by Ganesh Sahathevan
Additionally major creditors especially Airbus will be required to incur billions in losses, despite the fact that AAX and AA's fleet comprise only Airbus planes.
The solution to this uniquely Malaysian conundrum may lie in Section 16 of the SECURITIES COMMISSION MALAYSIA ACT 1993, which provides:
Given the extremely broad powers conferred the SC by Section 16, the solution is simple: The SC needs to obtain orders to appoint administrators to AAX ,and Air Asia which seems to have similar problems. Current management must all be removed, so that the SC appointed administrators can oversee an orderly restructuring of all liabilities ,especially the massive and complex debt to Airbus.
This writer understands and appreciates that administrators may not always remain impartial, but that is an issue which can be easily addressed by putting in place arrangements that would ensure the administrators are properly supervised, and if required punished.
END
SEE ALSO
Wednesday, October 28, 2020
Sabah Development Bank RM 300 M loan to AirAsia may be in breach of AML/CTF laws: SDB ignored UK SFO findings about Air Asia in the Rolls Royce, Airbus corruption decisions
by Ganesh Sahathevan
Quite apart from the MACC issues, SDB seems to have ignored the fact that AirAsia and AirAsia X , and in particular its senior management led by Tony Tajuddin Fernandes and Kamaruddin Mehranun, have been the subject of adverse findings by the UK Serious Fraud Office, which have subsequently been incorporated into the findings of fact in UK court decisions in favour of the UK SFO in the matters of Rolls Royce and Airbus (see reports below).
SDB may have as a result breached Malaysian anti-money laundering and money laundering rules. That SDB was unaware of the UK SFO findings is inconceivable; these are matters that were reported widely , worldwide.
TO BE READ WITH
Thursday, April 23, 2020
Lke Airbus, Rolls Royce also may be prevented from dealing with Tony "Tajudin" Fernandes, AA and AAX
by Ganesh Sahathevan
How a CEO of any company might find himself with nothing to do even at these times is beyond this writer.T
he case of Tony Fernandes reminds this writer ofTajuddin Ramli, formerly of MAS.The parallels are frightening,
and hence the nameTony "Tajuddin" Fernandes.
Apart from the Airbus admission (see below), Rolls Royce who supply AA and AAX jet engines and related services may also be prevented from dealing with AA and AAX given Rolls Royce's admissions to the SFO. Readers may recall that when the Rolls Royce/SFO story broke AA
responded with a press statement that implicated the entire AA and AAX board:
AirAsia Group head of communications Audrey Progastama Petriny, in a statement to Malaysiakini, said AirAsia and AirAsia X board of directors and management were kept informed at all times of the transactions relating to the jet.
TO BE READ WITH
by Ganesh Sahathevan
How a CEO of any company might find himself with nothing to do even at these times is beyond this writer.T
he case of Tony Fernandes reminds this writer ofTajuddin Ramli, formerly of MAS.The parallels are frightening,
and hence the nameTony "Tajuddin" Fernandes.
Apart from the Airbus admission (see below), Rolls Royce who supply AA and AAX jet engines and related services may also be prevented from dealing with AA and AAX given Rolls Royce's admissions to the SFO. Readers may recall that when the Rolls Royce/SFO story broke AA
responded with a press statement that implicated the entire AA and AAX board:
AirAsia Group head of communications Audrey Progastama Petriny, in a statement to Malaysiakini, said AirAsia and AirAsia X board of directors and management were kept informed at all times of the transactions relating to the jet.
TO BE READ WITH
How a CEO of any company might find himself with nothing to do even at these times is beyond this writer.T
he case of Tony Fernandes reminds this writer ofTajuddin Ramli, formerly of MAS.The parallels are frightening,
and hence the nameTony "Tajuddin" Fernandes.
Apart from the Airbus admission (see below), Rolls Royce who supply AA and AAX jet engines and related services may also be prevented from dealing with AA and AAX given Rolls Royce's admissions to the SFO. Readers may recall that when the Rolls Royce/SFO story broke AA
responded with a press statement that implicated the entire AA and AAX board:
AirAsia Group head of communications Audrey Progastama Petriny, in a statement to Malaysiakini, said AirAsia and AirAsia X board of directors and management were kept informed at all times of the transactions relating to the jet.
TO BE READ WITH
Tuesday, April 21, 2020
Airbus will not, cannot deal with AirAsia, AirAsiaX-AA, AAX fleet is entirely Airbus, so how much are AA and AAX worth?
by Ganesh Sahathevan
AIRASIA SUPERSIZES ITS FLEET TO LOWER FARES
This was the case just under a year ago
Reuters reported:
Airbus (AIR.PA) has put six jets made for one of its largest customers up for sale after giving up on Malaysia’s AirAsia (AIRA.KL) taking delivery of them, sources familiar with the matter told Reuters.
