1. To which major air law treaties is your state a party?
Ukraine is a party to the Chicago Convention (1944), the Ottawa Convention (1988), the Montreal Convention (1999) and the Cape Town Convention, including the Aircraft Protocol thereto (2001). Ukraine is not a party to the Rome Convention (1933) or the Geneva Convention (1948).
2. What is the principal domestic legislation applicable to aviation finance and leasing?
The principal domestic legislation includes the Civil Code, the Air Code, the Customs Code, the Law on Foreign Economic Activity and the Law on Private International Law, as well as a number of the subrogating regulations such as the Aviation Rules stipulating, inter alia, the procedures for registering civil aircraft in Ukraine, their operation and deregistration.
3. Are there any restrictions on choice-of-law clauses in contracts to the transfer of interests in or creation of security over aircraft? If parties are not free to specify the applicable law, is the law of the place where the aircraft is located or where it is registered the relevant applicable law?
There are no restrictions on choice-of-law clauses in contracts to the transfer of interest in or creation of security over an aircraft. The parties may freely choose the law applicable to their contractual relations, except for certain issues associated with currency control, taxation, customs clearance and other aspects of public order that shall be governed by the laws of Ukraine irrespective of the will of the parties and the chosen law to govern the contract.
Transfer of aircraft
4. How is title in an aircraft transferred?
The title to an aircraft is usually transferred in Ukraine on the basis of a sale and purchase agreement. Such agreement is usually accompanied by a delivery certificate or equivalent confirming the actual delivery of the aircraft to the purchaser. The concept of a bill of sale is not commonly used in Ukraine, although Ukrainian law does not prohibit its execution by the parties outside Ukraine. Thus, a bill of sale executed under the laws of foreign jurisdiction will be enforceable in Ukraine and sufficient to prove the transfer of the title to an aircraft.
Transfer document requirements
5. What are the formalities for creating an enforceable transfer document for an aircraft?
There are no specific requirements as to the transfer document, except for its form (ie, it shall be executed in a written form); neither notarisation, any registration nor any other public acknowledgement is required. The document may be executed in a language other than Ukrainian. However, if this document needs to be filed with the Ukrainian state authorities for any purpose, it must be accompanied by the Ukrainian translation performed by a certified translator whose signature of authenticity must be confirmed by a notary. The State Aviation Administration of Ukraine (SAAU) will require a notarised and apostilled copy of the bill of sale accompanied by the certified translation into Ukrainian for the purpose of registration of the aircraft leased by a Ukrainian operator from a foreign lessor.
REGISTRATION OF AIRCRAFT OWNERSHIP AND LEASE INTERESTS
6. Identify and describe the aircraft registry.
The Civil Aircraft Register of Ukraine (the Aircraft Register) is maintained by the State Aviation Administration of Ukraine (SAAU) in accordance with the Aviation Rules, Part 47, in the name of the owner. The Register is available to the public via the SAAU's official web page. The registration of the aircraft in the Aircraft Register defines the national belonging of the aircraft to Ukraine and means that it is the responsibility of the SAAU to supervise its airworthiness and operation. The Register does not contain any information about the engines, and there is no engine register in Ukraine. There are no well-used 83bis arrangements in place between Ukraine and other jurisdictions.
Registrability of ownership of aircraft and lease interests
7. Can an ownership or lease interest in, or lease agreement over, aircraft be registered with the aircraft registry? Are there limitations on who can be recorded as owner? Can an ownership interest be registered with any other registry? Can owners’, operators’ and lessees’ interests in aircraft engines be registered?
All aircraft either owned by or leased to Ukrainian legal entities or individuals by foreign lessors may be registered in Ukraine. The Aircraft Register reflects information on both an aircraft owner and an aircraft operator. However, this information does not constitute a due formal confirmation of any title or interest in the aircraft, including ownership or lease. Additionally, there is no other register in Ukraine provided for registration of ownership interest in the aircraft. There is no other register intended for registration of owners’, operators’ and lessees’ interests in aircraft engines either.
Registration of ownership interests
8. Summarise the process to register an ownership interest.
The registration of an aircraft in the Aircraft Register must be procured by an owner or a person acting upon its mandate. Usually, the Ukrainian lessee applies for registration of an aircraft owned by a non-resident. Aircraft registration is always subject to obtaining nationality and registration marks; the allocation of these marks will be confirmed by a respective notification issued by the SAAU.
