international law,

Airlines, Railways and UNIDROIT: Erasing the COVID Footprint

By Mahathi Utham Kumar and Hrishikesh Anand Jan 18, 2021

The economic fallout from the novel coronavirus is being felt worldwide. As a consequence, the international market chain has experienced imminent delays in performance of contractual obligations. An existing uniform international regime which can provide for effective enforceability and renegotiation of asset-based contracts is UNIDROIT: its Principles on Commercial Contracts, the Cape Town Convention, and related protocols.

In this context, we argue the case for the majority, the underrepresented and the most affected in this scenario: the debtors/lessors in the transport sector. We contend that the current financial crisis can be improved by adopting the alternatives that UNIDROIT instruments provide.

In furtherance, the three parts of our article purport to provide: i) a contextual overview of the economic impact of COVID-19 on Airlines and Railways; ii) an analysis of the condition of the Airlines and the Railway industries using the UNIDROIT documents which govern the legal aspects of this issue; and finally iii) plausible solutions to reduce this economic burden.

1. UNIDROIT: An Overview of the Existing Norms

UNIDROIT’s Principles of International Commercial Contracts establish a legal framework to articulate the principles underlying asset-based financing and leasing, and protect other such related interests.1

Similarly, the Cape Town Convention and its Protocols are standardised rules to be followed while engaging in transnational business transactions. Specific to mobile equipment, the Convention lays down certain objectives to facilitate asset-based financing and leasing, protect the interests of all parties, and create a legal framework for international interests. The most significant aspect of the Cape Town Convention is the trifurcation between air, railway, and space assets, creating a comprehensive yet definite framework for each.2

The Luxembourg Protocol utilizes the Cape Town Convention as a baseline while accommodating the specific requirements of the railway industry, integrating these elements in a vital transnational instrument. 

2. The Impact Factor

The recent COVID-19 health crisis has had a profound impact on all forms of travel and transportation. Both the aviation and railway sectors have been significant casualties of the worldwide shutdowns of domestic and cross-border trade and travel.3

The most significant impact on airline companies has been due to a slump in demand among travellers as a result of the multiple travel restrictions. Several airlines have declared bankruptcy,4 many have ceased operations, while other airlines reported a reduction in flights after a decade of expansion.5 Statistics show that, on an average, 10% of flights around the world   were cancelled in early March 2020, in stark contrast to 2019.6 As the pandemic gained traction in late March, the recorded flight movements reduced almost 40–60% with international flights being affected the most. Unfortunately, research also shows that global recovery of passenger demand to pre-COVID-19 levels is estimated to take almost two years, with the most optimistic loss estimate being a whopping USD 84 billion (GBP 63.23 billion).7

On the other hand, estimates on the railway sector suggest that the fallout from the health crisis will cause global rail passenger revenue losses to the tune of USD 60 billion (GBP 45 billion) in 2020 and further seep into 2021.8 The freight sector alone is expected to lose approximately USD 26 billion (GBP 19.5 billion) this year.9

Statistics from both sectors put into perspective the scale of the financial blowback being experienced by operators, investors and financial institutions. This situation has a direct impact on leasing agreements as well, as lessors will look to prematurely terminate agreements due to factors like non-payment. During these tumultuous times, the interests of various stakeholders in the concerned industry must be protected. This is where UNIDROIT’s instruments offer effective solutions.

3.1. Flying and Non-Performance

COVID-19 has caused the termination of contractual relations, mainly due to the breach of obligations and pulling-out by major global investors from industries that were once the benchmark for stock-market performance. Primarily, the virus has devastated airlines, giving creditors or investor-firms like Berkshire Hathaway no incentive to hold on to their airline stakes.10 Firms have sold shares as they anticipated a huge risk sending the entire industry into a competitive spiral that could potentially damage profits, sales, and investor returns.

