| | ISSUE 1 |  |
'Placing Wallentin-Hermann in Line with Continuing Airworthiness – A Possible Guide for Enforcers of EC Regulation 261/2004', Jochem Croon, Issue 1, pp. 1–6 |
infoJochem Croon, 'Placing Wallentin-Hermann in Line with Continuing Airworthiness – A Possible Guide for Enforcers of EC Regulation 261/2004' (2011) 36 Air and Space Law, Issue 1, pp. 1–6 | | On December 2008, the European Court of Justice (ECJ) in its preliminary ruling in Wallentin-Hermann v. Alitatlia (Case No. C-549/07) tried to give more guidance on whether a technical defect can be regarded as an ‘extraordinary circumstance’ in the sense of EU Regulation 261/2004. For this, the Court came up with a further specification of this doctrine, namely that in order to make a technical defect an extraordinary circumstance, two requirements must have been fulfilled. First, the event must not be inherent to the normal activity of the air carrier, and second, the event must be beyond the actual control of the air carrier on account of its nature or origin. For courts and enforcement bodies, it seems to be tempting to consider nearly every event that creates an aircraft on ground (AOG) situation as inherent to the normal activity of an air carrier. Whether such event comprises bird strike, collision, or instant failure of components is not relevant as long as you argue that such events are inherent to the normal activity. This article intends to put the Wallentin-Hermann v. Alitalia doctrine in perspective by comparing its take on technical defects with how technical defects are seen in the field of airworthiness and flight safety. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011001 | 
|
|  | |
'Outcome of the 37th Session of the ICAO Assembly', Ruwantissa Abeyratne, Issue 1, pp. 7–22 |
infoRuwantissa Abeyratne, 'Outcome of the 37th Session of the ICAO Assembly' (2011) 36 Air and Space Law, Issue 1, pp. 7–22 | | The 37th Session of the International Civil Aviation Organization (ICAO) Assembly, held from 28 September to 8 October 2010 in Montreal and attended by a record 1,588 participants from 176 Member States and forty international organizations involved in civil aviation, achieved important advancements in aviation safety and aviation security assuring even greater safety performance in the already safest and most secure mode of mass transport in the world. Reaffirming ICAO’s leadership role, the meeting adopted a comprehensive resolution to reduce the impact of aviation emissions on climate change. The agreement provides a roadmap for action through 2050 for the 190 Member States of the organization. Solidifying its global influence, the organization signed numerous international agreements, including cooperation agreements with regional civil aviation organizations and bodies from all regions of the world. The Assembly endorsed a proactive safety strategy based on the sharing of critical safety information among governments and industry stakeholders. It also endorsed ICAO’s plan to establish a multidisciplinary approach to address the critical issue of runway safety. This will bring together representatives from airlines, airports, air navigation service providers, and regulatory authorities. Following a successful diplomatic Conference in Beijing in August 2010, the Assembly built on this achievement by recognizing the need to strengthen aviation security worldwide. In a Declaration, unanimously adopted by participants, international commitment was reaffirmed to enhance aviation security collaboratively and proactively through screening technologies to detect prohibited articles, strengthening international standards, improving security information sharing, and providing capacity building assistance to States in need. The Assembly also put its full support behind a comprehensive, new ICAO aviation security strategy. The Resolution adopted by the Assembly on climate change makes ICAO the first United Nations Agency to lead a sector in the establishment of a globally harmonized agreement for addressing its CO2 emissions. The resolution was adopted with some States expressing reservations and calling upon the ICAO Council to continue its work on specific aspects of the agreement. This remarkable accomplishment came only two months before negotiations were again undertaken by these very same States at the 16th Conference of the Parties of the United Nations Framework Convention on Climate Change (UNFCCC) meeting scheduled in December 2010 in Mexico. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011002 |
|
| | |
'ICAO Assembly’s Resolution on Climate Change: A ‘Historic’ Agreement?', Michel Adam, Issue 1, pp. 23–29 |
infoMichel Adam, 'ICAO Assembly’s Resolution on Climate Change: A ‘Historic’ Agreement?' (2011) 36 Air and Space Law, Issue 1, pp. 23–29 | | The 37th session of the Assembly of the International Civil Aviation Organization (ICAO) culminated with the adoption of a resolution on climate change. News releases depict the resolution as a historic agreement, stressing that no other industry sector has ‘a similar globally agreed framework for managing its response to climate change’. However, the achievement may not be as meritorious as news releases imply. This note will review the resolution adopted at the 37th session of the Assembly and outline the main areas that require further work by ICAO and its Member States, paying particular attention to the dissensions between developed and developing countries. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011003 |
|
| | |
'Preliminary Report on the ICAO Resolution on Climate Change', Issue 1, pp. 31–47 |
info'Preliminary Report on the ICAO Resolution on Climate Change' (2011) 36 Air and Space Law, Issue 1, pp. 31–47 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011004 |
|
| | |
'Simplification of the European Code of Conduct for Computer Reservation Systems (CRS)', Mia Wouters, Issue 1, pp. 49–61 |
