MALTA Law and Practice Contributed by: Joseph Ghio, Fenech & Fenech Advocates
2.5.3 Placement of Insurance Outside of Jurisdiction Reinsurances can be placed outside Malta for full coverage. 2.5.4 Enforceability of “Cut-Through” Clauses It is a general principle of law that contracts shall only be operative as between the contracting par - ties. Thus, if a reinsurer has bound himself directly in favour of an insured party to make good for losses, then a “cut-through clause” should be enforceable in Malta. To the extent that the reinsurer has not bound themselves directly in favour of the insured party and the arrangement is agreed between the insured and the original insurer only, there are doubts as to the enforceability of the cut-through clause as the provi - sion grants rights to the insured who is not a party to the reinsurance contract. 2.5.5 Assignment of Insurance/Reinsurance Assignments of insurances/reinsurances are permit - ted under Maltese law. 2.6 Lease Enforcement 2.6.1 Restrictions on Lessors’ Abilities There are no restrictions under Maltese law on a les - sor’s ability to terminate an aircraft lease. However, if the lessor terminates the lease for reasons that are not contemplated in the agreement or generally valid at law, the lessee may seek damages for breach. Restrictions on Lessor’s Ability to Re-export the Aircraft There are no restrictions under Maltese law on a les - sor’s ability to re-export the aircraft. However, trans - porting the aircraft out of Malta will be subject to certain authorisations to fly. The lessor must be in possession of a recorded irrevocable deregistration and export request authorisation (IDERA) issued in their favour by the registrant of the aircraft in the form set out in Annex 1 of the Second Schedule to the Act or any other recorded deregistration power of attorney (PoA) issued in their favour by the registrant of the aircraft. In addition, the lessor must, together with the other steps outlined in 2.8.1 Deregistering Aircraft in This Jurisdiction , certify and submit supporting docu - ments to the satisfaction of the Director General that all registered international interests ranking in prior -
ity to that of the lessor have been discharged or that the holders of such interests have consented to the deregistration and exportation of the aircraft. Restrictions on Lessor’s Ability to Sell the Aircraft There are no restrictions under Maltese law on a les - sor’s ability to sell the aircraft following termination of the lease agreement provided that the lessor has title and capacity to sell the aircraft. Location of the Aircraft It should not be necessary for the aircraft to be physi - cally located in Malta for termination of the lease or for the sale of the aircraft to take place. However, the Act defines the word “export” as the exportation and physical transfer of an aircraft from the territory of Malta. 2.6.2 Lessor Taking Possession of the Aircraft If the lessee is in default under the lease and the lessor dissolves or terminates the lease in accordance with the law, the lessor would be entitled to take physical possession of the aircraft without the lessee’s con - sent. It should be noted that the rights competent to a lessor to terminate a lease in the event of a default by the lessor are also exercisable by a mortgagee of the aircraft. The aircraft can be repossessed without the need for judicial intervention. To the extent that the support of the court is required, the court is bound to render full support as expeditiously as possible. 2.6.3 Specific Courts for Aviation Disputes Malta does not have any specialised courts for decid - ing aviation disputes. 2.6.4 Summary Judgment or Other Relief Summary Judgment The provisions relating to special summary proceed - ings in the Code of Organisation and Civil Procedure (COCP) will apply, inter alia, in relation to a claim: • for the recovery of a debt which is certain, liquidat - ed and due, and not consisting of the performance of an act; or • for the eviction of an operator, lessee or other occupants, including any members of their staff from aircraft.
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