We argue that nations must therefore collectively reinstate investor optimism to help airline shares take-off. Hence, we aim to begin the discussion by i) highlighting the main UNIDROIT principles and providing our perspectives on the frustration of payment obligations by airlines, ii) elaborating on the legal protections and remedies that the UNIDROIT Convention on the International Interests in Mobile Equipment provides to affected parties.

i) Airline Payment Obligations and UNIDROIT

Aeroplanes require high-maintenance, a process that runs up millions of dollars in costs.11 Periodic maintenance is not cheap either; it demands investment in building and maintaining terminals at large airports.12 Airlines pay fees to airports to rent their gates and slots, which binds them to long-term contracts with operators. They are also locked into third party contractor agreements to hedge jet fuel prices.13 Yet, the impossibility of performing their part of such contracts is not rare for airline companies. Therefore, UNIDROIT Principles (“Principles”) of International Commercial Contracts may take effect in suitable scenarios, and attempt to prevent global economies from periodic busts, protecting airlines’ legal rights.

a) Applicable Principles: Hardship v. Force Majeure

A plain reading of the document reveals that the text of these Principles must serve as a model for national legislators. To that end, a comprehensive textual understanding is needed.

The relevant provisions for consideration are: Article 6.2.2 of the document14, which defines ‘hardship’; Article 7.1.715 which defines force majeure; and Comment 6 on Article 6.2.216 which deliberates the possibility of both occurring together. In this context, COVID-19 would become a ‘hardship’ (by virtue of it being an event beyond the control of the disadvantaged party) and a force majeure (as such an impediment could not have been taken into account at the time of conclusion of the contract).

The Supreme Court of Canada, in Churchill Falls v. Hydro-Québec17, recently provided clarity on the first aspect: ‘hardship’. Notwithstanding that the facts of the case did not admit the adoption of the above-stated Principles, the judgment articulated important lessons on the broader obligations of contracting parties and reimposed parties’ right of renegotiation. The decision reads in the context of COVID-19, ‘…for example, in a situation of ‘hardship’ that corresponds to the description of that concept set out in the UNIDROIT Principles, the conduct of the contracting party who benefits from the change in circumstances cannot be disregarded and must be assessed’ (emphasis added).18 The Court also noted that an inflexible or a ‘gratuitously impatient or intransigent’ party, in these exigent circumstances, would violate the good faith duty under equity.

On the second aspect of force majeure, courts in India and other countries have generally construed that impossibility of performance pursuant to an unforeseeable event is a suitable justification in restraining specific performance obligations.19 Where Scottish or English regimes are concerned, the decision would not only depend on the circumstances but also on the drafting of the particular contractual provisions.20 This position is similar in Singapore as well.21

However, in a factual situation where both ‘hardship’ and force majeure occur, as contemplated in Comment 6 of Article 6.2.2, we suggest that invoking hardship would be the best choice. Carrier organisations may need to re-evaluate the legitimate hazard that may emerge under their agreements with third-party contractors, for activities including refuelling, providing food, runway development and repairs, aeroplane maintenance and upgrades, and flight dispatches.

Therefore, if airlines invoke ‘hardship’ under the Principles as the rationale behind breach, they can expect not only that their non-performance be excused, but also that the terms of such long-term contracts be renegotiated for the purpose of keeping the contract alive, albeit on revised terms. These relaxations would allow them short-term benefits like improved cash-flow, as well as achieving long-term goals such as general restructuring.

ii) Suggestions for a New Lease of Life

This section details the protections and remedies that may be sought by airline debtors and lessors.

Firstly, given that the carrier organisations have suspended their businesses, it is necessary to determine if defaults would be triggered under the various financial understandings entered into by these companies. Where an occasion of default is triggered upon a deliberate suspension of business, such an interruption is generally an immediate outcome of governmental guidelines. That would be outside the scope of such an agreement, and fall under the purview of the Cape Town Convention.