infoMia Wouters, 'Simplification of the European Code of Conduct for Computer Reservation Systems (CRS)' (2011) 36 Air and Space Law, Issue 1, pp. 49–61 | | No matter how good your product or service is, if you either lack the means of informing the public of its availability, or if you fail to have an efficient distribution system, your goods will remain on the shelf . . . unsold. Success will largely depend, first, on your ability to bring what you have to offer to the attention of a buyer and, second, to make it readily available for easy purchase. Air transport does not escape this basic principle of commerce. There is very little which is more vital to an airline than its ability to keep potential passengers informed of what is on offer and to facilitate the intended purchase. Airlines sell a service that may not be stored and is perishable in nature. Airline capacity has an exceptionally short shelf life; once an aircraft takes off, any empty seat is lost forever. Take this together with the high proportion of fixed and operational costs and it means that the loss or gain of only a few seats can often determine whether or not a flight will be profitable. Seat inventory constantly needs to be matched by demand before the seats perish. By matching passenger demand, airlines manipulate the number of seats for which discounts are offered and will adjust fares accordingly. The result is that fares on surplus seats change constantly. In an environment that is increasingly defined in terms of alliances and code sharing, Computer Reservation Systems (CRSs) are probably the most well-adapted technological medium to satisfy the vending of tickets under such market requirements. A CRS consists of a database that holds information on schedules, seat availability, and fares of all its participating airlines. This database may be accessed by travel agencies having entered into a subscriber agreement with a CRS. Because of their high-speed processing and real-time links to most airlines, CRSs are capable of continually updating any fare for any given segment. CRSs hence became the prime marketing tools used to distribute the airline’s seat availability and its fares to the public. Ancillary products, such as hotel reservations, car rentals, and other modes of transport, were subsequently added to the CRS content. Since their inception in the 1980s, CRSs enjoyed a privileged marketing position for nearly two decades. It should, however, also be recognized that CRSs were the constant focus of investment by which they remained at the cutting edge of new technology. During the last decade, the steady position of the CRSs has started to show signs of weakness. Airlines, having set up the CRSs as an instrument to ensure effective distribution of their services, progressively abandoned their creation and actively looked for other, cheaper ways of distributing their services and products. At the onset of the airlines’ technological efforts to bypass or replace the CRSs, the airlines neglected to continually upgrade the technology of the CRSs. The technology did improve, however, largely because airlines started to integrate the existing CRS technology with other sales vehicles. This allowed the airlines to gain sales power offset the monopolistic trend of the CRSs. This trend, taken together with the disinvestment of airline ownership in the CRSs, spurred legislators to abandon or to relax the implementation of legal requirements when operating a CRS. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011005 |
|
| | |
'German Air Travel Tax (ATT): No Lessons Learned from the Dutch Ticket Tax', Ulrich Steppler, Issue 1, pp. 63–70 |
infoUlrich Steppler, 'German Air Travel Tax (ATT): No Lessons Learned from the Dutch Ticket Tax' (2011) 36 Air and Space Law, Issue 1, pp. 63–70 | | On 26 November 2010, Germany’s Federal Council consented to the Parliament’s plans to introduce an Air Travel Tax (Luftverkehrsteuer/LuftVSt – ATT) by way of the new Air Travel Tax Act – (Luftverkehrsteuergesetz/LuftVStG – ATTA). The new law entered into force beginning of this year – on 01 January 2011. Regardless of the new ATT only taking effect as of this year, flights booked on or after 01 September 2010 departing on or after 01 January 2011 were already subject to the new tax, provided the tangible flight actually starts from a domestic German airport. Therefore, ATT is only payable once the trip from a German airport has actually begun, irrespective when the aircraft ticket was purchased (provided this occurred after 31 August 2010). By means of the ATT, the German Government endeavours to bring forward the expected earnings from the EU Emissions Trading Scheme (ETS) in the year 2012 and onwards. Similar to European Union Emissions Trading Scheme (EU ETS), foreign carriers are subject to the new tax as well, which causes comparable concerns as regards customary international law and the Chicago Convention, for example. Actually the legal repercussions go beyond that since it can well be argued that the new tax is also a violation of the German Constitution and not in line with European State aid law, see Articles 107 and 108 Treaty on the Functioning of the European Union (TFEU). During the political discussion prior to the cabinet’s decision, it has been indicated that the tax will disappear as soon as aviation is included into the EU ETS. The tax bill now stipulates that the expected revenues are Euro (EUR) 1 billion and that the tax rates can only be reduced in relation to the earnings from EU ETS. Therefore, a good German tradition seems to be upheld: a tax once established is meant to stay – if not challenged in a court of law. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011006 |
|
| | |
'Price Transparency Requirements of the EC Air Services Regulation 2008', Georg Ruben Friedmann, Issue 1, pp. 71–77 |
infoGeorg Ruben Friedmann, 'Price Transparency Requirements of the EC Air Services Regulation 2008' (2011) 36 Air and Space Law, Issue 1, pp. 71–77 | | Within the framework of Article 23 EC Regulation 1008/2008, the European legislator created a new set of provisions on pricing in the airline sector, which had become one of the main legal aspects for website selling practices of airlines and online travel agencies on the common market. The author analyses the wording of Article 23, first paragraph, explaining main requirements such as: (1) the final price indication; (2) breakdown of the price; and (3) optional price supplements. A further distinction is to be made between mandatory, optional, and variable price components: as variable price components (such as the service charge) may change during the booking process, depending on various data to be typed in by the customer, it shall be sufficient to indicate the final, all-inclusive price before payment at the end of the booking process, in accordance with the rulings of High Courts in Germany and Austria regarding price transparency under national law. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011007 |
