Case Summary

The case between FW Aviation (Holdings) 1 Ltd (“FWA”) and VietJet Aviation Joint Stock Company (“VietJet”), heard at the High Court of Justice, Business and Property Courts, Commercial Court in England, is a significant dispute concerning aircraft finance leases structured as Japanese Operating Leases with Call Option (JOLCO).

FWA, an investment fund specializing in the acquisition of distressed assets, acquired the rights structured in the lease agreements for four Airbus aircraft operated by VietJet. Following VietJet’s prolonged non-payment of rent, FWA initiated legal action, seeking over $180 million in damages and repossession of the aircraft.

Legal Background

JOLCOs are a common form of aircraft finance lease involving Japanese investors, where the investor provides equity and a Special Purpose Vehicle (SPV) uses debt financing to purchase aircraft from the manufacturer. The SPV then leases the aircraft to airlines under long-term operating leases with a call option.

The core of the dispute lay in VietJet’s failure to make timely rent payments as per the contract over an extended period. After numerous late payments, FWA issued termination notices for all aircraft leases and filed a lawsuit in the English Commercial Court seeking damages. FWA argued that VietJet had fundamentally breached the lease agreements, leading to legal consequences under Clauses 18 and 19.3 of the contract, which permitted the lessor to terminate the agreement and demand full payment of all outstanding amounts.

Issues in Dispute

1. Event of Default:

FWA asserted that VietJet had breached its rent payment obligations under the aircraft lease agreements, with many payments being significantly overdue. This was considered an Event of Default under Clause 18 of the contract, empowering the lessor to issue Termination Notices for all aircraft.

2. Validity and Enforceability of the Damages Clause (Clause 19.3):

Clause 19.3 stipulated that upon termination of the contract due to a lessee’s default, the lessor could demand payment of all remaining rental amounts until the end of the lease term, after deducting the recovery value from the assets. FWA argued that this clause was a reasonable compensation mechanism, reflecting the nature of the JOLCO financial model, and essential to protect the commercial interests of the lessor and investors. In contrast, VietJet contended that this clause was a “penalty clause” – a disproportionate penalty not reflecting actual damages – and thus invalid under English law, citing the Cavendish v. Makdessi precedent. However, the Court rejected VietJet’s argument, declaring Clause 19.3 a valid compensation clause that accurately reflected commercial risks and had been thoroughly negotiated by the parties.

3. Validity of Assignments:

VietJet questioned FWA’s standing to sue, arguing that FWA was not an original party to the lease agreements and that the assignment of rights from the original financial institutions (such as BNP Paribas and Natixis) to FWA did not meet contractual consent requirements. However, the Court found the assignments to be valid, executed in proper contractual sequence, and consistent with the Cape Town Convention, under which FWA was recorded as a protected party with property rights over the disputed aircraft.

4. Relief from Forfeiture:

VietJet requested the Court apply the principle of equity to grant relief from forfeiture, claiming they were severely impacted by the unforeseen and uncontrollable COVID-19 pandemic. However, the Court denied this request for several reasons: VietJet had failed to make payments for an extended period, took no concrete action to remedy the breach, and even obstructed the lessor’s repossession of the assets. The Court found that VietJet had not demonstrated the necessary good faith to be granted equitable relief.

Court’s Ruling

The English Commercial Court ruled in favor of FW Aviation. The Court determined that VietJet had severely breached the aircraft lease agreements, particularly regarding the prolonged payment defaults, and therefore, the termination of the contracts was lawful.

The Court also dismissed VietJet’s argument that the damages clause (Clause 19.3) was a “penalty clause,” affirming it as a valid compensation clause under English law, consistent with the commercial nature of the transaction.

FWA was recognized as having full legal standing to sue, as the process of acquiring rights from the original lessors was valid and consistent with contractual provisions and the Cape Town Convention.

Finally, the Court rejected VietJet’s request for relief from forfeiture, as it failed to demonstrate good faith or efforts to remedy the breaches, even in the context of COVID-19.

Legal Lessons

1. Contracts are the “Law Between the Parties” – Understand and Respect All Signed Terms: 

This case emphasizes that in international commercial transactions, especially in high-value asset leases like aircraft, English courts will strictly uphold contractual terms. Clauses such as “Event of Default,” “termination,” or “damages” will be enforced exactly as agreed, if clearly drafted and commercially balanced. Businesses cannot expect courts to intervene and adjust terms due to “changed circumstances” without specific grounds and good faith efforts.