Secondly, it is necessary to ascertain if an occasion of default is qualified by the ‘material adverse change’22 requirement. This would reflect on the borrower’s capacity to play out their legally binding commitments. In the event that there is a critical effect on the borrower’s capacity to pay, this will probably fulfil the widely used test of ‘material adverse change’.23

Thirdly, it is normal that post-COVID-19 and after the lifting of lockdown orders, for reasons including budgetary and operational challenges, carrier organisations will be unable to immediately resume operations in all regions or may not be in a situation to recommission their fleets. Considering this, it would be suitable for nations to survey the occasion of default and the cessation of business in their financial agreements involving security interests.

It could be contended that impermanent terminations post-COVID-19 would establish said cessation of business.24 Subsequently, it would be judicious for nations to introduce policies aligned with the Cape Town Convention, to allow aircraft organisations to audit their facility agreements, while considering COVID-19 related measures and the effect such measures may have on their financing plans.

Fourthly and finally, the carrier organisations may consider approaching their lessors for concessions according to their respective rent commitments (by virtue of the liquidity crunch resulting in falling ticket demand).25 For instance, the largest domestic airline in India InterGlobe Aviation Limited, which operates IndiGo’s fleet, has received 50% relief on supplementary rent, generally used to cover maintenance costs, as the greater part of IndiGo’s fleet remains grounded due to COVD-19.26

While the lessors might be qualified to make decay demands for such concessions on rent commitments, the Convention would prevent them from doing so and would also give the lessee some leeway in these unprecedented times. Therefore, it will be advantageous to consider the alleviation bundle or concessions which a carrier organisation looks for from the lessors and which must incorporate a concurred period, with a specific amount of reimbursement to recover the unpaid rents. Such patience on occasion of default can therefore come at an expense, like delayed repayment, but also be highly beneficial to the lessees.

3.2. The Road Ahead

For the industry to get back on track, states must ensure the provision of credit-financing for aviation assets to alleviate the circumstances that the increasingly bankrupt airline industry faces. Secondly, the borrowing costs must be revised and decreased in accordance with the Principles to enable economic regrowth. Thirdly, the continuous cooperation of states will ensure that consumer demand for commercial aircraft increases, thereby effectuating increased transnational air travel.

In the context of the judiciary and their interference in commercial contract matters, tempered literal interpretations of certain contracts have to be effected in order to protect the underlying obligations intended by the parties. Good faith confers a broad, flexible power to create law, which helps tie various legal principles to the concept of fundamental justice, depending on the circumstances, in an effort to protect contractual equilibrium.27 In the same vein, the fundamentally altered equilibrium in the aviation sector has to be set right, and nations should ratify documents such as the UNIDROIT’s Principles and render justice to those industries who are exposed to a substantially greater risk than others.

4.1. Addressing financial concerns in the Railway sector

The railway sector plays a pivotal role in keeping the gears of the global economy turning. It is estimated that by 2025, the global rolling stock market size will reach USD 75 billion (equivalent to GBP 57.1 billion).28 These numbers illustrate the sheer scale on which railways operate and, more importantly, they highlight the need for adequate safeguards for investments. This section is devoted to three aspects in this regard: i) highlighting the scope of the Luxembourg Protocol, ii) enumerating the liquidity crisis among operators, and iii) addressing the remedies it provides on insolvency. 

4.2.Scope of the Luxembourg Protocol

The Luxembourg Rail Protocol (Protocol) was ratified in 2007, using The Cape Town Convention as a broad framework, while taking into account the specific requirements of the rail industry.