|
| | |
'Airlines Class Action: Full Federal Court Overturns Strike Out Judgment – Auskay International Manufacturing and Trade Pty Ltd v. Qantas Airways Limited [2010] FCAFC 6', Robert McGregor, Dawnie Lam, Issue 1, pp. 79–82 |
infoRobert McGregor, Dawnie Lam, 'Airlines Class Action: Full Federal Court Overturns Strike Out Judgment – Auskay International Manufacturing and Trade Pty Ltd v. Qantas Airways Limited [2010] FCAFC 6' (2011) 36 Air and Space Law, Issue 1, pp. 79–82 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011008 |
|
| | |
'A Student Review on the Conference ‘Single European Sky: An Update from the Netherlands’ at Schiphol Airport, Netherlands', Cenan Al-Ekabi, Issue 1, pp. 83–85 |
infoCenan Al-Ekabi, 'A Student Review on the Conference ‘Single European Sky: An Update from the Netherlands’ at Schiphol Airport, Netherlands' (2011) 36 Air and Space Law, Issue 1, pp. 83–85 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011009 |
|
| | |
'Symposium on the Regulation of Sub-orbital Flights in the European Context', Axelle Cartier, Issue 1, pp. 87–92 |
infoAxelle Cartier, 'Symposium on the Regulation of Sub-orbital Flights in the European Context' (2011) 36 Air and Space Law, Issue 1, pp. 87–92 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011010 |
|
| | |
'Separate Financing of Aircraft Engines: Legal Obstacles, by Cem Karako. (LAP Lambert Academic Publishing AG & Co. KG, July 2010)', Berend Crans, Issue 1, pp. 93–94 |
infoBerend Crans, 'Separate Financing of Aircraft Engines: Legal Obstacles, by Cem Karako. (LAP Lambert Academic Publishing AG & Co. KG, July 2010)' (2011) 36 Air and Space Law, Issue 1, pp. 93–94 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011011 |
|
| | |
'Coming Events', Issue 1, pp. 95–95 |
info'Coming Events' (2011) 36 Air and Space Law, Issue 1, pp. 95–95 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011012 |
|
| | | |
ISSUE 2 | |
'Editorial', Pablo Mendes de Leon, Issue 2, pp. 97–98 |
infoPablo Mendes de Leon, 'Editorial' (2011) 36 Air and Space Law, Issue 2, pp. 97–98 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011013 |
|
| | |
'The Montreal Convention 1999 and the Decisions of the ECJ in the Cases of IATA and Sturgeon – in Harmony or Discord?', Robert Lawson, Tim Marland, Issue 2, pp. 99–108 |
infoRobert Lawson, Tim Marland, 'The Montreal Convention 1999 and the Decisions of the ECJ in the Cases of IATA and Sturgeon – in Harmony or Discord?' (2011) 36 Air and Space Law, Issue 2, pp. 99–108 | | This article considers Regulation (EC) No. 261/2004 in so far as it deals with delay in the carriage by air of passengers, as interpreted by the European Court of Justice in the cases of R. (on the application of International Air Transport Association and European Low Fares Airline Association) v. Department of Transport and Sturgeon v. Condor Flugdienst GmbH and Böck v. Air France SA. It considers whether these two cases are consistent with each other and with the Montreal Convention (in respect of carriage to which the Convention and Regulation 261 both apply). It concludes that they are irreconcilable with each other and that if the IATA case is consistent with the Montreal Convention, as it purports to be, then Sturgeon is not. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011014 |
|
| | |
'Sovereignty and the Chicago Convention: English Court of Appeal Rules on the Northern Cyprus Question', Mark Franklin, Issue 2, pp. 109–116 |
infoMark Franklin, 'Sovereignty and the Chicago Convention: English Court of Appeal Rules on the Northern Cyprus Question' (2011) 36 Air and Space Law, Issue 2, pp. 109–116 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011015 |
|
| | |
'Metal Neutrality and the Nation-Bound Airline Industry', Paul V. Mifsud, Issue 2, pp. 117–130 |
infoPaul V. Mifsud, 'Metal Neutrality and the Nation-Bound Airline Industry' (2011) 36 Air and Space Law, Issue 2, pp. 117–130 | | The system of trade in international aviation services is a product of post-World War II economic nationalism. It has resulted in an international airline industry in which international airlines are effectively 'nation-bound', because their operations all must begin and end in their home countries. The growth of branded global alliances and the evolution of US and European aviation policies are accelerating rapidly. As part of its deregulation policy, the US has used the possibility for antitrust immunity (ATI) for cooperative marketing arrangements with national carriers that accept Open Skies liberalization. Recent developments in US policy now require airlines seeking such immunity to commit to operate joint ventures that are 'metal neutral'. A metal neutral joint venture is structured so that partners in the venture are indifferent as to which operates the 'metal' (aircraft) when they jointly market services. The metal neutral requirement is a work in progress but holds the potential to diminish economic nationalism and alter the nation-bound nature of aviation operations. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011016 |
|
| | |
'The Concorde Accident Criminal Trial in France', Sean Gates, Maud Marian, Issue 2, pp. 131–138 |
