It is a common requirement in aircraft financing transactions for the financiers to request that the shares of the Cayman Islands SPV are charged by the shareholder (normally the share trustee) by way of security for the obligations of the SPV. However, there is some ambiguity as to the circumstances in which a share charge would fall within the exception above; and thereby allow the applicable transaction parties to avail themselves of the CI$500.00 cap.
This is an important distinction. It is the parent company of the SPV (i.e. the share trustee), and not the SPV itself, which enters into the share charge. Although it would not make any significant difference in cases where the shares in the SPV were held by a parent company that was an exempted or non-resident company, there has been a concern that, where the shares are owned by a company that is resident in the Cayman Islands, but is not an exempted company, then the share charge would not be eligible to fall under this exemption. This would be the case, for example, in those transactions where the shares in the SPV are held by a trust company such as MaplesFS Limited, which is located in the Cayman Islands.
The question, then, is how would a Cayman Islands court interpret the relevant provisions of the Law?
Where the intention of any legislation is unclear, the Cayman Islands courts will look to find a purposive construction of the relevant legislation, and "even in cases where there are obvious omissions, resulting in gaps in the express wording of the statute, the court is allowed to remedy the omission provided that the real legislative intention can be identified with an acceptable degree of certainty."1