The objective of the Protocol has been interpreted as follows: ‘It seeks to facilitate, worldwide, more extensive private sector finance for rolling stock, reduce barriers to entry to the rail sector, and resolve important cross-border legal issues as a result of more diverse, extensive and less expensive private sector finance for railway rolling stock.’29

Broadly speaking, the Protocol addresses two immediate concerns in the rail sector, namely default remedies and registry provisions. Under the former, it enumerates remedies on insolvency, insolvency assistance, and provisions for debtors. The latter concern, on the other hand, encapsulates: the authority of the registrar, designation of entry points, identification of rolling stock, and notices of sale. With a wide scope in terms of its application, the Protocol has an important role to play in combating the damage caused by the COVID-19 pandemic.

i) Mitigating the liquidity crisis

During this crisis, certain issues have taken precedence. Low foot and freight traffic have prompted a liquidity crisis and pushed operators towards a staggering loss of revenue.30 States have been actively involved in assisting their railways over the past few years, and more so since the beginning of COVID-19.31 The French government absorbed EUR 35 million (GBP 31 billions) of debt from SNCF in 2018,32 and will help out the national operator again this financial year.33 According to the Office of National Statistics of the UK, British train companies have effectively been re-nationalised temporarily to survive,34 and Angela Merkel and the Bundestag have sought to raise the debt ceiling of the German Deutsche Bahn to cope with the crisis.35

While state-owned firms have more leeway, private entities are left to fend for themselves. Union Pacific has reported its worst quarter since the 2008 Financial Crisis,36 while both Canadian National and CSX experienced 18.9 and 26% drops in revenue respectively.37,38,39 Amtrak saw a mammoth 95% drop in ridership,40 pushing an already loss-saturated entity into restructuring its operations. Amidst the chaos, states and operators are looking for any sort of relief from incessant financial pressure.

4.3 Remedies on insolvency and their applications during the pandemic

The Protocol presents three different alternatives for creditors and debtors in situations where insolvency may occur.

In the first alternative,41 the insolvency administrator shall give possession of the rolling stock to the creditor upon default. This represents a safety net for creditors as, if the debtor’s position becomes untenable, they may take possession of tangible assets. However, there is a reasonable waiting period for the debtor to put across their case. The debtor is not precluded from using the rolling stock, as long as its value does not depreciate through such use. Most importantly, the debtor can retain possession of the rolling stock if it cures all the defaults other than a default constituted by the opening of insolvency proceedings, and has agreed to perform all future obligations under the agreement and related transaction document within the waiting period. 

The second alternative allows the debtor to issue a notice to the creditor,42 stating its position with regards to meeting its financial obligations or allow the creditor to take possession of the stock. This option gives debtors the chance to represent their situation to creditors.

The final option prescribes a period within which the debtor agrees to cure all defaults and agrees to perform all future obligations.43 The assets are turned over to the creditor upon a failure to do so. Prior to the completion of this cure period, the debtor is also empowered to approach a court seeking a stay on repossession of the assets, provided they can fulfil their obligations to the creditor during such suspension period.

It is important to keep in mind that each contract is unique and therefore a singular solution can cause friction between the involved parties. These alternatives therefore provide three comprehensive courses of action. In the context of the current situation, the second and third alternatives are of utmost relevance. As various operators face liquidity crunches, it is practically impossible for them to meet their immediate debt obligations. Additionally, Article X of the Protocol also provides for insolvency assistance requiring courts in the contracting state to cooperate with foreign bodies and jurisdictions, which would prove to be conducive to dealing with the situation at hand.

However, a gradual pickup of traffic seems likely. Debtors can, therefore, likely transfer their risk to the creditors, with assurances that the situation will improve. Should a reasonable cure period be negotiated, it would ensure that debtors have adequate time to cure their obligations without sacrificing the creditors’ stakes in the operation.

4.4 Using the Protocol efficiently to manage the crisis: A Suggestion

Ultimately, the aforementioned statistics are just a small insight into the magnitude of COVID-19’s impact. Even the most optimistic estimates do not suggest a strong pickup of economic growth before the second half of 2021,44 and railways across the globe will continue to face contractions before a gruelling recovery.