infoSean Gates, Maud Marian, 'The Concorde Accident Criminal Trial in France' (2011) 36 Air and Space Law, Issue 2, pp. 131–138 | | On 6 December 2010, the Criminal Court of Pontoise (France) issued a guilty verdict against Continental Airlines and its employee, John Taylor and exonerated all of the French defendants, signaling the epilogue of the Concorde long running criminal proceedings arising out of the Concorde accident in Paris on 25 July 2000. On the basis of the expert reports issued by a pilot expert who had been working as a pilot of Air France for forty years at the time he was appointed by the Investigating Magistrate, the Court has rejected the principal argument for the defence of Continental Airlines and has determined the taxiing of the Concorde over the wear strip from the Continental Airlines DC 10 to be the sole cause of the accident. Continental's mechanic, John Taylor, was found guilty and sentenced for involuntary homicide and manslaughter because he had violated the rules of manufacture and attachment of the wear strip on the Continental DC10 and the simple negligence of Taylor's supervisor Mr Ford lead to the finding of criminal responsibility of Continental Airlines. By declaring Continental's submission as to the lack of objective impartiality of the pilot expert non admissible and time-barred the French Criminal Court has raised questions as to the role of equity and fairness in the French criminal system. The Court of Appeal of Versailles will review the first instance decision since all of the parties have appealed. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011017 |
|
| | |
'Satellite Financing through Hosted Payloads: Benefits and Challenges', Maria Buzdugan, Issue 2, pp. 139–160 |
infoMaria Buzdugan, 'Satellite Financing through Hosted Payloads: Benefits and Challenges' (2011) 36 Air and Space Law, Issue 2, pp. 139–160 | | Financing satellite projects has always been a challenging endeavour for companies given the high costs of procuring, launching, and operating satellites and high risks associated with space activities. Especially in challenging economic environments, non-traditional structures allowing cost- and risk-sharing are bound to raise the interest of the satellite industry as well as government entities looking for timely access to key satellite capacity. The 'hosted payload' concept appears to make a compelling business case for all participants involved. Commercial partners are attracted by the prospect of reducing their capital expenditures and increasing their revenue, while governments can benefit from significant cost savings, shorter planning and implementation cycles, and timely delivery of services. This article presents an overview of how the concept of hosted payloads is currently implemented in the satellite industry, including via private-public arrangements, discusses the role hosted payload arrangements can play in satellite financing, and analyses several key elements of typical hosted payload agreements from a bankability perspective. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011018 |
|
| | |
'UAVs and Their Integration into Non-segregated Airspace', Stefan A. Kaiser, Issue 2, pp. 161–172 |
infoStefan A. Kaiser, 'UAVs and Their Integration into Non-segregated Airspace' (2011) 36 Air and Space Law, Issue 2, pp. 161–172 | | Unmanned Aerial Vehicles (UAVs) have become a reality in military aviation. It is only a matter of time before we see civilian UAVs in manifold roles. Unlike military UAVs, operations of civilian UAVs cannot rely on specially designated and reserved (military) airspace. Therefore, one of the key issues for using UAVs for civilian purposes will be their integration into non-segregated common airspace. The author proposes a multi-tier approach for integrating different classes of UAVs into different classes of airspace. Certification of airworthiness is linked to this solution. Depending on the class of UAVs, regulatory parameters relating to airspace, flight rules, and certification are discussed. The goal is a realistic road map for the integration of UAVs into non-segregated airspace. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011019 |
|
| | |
'Report on the 22nd Annual Conference of the EALA', Francesco Fiorilli, Issue 2, pp. 173–179 |
infoFrancesco Fiorilli, 'Report on the 22nd Annual Conference of the EALA' (2011) 36 Air and Space Law, Issue 2, pp. 173–179 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011020 |
|
| | |
'Coming Events', Issue 2, pp. 181–181 |
info'Coming Events' (2011) 36 Air and Space Law, Issue 2, pp. 181–181 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011021 |
|
| | | |
ISSUE 3 | |
'Airport Slot Allocation: Quo Vadis, EU?', Issue 3, pp. 183–200 |
info'Airport Slot Allocation: Quo Vadis, EU?' (2011) 36 Air and Space Law, Issue 3, pp. 183–200 | | Recently, the European Union (EU) conducted a public consultation on a possible revision of Council Regulation European Economic Community (EEC) 95/93 on common rules for the allocation of slots at Community airports. While open skies agreements are developing rapidly and the Single European Sky (SES) takes shape, airport slot allocation in the EU is based on a regulation that remained nearly unchanged for the last twenty years. The EU could, however, profit from the variety of experiences made in the United States, where secondary slot trading was introduced as early as 1985. Since 2008, slot auctions have moved back into the US spotlight, when the Bush Administration proposed new Congestion Management Rules. Facing a possible capacity crunch in Europe, the question arises: Quo vadis, EU? This article was drafted as a contribution to the 2011 International Air Transport Association (IATA) Legal Writing Award, which was generously sponsored by Jones Day. There is nothing like competition as a goad to efficiency. - Alfred Kahn Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011022 |
|
| | |
'Legal Ramifications of the Investigations of the 2010 Polish President’s Aircraft Accident', Piotr Kasprzyk, Issue 3, pp. 201–216 |
infoPiotr Kasprzyk, 'Legal Ramifications of the Investigations of the 2010 Polish President’s Aircraft Accident' (2011) 36 Air and Space Law, Issue 3, pp. 201–216 | | On 10 April 2010, an airplane carrying Polish President Lech Kaczyński, his wife, and dozens of the country's political and military leaders crashed during its approach to Smolensk 'North' aerodrome in western Russia. All ninety-six people on board the aircraft were killed. An air accident of that magnitude came as a stunning blow to Poland and a shock to the international community. Swift determination of its cause has become an absolute priority not only for the competent investigating authorities in Poland and Russia but also for political leaders who were put under considerable pressure from the media and the general public. The article looks into the legal and organizational aspects of the technical and judicial investigations initiated following that accident, with particular emphasis on the application of the international rules on air accident and incident investigations. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011023 |
