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www.railworkinggroup.org. AfricaRail 2009 Johannesburg, 23rd June 2009 Exploring the Luxembourg Rail Protocol Howard Rosen Principal, Howard Rosen Solicitors, Zug, Switzerland Chairman, Rail Working Group. Cape Town October/November 2001.

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www.railworkinggroup.org

  • AfricaRail 2009

  • Johannesburg, 23rd June 2009

    • Exploring the Luxembourg Rail Protocol

  • Howard Rosen

  • Principal, Howard Rosen Solicitors, Zug, Switzerland

  • Chairman, Rail Working Group


Cape Town October/November 2001

participants from 58 States and 11 international organisations at the Diplomatic Conference


Luxembourg 2007

participants from 42 States and 12 international organisations at the Diplomatic Conference


www.railworkinggroup.org

  • What are the Luxembourg Protocol’s goals?

  • What does it apply to?

  • Who benefits and why?

  • How does it achieve the goals – the legal analysis?

  • How will it work in practice?

Howard Rosen Solicitors


www.railworkinggroup.org

The Goals of the Luxembourg Protocol

  • More extensive private sector finance for rolling stock at a lower cost

  • Reduce barriers to entry to the rail sector

  • Facilitate cross border issues

  • Create more diverse financing systems in order to facilitate a more competitive and dynamic industry

Howard Rosen Solicitors


www.railworkinggroup.org

  • International Leasing today

Owner in Country A

Conditional Sale

Loan

Purchaser in Country B

Bank in Country D

Security

Lease

Rolling stock operating in countries E, F & G

Operator in Country C

Howard Rosen Solicitors


www.railworkinggroup.org

What does it apply to?

“….vehicles movable on a fixed railway track or directly on, above or below a guideway, together with traction systems, engines, brakes, axles, bogies, pantographs, accessories and other components, equipment and parts, in each case installed on or incorporated in the vehicles, and together with all data, manuals and records relating thereto.” - Art. I (2) LP

Howard Rosen Solicitors


www.railworkinggroup.org

What does it apply to?

  • “Normal” rolling stock

  • Metros, trams and light rail rolling stock

  • From people movers at airports to mountain railways

  • Exclusions?

Howard Rosen Solicitors


www.railworkinggroup.org

  • Identifying the “International Interests”?

Payments

Funding

Supplier

Lessor

Banks

Security

Conditional Sale

Payments

Lease

Lessee

Howard Rosen Solicitors


www.railworkinggroup.org

Who benefits and why?

  • Banks and Lessors

  • Operators

  • Manufacturers

  • Customers

  • Governments

  • Aid Agencies

Howard Rosen Solicitors


www.railworkinggroup.org

“Luxembourg” Benefits

  • More lenders and lessors ready to finance rolling stock

  • Cost of capital decreases with risk and availability (including “Basel II” advantage)

  • Legal costs decrease

  • Safer to move assets across borders (but also helpful for domestic transactions)

  • Opens out options for more innovative financing structures

Howard Rosen Solicitors


www.railworkinggroup.org

Achieving the Goals – the basics

  • Design of the Treaty and Protocol

  • The role of the Prepcom

  • The Supervisory authority

  • Regulations

  • The Registrar

Howard Rosen Solicitors


www.railworkinggroup.org

Achieving the Goals – the basics

  • Creates as an “International Interest” security interest held by certain types of creditors

  • Provides for an international registry accessible through the internet 24/7 at which interests can be registered and searched against

  • Allocates priorities to registered interests

  • Adopts detailed enforcement rules for creditors on debtor default or insolvency

Howard Rosen Solicitors


www.railworkinggroup.org

Achieving the Goals – the detail

  • The Treaty: http://www.railworkinggroup.org/publications_01.html

  • The Protocol: http://www.railworkinggroup.org/publications_03.html

  • Articles: http://www.railworkinggroup.org/publications_04.html

  • How the Registry should work

  • The à la carte concept – opt-ins and opt outs

  • Party autonomy

  • Sales

Howard Rosen Solicitors


www.railworkinggroup.org

Some practical issues

  • Costs

  • Accessibility

  • Designated Entry points

  • Asset identification: Art V and Art XIV LP

Howard Rosen Solicitors


www.railworkinggroup.org

  • AfricaRail 2009

  • Johannesburg, 23rd June 2009

    • Exploring the Luxembourg Rail Protocol

  • Howard Rosen

  • Principal, Howard Rosen Solicitors, Zug, Switzerland

  • Chairman, Rail Working Group

  • E-mail: [email protected]

  • www.legalease.ch


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