2. Damages Clauses Are Not Synonymous with Penalty Clauses: 

Not every clause requiring a lump-sum payment upon breach is considered a “penalty clause.” If the clause is commercially sound, fairly negotiated, and reflects actual damages or interests needing protection, it will be deemed valid. This is a crucial message for Vietnamese parties entering into contracts governed by English law or common law systems.

3. Assignment of Contractual Rights Must Be Meticulously Prepared Legally: 

The case illustrates that disputes over standing to sue often revolve around the validity of contractual right assignments. To mitigate risk, parties must establish a transparent legal pathway for assignments and should have clear contractual mechanisms for ensuring that consent to assignment is not unreasonably withheld.

4. Force Majeure Cannot Be Invoked Without Good Faith Performance:

Despite COVID-19 being a force majeure event, the Court did not accept it as a valid reason if the defaulting party did not take concrete actions, demonstrate good faith, or propose clear remedies. This is an important lesson regarding the obligation to act in good faith throughout both the performance and resolution of contract breaches.

5. Understanding Governing Law and International Enforcement Systems is Crucial:

The Court’s reliance on and recognition of the Cape Town Convention, as well as English law principles of contract interpretation, highlight that Vietnamese businesses need to thoroughly understand the governing law they accept when signing international contracts. They must also implement a proactive legal strategy for risk prevention from the outset, not just when disputes arise.

Impact on Vietnamese Businesses

1. Challenges of Accepting Foreign Law and Jurisdiction:

In this case, the aircraft lease agreements were governed by English law and heard in the English Commercial Court. This is a common reality in international aircraft leasing transactions, where Vietnamese businesses often find themselves in a weaker negotiating position regarding governing law. However, when disputes arise, English law strictly applies the principle of contractual sanctity, not easily accepting reasons like financial hardship or pandemics. VietJet failed to prove good faith or legitimate reasons for delaying its obligations, leading to a comprehensive loss. This serves as a clear warning about the risks businesses face when accepting international legal mechanisms without fully anticipating the consequences.

2. Limitations in Legal Conduct and Contractual Risk Management: 

FWA meticulously prepared its case, registered its rights under the Cape Town Convention, and strictly adhered to contractual assignment procedures. In contrast, VietJet did not respond promptly, did not proactively propose payment solutions, and only presented arguments deemed weak (penalty clause, force majeure, relief from forfeiture) once the dispute escalated. This indicates a lack of proactive legal strategy and response, especially considering this was a financial transaction worth hundreds of millions of US dollars.

3. Long-Term Implications for Reputation and Access to Capital: 

Losing a public lawsuit in a foreign court not only causes financial damage but also negatively impacts the reputation of Vietnamese businesses in the aviation finance market. Non-compliance with contracts can make it difficult for VietJet to secure future financing deals, particularly with international credit institutions. Given the highly interconnected nature of the aircraft finance and leasing market, legal credibility is a key prerequisite for accessing low-cost capital.

4. Lessons for Vietnamese Businesses:

• Always thoroughly understand and negotiate contract terms, especially regarding governing law, termination rights, and compensation.
• Do not be complacent with boilerplate clauses from international lessors.
• Prepare a legal strategy from the negotiation phase, not just when a dispute arises.
• Engage independent legal counsel specialized in international contracts from the beginning.

Conclusion

The case between FW Aviation and VietJet clearly demonstrates that international courts will strictly protect contractual terms, especially in complex aviation finance transactions like JOLCOs. The English Commercial Court affirmed the lessor’s rights, the validity of the damages clause, and rejected all of VietJet’s arguments for relief, even in the context of COVID-19.

This serves as a crucial lesson for Vietnamese businesses entering into international lease-finance agreements: tight negotiation, clear understanding of the governing law, and preparation of legal scenarios are essential.

Harley Miller Law Firm LLC (HMLF) – with a team of experienced lawyers in international contracts, aviation finance, and dispute resolution – is ready to assist businesses from negotiation and drafting to post-dispute resolution.

Harley Miller Law Firm

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