Aviation Finance & Leasing 2022

Coming Through the Storm: The Aviation Industry in 2022

“The moment you doubt whether you can fly, you cease forever to be able to do it.”

Peter Pan by J.M. Barrie (1904)

One ought to be forgiven for being swayed, however briefly, over the past two and a half years by the thought that we may be grounded once and for all. COVID-19, supply chain and labour disruptions, and now war together are to aviation a storm that keeps changing direction. We adjust our heading, but the storm adjusts. We are left no choice but to withstand or perish. So, we throttle-up and power through the storm. To anyone in aviation, be they on a flight deck or in a cubicle, it is a calculated and managed risk that tempts fate nonetheless but answers stoically: I am the storm.

It is human nature to look to history amidst confounding events to seek discernible patterns, real or imagined, that comfort and guide. The “good news” is that the history of aviation has been, and will forever continue to be, marked by cycles, external shocks and crises. Indeed, it takes a lot of history to produce this Guide. Still, even the 20/20 vision of the most experienced aviator could not have seen the multiple black swans since 2020 approaching. That first proverbial bird strike proved to be nothing short of catastrophic for the aviation industry, which was subjected to the full fury of the COVID-19 pandemic. Come what may, industry veterans are bound to look back one day and believe that all things worked out according to some grand order that is only discernible from the comforts of an armchair with the benefit of hindsight, and Irish whisky.

It is a bleak fact that aviation is presently 28 months into a series of industry crises with no near-term end in sight, even as COVID-19 becomes endemic. A corollary fact is that bullish outlooks for near-term airline recovery can serve as useful, if not always intentional, hiding places for deep distress in lease and loan portfolios. The unprecedented magnitude of the pandemic, supply/labour disruptions, war and their various economic fallouts means that the spectre of financial ruin still haunts many in the industry for whom a liquidity crisis could quickly turn into a solvency crisis. Total recovery is difficult to conceive amidst a cascade of distress, default and disputes that test the resolve of even the most coveted lessor-lessee, lender-borrower, buyer-seller and servicer/supplier-customer relationships.

Aviation finance and leasing is a sector where deal, distress and dispute experience remains the best – and, possibly, the only – teacher. Such experience is to an aviation finance and leasing attorney what pure Damascus steel is to a sword. Nothing will substitute. Battle-scarred aviation finance and leasing attorneys, who have helped shepherd airlines or their lessor or creditors through varying degrees of airline distress and dispute during prior – far less drastic – downturns, appreciate the skill it takes to make the terrifyingly complex terrifyingly simple.

There is an intriguing serendipity about the restructuring of airlines. The fortunes of airlines depend upon the fortunes of nations, and the reverse also holds true (while the fortunes of aircraft lessors, financiers and investors depend upon both). As always, where there is risk, there is usually reward; the opposite holds equally true as well.

The amount of knowledge that had to be mastered to complete the questionnaire that forms the cornerstone of this guide would have defeated many lesser attorneys, but not the ones who took a significant amount of time out of their thriving legal practices to respond. They did so masterfully, in a manner that only confirms their place in the upper echelons of the profession. Crafting the questionnaire itself was, I might add, a gargantuan undertaking made possible by my unrelenting impulse to somehow comprehensively capture and usefully present thousands of elements of cross-border and domestic law and practice into a single resource. I owe a debt of gratitude to each of the leading and highly experienced aviation finance and leasing attorneys from around the world who coalesced to make this guide possible.

I hope that readers not only find this Guide to be helpful, but also to be the best resource of its kind. To that end, and in the spirit of semper ad meliora, I welcome and encourage feedback and suggestions from readers for future iterations of this guide.

I believe that laws – be they Newton’s or nations’ – are the great stalwarts of aviation. I also believe that the best aviation attorneys live in the blank white spaces between the lines and at the edges of contracts, where black letter law serves the needs of commerce. We hope for the best, are prepared for the worst, and unsurprised by anything in between. But do we dare lead the way and disturb the so-called order of things while in the throes of an epoch-making crisis in the aviation industry?

When in the throes, look to Thoreau. The American transcendentalist writer wrote (in 1854): “If you have built castles in the air, your work need not be lost; that is where they should be. Now put the foundations under them.” Having observed the rise and rise of arbitration as some judicial courts became increasingly removed from or oblivious to the commercial realities of the aviation industry, it became apparent that there is need that is not being served. Aviation is a global industry that accounts more than USD3.5 trillion in annual economic activity, and yet is evidently the final, nearly untouched, frontier of arbitration. By mostly overlooking arbitration, the aviation industry – and the aviation finance and leasing part of the industry in particular – had done itself a disservice, and so a group of nearly 70 diverse aviation and arbitration attorneys, aviation executives and technical experts from around the world worked together along with the Netherlands Arbitration Institute to bring arbitration to aviation. It will prove challenging in some aviation industry sectors to overcome cultural factors fuelled by inertia mixed with standardised and precedent documentation, but it nonetheless must be done. The history of aviation is punctuated by innovation and paradigms that shift slowly, then suddenly. As arbitration and specialised arbitration more specifically become woven into the fabric of the globalised economy, it is time for the framework of dispute resolution in our industry – an industry that is indeed one of the great globalisers – to evolve.

There is very little precedent for this, but when we cannot find someone to follow, we must occasionally lead the way. Hence, the creation of The Hague Court of Aviation for Arbitration (the “Hague CAA”), an innovative non-profit specialised court of arbitration and centre for mediation designed for the global aviation industry by leaders in aviation and arbitration, which launched at the Farnborough International Airshow in July 2022, just before the publication of this Guide. The Hague CAA is focused exclusively on enabling the fair, private, expedited, cost-effective, binding and enforceable resolution of commercial and private aircraft operating, trading, leasing and financing-related contractual disputes. While providing deep aviation expertise and market awareness, the Hague CAA nonetheless performs its essential duties for the benefit of the global aviation industry totally independently and impartially, with no allegiance to any industry participant or special interest group over another. The Hague CAA is an innovation that the industry needs, and the paradigm begins to shift now.

There will be recovery. There must be, if for no other reason than the fact that the human spirt demands it. It may never be the same as before but, with a bit of luck and a lot of ingenuity, it may be better. To that end, may all those involved in aviation – even the attorneys – help hasten the return to a day when, once again, the greatest distance between any two places on the planet is only time.