SENEGAL Law and Practice Contributed by: Claudy Monja and Mampionona Razafimamonjy, John W Ffooks & Co
WAEMU, “[a]n air carrier against which insolvency pro - ceedings have been instituted shall not be authorised by the Civil Aviation Authority to retain its licence if there is no concrete possibility of satisfactory financial restructuring within a reasonable timeframe”. Further - more, Senegal has adhered to the Cape Town Con - vention and Protocol and has the option to choose one of the alternatives provided under Article XI of the Protocol. 2.9.6 Risks for a Lender if a Borrower, Guarantor or Security Provider Becomes Insolvent The main risk for a lender is the lack of sufficient assets to provide for the payments due to creditors, including the lender, as a result of insolvency. If the lender does not have a guarantee of its own (eg, a mortgage), it will be deemed as any other common creditor that should be paid equally in accordance with the debtor’s existing assets. 2.9.7 Imposition of Moratoria in Connection With Insolvency Proceedings A moratorium can be imposed in connection with insolvency proceedings in accordance with the pro - visions of the Uniform Act on Insolvency. Moreover, Article 54 of Law No 2012-02 of 3 January 2012 on leasing in Senegal provides as follows. “[I]n the event of preventive settlement, legal redress or liquidation of the lessee’s assets, the leased asset shall escape all proceedings by the lessee’s credi - tors, whether unsecured or secured, regardless of their legal status and rank, and whether considered individually or as a whole in the context of collective legal proceedings. “The liquidator (expert) in charge of the liquidation may, within 60 days of the date of their appointment, choose to continue the leasing contract under the agreed conditions, or to terminate it. “At the end of this 60-day period, and if no decision is received by the lessor, the leasing contract under the agreed conditions is returned to the lessor. “If the liquidator, after having been informed by the lessor, decides to continue the execution of the con -
tract until its term and if, at the time of its occurrence, the purchase option has not been exercised, the con - tract shall be deemed to have been terminated by operation of law; the asset shall then be immediately returned to the lessor. “Without prejudice to the foregoing, the lessor shall be entitled to claim the rentals and all other sums resulting from the leasing agreement, payable until the goods are returned.” In addition, a two-year moratorium on the payment of rents may be granted to the lessee in accordance with the provisions of Articles 9 and 75 et seq of the Uniform Act on Insolvency. 2.9.8 Liquidation of Domestic Lessees The methods by which a domestic lessee can be liq - uidated or placed in administration or receivership are conciliation, preventative settlement, legal redress and liquidation of property. All these procedures are provided for and organised by the Uniform Act on Insolvency. In the case of provisional administration, this is pro - nounced by a judge in summary proceedings when the normal functioning of the company is rendered impossible, either because of the management, exec - utive or administrative bodies, or because of the part - ners. The legal regime is organised by Articles 160-1 to 160-8 of the OHADA Uniform Act on Commercial Companies and Economic Interest Groups. 2.9.9 Ipso Facto Defaults Performance defaults are also required in order to repossess an aircraft during a lessee insolvency pro - ceeding. For more information, see 2.9.7 Imposition of Moratoria in Connection With Insolvency Pro- ceedings. 2.9.10 Impact of Domestic Lessees’ Winding-Up See 2.9.7 Imposition of Moratoria in Connection With Insolvency Proceedings . 2.10 Cape Town Convention and Others 2.10.1 Conventions in Force The Convention on International Interests in Mobile Equipment (the “Cape Town Convention”) and
516 CHAMBERS.COM
Powered by FlippingBook