全球交通运输融资法律评论：中国篇（英文版）.pdf

Transport Finance Law Review Fourth Edition Editor Harry Theochari lawreviews the Transport Finance Law Review Fourth Edition 2018 Law Business Research LtdTransport Finance Law Review Fourth Edition Editor Harry Theochari lawreviews Reproduced with permission from Law Business Research Ltd This article was first published in April 2018 For further information please contact Nick.Barettethelawreviews.co.uk 2018 Law Business Research LtdPUBLISHER Tom Barnes SENIOR BUSINESS DEVELOPMENT MANAGER Nick Barette BUSINESS DEVELOPMENT MANAGERS Thomas Lee, Joel Woods ACCOUNT MANAGERS Pere Aspinall, Sophie Emberson, Laura Lynas, Jack Bagnall PRODUCT MARKETING EXECUTIVE Rebecca Mogridge RESEARCHER Arthur Hunter EDITORIAL COORDINATOR Gavin Jordan HEAD OF PRODUCTION Adam Myers PRODUCTION EDITOR Anna Andreoli SUBEDITOR Janina Godowska CHIEF EXECUTIVE OFFICER Paul Howarth Published in the United Kingdom by Law Business Research Ltd, London 87 Lancaster Road, London, W11 1QQ, UK 2018 Law Business Research Ltd TheLawReviews.co.uk No photocopying: copyright licences do not apply. The information provided in this publication is general and may not apply in a specific situation, nor does it necessarily represent the views of authors firms or their clients. Legal advice should always be sought before taking any legal action based on the information provided. The publishers accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of April 2018, be advised that this is a developing area. Enquiries concerning reproduction should be sent to Law Business Research, at the address above. Enquiries concerning editorial content should be directed to the Publisher tom.barneslbresearch ISBN 978-1-912228-38-6 Printed in Great Britain by Encompass Print Solutions, Derbyshire Tel: 0844 2480 112 2018 Law Business Research LtdTHE ACQUISITION AND LEVERAGED FINANCE REVIEW THE ANTI-BRIBERY AND ANTI-CORRUPTION REVIEW THE ASSET MANAGEMENT REVIEW THE ASSET TRACING AND RECOVERY REVIEW THE AVIATION LAW REVIEW THE BANKING LITIGATION LAW REVIEW THE BANKING REGULATION REVIEW THE CARTELS AND LENIENCY REVIEW THE CLASS ACTIONS LAW REVIEW THE CONSUMER FINANCE LAW REVIEW THE CORPORATE GOVERNANCE REVIEW THE CORPORATE IMMIGRATION REVIEW THE DISPUTE RESOLUTION REVIEW THE DOMINANCE AND MONOPOLIES REVIEW THE EMPLOYMENT LAW REVIEW THE ENERGY REGULATION AND MARKETS REVIEW THE ENVIRONMENT AND CLIMATE CHANGE LAW REVIEW THE EXECUTIVE REMUNERATION REVIEW THE FOREIGN INVESTMENT REGULATION REVIEW THE FRANCHISE LAW REVIEW THE GAMBLING LAW REVIEW THE GOVERNMENT PROCUREMENT REVIEW THE HEALTHCARE LAW REVIEW THE INITIAL PUBLIC OFFERINGS LAW REVIEW THE INSOLVENCY REVIEW THE INSURANCE AND REINSURANCE LAW REVIEW THE INTELLECTUAL PROPERTY AND ANTITRUST REVIEW THE INTELLECTUAL PROPERTY REVIEW THE INTERNATIONAL ARBITRATION REVIEW THE INTERNATIONAL CAPITAL MARKETS REVIEW lawreviews 2018 Law Business Research LtdTHE INTERNATIONAL INVESTIGATIONS REVIEW THE INTERNATIONAL TRADE LAW REVIEW THE INVESTMENT TREATY ARBITRATION REVIEW THE INWARD INVESTMENT AND INTERNATIONAL TAXATION REVIEW THE ISLAMIC FINANCE AND MARKETS LAW REVIEW THE LENDING AND SECURED FINANCE REVIEW THE LIFE SCIENCES LAW REVIEW THE MERGER CONTROL REVIEW THE MERGERS AND ACQUISITIONS REVIEW THE MINING LAW REVIEW THE OIL AND GAS LAW REVIEW THE PATENT LITIGATION LAW REVIEW THE PRIVACY, DATA PROTECTION AND CYBERSECURITY LAW REVIEW THE PRIVATE COMPETITION ENFORCEMENT REVIEW THE PRIVATE EQUITY REVIEW THE PRIVATE WEALTH AND PRIVATE CLIENT REVIEW THE PRODUCT REGULATION AND LIABILITY REVIEW THE PROJECTS AND CONSTRUCTION REVIEW THE PUBLIC COMPETITION ENFORCEMENT REVIEW THE PUBLICPRIVATE PARTNERSHIP LAW REVIEW THE REAL ESTATE LAW REVIEW THE REAL ESTATE M&A AND PRIVATE EQUITY REVIEW THE RESTRUCTURING REVIEW THE SECURITIES LITIGATION REVIEW THE SHAREHOLDER RIGHTS AND ACTIVISM REVIEW THE SHIPPING LAW REVIEW THE SPORTS LAW REVIEW THE TAX DISPUTES AND LITIGATION REVIEW THE TECHNOLOGY, MEDIA AND TELECOMMUNICATIONS REVIEW THE THIRD PARTY LITIGATION FUNDING LAW REVIEW THE TRADEMARKS LAW REVIEW THE TRANSFER PRICING LAW REVIEW THE TRANSPORT FINANCE LAW REVIEW 2018 Law Business Research Ltdi ACKNOWLEDGEMENTS BASCH & RAMEH ADVOGADOS ASSOCIADOS