Airbus's sale comes after its admission before UK's Criminal Court that it bribed AA officials,which Tony Fernandes and Mehranun admitted was a reference to them. That admission effectively prevents Airbus from future dealings with AA and AAX:
by Ganesh Sahathevan
AIRASIA SUPERSIZES ITS FLEET TO LOWER FARES
This was the case just under a year ago
Reuters reported:
Airbus (AIR.PA) has put six jets made for one of its largest customers up for sale after giving up on Malaysia’s AirAsia (AIRA.KL) taking delivery of them, sources familiar with the matter told Reuters.
Airbus's sale comes after its admission before UK's Criminal Court that it bribed AA officials,which Tony Fernandes and Mehranun admitted was a reference to them. That admission effectively prevents Airbus from future dealings with AA and AAX:
This was the case just under a year ago
Reuters reported:
Airbus (AIR.PA) has put six jets made for one of its largest customers up for sale after giving up on Malaysia’s AirAsia (AIRA.KL) taking delivery of them, sources familiar with the matter told Reuters.
Airbus's sale comes after its admission before UK's Criminal Court that it bribed AA officials,which Tony Fernandes and Mehranun admitted was a reference to them. That admission effectively prevents Airbus from future dealings with AA and AAX:
Airbus admission prevents further business with Airasia: BDO Governance Advisory findings meaningless. given Airbus admission before the UK Crown Court,and cannot be a substitute for MACC, police, SC investigation
AA and AAX's fleet is entirely Airbus. AA and AAX's growth is impeded, and operational issues, such as maintenance and parts, are likely. Add to that AA and AAX's financial problems, and what really are these companies worth? Are they worth anything at all?END
AA and AAX's fleet is entirely Airbus. AA and AAX's growth is impeded, and operational issues, such as maintenance and parts, are likely.
Add to that AA and AAX's financial problems, and what really are these companies worth? Are they worth anything at all?
END
Monday, March 23, 2020
Airbus might be family but AML/CTF rules mean Airbus cannot deal with Tony Fernandes (and now the AA,AAX board members have implicated themselves)
by Ganesh Sahathevan
This is touching
However, the above and the BDO Governance Advisory finding changes nothing. Additionally, AA and AAX directors may have now implicated themselves.
The real issue here is:How are AA and AAX going to maintain, build and finance their fleets that are comprised entirely of Airbus planes.
END
To Be Read With
by Ganesh Sahathevan
This is touching
However, the above and the BDO Governance Advisory finding changes nothing. Additionally, AA and AAX directors may have now implicated themselves.
The real issue here is:How are AA and AAX going to maintain, build and finance their fleets that are comprised entirely of Airbus planes.
END
To Be Read With
This is touching
However, the above and the BDO Governance Advisory finding changes nothing. Additionally, AA and AAX directors may have now implicated themselves.
The real issue here is:How are AA and AAX going to maintain, build and finance their fleets that are comprised entirely of Airbus planes.
END
To Be Read With
Airbus admission prevents further business with Airasia: BDO Governance Advisory findings meaningless. given Airbus admission before the UK Crown Court,and cannot be a substitute for MACC, police, SC investigation
AND
Airbus-AirAsia admissions made under UK Bribery Act 2010,which gives UK Govt extraterritorial jurisdiction: Tony Fernandes said F1 was very much part of AA, AAX brand building, Fernandes admission may subject AA,AAX to UK Bribery Act jurisdiction
by Ganesh Sahathevan
Tony Fernandes, Catreham F1 and AirAisa captured in
a single image.
Reacting to the Airbus-Airasia bribery admission Tony Fernandes said:
We built an amazing brand and F1 was a big part of it.
Reuters quoting a statement issued by Fernandes and Kamaduddin Mehranun reported:
“Caterham F1, the company alleged to have been sponsored improperly by Airbus, was at the relevant time a Formula 1 racing team that had gone round the globe promoting amongst others AirAsia, AirAsia X, GE and Airbus,” Fernandes and Kamarudin said in the statement.
The above statements may have brought AirAsia and AirAsiaX within UK Bribery Act jurisdiction, which premises jurisdiction based on business activity , not merely incorporation and business presence.That the statements have been made by the senior executive directors of the companies involved makes the connection that much stronger. For a simple to read explanation of how the UK Bribery Act 2001 works, see article below.
END
by Ganesh Sahathevan
Tony Fernandes, Catreham F1 and AirAisa captured in
a single image.
Reacting to the Airbus-Airasia bribery admission Tony Fernandes said:
We built an amazing brand and F1 was a big part of it.
