The last 10 to 15 years have seen significant cross-border leasing activity between Europe and Asia. Much of this activity has been in the big-ticket sectors of aircraft and ships, with the Japanese Operating Lease (JOL) succeeding the Japanese Leveraged Lease as a favoured financing vehicle for many leading European airlines, and their Chinese counterparts being excellent customers of French lessors in supporting the growth of their Airbus fleet.
Meanwhile, the 1997 UK long-life asset rules had the effect of concentrating much of the UK lessor big ticket investment over the last decade in the shipping sector, with many customers to be found among the major shipping lines in greater China (including Taiwan) and Japan. German equity has also been in good supply over the same period, investing in both the aviation and shipping sectors despite restrictive law changes.
However, the activity has not been limited to big ticket assets. The writer has, over the same period, been involved in many transactions involving smaller ticket assets, although often in large-packaged transactions.
The asset classes in question have included shipping containers, port cranes, telephone equipment and buses. Equity for such transactions outbound from Europe has been sourced from the UK, France, Germany and Italy.
The structures involved have included not just tax depreciation structures, but also tax sparing structures, taking advantage of favourable double tax treaties in funding the leasing of assets into developing countries.
In addition, there have been a number of transactions which have been more focused on balance sheet concerns, without the pricing necessarily being tax-enhanced.
So how are these cross-border deals faring in 2008?
As regards the market for new business, the credit crisis has severely restricted the availability of finance of all types, including leasing business.
In some countries, particularly the UK, this has exacerbated the shrinking of an equity market already hit by tax and accounting changes.
Equally hard-hit are the tax sparing deals. Although some depreciation-based deals are surviving – lessors in some cases absorbing cost, to maintain market share, by deferring depreciation claims – the deemed withholding benefits under tax sparing deals are lost if not used in the current year. And in 2008 profits are hardly to be seen.
The picture is little happier for the existing book. Tightening tax regimes in various countries have seen many lessees exercising early termination options or seeking to restructure on a basis which excludes the tax enhancement.
The lucky lessees may have been able to lock in some of the anticipated benefit and secure replacement medium-term finance before the credit crisis hit too hard. Equally, Japanese equity sources are not enjoying the strength of the yen at a time when they are receiving US dollars for purchase options under maturing deals, without being in a position to roll their investment into new equipment.
At least those operating lessors who funded themselves in Sterling in relation to dollar assets in the late 1990s and the early part of the millennium will be feeling slightly happier, as the 30 percent devaluation of the dollar over 2002 to 2007 has reversed spectacularly.
The general message coming from the market in Asia, as well as in Europe, seems to be to come back in 2009. There will not be many year-end closings this year, so finance lawyers may unusually find themselves spending Christmas 2008 at home with their families.
The author is a partner at Norton Rose Gaikokuho Jimu Bengoshi Jimusho