For the purpose of the aircraft registration, an application to the SAAU must be accompanied by the following set of documents (with the certified Ukrainian translation):
- a document confirming the exclusion of the aircraft from the aircraft register of the state of former registration (eg, certificate of deregistration), or confirmation from the aviation authority of the state of manufacture that the aircraft has not yet been registered in any register;
- a document confirming ownership title to the aircraft (eg, a bill of sale or purchase agreement);
- an operating lease agreement if the aircraft is subject to lease;
- the owner’s consent to subleasing if the aircraft is subleased to the Ukrainian operator;
- a delivery certificate if the aircraft is subject to lease;
- colourful photos of the aircraft reflecting nationality and registration marks once issued;
- photos of the fireproof identification plate;
- a copy of the lessee's charter page reflecting its name in Ukrainian and in a foreign language (if any); and
- a document confirming the payment of registration fees.
The application is considered by the SAAU within 10 business days. The aircraft will be registered, and the respective aircraft registration certificate will be issued by the SAAU, provided the documents submitted are in good order and the outcomes of the technical inspection conducted by an inspector of the SAAU are satisfactory.
The fee for an aircraft registration would amount to US$4 per 100kg of maximum take-off weight and in any case not less than US$70 and no more than US$4,000. The fee for registration of the aircraft address (S-mode) would amount to 51 hryvnia, and the fee for issuance of state and registration marks is 3 hryvnia.
Title and third parties
9. What is the effect of registration of an ownership interest as to proof of title and third parties?
The Aircraft Register is not the title register, it defines the national belonging of the aircraft to Ukraine. Therefore, the Aircraft Register does not constitute a due confirmation of any title or interest in the aircraft, including ownership or lease. Following the purely formal approach, one cannot rely on the information mentioned in the Aircraft Register to confirm any title to or interest in the aircraft.
Registration of lease interests
10. Summarise the process to register a lease interest.
Except for the registration of the aircraft itself, for which purpose the lease agreement is submitted to SAAU, neither the lease agreement nor lease interest is subject to any registrations or filings in Ukraine.
Certificate of registration
11. What is the regime for certification of registered aviation interests in your jurisdiction?
Upon successful completion of the aircraft registration procedure, the SAAU issues a certificate of registration, which confirms aircraft registration in Ukraine. The registration certificate contains the following information:
- the nationality and registration mark;
- the name of the manufacturer;
- the aircraft model and serial number;
- the name and address of the owner;
- the date of issuance and expiry date of the certificate; and
- the lessee’s details.
Deregistration and export
12. Is an owner or mortgagee required to consent to any deregistration or export of the aircraft? Must the aviation authority give notice? Can the operator block any proposed deregistration or export by an owner or mortgagee?
There are three types of aircraft deregistration procedures effective in Ukraine, namely: consensual deregistration; non-consensual deregistration; and mandatory deregistration.
Consensual deregistration may be procured by an aircraft owner or a person acting upon its mandate. Usually, the Ukrainian lessee procures consensual deregistration of the aircraft owned by a non-resident.
To deregister the aircraft a lessee must submit to the SAAU an application accompanied by the following documents (with the certified Ukrainian translation):
- consent of the state of future registration to register the aircraft after its deregistration from Ukraine (can be provided in electronic notification);
- a lease termination agreement or its equivalent;
- a redelivery certificate or its equivalent; and
- confirmation of the deregistration fee payment.
In addition to the mentioned set of documents, the original certificate of the aircraft registration in Ukraine, the original notification on allocation of nationality and registration marks and the original IDERA should be returned to the SAAU. The latter will also require the consent of mortgagee to deregistration if their interests in the aircraft are registered either in Ukraine or in the International Register under the Cape Town Convention.
Non-consensual deregistration is procured by the aircraft owner on the basis of an IDERA. In such a case, the application of the aircraft owner must be accompanied by the following set of documents:
- confirmation of prior notification of all interested parties within the meaning of the Cape Town Convention about the contemplated aircraft deregistration;
- consent of the creditors whose registered international interests have higher priority over the international interests of the aircraft owner or the document (priority search certificate) confirming the absence of all such creditors' international interests; and
- confirmation of the deregistration fee payment.
In addition, the original IDERA and the original registration certificate, if available to the owner, must be returned to the SAAU.