Reuters quoting a statement issued by Fernandes and Kamaduddin Mehranun reported:
“Caterham F1, the company alleged to have been sponsored improperly by Airbus, was at the relevant time a Formula 1 racing team that had gone round the globe promoting amongst others AirAsia, AirAsia X, GE and Airbus,” Fernandes and Kamarudin said in the statement.
Tony Fernandes, Catreham F1 and AirAisa captured in
a single image.
Reacting to the Airbus-Airasia bribery admission Tony Fernandes said:
We built an amazing brand and F1 was a big part of it.
Reuters quoting a statement issued by Fernandes and Kamaduddin Mehranun reported:
“Caterham F1, the company alleged to have been sponsored improperly by Airbus, was at the relevant time a Formula 1 racing team that had gone round the globe promoting amongst others AirAsia, AirAsia X, GE and Airbus,” Fernandes and Kamarudin said in the statement.
The above statements may have brought AirAsia and AirAsiaX within UK Bribery Act jurisdiction, which premises jurisdiction based on business activity , not merely incorporation and business presence.
That the statements have been made by the senior executive directors of the companies involved makes the connection that much stronger. For a simple to read explanation of how the UK Bribery Act 2001 works, see article below.
END
UK flexes extraterritorial reach with Airbus settlement
When passed in 2010, the UK Bribery Act was dubbed the “most stringent anti-corruption legislation in the world.” This was due in part to Section 7, which created an unprecedented form of vicarious liability at the time, with a potentially strong extraterritorial reach. Since then compliance professionals have wondered what implications this could have. And then came Airbus.Section 7 introduces “failure of commercial organizations to prevent bribery” as an offense. In terms of jurisdiction, the text of Section 7 says it applies to “relevant commercial organizations,” a notion that encompasses bodies or partnerships which carry “a business, or part of a business, in any part of the United Kingdom” regardless of where they were incorporated or formed.The 2011 UKBA Guidance gave a hint: it seemed to take a rather “business friendly” approach by suggesting that “having a UK subsidiary will not, in itself, mean that a parent company is carrying on a business in the UK, since a subsidiary may act independently of its parent or other group companies.” The Ministry of Justice however emphasized in this guidance that courts would be the final arbiter.On January 31, 2020, Airbus SE announced that it would pay €3.6 billion ($4 billion) to settle global bribery and trade charges with French, U.S., and UK authorities. In the UK, Airbus SE committed to pay €991 million ($1.09 billion) to the Serious Fraud Office. This is pursuant to a deferred prosecution agreement, which, as required by the Crime and Courts Act of 2013, has been duly approved by a Crown Court judgment.The UK court decision is good place to look for a first judicial interpretation on the extraterritorial reach of Section 7 of the UKBA.Airbus SE is registered in the Netherlands, has its operational headquarters in France, and admitted to facts that occurred outside of the UK territory.I read the judgment as adopting a strong pro-extraterritorial stance.The judgment notes that Airbus SE, the only entity subject to prosecution as the Group’s parent company, had “continuously carried on part of their business in the United Kingdom,” based on the fact that it had two subsidiaries in the UK: Airbus Operations Limited (through Airbus SAS, a French company) and Airbus Military UK Limited (through Airbus Defence and Space SA, a Spanish company). No reference is made either to the percentage of the Group’s turnover in the UK, or to a potential improper behavior of the UK subsidiaries.The document further highlights that “Airbus Operations Limited and Airbus Military UK Ltd, through Airbus SAS and Airbus Defense and Space SA are subject to the strategic and operational management of Airbus SE.”However, no line of legal reasoning aims at showing that the powers of Airbus SE over the management of its UK subsidiaries could be linked to control deficiencies in the UK.Other facts that could hypothetically generate a “UK nexus,” such as a UK potential inadvertent financing of corrupt transactions by UK Export Finance (UKEF) or the potential involvement of UK nationals are lightly touched upon in the judgment, but not weaved into a legal discussion on extraterritoriality.The judgment notes that UK jurisdiction is “common ground” in the case, suggesting that the judge might be deferring, at least to a certain extent, to the decision of Airbus SE to agree to UK jurisdiction.Finally, let’s examine the section of the judgment that credits Airbus for cooperating “to the fullest extent possible” in the UK investigation.Presiding judge Dame Victoria Sharp said, “It is to be noted that through its engagement with the SFO related in the first instance to matters concerning UKEF, Airbus also accepted that the Bribery Act 2010 provided the SFO with extended extraterritorial powers and with a potential interest in facts post 2011. This was an unprecedented step for a Dutch and French domiciled company to take, in respect of the reporting of conduct which had taken place almost exclusively overseas.”Let’s observe that there might be a bit of a contradiction above: if a legal challenge by a foreign defendant over UK jurisdiction amounts to a lack of cooperation and may end up harming the defendant’s cause, this might put the defendant under a certain pressure not to trigger a judicial battle over jurisdiction. In these conditions, would it really be appropriate for the judge to defer to the fact that the defendant is not challenging UK jurisdiction?Only time will tell, with further cases and judicial decisions, whether there are limits to the extraterritorial reach of Section 7 of the UKBA or whether the simple fact of having a subsidiary in the UK is enough to legally subject any global company to UK investigations and prosecution.