|
| | |
'The ICAO Assembly Resolutions on International Aviation and Climate Change: An Historic Agreement, a Breakthrough Deal and the Cancun Effect', Steven Truxal, Issue 3, pp. 217–242 |
infoSteven Truxal, 'The ICAO Assembly Resolutions on International Aviation and Climate Change: An Historic Agreement, a Breakthrough Deal and the Cancun Effect' (2011) 36 Air and Space Law, Issue 3, pp. 217–242 | | In what the International Civil Aviation Organization (ICAO) heralds as a 'historic agreement' and the European Union (EU) calls a 'breakthrough deal', the recent ICAO Assembly Resolutions A37-18 and 19 mark the end of the Assembly Resolution A36-22 'mutual agreement' stalemate on emissions trading, which represents a significant achievement with respect to aviation and climate change. Although Assembly Resolutions A37-18 and 19 are non-binding, the as yet 'aspirational' goals that they set out demonstrate the collective will of the civil aviation industry and ICAO Member States to work together towards the common objective of limiting and reducing the global impact of aviation noise and emissions. The texts of Assembly Resolutions A37-18 and 19 prompt closer analysis vis-à-vis questions of whether ICAO is (still) the appropriate forum for addressing international aviation emissions and on the legitimacy of its manifesto for continuous leadership. ICAO's general approval for use of market-based mechanisms to establish a viable global framework mechanism for aviation emissions is also noteworthy, particularly in the context of the EU's Emissions Trading Scheme (EU ETS), the position of the Convention on International Civil Aviation (the Chicago Convention), and recent legal challenge against inclusion of aviation in the scheme. This article suggests that on emergence from the United Nations Framework Convention on Climate Change (UNFCCC)'s 16th Conference of the Parties (COP-16) in Cancun in December 2010, the ICAO Member States and the aviation sector should feel proud that the spirit of cooperation and sense of success they promoted in the wake of the recent ICAO Assembly Resolutions may have contributed to the most recent progress in the global campaign against climate change: the Cancun Agreements. Thus, this article argues it is foreseeable that the latest progress under the UNFCCC process will have a reverse demonstrative effect on future ICAO dialogue and resolution. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011024 |
|
| | |
'The Beijing Convention of 2010: An Important Milestone in the Annals of Aviation Security', Ruwantissa Abeyratne, Issue 3, pp. 243–255 |
infoRuwantissa Abeyratne, 'The Beijing Convention of 2010: An Important Milestone in the Annals of Aviation Security' (2011) 36 Air and Space Law, Issue 3, pp. 243–255 | | Aviation is an important global business and a significant driver of the global economy. It is vital therefore that stringent measures are taken to counter acts of unlawful interference with civil aviation. Following a diplomatic conference, held in Beijing from 30 August to 10 September 2010 under the auspices of the International Civil Aviation Organization (ICAO), representatives from more than eighty States adopted two international air law instruments for the suppression of unlawful acts relating to civil aviation. The two instruments are the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (hereinafter 'Beijing Convention' or 'Beijing Treaty') and the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft. The Beijing Convention serves international civil aviation well by requiring parties to criminalize a number of new and emerging threats to the safety of civil aviation, including using aircraft as a weapon and organizing, directing, and financing acts of terrorism. These new treaties reflect the international community's shared effort to prevent acts of terrorism against civil aviation and to prosecute and punish those who would commit them. The treaties promote cooperation between States while emphasizing the human rights and fair treatment of terrorist suspects. The Beijing Convention also obligates States to criminalize the transport of biological, chemical, and nuclear (BCN) weapons and related material. Many provisions of the Beijing Convention, which is a newcomer to aviation security in the context of some new provisions it introduces, may need reflection, particularly in interpreting the intent of its founding fathers. This article discusses some aspects of the Beijing Treaty, which may need that reflection Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011025 |
|
| | |
'Coming Events', Issue 3, pp. 257–257 |
info'Coming Events' (2011) 36 Air and Space Law, Issue 3, pp. 257–257 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011026 |
|
| | | |
ISSUE 4/5 | |
'Air Passenger Rights after Sturgeon', Cees van Dam, Issue 4/5, pp. 259–274 |
infoCees van Dam, 'Air Passenger Rights after Sturgeon' (2011) 36 Air and Space Law, Issue 4/5, pp. 259–274 | | In Sturgeon, the European Court of Justice considered that EC Regulation 261/2004 on Air Passenger Rights breaches the principle of equal treatment. It held that air passengers with a delay of three hours or more have a right to compensation, unless the airline can prove that the delay was caused by extraordinary circumstances. After a brief look into how airlines generally perform with regards to their obligations under Regulation 261/2004 (section 1), I will summarize the Sturgeon decision as it was handed down by the European Court (section 2), set out the airlines' response to Sturgeon, which amounts to a boycott of the European Court's decision (section 3), analyse the questions referred to the European Court by the High Court in London in which the airlines challenge the validity of Sturgeon (section 4), and briefly comment on questions referred by the German Federal Court on the application of Sturgeon (section 5). My conclusion (section 6) will be that the European Court cannot but confirm Sturgeon, because the decision is compatible with both the Montreal Convention and the Grand Chamber decision in International Air Transport Association (IATA). This conclusion is in line with the opinion I published in January 2010. This article may be misunderstood as presenting a consumer view on Air Passenger Rights. However, it only aims to predict, from an independent perspective, what the European Court will decide in the pending cases with respect to Sturgeon. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011027 |