FENECH FARRUGIA FIOTT LEGAL HAN KUN LAW OFFICES JURINFLOT INTERNATIONAL LAW OFFICE KVALE ADVOKATFIRMA DA LS LEXJUS SINACTA MCMILLAN LLP MULLA & MULLA & CRAIGIE BLUNT & CAROE NORTON ROSE FULBRIGHT URA MENNDEZ WALKERS YOSHIDA & PARTNERS The publisher acknowledges and thanks the following law firms for their learned assistance throughout the preparation of this book: 2018 Law Business Research Ltdiii PREFACE . vi Harry Theochari Chapter 1 COMPLIANCE OF TAX LEASE FINANCINGS WITH THE EUROPEAN STATE AID REGIME.1 Christine Ezcutari and Yann Anselin Chapter 2 BRAZIL .4 Carlos Rameh, Victor de Oliveira Fernandes, Paulo Mattar Filho, Renata Iezzi and Nicole Cunha Chapter 3 CANADA .15 Damon Chisholm, Joanna Dawson, Ryan Gallagher and Lucia Stuhldreier Chapter 4 CAYMAN ISLANDS .23 Richard Munden, Nick Dunne and Edward Rhind Chapter 5 CHINA.30 Wang Shu, Zhu Jun, Zhang Ling and Ren Jiyu Chapter 6 INDIA .44 Shardul J Thacker Chapter 7 ITALY .60 Anna Masutti, Claudio Perrella and Pietro Nisi Chapter 8 JAPAN .74 Norio Nakamura and T aichi Hironaka Chapter 9 MALTA .83 Tonio Fenech, Christian Farrugia and Neil Chetcuti CONTENTS 2018 Law Business Research Ltdiv Contents Chapter 10 MARSHALL ISLANDS.94 Sung-Hwan Choi Chapter 11 NORWAY .100 Jostein Moen and Christian B stlie Chapter 12 PORTUGAL .107 Joo Anacoreta Correia, Maria Joo Dias, Andr Almeida Martins and Sara Cabecinha Chapter 13 RUSSIA .118 Alexander Mednikov Chapter 14 SPAIN .123 Toms Fernndez-Quirs and Carlos Lpez-Quiroga Chapter 15 UNITED KINGDOM .133 Kenneth Gray, Richard Howley and Tom Johnson Chapter 16 UNITED STATES .145 Brad L Berman Appendix 1 ABOUT THE AUTHORS .153 Appendix 2 CONTRIBUTING LAW FIRMS CONTACT DETAILS.165 2018 Law Business Research Ltdv PREFACE The Transport Finance Law Review is intended to provide the industry with a guide to transport finance today, in each of the key jurisdictions globally in which aircraft, rolling stock and ships are financed. Traditional asset finance, in the form of bank debt, has long been the mainstay of the transport sector. It is apparent, however, that debt finance alone is no longer sufficient to meet the needs of the global aviation, rail and shipping sectors. As a result, the transport finance sector is undergoing a revolution, requiring its legal advisers to respond by providing clients with a far broader set of legal skills and market knowledge than was previously required. Ten years on, the impact of the global financial crisis on the transport sector continues to be felt. Following the crisis, new regulation intended to prevent future crises has been introduced, notably Basel III and Basel IV, which are designed to strengthen banks balance sheets by requiring them to hold additional capital against their loan books. The impact on an industry as capital-intensive as the transport sector is that long-term lending is now less attractive. This has led certain banks to exit the asset finance market altogether, with a number of banks taking the decision to sell all or part of their loan books to help them meet the new capital requirements. However, it must be said that there is a marked difference in the attitude of banks and financial institutions when considering loans to the aviation and rail sectors and the shipping sector. At the time of writing, capital is readily available to much of the aviation industry, and there is competition between banks for what are considered to be the best customers. The capital markets are also open for business for the aviation sector, and there is a flow of equity investments from both hedge funds and private equity as well as large-scale investments from Asia (and China, in particular). In the rail market, where significant investment is being made globally, participants are increasingly looking outside their traditional markets in search of new opportunities. So far as the shipping industry is concerned, the amount of debt finance available to it has fallen dramatically, and alternative sources of finance, such as private equity, hedge funds, bond markets and capital markets, have also reduced greatly. This is not surprising to many as shipping gradually emerges from possibly the worst