“The Lessor hereby, with full title guarantee, assigns and agrees to assign the Assigned Property, free from any Security Interest (other than Permitted Liens), absolutely and unconditionally by way of security to and in favour of the Security Trustee, in order to secure the payment, performance and discharge in full of all the Secured Obligations.”
“Co-extensive Rights" means all of the rights, title, benefits, claims and interest, present and future, actual and contingent, of the Lessor in, to, under or in respect of the following clauses and schedules of the Lease (other than to the extent any provision thereof or payment thereunder is Excluded Property or a Relevant Payment): (a) clause 2.1 (Lessee Representations); (b) clause 3.1 (Lessor Conditions Precedent); (c) clause 3.4 (Conditions Subsequent); (d) clause 5.5 (Authorisations for Payments); (e) clause 7 (Lease Period); (f) clause 11.1 (Lessee's Undertakings); (g) clause 12 (Operation, Use and Possession); (h) clause 13 (Maintenance and Repair); (i) clause 14 (Interchange and Replacement of Engines and Parts); (j) clause 15 (Title and Registration); (k) clause 16 (Insurance); (l) clause 17 (Loss and Requisition); (m) clause 18 (Events of Default); (n) clause 22.1 (Transfer); (o) clause 24 (Benefit of Agreement); (p) clause 25 (Further Provisions); (q) clause 27 (Law and Jurisdiction); (r) clause 8 (Change in Circumstances) and clause 19 (Remedies) but in each case other than any right thereunder to repossess, require redelivery of and/or to sell the Aircraft (except in respect of any remarketing or offering for sale, or any sale of the Aircraft to the Lessee (or its nominee), in accordance with the provisions of clause 8 (Change in Circumstances) or clause 19 (Remedies) of the Lease), and also the rights of the Lessor to the equivalent provisions in the Sub-Lease as assigned pursuant to the Security Assignment (Lessee).”
“Enforcement of Security On and at any time after the occurrence of an Enforcement Event which is continuingthe Security Trustee may, and shall if instructed by the Instructing Group: (a) take such steps as it considers necessary or desirable to preserve, protect and enforce the rights of the Financing Parties under the Operative Documents;and/or (b) take such steps as it considers necessary or desirable for the enforcement, protection and preservation of the Security Interests constituted by the Security Documents.”
“ "Qualifying Lender"means a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under an Operative Documentand is a Lender: (i) [a Japanese bank, financial institution or company licensed to carry on banking or lending business in Japan] (ii) [a non-Japanese bank or financial institution participating in the loan through a Japanese Facility Office] (iii) “which (x) is a bank or other financial institution organized under the laws of any jurisdiction other than Japan (y) participates in the Facility through a Facility Office outside Japan and (z) benefits from a double tax treaty with Japan so that no withholding tax will be levied in relation to payments of interest (the “Relevant DTT”) being qualified as an entity that can receive such interest free of withholding tax under the Relevant DTT and the relevant regulations and not acting through its branch in Japan.”
“I, therefore, end up with a broader interpretation than did the judge of the term ‘other financial institution’ in the expression, ‘a bank or other financial institution’, in the agreement. In my view, the judge, in identifying the nature of the restriction imposed by the agreement on the meaning of a transferee for the purpose of considering whether a putative transferee was entitled to claim repayment of debts of Essar passed to it, adopted too restrictive a meaning. He should have held that it was satisfied by proof that the putative transferee met the broad fifth criterion he identified (at [38]), namely having ‘a legally recognised form or being, which carries on its business in accordance with the laws of its place of creation and whose business concerns commercial finance’, and whether or not its business included the lending of money on the primary or secondary lending market.”
“To my mind, that principle is essentially a principle of construction. Thus the court is trying to ascertain the intention of the parties in using the expression deployed in the contract. Where a contract has been professionally drawn, as in the case of the Institute Clauses, the draftsman is certain to have in mind decisions of the courts on earlier editions of the clause. Such decisions are part of the context or background circumstances against which the particular contract falls to be construed. If the draftsman chooses to adopt the same words as previously construed by the courts, it seems to me to be likely that, other things being equal, he intends that the words should continue to have the same meaning.”