|
| | |
'Single European Sky - a possible regulatory framework for System Wide Information Management (SWIM)', Anna Masutti, Issue 4/5, pp. 275–292 |
infoAnna Masutti, 'Single European Sky - a possible regulatory framework for System Wide Information Management (SWIM)' (2011) 36 Air and Space Law, Issue 4/5, pp. 275–292 | | Single European Sky ATM Research (SESAR) is the modernization programme of the European air traffic control infrastructure designed for the development of a new generation of air traffic management (ATM) technologies and procedures that will constitute the Single European Sky (SES) technologies and procedures. These will allow SES to cope with the increasing air traffic service demand predicted for the next twenty years. System Wide Information Management (SWIM) is a key part of SESAR; its objective is to create a new system of aeronautical information to increase efficiency and improve air transport safety. SWIM involves a group of independent users (Air Navigation Service Providers (ANSP), airlines, airports, etc.) that will exchange aeronautical information to ensure a safe gate-to-gate movement of an aircraft (flying object). SWIM architecture has many similarities with today's Internet. SWIM, as with any other system created to provide a public service, needs a regulatory framework for governance and to establish the identification of responsibilities and liabilities of the parties involved in the programme. The conclusions of different debates regarding the governance of such organizations have led to the wide acceptance of the principle that for every organization where many parties operate with a certain degree of freedom, it is advisable to set up a system of guidelines, with mechanisms to encourage participating parties to conform, for example, to a code of conduct. In short, this article examines a possible system for regulating the relationships between all the parties involved, offering a comprehensive description of the SWIM programme, its possible governance, and the main elements for designing a regulatory framework. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011028 |
|
| | |
'Foreign Plaintiffs, Forum Non Conveniens, and the 1999 Montreal Convention', Allan I. Mendelsohn, Issue 4/5, pp. 293–303 |
infoAllan I. Mendelsohn, 'Foreign Plaintiffs, Forum Non Conveniens, and the 1999 Montreal Convention' (2011) 36 Air and Space Law, Issue 4/5, pp. 293–303 | | The purpose of this article is not so much to focus on the multitude of successful forum non conveniens motions that have been granted in recent years by US courts, but rather to focus on the increasing frequency of foreigners (i.e., non-citizens and non-residents) opting to sue in the United States. They do this because in many instances they are aggressively solicited by US-employed so-called 'consultants' who tell them that they can not only enjoy contingency fee arrangements in retaining their US lawyers, but that they can also enjoy the likelihood of much larger financial recoveries than could be expected from the courts in their own countries. Even if these representations are in fact true, the issue addressed by the author is the propriety of foreigners seeking access to US courts for these purposes. The author briefly examines the decisions in several of the more recent aviation accident cases. A disproportionate number of them, as can be seen, involve accidents that occurred abroad, on foreign airlines - many of which do no business in the United States and, hence, are not subject to US jurisdiction - and with victims that are mostly or all citizens of foreign countries. Finally, the author proposes an approach that he believes would help to eliminate or, at the least, lessen the frequency with which foreign citizens resort to US courts following aviation accidents abroad while, at the same time, providing foreign plaintiffs who are victims of international air mishaps with faster and more certain resolution of their claims. The author also proposes what he believes is a much better and more efficient system for determining whether courts abroad are available and adequate for purposes of allowing a US court to grant a forum non conveniens dismissal. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011029 |
|
| | |
'EU Competition Law Developments in the Aviation Sector from July 2010–15 April 2011', Helen Corcut, Issue 4/5, pp. 305–333 |
infoHelen Corcut, 'EU Competition Law Developments in the Aviation Sector from July 2010–15 April 2011' (2011) 36 Air and Space Law, Issue 4/5, pp. 305–333 | | Since July 2010, there have been a number of important decisions in the aviation sector. In particular, the judgment of the General Court of the European Union (hereinafter 'General Court') in relation to the Ryanair/Aer Lingus prohibition decision affirmed the practices of the European Commission (hereinafter 'Commission') with regard to market definition, competition assessment, the assessment of efficiencies, and remedies and is instructive as to the approach that will be taken by the Commission in future airline merger cases. Since that judgment was handed down, the Commission has also issued its second prohibition decision in an airline merger case under the Merger Regulation in the Olympic Air/Aegean Airlines case. The Commission investigation into price-fixing in Airfreight services has also finally been concluded and the industry has been shocked by the level of fines imposed. This article, first summarizes the judgments of the European Courts and the decisions and ongoing investigations of the Commission in the period under review. It then considers some of the significant themes arising from the cases as well as the guidance provided by the Commission and US Department of Transportation (hereinafter 'DOT') joint report on competitive issues and regulatory approaches to transatlantic airline alliances. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011030 |