In both cases, consensual and non-consensual deregistration, the deregistration fee is 200 per cent of the registration fee; thus, it will not exceed in any case US$8,000. Upon filing the deregistration application with the SAAU, the aircraft must be provided for an inspection to be conducted by the SAAU's authorised officers. The deregistration procedure usually does not last for more than 10 business days. Upon deregistration in accordance with the application submitted, the SAAU will issue a certificate confirming aircraft deregistration from the Register and an export certificate of airworthiness, if requested.
The SAAU is authorised by law to deregister the aircraft from the Register if one of the following has occurred: cessation of operation of the aircraft type; the aircraft was not provided for airworthiness inspection to be conducted by the SAAU's officers for 24 months; or the operating lease has been terminated and neither the aircraft owner nor lessee have applied for the aircraft deregistration. Once deregistration is completed, the SAAU will issue the deregistration resolution excluding the aircraft from the Register.
There are not many legal means for the Ukrainian aircraft operator to block the deregistration process. Even if the latter decides not to furnish to the owner the original aircraft documentation required for deregistration purposes, the SAAU in such a case will request directly that the Ukrainian operator return all those documents.
An aircraft may be exported from Ukraine either prior or following the deregistration. The Ukrainian lessee is obliged by the virtue of Ukrainian customs law to cancel the temporary import regime implying the tax benefits applicable to the aircraft and enjoyed by the Ukrainian lessee throughout the term of the lease. The lessee's failure to cancel the temporary import regime shall not impair the owner's rights to repossess the aircraft, although any protraction or reluctancy of the lessee to extinguish the temporary import regime and to clear the aircraft could adversely impact the physical transfer of the aircraft from Ukraine.
Powers of attorney
13. What are the principal characteristics of deregistration and export powers of attorney?
The Ukrainian laws do not stipulate any specific requirements with regard to the content of a deregistration and export power of attorney (DPOA). It can be issued in Ukraine in a written form and no notarisation is required. However, all powers of attorney issued in Ukraine ca be revoked as a matter of law. Therefore, to be irrevocable, the DPOA should be issued outside Ukraine under the laws of foreign jurisdiction. These foreign DPOAs will be valid in Ukraine, provided they are duly legalised. It means that such a DPOA shall be apostilled or legalised in the Ukrainian consulate of the respective state, provided that this state is not a party to the Hague Convention, and further accompanied by the certified Ukrainian translation. By the means of the DPOA, an aircraft operator usually authorises the aircraft owner and mortgagee to take all actions and execute all documents that may be required to deregister the aircraft from Ukraine, although it may have some enforceability difficulties as a matter of practical approach.
DPOAs are not subject to registration in Ukraine.
Cape Town Convention and IDERA
14. If the Cape Town Convention is in effect in the jurisdiction, describe any notable features of the irrevocable deregistration and export request authorisation (IDERA) process.
As a matter of practice, IDERAs may be issued by a Ukrainian lessee in favour of an aircraft owner only without a right to assign powers thereunder to a third party. However, the Ukrainian regulation in this field is still developing. IDERAs should be issued in the form provided by the Aircraft Protocol to the Cape Town Convention and further countersigned (registered) by the SAAU. The IDERA is usually held by the SAAU for acknowledgement and registration purposes for a month. In the case of non-consensual aircraft deregistration, it is advisable to use IDERA as the Ukrainian authorities are obliged by the Cape Town Convention to provide all necessary assistance to the authorised party to exercise its rights granted by IDERAs.
Security document (mortgage) form and content
15. What is the typical form of a security document over the aircraft and what must it contain?
If the parties, the owner of the aircraft acting as the borrower (mortgagor) and the lender (mortgagee), decide on creating a security under the laws of Ukraine, they will typically proceed with the execution of a mortgage agreement, which must be executed in Ukrainian (or accompanied by the certified Ukrainian translation) and notarised, while the mortgage interest itself must be registered in a public register. The mortgage agreement, in addition to all formal requirements, such as parties' details, description of the mortgaged property and secured obligations, usually stipulates a value of the mortgaged property, a total and maximum amount of the secured claims, an enforcement and settlement procedure, etc.
Security documentary requirements and costs
16. What are the documentary formalities for creation of an enforceable security over an aircraft? What are the documentary costs?