“[36] There was no dispute as to the general approach to the interpretation of double tax conventions so, for convenience, I will repeat the summary I gave in Royal Bank of Canada v HMRC[2023] EWCA Civ 695 ,[2023] STC 1205 :00 ‘[23] … Article 31(1) of the Vienna Convention on the Law of Treaties (1969) (the “Vienna Convention”) requires a treaty to be: “… interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” [24] Article 31 also provides that the context extends beyond the treaty itself to certain other sources, including subsequent agreements between the parties in respect of the interpretation of the treaty, subsequent practice that establishes such an agreement and any relevant rules of international law. [25] Article 32 permits recourse to further supplementary means of interpretation in order to confirm the meaning resulting from the application of Article 31, or to determine that meaning when it would otherwise be ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable. [26] As Lord Reed explained in Anson v HMRC[2015] UKSC 44 ,[2015] STC 1777 : “[56] Put shortly, the aim of interpretation of a treaty is therefore to establish, by objective and rational means, the common intention which can be ascribed to the parties. That intention is ascertained by considering the ordinary meaning of the terms of the treaty in their context and in the light of the treaty’s object and purpose. Subsequent agreement as to the interpretation of the treaty, and subsequent practice which establishes agreement between the parties, are also to be taken into account, together with any relevant rules of international law which apply in the relations between the parties. Recourse may also be had to a broader range of references in order to confirm the meaning arrived at on that approach, or if that approach leaves the meaning ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable.” [27] Later in his judgment Lord Reed commented on the fact that the process of interpretation must take account of the fact that what is being interpreted is an international convention, not a UK statute. He said this: “[110] Article 31(1) of the Vienna Convention requires a treaty to be interpreted ‘in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. It is accordingly the ordinary (contextual) meaning which is relevant. As Robert Walker J observed at first instance in Memec[1996] STC 1336 at 1349, 71 TC 77 at 93, a treaty should be construed in a manner which is ‘international, not exclusively English’. [111] That approach reflects the fact that a treaty is a text agreed upon by negotiation between the contracting governments …”
“The language of an international convention has not been chosen by an English parliamentary draftsman. It is neither couched in the conventional English legislative idiom nor designed to be construed exclusively by English judges. It is addressed to a much wider and more varied judicial audience than is an Act of Parliament that deals with purely domestic law. It should be interpreted, as Lord Wilberforce put it in James Buchanan & Co. Ltd. v. Babco Forwarding & Shipping (U.K.) Ltd.[1978] AC 141 , 152, ‘unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation’.” [29] The Treaty we are concerned with here, like most bilateral double tax treaties, is based on the OECD Model Tax Convention (“MTC”). As explained by Lord Briggs in Fowler v HMRC[2020] UKSC 22 ,[2021] 1 All ER 97 , guidance as to how such a treaty is to be interpreted can also be found in OECD Commentaries on the MTC, which (even where they postdate the treaty in question) should be “given such persuasive force as aids to interpretation as the cogency of their reasoning deserves” (see at [16] and[18], citing Patten LJ’s judgment in Smallwood v HMRC[2010] EWCA Civ 778 ,[2010] STC 2045 at [26(5)]; see also Irish Bank, where the 2008 version of the Commentary was considered in interpreting a treaty entered into in 1976). [37] I would add four points at this stage. [38] First, the unilateral opinion or practice of a tax authority is not a relevant aid to interpretation: see Irish Bank Resolution Corporation Ltd v HMRC[2020] EWCA Civ 1128 ,[2020] STC 1946 (‘Irish Bank’) at [18]–[23]. … [43] Fourthly, there was some discussion at the hearing about how reference to OECD Commentaries (and indeed to the MTC itself) fits in with the terms of arts 31 and 32 of the Vienna Convention. Given Lord Briggs’ guidance in Fowler and the fact that there is no controversy that reference is permitted, it is not necessary to determine the extent to which the power to refer to such material is derived from art 31 or 32, or (at least for versions of the OECD Commentary that post-date the relevant treaty) is akin to academic commentaries. However, I note that in relation to later versions of the OECD Commentary Lord Briggs referred in Fowler at [18] to the cogency of their reasoning in a similar way to Lord Diplock’s reference to the use of academic commentaries in Fothergill v Monarch Airlines, and that the authority that Lord Briggs cited was Smallwood at [26], where Lord Diplock’s comment is referred to in a citation from