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If orbit underwriting agencies limited edition final version of the Protocol is adopted, it will become effective once five Member States have ratified it and thus become law in those Member States who do ratify it.
The Cape Town Convention on International Interests in Mobile Equipment, which opened to signature in Cape Town on 16 Novemberprovides a generic legal framework for registration of ownership and security interests and legal remedies for default.
There are three specific sector Protocols: The Protocol on Aircraft Equipment came into effect in and has now been ratified by 44 States. The Luxembourg Protocol, relating to Railway stock has been adopted but has not yet come into effect. Work on the proposed Space Assets Protocol started over ten years ago.
Such ventures are full of risk and uncertainty and, consequently, their financing is currently still prohibitively expensive.
By introducing a uniform regime to govern the creation, perfection and enforcement of international interests in space assets, notably satellites, it is envisaged that the cost of financing will be reduced as a result of the increased level of transparency and predictability orbit underwriting agencies limited edition financiers, thereby making financing more widely available to a greater number of players in the commercial space sector.
Such an instrument will, in particular, help bring much needed financial resources to the new space community, namely those small start-up companies that have emerged as a result of the booming commercial space sector.
It would include transponder leases, conditional sales agreements and security interests. The above are worthy objectives seemingly being jointly pursued by UNIDROIT and the space community, which one would suppose should greatly benefit as a result of this initiative.
The reality is that, for the most part, the space community has had limited involvement in the drafting of the Space Protocol and has only really become active in voicing its opinions regarding the Protocol in the last three to four years. Furthermore, many parties in different disciplines in the space sector have become seriously alarmed about the implications of the Space Protocol, believing not only that it is unnecessary but also that rather than facilitating the process of obtaining satellite financing and reducing its cost, it will make the process more difficult and costly.
This briefing identifies some differences between the space sector and the aviation sector which are relevant to consideration of the benefits or otherwise of Protocols with regard to those sectors and it also identifies some of the key issues which have been identified by detractors as reasons not to adopt the draft Space Protocol.
Finally, there are references to some international initiatives to voice to UNIDROIT strong concerns regarding the Space Protocol and its possible impact and a brief summary about some events in the UK organised to provide a forum for review of the Space Protocol and some further separate written inputs to express concerns.
Differences between the space sector and the aviation sector Whilst the relative success of the Aircraft Protocol is sometimes cited as a justification for the proposed Space Protocol, there are major differences between the two sectors which have a bearing on the relevance and benefits of the respective UNIDROIT Protocols.
These include the following: Mobility Aircraft are clearly very mobile, many of them frequently moving across international borders and legal jurisdictions and they are readily physically recoverable. Satellites are not mobile in the same way and the State where the satellite is registered retains jurisdiction and control over space assets.
Furthermore, satellites in orbit are not physically recoverable. Possession and control Aircraft can have a very long operational lifetime lasting a number of decades, useful active life being extendable with replacement equipment and upgrades. They are often sold on and many will have a number of different owners and operators over time.
Controls usually relate to safety aspects. Satellites generally have a much shorter active lifetime and the satellite operator to which licences are granted and which registers the spacecraft with its national government authority, usually remains the sole owner throughout operations and disposal.
The controls relate to regulatory aspects, particularly to operation in-orbit and rights and obligations arising from registration and orbit spectrum.
These rights are not readily assignable. There is therefore effectively no secondary market for a satellite as such, also due to their design for specific applications and the specialised expertise required to operate them. Financing Aircraft financing is primarily asset- based whereas satellite financing is usually project-based relying on revenues flowing from use of the assets.
Asset-based financing depends on there being a relatively long useful life-time for the asset, that the asset is properly maintained so that residual value is optimised and, last but not least, that it can be easily and swiftly repossessed should things go wrong.
None of this is usually applicable to satellites. Financial performance The airline industry operates within a tightly regulated, customer- focused and low profit margin environment, which makes its collective financial performance over the years notoriously poor.
There are numerous examples, most recently with American Airlines, of operators becoming insolvent. This increases the inherent credit risk in, and the cost of, aircraft financing transactions.
By contrast, with a few exceptions, commercial satellite operators have tended to enjoy excellent financial results and a high level of profitability. This is clearly a factor for satellite operators in being able to obtain finance based on the financial potential of the project which effectively determines the value of the asset rather than the residual value of the asset in an active market, which is the situation for commercial aircraft.
Number of units The number of registered commercial aircraft is of the order of 60, and at least twice as many engines. The number of commercial satellites can be reckoned in a few hundreds. This has implications with respect to the need for the Space Protocol and its practical implementation.
However, not all of them will have a direct involvement or interest in space assets. Those who do not will not have any impact in the implementation of a Space Protocol but would have an equal vote regarding adoption of the Protocol and in ratification of the Protocol.
Issues raised by those opposing the Space protocol Most of the concerns expressed have remained fairly constant over the last three or four years and critics of the Protocol have claimed that UNIDROIT has failed properly to address these concerns.
The main issues raising objections, as stated by detractors, are the following: General The Protocol is not needed. The draft is inconsistent with current market practices of commercial satellite financing and incorporates features that will deter potential financial backing.May 28, · UCO Operations , UCO Reporter, March Edition, February 22, UCO Reporter , May Edition, April 27, Anita Buchanan, limited to words, and must be e-mailed ([email protected]
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