When passed in 2010, the UK Bribery Act was dubbed the “most stringent anti-corruption legislation in the world.” This was due in part to Section 7, which created an unprecedented form of vicarious liability at the time, with a potentially strong extraterritorial reach. Since then compliance professionals have wondered what implications this could have. And then came Airbus.Section 7 introduces “failure of commercial organizations to prevent bribery” as an offense. In terms of jurisdiction, the text of Section 7 says it applies to “relevant commercial organizations,” a notion that encompasses bodies or partnerships which carry “a business, or part of a business, in any part of the United Kingdom” regardless of where they were incorporated or formed.
The 2011 UKBA Guidance gave a hint: it seemed to take a rather “business friendly” approach by suggesting that “having a UK subsidiary will not, in itself, mean that a parent company is carrying on a business in the UK, since a subsidiary may act independently of its parent or other group companies.” The Ministry of Justice however emphasized in this guidance that courts would be the final arbiter.
On January 31, 2020, Airbus SE announced that it would pay €3.6 billion ($4 billion) to settle global bribery and trade charges with French, U.S., and UK authorities. In the UK, Airbus SE committed to pay €991 million ($1.09 billion) to the Serious Fraud Office. This is pursuant to a deferred prosecution agreement, which, as required by the Crime and Courts Act of 2013, has been duly approved by a Crown Court judgment.
The UK court decision is good place to look for a first judicial interpretation on the extraterritorial reach of Section 7 of the UKBA.
Airbus SE is registered in the Netherlands, has its operational headquarters in France, and admitted to facts that occurred outside of the UK territory.
I read the judgment as adopting a strong pro-extraterritorial stance.
The judgment notes that Airbus SE, the only entity subject to prosecution as the Group’s parent company, had “continuously carried on part of their business in the United Kingdom,” based on the fact that it had two subsidiaries in the UK: Airbus Operations Limited (through Airbus SAS, a French company) and Airbus Military UK Limited (through Airbus Defence and Space SA, a Spanish company). No reference is made either to the percentage of the Group’s turnover in the UK, or to a potential improper behavior of the UK subsidiaries.
The document further highlights that “Airbus Operations Limited and Airbus Military UK Ltd, through Airbus SAS and Airbus Defense and Space SA are subject to the strategic and operational management of Airbus SE.”
However, no line of legal reasoning aims at showing that the powers of Airbus SE over the management of its UK subsidiaries could be linked to control deficiencies in the UK.
Other facts that could hypothetically generate a “UK nexus,” such as a UK potential inadvertent financing of corrupt transactions by UK Export Finance (UKEF) or the potential involvement of UK nationals are lightly touched upon in the judgment, but not weaved into a legal discussion on extraterritoriality.
The judgment notes that UK jurisdiction is “common ground” in the case, suggesting that the judge might be deferring, at least to a certain extent, to the decision of Airbus SE to agree to UK jurisdiction.
Finally, let’s examine the section of the judgment that credits Airbus for cooperating “to the fullest extent possible” in the UK investigation.
Presiding judge Dame Victoria Sharp said, “It is to be noted that through its engagement with the SFO related in the first instance to matters concerning UKEF, Airbus also accepted that the Bribery Act 2010 provided the SFO with extended extraterritorial powers and with a potential interest in facts post 2011. This was an unprecedented step for a Dutch and French domiciled company to take, in respect of the reporting of conduct which had taken place almost exclusively overseas.”
Let’s observe that there might be a bit of a contradiction above: if a legal challenge by a foreign defendant over UK jurisdiction amounts to a lack of cooperation and may end up harming the defendant’s cause, this might put the defendant under a certain pressure not to trigger a judicial battle over jurisdiction. In these conditions, would it really be appropriate for the judge to defer to the fact that the defendant is not challenging UK jurisdiction?
Only time will tell, with further cases and judicial decisions, whether there are limits to the extraterritorial reach of Section 7 of the UKBA or whether the simple fact of having a subsidiary in the UK is enough to legally subject any global company to UK investigations and prosecution.