Commerzbank, p 298 at para (5). In other words, those later versions were treated in a similar way to academic commentaries.” ‘[23] … Article 31(1) of the Vienna Convention on the Law of Treaties (1969) (the “Vienna Convention”) requires a treaty to be: “… interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” [24] Article 31 also provides that the context extends beyond the treaty itself to certain other sources, including subsequent agreements between the parties in respect of the interpretation of the treaty, subsequent practice that establishes such an agreement and any relevant rules of international law. [25] Article 32 permits recourse to further supplementary means of interpretation in order to confirm the meaning resulting from the application of Article 31, or to determine that meaning when it would otherwise be ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable. [26] As Lord Reed explained in Anson v HMRC[2015] UKSC 44 ,[2015] STC 1777 : “[56] Put shortly, the aim of interpretation of a treaty is therefore to establish, by objective and rational means, the common intention which can be ascribed to the parties. That intention is ascertained by considering the ordinary meaning of the terms of the treaty in their context and in the light of the treaty’s object and purpose. Subsequent agreement as to the interpretation of the treaty, and subsequent practice which establishes agreement between the parties, are also to be taken into account, together with any relevant rules of international law which apply in the relations between the parties. Recourse may also be had to a broader range of references in order to confirm the meaning arrived at on that approach, or if that approach leaves the meaning ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable.” [27] Later in his judgment Lord Reed commented on the fact that the process of interpretation must take account of the fact that what is being interpreted is an international convention, not a UK statute. He said this: “[110] Article 31(1) of the Vienna Convention requires a treaty to be interpreted ‘in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. It is accordingly the ordinary (contextual) meaning which is relevant. As Robert Walker J observed at first instance in Memec[1996] STC 1336 at 1349, 71 TC 77 at 93, a treaty should be construed in a manner which is ‘international, not exclusively English’. [111] That approach reflects the fact that a treaty is a text agreed upon by negotiation between the contracting governments …”
“154. Accordingly Article 1(1)(c) of the BIT must be interpreted (1) in good faith (2) in accordance with its ordinary meaning (3) in its context, which includes the terms of the BIT as a whole and (4) in the light of the object and purpose of the BIT. However, although we have for ease of exposition broken down the various elements of the interpretation exercise, reflecting some of the submissions made to us, it is important to say that interpretation is “a single combined operation”, as the Supreme Court explained in JTI Polska Sp Z.o.o. v Jakubowski[2023] UKSC 19 ,[2024] AC 621 : “26. Article 31 focuses on seeking to ascertain the ordinary meaning of the relevant terms of the treaty having regard to their context and the object and purpose of the treaty. This is to be done by reference to the text of the treaty and to the material set out in article 31.2 to 31.4, such as its preamble, as a ‘single combined operation’. “26. Article 31 focuses on seeking to ascertain the ordinary meaning of the relevant terms of the treaty having regard to their context and the object and purpose of the treaty. This is to be done by reference to the text of the treaty and to the material set out in article 31.2 to 31.4, such as its preamble, as a ‘single combined operation’. 27. As Lord Kerr of Tonaghmore explained in Moohan v Lord Advocate[2014] UKSC 67 ;[2015] AC 901 , para 64: “It would be wrong to read article 31 as reflecting something like the so-called ‘golden rule’ of statutory interpretation where one starts with the ordinary meaning of the words and then moves to other considerations only if the ordinary meaning would give rise to absurdity. That is not international law. The International Law Commission made clear in its commentary to the draft treaty, at p 219, that, in accordance with the established international law which these provisions of [the Vienna Convention] codified, such a sequential mode of interpretation was not contemplated: ‘The commission, by heading the article ‘General rule of interpretation’ in the singular and by underlining the connection between paras 1 and 2 and again between para 3 and the two previous paragraphs, intended to indicate that the application of the means of interpretation in the article would be a single combined operation’.”
“In this area as in the area of contractual construction, “the notion of words having a natural meaning” is not always very helpful (Charter Reinsurance Co Ltd v Fagan[1997] AC 313 , 391C, per Lord Hoffmann), and certainly not as a starting point, before identifying the legislative purpose and scheme.”
