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Various methods of contractual subordination are used in Cyprus to determine which lenders are the first eligible ones to receive interest and repayments, and which ones have first claim, over loan collateral. Contractual subordination of debt is common in lending transactions and can be achieved by having a contractual agreement between the senior lender, junior lender and borrower.
Structural subordination is another method used to arrange the priority of debts. This is done by concentrating the senior debt in an active group company, with available assets and directing the junior debt to the parent company. In the event of insolvency these arrangements will remain effective subject to the mandatory pari passu principle that the priority of creditors on insolvency is determined by whether they are preferential, general or deferred creditors.
Care must be given in the drafting of such arrangements so that they do not run the risk of being considered ineffective if caught by the fraudulent preference provisions of the Companies Law. Where the same security is provided to different classes of creditors inter-creditor arrangements are also made between the lenders and the borrower company through an inter-creditor agreement that sets out the terms and conditions of their relationship.
In the event of a charge and pledge over shares and share certificates, the pledge agreement secures through pre-delivered title documents enforcement under specified circumstances without the need for court recourse. It is noted that in the event of the security provider undergoing a winding up procedure, in general secured creditors by way of a fixed charge are entitled to enforce their security in settlement of their particular debt which the security provider has failed to pay, in accordance with the enforcement terms of the agreement or document creating the charge.
Floating charges, if not crystallised prior to the commencement of the liquidation or subject to the security documentation, rank for payment after liquidation costs and preferential payments, and before other unsecured creditors. The parties to a contract are free to choose the governing law, and the applicable law can be amended, as long as all parties consent to it.
Therefore, a choice of foreign law as the governing law of a contract in a security contract shall be recognised as long as it made without duress and is not contrary to public policies of the Republic of Cyprus. However, when security is taken over immovable property in Cyprus, as well as a pledge of shares in a Cypriot company, domestic law will inevitably apply in order to be valid and enforceable.
Jurisdiction matters are administered by the Brussels Recast which applies again only to civil and commercial matters. The only reason for a judgement passed in an EU member state, not to be accepted, is by challenging its recognition, and for that reason, an assertion that such foreign judgment is enforceable is issued once the official and proper review of the related documents have been made. Submission to a foreign jurisdiction would be upheld as long as the jurisdiction clause had been agreed between the contracting parties themselves and specified in the contract, as well as by appearing in the proceedings or serving a defence.
If a defendant does not want to submit to a specific jurisdiction, the defendant must not contest the case on its merits, they should acknowledge service stating that he intends to dispute the jurisdiction and make a declaration that the specific member state lacks jurisdiction. The Cypriot courts do acknowledge and uphold state immunity, as long as such immunity is not consensually waived and that a state is not acting under private or commercial capacity.
Depending on the country of the foreign court, it is possible for a foreign judgement or arbitral award to be recognised and enforced in the Republic of Cyprus. Cyprus is party to various multilateral and bilateral international conventions with other countries, which is influential to the recognition and enforcement of foreign judgments.
Different procedural mechanisms may be used to recognise and enforce a foreign judgment depending on the nationality of the court issuing the judgement or arbitral award. The law provides procedural requirements to be followed and ultimately sets a hearing where the respondent can object to matters concerning jurisdiction and substance.
When judgments or arbitral awards derive from an EU court, they will be recognised and enforced accordingly with the Brussels Regulation and the recognition under national law will be automatic. A judgement given by another EU member state court can be challenged in respect of its recognition under specific circumstances by the domestic courts, whereas cannot be challenged in terms of substance.
The compromise or arrangement becomes binding to all persons involved, when the court approves the court order requested. The Examinership concept is aimed at a company when facing possible insolvency, as an attempt to prevent liquidation. Furthermore, if the court is convinced that there is a plausible chance of the company enduring, with its entire or part of its business of as a going concern, then it will issue an order for examinership.
During that time, the company is "protected" and no court action can be taken against the company without specific court sanction. Where relevant, a contract can set out insolvency as an event of default whereby termination and enforcement procedures can be triggered as set out in the contract. In case a winding-up order is made or a provisional liquidator has been selected, the provisional liquidator takes over all assets and things in action to which the company is or seems to be eligible to.
A secured creditor ought to file with the official receiver, liquidator or guarantor, a preparatory valuation of the secured asset and reach agreement about the valuation. An independent valuer may be appointed if no agreement is reached, regarding the value. The court may also impose a deadline by which all lenders must verify any debts or claims they may have. Once a winding-up order is issued by the court and a provisional liquidator is selected, no further action or proceeding can be continued or commenced against the company, unless by leave of the court.
The order of distribution is as follows:. Within each category of claim, creditors rank equally and abate in equal proportions if there are insufficient funds to pay them in full Section 3 , Companies Law. Secured creditors are payable out of the proceeds of sale of the assets subject to the charge. If the charge is a floating charge the charge holder ranks behind the preferential creditors.
