guar - antee. 3.4.2 Security Trustees’ Enforcement of Their Rights It is permitted for a third party (eg, a security trustee) to enforce its rights under a security assignment, by which a security is granted to it by a lessor in respect of its rights under an aircraft lease, pursuant to a notice and acknowledgement executed by the lessor and the lessee respectively in connection with that security assignment. 3.4.3 Application of Foreign Laws Courts in the Republic of Congo may uphold a foreign law as the governing law of a finance or security docu - ment and the submission to a foreign jurisdiction. 3.4.4 Recognition and Enforcement of Foreign Judgments and Arbitral Awards Congolese courts will recognise and enforce a final judgment of a foreign court or an arbitral award with - out re-examination of the matter, subject to an exe - quatur issued by said court. 3.4.5 Secured Parties’ Right to Take Possession of Aircraft It is possible for a secured party to take physical pos - session of an aircraft to enforce a security agreement/ aircraft mortgage without the lessee’s or operator’s consent.
140 CHAMBERS.COM
Powered by FlippingBook