“The income from investments held by a trader is prima facie investment income; but it may in certain circumstances be brought into account as a trading receipt. Whether it may or may not be so treated depends on the nature of the trade. What the authorities show is that the nature of the trade must be such that it can fairly be said that the making and holding of the investments at interest is an integral part of the trade.”
“9.4 … it is agreed that States do not have to grant the benefits of a double taxation convention where arrangements that constitute an abuse of the provisions of the convention have been entered into. 9.5 It is important to note, however, that it should not be lightly assumed that a taxpayer is entering into the type of abusive transactions referred to above. A guiding principle is that the benefits of a double taxation convention should not be available where a main purpose for entering into certain transactions or arrangements was to secure a more favourable tax position and obtaining that more favourable treatment in these circumstances would be contrary to the object and purpose of the relevant provisions.”
“… the Judge erred in law in concluding that the actions of VietJet’s founder and its CEO (as the Judge found them to be) in causing the Vietnamese Shareholder Proceedings to be brought was attributable to VietJet. He ought to have concluded that any such actions were undertaken on behalf of Silva Star and the other shareholders in VietJet who were parties to the Shareholder Proceedings, and that there was no basis in English or Vietnamese law for attributing the actions of VietJet’s shareholders to VietJet itself.”
“16.— Appeals from High Court (1) Subject as otherwise provided by this or any other Act … or as provided by any order made by the Lord Chancellor undersection 56(1) of the Access to Justice Act 1999 , the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court.”
“… Lake v Lake properly understood means that if the decision when properly analysed and if it were to be recorded in a formal order would be one that the would be appellant would not be seeking to challenge or vary, then there is no jurisdiction to entertain an appeal. That is in my view consistent with In re B. That this is so is not simply by virtue of interpretation of the words "judgment" or "order", but as much to do with the fact that the court only has jurisdiction to entertain "an appeal". A loser in relation to a "judgment" or "order" or "determination" has to be appealing if the court is to have any jurisdiction at all. Thus if the decision of the court on the issue it has to try (or the judgment or order of the court in relation to the issue it has to try) is one which a party does not wish to challenge in the result, it is not open to that party to challenge a finding of fact simply because it is [not] one he or she does not like.” [I have put [not] in square brackets because the sense suggests it is a typographical error] Hale LJ said at [53]: “It is clear that the statutory jurisdiction of the Court of Appeal is to hear appeals from a 'judgment or order' of the High Court or a 'determination' of a county court. It has long been axiomatic that these words refer to the result of the hearing rather than to the reasons given by the judge for reaching that result. Hence I agree with Waller L.J. (para 27, above) that ‘Lake v Lake properly understood means that if the decision when properly analysed and if it were to be recorded in a formal order would be one that the would−be appellant would not be seeking to challenge or vary, then there is no jurisdiction to entertain an appeal.' This ties in neatly with the distinction drawn in the CPR between a cross appeal, in which the respondent is seeking a different or varied result, for which he needs permission, and upholding the decision on other grounds, for which he does not.”
“It is in that context that it might be appropriate for the court at first instance to consider whether some declaration should be granted to provide a “judgment” or “order” or “determination” which could be the subject of an appeal. If for example the findings of fact might be relevant to some other proceedings (and Mr Pollock accepted this), it might be appropriate to make a declaration so as to enable a party to challenge those findings and not find him or herself prejudiced by them. The findings would still be pregnant with legal consequences. It is to go beyond the scope of this judgment to consider precisely what circumstances might allow for the granting of a declaration where findings of fact might affect other proceedings.”
“It is therefore unnecessary to hold that the Cie Noga approach can be engaged in this case because it may be said that the judge’s findings are “pregnant with legal consequences” or some such phrase. That factor is relevant, but it is relevant to determining whether or not the individual’s article 8 private life rights are engaged and in reviewing the overall proportionality of establishing whether or not there has been a breach of those rights. It is also not necessary to use the rather contrived vehicle of the judge’s refusal to grant a declaration in the terms of the adverse findings in order, in some way, to generate an “order” or “judgment” that can be the subject of any appeal.”