Enforcement measures

Repossession following lease termination

Outline the basic repossession procedures following lease termination. How may the lessee lawfully impede the owner’s rights to exercise default remedies?

Self-help remedies are not allowed under Belgian law. Lessors or financiers must initiate court proceedings to obtain the authorisations to repossess the aircraft if the lessee does not voluntarily release possession of the aircraft. Lessors and financiers will generally submit a unilateral interim motion requesting conservatory seizure of the aircraft with transfer of its custody to a third party until a final decision is handed down.

Enforcement of security

Outline the basic measures to enforce a security interest. How may the owner lawfully impede the mortgagee’s right to enforce?

As self-help remedies are not allowed under Belgian law, the enforcement of the pledge must be authorised by the competent court, with the possibility for the pledgor to challenge the act of the pledgee, which will monitor the sale of the aircraft, and which is generally organised by way of a public auction. This procedure responds to the fact that under Belgian law the pledgee is only allowed to claim all or part of the proceeds of the sale of the pledge. Under the 2013 Act on the creation and enforcement of security interests in movable assets, which came into force on 1 January 2018, the enforcement of a pledge has become more flexible. As of then, provided that the pledgor is a non-consumer, the pledgee is allowed to self-remedy and sell the aircraft without going to court. However, it is still possible for the parties to exclude this possibility in the pledge agreement. Furthermore, if the pledgor opposes the enforcement, the pledgee will still be obligated to go to court to enforce.

Priority liens and rights

Which liens and rights will have priority over aircraft ownership or an aircraft security interest? If an aircraft can be taken, seized or detained, is any form of compensation available to an owner or mortgagee?

Several liens and rights will have priority over aircraft ownership or other security over aircraft. This includes MRO privilege for repairs made on the aircraft, warehouses lien for unpaid rent and Eurocontrol’s liens over unpaid charges. It should also be mentioned that Brussels Airport and other regional airports have the power to deny take-off authorisation until outstanding landing rights are paid. Belgian authorities may also seize an aircraft if it infringes the Belgian legal and regulatory provisions.

Enforcement of foreign judgments and arbitral awards

How are judgments of foreign courts enforced? Is your jurisdiction party to the 1958 New York Convention?

Just as the United States and the United Kingdom, Belgium is a party to the 1958 New York Convention (in force 1975), which means that Belgian courts will recognise the validity of arbitral clauses and will recognise and enforce arbitral awards rendered in one of the contracting parties to the Convention. Refusal of recognition or enforcement by the courts is only possible on the limited grounds stated in the Convention. Belgium is also a party to the European Convention on International Commercial Arbitration of 1961 (in force 1975).

The enforcement of civil and commercial foreign judgments depends on the jurisdiction where they were rendered. EU state judgments will be recognised and enforced without any procedure, subject to some limited grounds of refusal (for example, if the judgment is contrary to public policy). For non-EU judgments from jurisdictions with a bilateral or multilateral treaty with Belgium, the enforcement procedure will be subject to the provisions of that treaty (for example, the Lugano Treaty). No such treaty exists with the United States. For non-EU judgments the enforcement will be subject to a procedure before the courts of first instance where it can be refused for several reasons (for example, judgment contrary to public policy and violation of the rights of defence).