Monday, December 21, 2020
Although certain readers’ eyes glaze over “boilerplate” choice of law provisions, the choice of law and the enforcement of choice of law for an aircraft lessor may have substantive economic consequences. For example, under U.S. commercial law, a lease with a nominal purchase option is characterized as a “non-true lease,” the commercial law equivalent of a secured acquisition financing. The implications for the lessor of that characterization when a lessee declares bankruptcy are significant and mostly adverse. However, as discussed in a recent California Bankruptcy Court memorandum of decision (the “Memorandum”)1, a conflicts of law determination by the court allowed the aircraft lessor in that case to avoid a recharacterization of its leasing transaction due to its choice of English law and the court’s application of English law in its decision.