Hence, debtors need to be protected from financial ruin by using the relevant insolvency provisions. At the same time, this cannot compromise on the interests of creditors. Therefore, a balance must be struck between the relevant alternatives provided by the Protocol, in order to find one that meets the expectations of all parties. Additionally, the international registry must facilitate large-scale coordination between parties. By providing pertinent information about rolling stock, the registry must aid parties in making informed decisions about the procurement, sale, and movement of such stock. On this, the Protocol has been ratified to protect the interests of various players in the field, and the pandemic could very well be its hour of reckoning.

5. Conclusion

The problems we have addressed arise primarily from the fact that legal systems have various approaches to securities and lease agreements, which creates uncertainty for lending institutions and borrowers regarding the efficacy of their rights. This issue can be dealt with, summarily, by adopting the foregoing measures.

Therefore, amidst the uncertainty around the pandemic, the implementation of the UNIDROIT Principles will be pivotal to ensure that air operators can stem the haemorrhage of money and that they will be able to return to normalcy once the crisis ends. To manage the fallout from the pandemic, the Luxembourg Protocol must be utilized to its fullest in order to provide an equitable, comprehensive and efficient method to manage the fallout from the pandemic while preparing entities to return to their normal capacities.

It would also be prudent to encourage a greater number of states to ratify the Cape Town Convention and its protocols in order to ensure a comprehensive and cohesive system of investment protection. We believe that the adoption of such principles for special needs during extraordinary circumstances would lead to a better global understanding of broader concepts like contractual stability and fairness: concepts which UNIDROIT has championed in the international arena.

[1] Preamble, UNIDROIT Principles, 2016.

[2] Preamble, Convention on International Interests in Mobile Equipment, UNIDROIT, 2001.

[3] Jeremy Sung, Yannick Manshauer, ‘Changes in transport behaviour during the Covid-19 crisis’ (IEA, 27 May 2020) «» last accessed on 20 August 2020.

[4] Masayuki Yuda, ‘Thai Airways to be restructured under bankruptcy court’ (Nikkei Asia, 19 May 2020)  «» last accessed on 19 August 2020; John Ollila, ‘CityJet’s Finnish & Swedish Subsidiaries File For Bankruptcy’ (22 April 2020).

[5] Abigail Ng, ‘Over 40 airlines have failed so far this year — and more are set to come’ (CNBC, 08 October 2020) «» last accessed on 20 August 2020.

[6] Danny Santos, ‘How Airports Globally are Responding to Coronavirus by Aislelabs Inc’ (Aislelab, 27 March 2020) «» last accessed on 17 August 2020.

[7] Gudmundsson, S.V., Cattaneo, M., Redondi, R., ‘Forecasting recovery time in air transport markets in the presence of large economic shocks: COVID-19’ (2020).

[8] UIC COVID-19 Task Force, ‘First estimation of the global economic impact of Covid-19 on Rail Transport’ (Int’l Union of Railways July 2020) «» last accessed on 19 August 2020

[9] Ibid.

[10] Martin Farrer, ‘Warren Buffett dumps US airline stocks, saying ‘world has changed’ after Covid-19’ (The Guardian 03 May 2020) «» last accessed on 21 August 2020.

[11] Brandon Battles,’Maintenance Costs: Significant but tricky’ (AviationPros, 01 April 2020) «» last accessed on 4 December 2020.

[12] Ibid.

[13] Cyril Amarchand Mangaldas,’Covid-19: Flight Plan for Indian Aviation Industry’(Lexology, 06 May 2020) «» last accessed on 1 September 2020.

[14] Art. 6.2(2) UNIDROIT Principles 2016.

[15] Art. 7.1(7) UNIDROIT Principles 2016.

[16] Comment 6, Art. 6.2(2) UNIDROIT Principles 2016.

[17] Churchill Falls (Labrador) Corp. v. Hydro-Québec [2018] SCC 46.

[18] ibid [92, 98-99, 102-105, 113 and 118].