An aircraft mortgage agreement must be certified by a notary, and the mortgage interest itself must be registered. The total amount of disbursements implying the payment of a stamp duty, a registration fee and notary fees would usually not exceed 0.1 per cent of the aircraft value.
Security registration requirements
17. Must the security document be filed with the aviation authority or any other registry as a condition to its effective creation or perfection against the debtor and third parties? Summarise the process to register a mortgagee interest.
Once a mortgage agreement being a security document is notarised, the mortgage interest will be promptly reflected by a notary in the Ukrainian Register of Encumbrances over the Movable Property (the Encumbrances Register). As a matter of law, the mortgage agreement is deemed to be valid and enforceable against the mortgagor once it is signed by the parties and certified by a notary. The mortgage interest in and the security over the aircraft is deemed to be valid for third parties once it is reflected in the Encumbrances Register. Usually, the execution of the mortgage agreement and the registration of the mortgage interest are performed the same day. By default, the registration will be valid for the term of the security document; however, it cannot exceed five years. The validity of the security interest can be extended for another five years, if necessary, on the basis of the valid mortgage agreement and a renewal application submitted by the mortgagee. The number of these extensions is not limited.
Registration of security
18. How is registration of a security interest certified?
Following the registration of the security in the Encumbrances Register the respective extract from the Register will be issued confirming that the security is registered as of the date of such extract. Registered security interest will have higher priority over any subsequent security interest registered in relation to the same aircraft. In the case of enforcement, the secured claims will be satisfied in the order of registration of the security interests.
Effect of registration of a security interest
19. What is the effect of registration as to third parties?
The registered security interest will have higher priority over any subsequent security interest registered in relation to the same aircraft. In the case of enforcement, the secured claims will be satisfied in the order of registration of the security interests. The third parties can rely on the accuracy of the information reflected in the Encumbrances Register.
Security structure and alteration
20. How is security over aircraft and leases typically structured? What are the consequences of changes to the security or its beneficiaries?
There are different ways to structure an aircraft finance deal. Usually, an aircraft owner is advanced a loan facility by an international banking institution, acting either directly or via a security trustee. Then the aircraft is leased to the Ukrainian airline operator either directly from the owner acting as a lessor or through the chain of entities. Considering that the Ukrainian tax regulation provides for benefits as to the operating lease, leases are usually structured as an aircraft operating lease agreement.
As security for the performance of the aircraft owner's obligation under the loan, an aircraft owner and a lender (security trustee) enter into a mortgage agreement governed by the laws of a jurisdiction other than Ukraine. In addition to that, the parties execute a security assignment in favour of the lender (security trustee). Additional security may be created by the parties in relation to the aircraft under the laws of Ukraine to protect the financiers' interests in Ukraine.
Although Ukrainian law does not recognise the concept of a trust, Ukrainian courts and state bodies will enforce the rights of the security trustee acting for the lender or a pool of lenders under the loan agreement. This applies to the rights of the security trustee as a mortgagee under the respective mortgage agreement. Consequently, if the group of beneficiaries has changed, neither the security document nor the security registration record require any changes to be inserted thereto, provided, however, the security trustee remains the same.
As Ukraine is a party to the Cape Town Convention and the Aircraft Protocol thereto, it is also advisable to register the international interests in the aircraft in the International Registry. The registration of such interest, however, is subject to obtaining authorisation entry point codes from the State Aviation Administration of Ukraine, as Ukraine has made a declaration under article XIX of the Aircraft Protocol to the Cape Town Convention.
Security over spare engines
21. What form does security over spare engines typically take and how does it operate?
If the engines are installed on an airframe, the mortgage agreement typically covers the airframe, engines and all other spare parts, provided that all of these belong to one and the same owner. However, the security over the engines may be created separately from the airframe provided an engine owner and an airframe owner are different persons. The security over engines is created in the form of pledge. The pledge is not subject to mandatory notarisation or registration. However, the registered security interests in the pledge will have higher priority over non-registered interests and the interests registered later. Therefore, it is advisable to register security interests over the engines in the Encumbrances Register. The security may be registered over the engines regardless of their installation on the airframe.
Repossession following lease termination
22. Outline the basic repossession procedures following lease termination. How may the lessee lawfully impede the owner’s rights to exercise default remedies?