recession it has ever experienced in modern times, impacting across the entire spectrum of the industry, from dry bulk to tankers and from container ships to offshore vessels. Asset finance in its traditional form is now available from relatively few banks, who in turn are prepared to lend to relatively few names, which are usually leaders in their relevant sectors. Despite this, the majority of capital available to the transport sector continues to take the form of bank debt. Tenors are shorter, however, and borrowing is more expensive. For a sector that requires billions of dollars to fund itself annually, a shortfall in funding is inevitable. 2018 Law Business Research LtdPreface vi In response to the financial crisis, many companies operating in the transport sector reduced their debt, in preparation for more difficult trading conditions. Now , however, aviation and rail in particular face an upsurge in demand as passenger numbers rise, particularly in developing economies, and while industrial shipping remains bruised by overcapacity and lower freight volumes, demand in certain subsectors is growing, notably in the cruise sector and particularly in new markets. This, coupled with the introduction of increasingly sophisticated and more costly technology, including fuel-efficient jets, high-speed rail and high-specification cruise vessels, is leading to increased funding requirements in many areas of the transport sector. New participants see significant opportunities in transport and are entering the market using innovative new structures. Capital markets and private equity structures now account for a substantial proportion of the transport finance market. In the shipping industry, well-known private equity players invested their own cash and continue to support the businesses into which they have invested rather than writing off these amounts, in the belief that the cyclical nature of shipping will result in some returns in the medium to long term. Other private equity investors consider that we have reached the bottom of the shipping cycle and that investments made now may yield attractive returns in the short term, while some funds are buying loans from traditional banks at a large discount in order to see immediate returns. In the aviation industry, leasing firms, who are frequently supported by private equity players, now account for around 40 per cent of the major aircraft manufacturers sales. In the case of rail, privatisations are being considered in some jurisdictions and new investors are being attracted to the industry by the commitments made by governments worldwide to improve existing infrastructure and invest in new, sophisticated rail links. Chinas Belt and Road initiative is an example of a government-led programme that is likely to have a far-reaching impact on rail activity and indeed, on all transport and infrastructure assets. The aviation, rail and shipping industries each have their own unique characteristics and need lawyers with a deep understanding of how each of these complex industries operates. A detailed knowledge of the principles of asset finance is now also required, combined with the ability to advise on new capital markets and corporate structures. In addition, while the majority of asset financings in the transport sector tend to be governed by New York or English law, an understanding of the principles of local law in the key jurisdictions in which transport assets are registered is also of great importance. We have sought contributions from jurisdictions that play a leading role in the financing of transport assets. Each chapter provides an overview of the transport finance industry in these jurisdictions, with an analysis of how key lenders have changed over the past five years and how the financing of assets has developed as a result. Contributors have provided an overview of the legislative framework for transport finance and financial regulation affecting lenders to the transport sector. Authors have also been asked to review any significant innovations and notable recent and pending financings and cases, and to provide assessments of how the transport sector is likely to continue to