[19] Indian case during COVID-19 - M/s. Halliburton Offshore Services Inc. v. Vedanta Limited & Anr., O.M.P (I) (COMM.) No. 88/2020 & I.As. 3696-3697/2020; US case during Influenza - Sandry v. Brooklyn School District, 47 N.D. 444, 182 N.W. 689 (1921);  Red River Wings, Inc. v. Hoot, Inc., 2008 ND 117, ¶ 56, 751 N.W.2d 206.

[20] Out-Law Guide, ‘Will COVID-19 trigger a force majeure clause?’ (Pinsent Masons, 26 March 2020) «»  last accessed on 4 December 2020.

[21] Ibid.

[22] WFW, ‘COVID-19, Aircraft Finance and Return of the MAC?’ (Watson Farley and Williams, 24 March 2020) «» last accessed on 5 December 2020.

[23] Grupo Hotelero Urvasco v Carey Value Added [2013] EWHC 1039 (Comm); Hexion Specialty Chems., Inc. v. Huntsman Corp., 965 A.2d 715 Del. Ch. 2008; Akorn, Inc. v. Fresenius Kabi AG, 2018 WL 4719347.

[24] «>l> last accessed on 2 September 2020.

[25] Rhik Kundu, ‘Cash strapped airlines seek to rework lease rentals with lessors’ (LiveMint, 08 June 2020), «>.> last accessed on 27 August 2020.

[26] Ibid.

[27] Borden Ladner Gervais, ‘COVID-19: The exceptional right to renegotiate the terms of a contract in the absence of a force majeure’(Lexology 14 April 2020). «».

[28] ‘Global Rolling Stock Market Report 2019: Market Size is Anticipated to Reach USD 75.11 Billion by 2025 -’(Business Wire, 23 December 2019) «» accessed 22 November 2020.

[29] Howard Rosen et al, ‘The Luxembourg Rail Protocol – Extending Cape Town Benefits to the Rail Industry’[2012] UNIF. L. REV. 2012, 609, 609.

[30] Kevin Smith, ‘Pandemic pushes German operators to the brink’ (Rail Journal, 08 September 2020). accessed 17 August 2020.

[31] Ibid.

[32] David Keohane, ‘French government spells out SNCF debt rescue plans’(Financial Times, 26 May 2018) «» accessed 17 August 2020.

[33] Oliver Cuenca, ‘SNCF to receive government aid’ (Rail Journal, 23 July 2020). accessed 10 September 2020

[34] Tanya Powley,’ONS recognises full nationalisation of the UK railways’ (Financial Times, 31 July 2020) «» accessed 20 August 2020.

[35] Holger Hansen & Michael Nienaber, ‘Germany aims to lift debt ceiling for rail operator Deutsche Bahn’ (Reuters, 27 May 2020) «» accessed 20 August 2020>.

[36] Union Pacific Media, ‘Union Pacific Reports Second Quarter 2020 Results’ «>l> accessed 20 August 2020

[37] Dan Roman, ‘Canadian National Q2 Earnings Squeezed by Pandemic’(Transport Topics, 22 July 2020) «» accessed 20 August 2020

[38] ‘CSX quarterly profit falls as pandemic stifles rail shipments’ (Reuters, 23 July 2020) «» accessed 20 August 2020

[39] Union Pacific, Canadian National and CSX are privately-owned Corporations. See also, CN Commercialization Act, (S.C. 1995, c. 24).

[40] Luz Lazo,’With ridership down 95 percent and losses of $700 million, Amtrak looks to pandemic’s recovery phase’(Washington Post, 24 April 2020) «» accessed 21 August 2020.

[41] Alternative A, Art. IX, Luxembourg Protocol.

[42] Alternative B, Article IX, Luxembourg Protocol.

[43] Alternative C, Article IX, Luxembourg Protocol.

[44] Deloitte,’Recovering from COVID-19: Considering economic scenarios for resilient leaders’ (Deloitte, 2020) «» last accessed on 17 November 2020.

Article by Mahathi Utham Kumar and Hrishikesh Anand
National University of Advanced Legal Studies, India '23