Aircraft repossession following lease termination is mainly governed by the procedure set out in the lease agreement, usually stipulating a few self-help remedies. In addition, the Cape Town Convention contains self-help remedies for a lessor, which may be enforced against the lessee without any court order. However, there are some requirements provided by Ukrainian law that are implied in the case of the aircraft lease termination, namely the aircraft shall be: deregistered from the Register; and cleared with the Ukrainian customs authorities and exported. The deregistration process is a rather standard one, conducted within the framework of either consensual or non-consensual deregistration. As to the customs clearance and export, the Ukrainian lessee is obliged by virtue of the Ukrainian customs laws to cancel a temporary import regime implying the tax benefits, which are applicable to the aircraft and enjoyed by the Ukrainian lessee throughout the term of the lease. However, the lessee's failure to cancel the temporary import regime shall not impair owner's rights to repossess the aircraft. The law does not provide for any legal means for the Ukrainian lessee to impede owner's rights to exercise default remedies.
Enforcement of security
23. Outline the basic measures to enforce a security interest. How may the owner lawfully impede the mortgagee’s right to enforce?
A mortgagee may enforce the security interest if a mortgagor has failed to perform the secured obligations. The foreclosure over the aircraft may be exercised without a court ruling, provided the parties have agreed on the procedure for the out-of-court enforcement. Subject to certain local law requirements, Ukrainian law stipulates the following options the parties may choose with respect to the out-of-court enforcement, to wit: title to the mortgaged property (an aircraft) shall transfer to mortgagee; or mortgagee is vested with the right to sell the mor gaged property.
In the case of initiation of insolvency proceedings against the debtor, the creditor is entitled to demand the satisfaction of its secured claims regardless of the term granted to the debtor to perform the obligation secured by the mortgage, unless the parties have agreed otherwise.
Priority liens and rights
24. Which liens and rights will have priority over aircraft ownership or an aircraft security interest? If an aircraft can be taken, seized or detained, is any form of compensation available to an owner or mortgagee?
The Ukrainian laws provide for the right of the lawful possessor of the property to withhold it as a measure to secure the performance of obligations by the owner of that property if this performance is overdue. None of the third parties, who have no claim against the owner of the property, are entitled to such possessory rights.
The applicable laws of Ukraine provide for a seizure (lien) of an aircraft either as an injunctive measure under the court proceedings initiated by the creditor against the debtor; or an injunctive measure under the enforcement proceedings initiated by the state authorities for the purpose of securing the foreclosure and execution of the court decision obtained by the creditor against the debtor. The law allows the seizure against the property in possession of the debtor to apply. The Ukrainian courts interpret the above in a way that only the property in ownership of the debtor may be seized.
The aviation law provides for detention as a security instrument for securing the recovery of a debt for aeronautical servicing that was not settled or challenged during the established time period. The Ukrainian law is not precise as to whether the debtor needs to hold ownership title to the aircraft to be detained or whether a leased aircraft may be subject to the detention as well. Although it would hardly be possible for the creditors of the Ukrainian aircraft operator to foreclose on the leased aircraft, they may deny the further service of the aircraft, which would effectively prevent the aircraft from leaving the airport.
The laws of Ukraine guarantee the protection of property from expropriation without fair compensation. The aircraft may, however, be forfeited pursuant to a court decision as a result of a criminal offence, which is hardly applicable to the lessor, the aircraft owner or the security trustee, all being legal entities that are not subject to criminal liability in Ukraine. Although, according to Ukrainian criminal law, confiscation could be applied to the property owned only by the offender, the ‘special confiscation’ of the aircraft could be potentially effectuated pursuant to the criminal procedure law, including in drug trafficking, even when the aircraft owner itself was not aware of the relevant offence. Though, the practice of special confiscation of an aircraft is not well-established yet and is rather sporadic and uncommon in Ukraine because of the sheer complexity of proof of operating the aircraft as a crime instrument.
Enforcement of foreign judgments and arbitral awards
25. How are judgments of foreign courts enforced? Is your jurisdiction party to the 1958 New York Convention?
The decision of a foreign court, including English or American, shall be recognised and enforced in Ukraine either by virtue of a bilateral or multilateral legal assistance treaty executed between Ukraine and the state where the decision was made, or on a reciprocity basis.