|
| | |
'Eid v. Alaska Airlines No. 06-16457 (9th Cir. 30 July 2010)', Gerard Chouest, Issue 4/5, pp. 335–338 |
infoGerard Chouest, 'Eid v. Alaska Airlines No. 06-16457 (9th Cir. 30 July 2010)' (2011) 36 Air and Space Law, Issue 4/5, pp. 335–338 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011031 |
|
| | |
'No Compensation for Long Delay in Spite of Sturgeon: Will This New Jurisprudence Prevail?', Ulrich Steppler, Mareike Muennig, Issue 4/5, pp. 339–341 |
infoUlrich Steppler, Mareike Muennig, 'No Compensation for Long Delay in Spite of Sturgeon: Will This New Jurisprudence Prevail?' (2011) 36 Air and Space Law, Issue 4/5, pp. 339–341 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011032 |
|
| | |
'How the Montreal Convention Yields to the German Freight Forwarders’ Conditions: The Decision of the German Bundesgerichtshof of 22 July 2010 (I ZR 194/08), TranspR 2011/2, 80–84', Ingrid Koning, Issue 4/5, pp. 343–347 |
infoIngrid Koning, 'How the Montreal Convention Yields to the German Freight Forwarders’ Conditions: The Decision of the German Bundesgerichtshof of 22 July 2010 (I ZR 194/08), TranspR 2011/2, 80–84' (2011) 36 Air and Space Law, Issue 4/5, pp. 343–347 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011033 |
|
| | |
'Bibliography of Air Law 2010', Wybo P. Heere, Issue 4/5, pp. 349–367 |
infoWybo P. Heere, 'Bibliography of Air Law 2010' (2011) 36 Air and Space Law, Issue 4/5, pp. 349–367 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011034 |
|
| | |
'Names Index', Wybo P. Heere, Issue 4/5, pp. 369–371 |
infoWybo P. Heere, 'Names Index' (2011) 36 Air and Space Law, Issue 4/5, pp. 369–371 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011035 |
|
| | |
'Subject Index', Wybo P. Heere, Issue 4/5, pp. 373–375 |
infoWybo P. Heere, 'Subject Index' (2011) 36 Air and Space Law, Issue 4/5, pp. 373–375 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011036 |
|
| | |
'Coming Events', Issue 4/5, pp. 377–377 |
info'Coming Events' (2011) 36 Air and Space Law, Issue 4/5, pp. 377–377 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011037 |
|
| | | |
ISSUE 6 | |
'Multilateral Trade Agreement for Civil Aviation', Fred Lazar, Issue 6, pp. 379–400 |
infoFred Lazar, 'Multilateral Trade Agreement for Civil Aviation' (2011) 36 Air and Space Law, Issue 6, pp. 379–400 | | Emirates Airlines wants greater access to Canada than is currently permitted under the existing Air Services Agreement between Canada and the United Arab Emirates. Thus far, the Government of Canada has legitimately refused the requests. The dispute between Canada and the United Arab Emirates (UAE) over air traffic rights boils down to two fundamental issues that transcend both countries: 1. The importance of the civil aviation sector (airlines, airports, and support services) to the economies of both countries; and 2. The importance of a level playing field for competition between the domestic carriers of each country and between the major hub airports of each country. It is time to have a serious debate on the future regulatory structure for the global civil aviation industry. The resolution of the second issue necessitates that we revisit the current regulatory structure for the airline industry and consider moving away from bilateral Air Services Agreements to a multilateral framework for the industry. There are at least three different ways to proceed to address the issues related to subsidies, capacity dumping, and safeguards for the airline industry. While the multilateral approach is the preferred option, it is unrealistic to assume that there will be sufficient support to move quickly to multilateral negotiations. Nevertheless, it is important to begin to move in this direction, not only to resolve disputes such as the one between Canada and the UAE but also to be prepared to resolve future disputes that inevitably will arise. While Emirates Airlines executives have focused on the importance of consumer interests, there are many more stakeholders involved, and even consumer and taxpayer interests might not be best served by subsidies, capacity dumping, and arbitrary decisions to retaliate. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011038 |
|
| | |
'Regulatory Framework for a ‘Performance-Based’ Approach to Air Safety Management in the European Union', Mikołaj Ratajczyk, Issue 6, pp. 401–426 |
infoMikołaj Ratajczyk, 'Regulatory Framework for a ‘Performance-Based’ Approach to Air Safety Management in the European Union' (2011) 36 Air and Space Law, Issue 6, pp. 401–426 | | Traditionally, State safety functions in civil aviation have been predominantly based on ensuring compliance with prescriptive rules and regulations based on past experiences and accident investigation. This has served aviation well and allowed it to achieve very good safety levels. However, as aviation is becoming more complex, this traditional approach is no longer sufficient and needs to be supplemented with a more proactive method based on safety performance monitoring and realistic improvement target setting. Work on the implementation of such a system has started both at the international level and in the European Union (EU). This article considers the challenges associated with this process and presents recommendations on how the regulatory framework for this new approach could be best shaped, especially in the complex institutional and legal context of the EU. It argues that a performance-based approach should enable Europe to continue driving its overall air safety performance in the longer term and to ensure a truly uniform level of air safety for all European passengers. It would also be a unique development in the world, combining the new proactive 'philosophy' to air safety management with its consistent application in a regional context. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011039 |
|
| | |