If there is a surplus from the sale of the assets subject to the charge it becomes part of the general pool of assets. If there is a shortfall the creditor concerned will have an unsecured claim for the shortfall. Once a company goes into liquidation any activity relating to property such as mortgage, charge, payments and so forth made up to six months prior to the commencement of the winding-up, could be considered as "fraudulent preference" and ultimately be set aside.
This occurs when a creditor is given undue advantage over others and ends up having a better position that they would have, at a time when the Company is not able to pay its debts. If found guilty, such creditors ought to pay back any benefit they obtained.
If, however such a transaction is considered to be a fraudulent preference of its creditors then it can still be set aside and in such a case the FCA Law should be interpreted on the basis of a "bona fide" person with no prior knowledge of any fraudulent dealings to defraud any creditors.
Furthermore, a floating charge created within twelve months of a company commencing wind-up procedures and is currently in liquidation, will be void unless proved that the company was solvent after the creation of the said charge. If a charge is not registered as per the requirements, the charge will be void against the liquidator and any creditor, but its validity will not have any interference with the chargor and the chargee.
Cyprus project finance has evolved gradually, starting with the creation of the first desalination plants in Since then there have been numerous other projects. The biggest construction agreement ever handled in Cyprus has been the building of the two new international airports located in Larnaca and Paphos, with an injection of EUR million budget.
These projects are increasing in size and project finance demands. For example, the recent Limassol Marina, a EUR million waterfront development, is a build-operate-transfer BOT project financed by a mixture of equity and bank finance. Same applies to the Larnaca and Limassol Desalination Plants which were completed using a mixture of private equity and project finance. Depending on the type of project, different legislation is applicable concerning the project itself for example the integrated Casino, a EUR million project, must comply with the Gabling legislation, building regulations, private security rules etc.
Public-private partnership PPP transactions in Cyprus are constant. There is no finance specific PPP-enabling legislation currently in force but general public procurement laws and regulations, as well as specific legislation apply depending on the field of operations see below and 8. Both international airports of the Republic of Cyprus are managed by an operator with a BOT concession. The Operator is an international consortium, containing various local and international partners such as dominant French construction groups and international airport operators.
Finally, since Cyprus is a member of the EU and stands in line with EU laws and regulations, it is deemed a free market economy and are thus practically no legal restrictions in contracting out certain services or utilities to private entities. The discovery of natural gas around and in the vicinity of Cyprus has attracted the attention of multinational companies like Total, Exxon Mobil, Kogas, Qatar Petroleum and Eni which have started works for the extraction of the gas and to exploit potential oil deposits.
Recent financing relates to the creation of an Oil Terminal and hydrocarbon-related infrastructure. The Law outlines what a "significant project" actually is in case PPP is applicable , the assessment principles and other applicable specifications and tests that ought to be conducted by the public sector when assessing PPP offers. Different government offices can be responsible for different project finance ventures.
For example, in connection to the investigation and exploitation of hydrocarbons, the Hydrocarbon Service of the Ministry of Energy, Commerce, Industry and Tourism is in charge of providing related licenses. Building and development activities are authorised by the Town Planning Service and in some cases by the nearby specialist who might require valuations of environmental repercussion. Moreover, the National Betting Authority has been the authoriser when it comes to issues related to the Cypriot casino operations of the local casino resort, whereas the Cyprus Tourism Association handles projects relating to the tourist industry.
Overall, there are no specific documents required by or to be filed with any specific government body, other than those which are relevant to the issuing of government licenses for the operations of the venture such as safety, environmental and health. Also, stamp duty may be imposed to finance documents and any applicable securities may need to be registered RoC.
As mentioned above the main government body in charge of oil, gas, power and mining in Cyprus, is the Energy Service of the Ministry of Commerce, Industry and Tourism. Along with the aid of some other government departments, they have assembled numerous Laws and Regulations, legislating the exploration and exploitation of hydrocarbon in Cyprus.
Effectively, these allow member states to have self-governing rights over the hydrocarbon resources within their own regions. As noted, various legislation applies dependant on the specific industry sector, please refer to the sections above. Overall, as part of Cypriot policy to attract foreign investors investment by foreign nationals is permitted with the exception of certain regulated sectors such as banking defence, public utility companies.
There are double taxation agreements and treaties with numerous countries, favouring investment in Cyprus. A mixture of private equity, bank lending and, in some instances, attracting venture capital seem to be the preferred structure for ventures and projects in Cyprus. Traditionally, mining activities were dominant in Cyprus and a licence to carry out such activities would be required by the Mining Service of Cyprus, for any exploration and exploitation of minerals as per the Mines and Quarries Law Cap as amended.
A more recent example is the discoveries of hydrocarbon in the region of Cyprus, which prompted the Hydrocarbon Prospection, Exploration and Exploitation Laws of to As mentioned in 8. There is no legislation specific to project financing. The Regulations lay down minimum requirements for the prevention of major accidents during offshore oil and gas operations and the mitigation of the consequences of such accidents.