By default, any judgment obtained in foreign courts, and in particular the courts of England or New York, in respect of the lease, will be enforceable in the courts of Ukraine without retrial or re-examination of the merits of the case if, inter alia:
- it has entered into effect under the laws of the respective jurisdiction;
- it was duly filed with the Ukrainian court within three years of its adoption;
- the party, against whom the decision was rendered, was duly notified of the proceedings and had the opportunity to participate therein;
- the matter in the dispute is subjected to trial in Ukraine;
- the decision was made in the case subject to the exclusive competence of the Ukrainian court or other lawfully authorised Ukrainian body;
- there is no other decision of Ukrainian court on the same matter and between the same parties; and
- its enforcement would not result in violation of the Ukrainian public order.
TAXES AND PAYMENT RESTRICTIONS
26. What taxes may apply to aviation-related lease payments, loan repayments and transfers of aircraft? How may tax liability be lawfully minimised?
There will be no transfer taxes, VAT, stamp duty, charges or other taxes on behalf of the seller, the new owner, or the buyer or issuer associated with a transfer of title to the aircraft or of the beneficial interest while the aircraft is outside of Ukraine, provided this transfer does not involve Ukrainian parties and assets.
By default, lease payments paid by the Ukrainian lessee in favour of the non-resident lessor under the lease are subject to the Ukrainian withholding tax at the rate of 15 per cent, unless this tax is reduced or eliminated pursuant to the terms of the valid and effective double tax treaty. VAT is not applicable to the lease payments made by the Ukrainian lessee in favour of non-residents.
The laws of Ukraine generally prohibit contractual provisions under which residents undertake to pay taxes for non-residents on their income received from sources in Ukraine. If interpreted broadly, this restriction would also apply to gross-up and tax indemnity provisions of the lease and obligations of the lessee to pay additional amounts thereunder. As a result, the gross-up and tax indemnity provisions could be found null and void and, therefore, unenforceable in Ukraine. However, we are not aware of any well-established practice in relation to successfully challenging these provisions.
27. Are there any restrictions on international payments and exchange controls in effect in your jurisdiction?
There are no specific exchange control requirements set in relation to payments under the lease, loan or other security documents. However, a payment cannot be processed by a Ukrainian servicing bank if the beneficiary of this payment is subject to either international or Ukrainian sanctions. For this purpose, the lessee's servicing bank will conduct the know your customer (KYC) procedures with regard to the lessor, owner and other financiers, as the case may be, and their ownership structure. In the course of such KYC procedures, the Ukrainian bank is entitled to request all documents and information it may deem necessary to identify the ultimate beneficial owners of the aforementioned parties. The Ukrainian banks will always ask the payment initiator to provide the bank with the document on which basis the payment is made.
28. Are there any limitations on the amount of default interest that can be charged on lease or loan payments?
Since 2019 there have been no limitations applicable to the amount of default interest that can be charged on lease or loan payments. However, as a matter of the currency control provisions, the Ukrainian servicing banks supervise the foreign exchange transactions with non-residents if they have doubts regarding the consistency of the transaction and condition upon which they are performed with the market conditions.
Customs, import and export
29. Are there any costs to bring the aircraft into the jurisdiction or take it out of the jurisdiction? Does the liability attach to the owner or mortgagee?
By default, aircraft that are imported into Ukraine are subject to an import duty in the amount of 20 per cent of the aircraft customs value. This rule does not apply to the aircraft imported from the countries with a favourable economic regime with Ukraine (including the United States, France and Brazil).
Aircraft that are imported into Ukraine by Ukrainian operators on the basis of an operating lease agreement may be placed into temporary import regime. This regime provides for the conditional full exemption of customs duties and a zero-customs duty rate applicable to all civil aircraft, subject to certain limitations related to the aircraft weight and passenger capacity.
By default, the duration of the temporary import regime shall not exceed three years, but it can be extended by the Ukrainian customs authorities upon consideration of the Ukrainian lessee's application. Usually, aircraft remain in the temporary import regime throughout the term of the operating lease.
Aircraft repossession and export from Ukraine are also exempt from customs duties, provided the Ukrainian lessee has observed a temporary importation regime, according to which the aircraft was imported into Ukraine. The temporary importation regime is extinguished by filing an export customs declaration and actually re-exporting the aircraft from Ukraine. In the case of violating the customs regime of temporary importation, the Ukrainian lessee must pay to the state budget the amount of tax liability accrued but not paid and penalties. If this tax liability is incurred, the aircraft would unlikely be exported until the settlement. Usually, exporting the aircraft would require the lessee’s cooperation to properly extinguish the temporary import regime and avoid any potential penalties from the customs authorities or airport charges and duties for their services provided.