'Ensuring Global Runway Safety: A Look at the Future', Ruwantissa Abeyratne, Issue 6, pp. 427–440 |
infoRuwantissa Abeyratne, 'Ensuring Global Runway Safety: A Look at the Future' (2011) 36 Air and Space Law, Issue 6, pp. 427–440 | | From 24 to 26 May 2011, the International Civil Aviation Organization (ICAO) hosted a Symposium on Global Runway Safety. The objectives of the Symposium were to highlight the evolution towards a more integrated safety management approach in ICAO's runway safety programme, coordinate a global effort for improving runway safety by identifying what a State can do to improve runway safety outcomes, identify a common framework for the enhancement of runway safety, promote and gain commitment from partners to deliver regional runway safety workshops across the globe, and identify content and format for subsequent runway safety workshops. The Symposium was held against the backdrop of ICAO Assembly Resolution A37-15 (Consolidated statement of continuing ICAO policies and associated practices related specifically to air navigation), which was adopted at the 37th Session of the Assembly held in Montreal from 28 September to 8 October 2010. Appendix P to the Resolution calls upon ICAO to keep under review the technical requirements for aerodromes and requests States to ensure that safety management systems are introduced at their aerodromes. States are also called upon to place greater emphasis on the management of aerodrome operations, with runway safety given a high priority. This article posits the basic fact that issues of runway safety require the standardization and harmonization of rules, which cannot all be ensured through regulation. It examines what has already been accomplished through ICAO and discusses certain proactive measures for runway safety in the future, using the outcome of the ICAO symposium as a backdrop to the discussions. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011040 |
|
| | |
'Re-routing under the Air Passenger’s Rights Regulation', Josep M. Bech Serrat, Issue 6, pp. 441–451 |
infoJosep M. Bech Serrat, 'Re-routing under the Air Passenger’s Rights Regulation' (2011) 36 Air and Space Law, Issue 6, pp. 441–451 | | This article analyses the alternative transportation requirement provided by Regulation (EC) No. 261/2004 in comparison with European sale of goods law, with a view to exploring the limits on re-routing to be provided by air transportation companies and the exercise of the passenger's right to be offered alternative transportation. The article concludes that this is a rarely regulated remedy, and there is room for improvement in a new Regulation to deal with re-routing when the original transportation contracted for is not provided. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011041 |
|
| | |
'Onboard Electronic Fraud: Piracy in the Twenty-First Century?', Jim Hackett, Issue 6, pp. 453–476 |
infoJim Hackett, 'Onboard Electronic Fraud: Piracy in the Twenty-First Century?' (2011) 36 Air and Space Law, Issue 6, pp. 453–476 | | Internet access is available on some international flights; this will become more commonplace in the future. Internet frauds abound. Already, most personal banking is performed using the Internet; it is easy to transfer funds from one account to another, including from a personal or trust account to that of a fraudster. For example, if a trustee who is both an Australian citizen and a Hong Kong permanent resident, on board an aircraft (Cathay Pacific, Virgin Atlantic, or Qantas) in international airspace flying from Hong Kong to Australia, uses a personal computer to access an Australia-based trust account and (while unauthorized) transfers money to a personal account, has the trustee committed any crime for which he/she may be arraigned in any jurisdiction? It will be argued that the answer may be 'no'. What if the trustee is flying Cathay Pacific? This is partly because the law of Hong Kong insists that Hong Kong has jurisdiction over acts committed by persons aboard Hong Kong-registered aircraft yet does not recognize Internet activity of the type indicated above as a crime if the perpetrator is in international airspace. Similarly, if the trustee is on Virgin Atlantic, the United Kingdom claims jurisdiction and holds that no crime has been committed unless a trust fund based in the home country has been plundered. However, the (Australian) Criminal Code 1995 (Cth) (hereinafter 'the Code') appears to forbid the type of fund transfer mentioned (whether the trustee is on Cathay Pacific, Virgin Atlantic, or Qantas); it thus seems at first blush that the trustee has committed a crime in Australia. The problem is that a Commonwealth prosecutor cannot (it is submitted) access the Code, because the Crimes (Aviation) Act 1991 (Cth) (promulgated earlier in time than the Code) effectively states that no non-violent act in which a person engages on an Australia-bound aircraft (Qantas or otherwise) in international airspace after takeoff from a foreign country is a crime. On such a flight, the Code is inapplicable. The maxim generalia specialibus non derogant is relevant. One solution is that concerned States should draft and sign a treaty that puts national law to one side to ensure that modern-day pirates (such as the errant trustee) are nowhere safe. Similar treaties are already in force to deal with high-seas pirates and aircraft hijackers; the meaning of piracy requires expansion in the twenty-first century. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011042 |
|
| | |
'General Index Volume XXXVI', Wybo P. Heere, Issue 6, pp. 477–479 |
infoWybo P. Heere, 'General Index Volume XXXVI' (2011) 36 Air and Space Law, Issue 6, pp. 477–479 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011043 |
|
| | |
'Subject Index', Wybo P. Heere, Issue 6, pp. 481–484 |
infoWybo P. Heere, 'Subject Index' (2011) 36 Air and Space Law, Issue 6, pp. 481–484 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011044 |
|
| | |
'Abbreviations', Wybo P. Heere, Issue 6, pp. 485–489 |
infoWybo P. Heere, 'Abbreviations' (2011) 36 Air and Space Law, Issue 6, pp. 485–489 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0927-3379
ID: AILA2011045 |
|
| |
 You need Acrobat Reader version 6.0 or later to read PDF files. DOWNLOAD HERE »
|