A lender financing a project or a guarantor providing security for a project, is not liable under environmental legislation unless it is deemed to be an Operator. Chambers and Partners website Toggle navigation. Last Updated October 05, Law and Practice. Expand All. Loan Market Panorama.
By utilising the tools provided by the European Union and European financial institutions, the Cyprus government amongst other measures introduced various liquidity aiding measures as follows: Pan-European Guarantee Fund By participating in the Pan-European Guarantee Fund established to tackle the adverse economic consequences of the pandemic and in return for a contribution of EUR State guarantees The government will provide an additional EUR million of state guarantees to the EIB which will, in turn, advance loans at more favourable interest rates to businesses in the small medium enterprise sector.
Scheme to subsidise new loan interest rates A scheme which will subsidise interest rates for new loans taken out between 1 March and 12 December provided that the maximum interest rate on them does not exceed 4. Continuing the New Lending Trend of The rising trend of new lending of will continue albeit for different reasons as banking institutions in their assigned role as a vehicle of the government to assist and revive the economy implement the measures and grant loans to keep businesses afloat.
EU Credit Institutions and Non-banks The aforementioned criteria do not apply to EU credit institutions wishing to establish a branch in Cyprus, since credit institutions licensed by competent authorities of another EU member state may under the provisions ofSection 10A of the Credit Business Law establish a branch in Cyprus without the need of obtaining a banking business license from the CBC.
Structuring and Documentation Considerations. Guarantees and Security. The formalities are outlined in more detail in 5. See 5. Liens Liens can arise under common law or equitable principles with no formalities being observed, although a contract may explicitly provide for a lien. Mortgages this is a common form of security taken over property such as real estate, vessels, ships.
Pledge A pledge of shares of a Cypriot company is not registrable for perfection purposes. Guarantee Usually, a company offers guarantees as security for money owed on behalf of itself or a third party. Procedures for the termination of a share pledge are specified in the pledge agreement and usually occur either when: the secured obligations have been discharged in full; via written agreement of the pledgee and the pledgor; the pledgee has served a termination notice on the pledgor; and enforcement of the pledge by the pledgee.
Competing Security Interests The priority of competing security interests is governed by the principles of common law. Priority of shareholders In the event of insolvency these arrangements will remain effective subject to the mandatory pari passu principle that the priority of creditors on insolvency is determined by whether they are preferential, general or deferred creditors. Bankruptcy and Insolvency.
In order for the court to appoint an examiner then three conditions must be met: the company is, or most likely will be unable to pay its debts; no liquidation resolution for the company has been published in the Official Gazette of the Republic of Cyprus; and no court order has been issued for the liquidation of the company. The order of distribution is as follows: The costs of the winding-up. The preferential debts, comprising of: government and local taxes and duties due 12 months prior to liquidation and at the date of liquidation; all sums due to employees, including wages, up to one year's accrued holiday pay, deductions from wages such as provident fund contributions and compensation for injury; claims of employees who are shareholders or directors may not rank as preferential depending on the nature of the shareholding or directorship; and a person who has advanced funds to pay employees will have a subrogated preferential claim to the extent that the employees' direct preferential claims have been diminished because of the advances.
Any amount secured by a floating charge. The unsecured ordinary creditors. Any deferred debts such as sums due to members in respect of dividends declared but not paid. Any share capital of the company. Where there are different classes of share capital, such as preference shares, their respective rankings will be determined by the terms on which they were issued.
At Harris Kyriakides LLC , anti-trust issues, public procurement matters, EU compliance mandates and the related litigation and advisory work are key areas of strength. Its clients include domestic corporations, financial institutions, and governmental agencies. Michael Kyriakides. It is characterised by its high level of services and responsiveness.
The lawyers at the firm are all willing to go the extra mile in order to assist us. Mr Ioannides has the charisma of being able to untangle complex issues and present them is a simple and well structured way. It acts for local and international clients on a wide spectrum of matters pertaining to national and EU competition law including infringements of competition law arising from mergers, anti-competitive practices and auxiliary issues.
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It is mandatory to procure user consent prior to running these cookies on your website. EU And Competition 1. Lellos P Demetriades Law Office. Harris Kyriakides LLC. Ioannides Demetriou LLC. Hall Of Fame Anastasios A. View Profile Tier 1 firms. Practice head s : Anastasios A. Work highlights Acted for Unilever as competition counsel on its acquisition of Tatcha. Practice head s : Nicholas Ktenas. Submitted a complaint to the European Commission regarding an infringement of EU law by the government of Cyprus relating to the incorrect implementation of a directive regarding the recognition of professional qualifications in the Cypriot legislation.
Advised the purchasers of the only five-star hotel in Nicosia on all competition matters relating to the purchase and rebranding of the hotel. Practice head s : George Mountis. Acted for Daimler in an anti-trust investigation in the market for spare parts, and acting before the Administrative Court in a recourse action against the decision of the national competition authority.
Practice head s : Achilleas Demetriades ; Haris Satsias. Tier 2 firms. Practice head s : Polyvios Panayides. Practice head s : Michael Kyriakides.
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