INSURANCE AND REINSURANCE
30. Summarise any captive insurance regime in your jurisdiction as applicable to aviation.
There are mandatory insurance requirements in the aviation field effective in Ukraine. An aircraft operator must maintain the following types of insurance: crew members and other aviation personnel; third-party liability; persons entitled to be present on the board of the aircraft without an obligation to buy tickets; and damage to passengers, luggage, cargo and post. The aircraft registered in Ukraine also needs to be insured. Insurance must be provided by Ukrainian insurers accredited with the State Aviation Administration of Ukraine with no requirements as to a minimum or maximum percentage of the insurance that must be retained. Usually, the Ukrainian insurers reinsure themselves with foreign insurers.
31. Are cut-through clauses under the insurance and reinsurance documentation legally effective?
Nothing in the Ukrainian regulations prevents the parties from including a cut-through clause in the insurance or reinsurance agreement.
32. Are assignments of reinsurance (by domestic or captive insurers) legally effective? Are assignments of reinsurance typically provided on aviation leasing and finance transactions?
The assignments of reinsurance are legally effective in Ukraine and usually provided on aviation leasing and finance transactions.
33. Can an owner, lessor or financier be liable for the operation of the aircraft or the activities of the operator?
No. Neither the owner, lessor nor financier is liable for the aircraft ope ation or the activities of the aircraft operator.
34. Does the jurisdiction adopt a regime of strict liability for owners, lessors, financiers or others with no operational interest in the aircraft?
No. Such a regime of strict liability is applied to the aircraft operator only.
Third-party liability insurance
35. Are there minimum requirements for the amount of third- party liability cover that must be in place?
The minimum amount of the third-party liability insurance coverage depends on the aircraft take-off weight, but in any case, it cannot be less than 75,000 special drawing rights, and more than 42.5 million special drawing rights for the flights made within Ukraine.
For international flights, the minimum amount of the third-party liability insurance coverage is determined by the international treaty or national legislation of states whose territory the aircraft transits during the flight, but in any case, it shall not be less that established for internal flights.
UPDATE AND TRENDS
Key developments of the past year
36. What were the key cases, decisions, judgments and policy and legislative developments of the past year?
The Aviation Authority continues to record unlawful violations of Ukrainian airspace committed by the aircraft operators by the means of carrying out flights to or over the territory of the Crimean Peninsula, which is has been occupied by the Russian Federation since 2014. The Aviation Authority imposes fines on the aircraft operators for each unlawful flight over the Crimean Peninsula.
In connection with the aforementioned, the Ukrainian Security Service has initiated a criminal investigation against the aircraft operators performing flights over the Crimean Peninsula. Although the investigation is classified as secret, the Ukrainian prosecutor's office has publicly reported on the court rulings ordering the seizure of 109 aircraft operated by Russian aircraft operators. The aforesaid aircraft may be seized by the competent authorities upon their landing either in Ukraine or any other country that has a treaty on mutual legal assistance in criminal matters in force with Ukraine or on a reciprocity basis. There are also some criminal investigations conducted against the pilots of the aircraft that unlawfully crossed the airspace of the Crimean Peninsula.
In addition, since 1 January 2021, aircraft (1) weighing from 10,000 to 30,000kg, and (2) with a maximum passenger capacity in the amount of 44 to 110 seats or less, cannot be placed in the temporary import regime providing conditional full exemption of customs duties and a zero-customs duty rate.
37. What emergency legislation, relief programmes and other initiatives specific to your practice area has your state implemented to address the pandemic? Have any existing government programmes, laws or regulations been amended to address these concerns? What best practices are advisable for clients?
In response to the covid-19 pandemic, the Ukrainian government temporary closed the Ukrainian border for all regular international passenger flights. The prohibition was in effect from 23 March 2020 until 15 June 2020. Despite opening the borders, the Ukrainian airline industry is still facing significant troubles due to the substantial decrease in passenger air carriage in general, as well as restrictions introduced by other states and applicable to Ukraine.
Notwithstanding the existing problems, the Ukrainian government did not provide state aid in any form to Ukrainian operators or the industry in general. Additionally, no relief programmes were adopted by the Ukrainian government.