Preview
             » “Simple” Analysis: How should the Court in a 
                 Secondary Insolvency Proceeding Interpret the 
                 Waiting Period (Stay) of Alternative A
             » Oceanair Complications
             » What the US Court Thought and Decided
             » Lessons Learned
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            “Simple” Analysis – Main Obligations
         » Two Main CTC Obligations for a Court in a Secondary 
             Insolvency Proceeding with respect to Alternative A:
             ˗ Cooperation:  ‘…cooperate to the maximum extent possible with foreign 
               courts and foreign insolvency administrators in carrying out the 
               provisions of Article XI [Alternative A]’. Prot. Art XI(2), an Opt-In provision 
               adopted by the US.
             ˗ Enforcement:  ‘The courts of Contracting States shall apply Article XI 
               [Alternative A] in conformity with the declaration made by the Contracting 
               State which is the primary insolvency jurisdiction.’ Prot. Art. XXX(4), a 
               mandatory provision applicable in the US and all Contracting States.
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            “Simple” Analysis – Interpreting Brazil’s Declaration
         » Alternative A sets a “Clear” and “Hard” Waiting Period (or Stay)
             ˗ The Official Commentary states: ‘Alternative A requires strict adherence 
               to the timetable and the court is precluded from granting any extension 
               of time for payment or other performance….’  OC 3.126.. 
             ˗ The language of Alternative A, Article XI(2) is clear and unqualified: “the 
               insolvency administrator or debtor, as applicable, shall give possession 
               of the aircraft object to the creditor no later than …(a) the end of the 
               waiting period.
         » Interpreting Brazil’s Declaration Does Not Require Local Law 
             Analysis – it is Autonomous Law, Intended to be Uniform
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            “Simple” Analysis – Interpreting Brazil’s Declaration
         » The Brazilian declaration states:  ‘The Federative Republic of 
             Brazil declares that it will apply the entirety of Article XI, 
             Alternative A, to all insolvency proceedings, and that the waiting 
             period for the purposes of Article XI, paragraph 3, of this 
             Alternative shall be thirty (30) calendar days.’ [UNIDROIT 
             website] 
         » Brazil Selected the Clear/Hard Alternative A Deadline over 
             other options:
             ˗ No declaration
             ˗ Alternative B
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            “Simple” Analysis – Conclusions
         » The US Court Is Obligated by the Convention and Protocol to 
             Apply Brazil’s Alternative A Waiting Period in Accordance with 
             Brazil’s Declaration; Brazil’s 30 Day Waiting Period Declaration 
             is clear and presents no issues of interpretation
         » The foregoing treaty obligation supersedes any conflicting rule 
             under Chapter 15.  Section 1503 of the Bankruptcy Code 
             States:  ‘To the extent that this chapter conflicts with an 
             obligation of the United States arising out of any treaty or other 
             form of agreement to which it is a party with one or more other 
             countries, the requirements of the treaty or agreement prevail.’
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