bluuebunny/crossref_metadata_2025 huggingface dataset:
Responsibility of States and Airports in Ensuring Safety in Adverse Weather Conditions
Authors: Abeyratne Ruwantissa
Published: March 2022

Aviation and weather are soul mates and have been so from the days of the first motorized flights. Weather at the airport and its vicinity is a critical factor in this equation. There is a popular misconception that risks to crew, passengers and staff cease to exist once the aircraft engines are turned off. This is simply not so. It is a common feature at airports that injury and death is caused to ground handling staff during thunderstorms. Adverse weather also portends a serious threat to activities such as refuelling, de-icing and baggage handling operations. Other hazards that might seriously affect those working on the airside are windstorms (which have, in certain instances lifted baggage containers off the ground) and ice and snow which pose a serious threat of injury to passengers climbing aircraft steps who could slip on accumulated black ice. Catastrophic events such as tsunamis, tropical cyclones, snow storms, floods and dust and sand storms are real threats to airports, requiring vigilance and responsibility of both the State concerned and the airport authorities.

Most aviation accidents occur at airports or in their immediate vicinities. In January 2007, the Air Navigation Commission of ICAO addressed the subject of dissemination of aerodrome warnings, in particular a recommendation to Annex 3 to the Chicago Convention which suggested that aerodrome warnings should relate to the occurrence or expected occurrence of volcanic ash, tsunami and other phenomena as agreed locally. This article elaborates on the dangers posed by bad weather at airports and inquires into the liability and responsibility of the State and the airport in this regard.
Liability Aspects of Air Traffic Services Provision
Authors: Chatzipanagiotis Michael
Published: March 2022

Air Traffic Services (ATS) provision is a critical link in the safe and expedient conduct of international air transport. In case of an aviation accident, liability for ATS provision is an important and complex parameter to be examined. This Article attempts to shed light on the main aspects of such liability.

The first part of the Article concerns traditional issues, i.e. problems that lawyers have always encountered. First of all, the legal nature of ATS liability is examined. Then, its scope is analyzed by reference to the objectives of ATS, the relation of the air traffic controller (ATCO) with the pilot-in-command of the aircraft, and the failure of automatic equipment. Subsequently, mention is made to the personal civil liability of the ATCO, jurisdictional problems, liability of regional ATS organizations, and insurance issues. Last, a short analysis of criminal liability arising out of ATS safety occurrences is made.

The second part of the Article deals with recent developments posing new legal challenges. First, questions pertaining to functional separation between service provision and regulation of ATS are presented. Second, problems arising out of cross-border service provision are examined, especially if there is no formalized delegation agreement. Afterwards, liability matters regarding the Single European Sky (SES) initiative of the European Community are analyzed. Finally, some thoughts on the recent trend to criminalize aviation safety occurrences are put forward.
Another Mexico: Today’s Challenges of Leasing Aircraft into Mexico!
Authors: Mönter Rochus
Published: March 2022

Every aircraft lessor/owner and lender is cognizant of the risks and challenges associated with the leasing of aircraft into jurisdictions with an uncertain political and legal environment. These risks combined with a weak lessee credit may quickly develop into a highly explosive mixture where all can be suddenly at stake if the lessee fails under the lease and the authorities are little supportive during the repossession and export of the aircraft.

This article describes author’s Mexican experience which in the past four years literally took him around the world, involving numerous jurisdictions from Germany to France, from Mexico to the United States and Canada.

His odyssey in an attempt to recover two Boeing 737 from a Mexican airline reminds the author of Graham Greene’s words from his book The Lawless Roads: ‘In Mexico you get used to disappointment’.
Commitment Decisions: The New Kind of Settlement in European Competition Law. Application in Air Transport
Authors: Kostopoulos Kostis
Published: March 2022

A ‘commitment decision’ is a decision through which Competition Authorities make commitments offered by companies binding on them in exchange for the termination of investigations into anti–competitive practices. The purpose of this article is to show how this new and extremely interesting kind of formal settlement can be applied in air transport cases. It analyzes the origin and the procedure of commitment decisions and focuses on the types of possible commitments in the fi eld of air transport. Airlines may offer slots to their competitors, share their Frequent Flyer Programs (FFP), enter into interline agreements with other airlines, and facilitate intermodal services, thus avoiding an infringement decision. An independent trustee with the necessary competence can monitor the accomplishment of these commitments. This article clears up some legal uncertainties and suggests ways in which interested parties, such as cooperating airlines and worldwide alliances, can make better use of the new mechanism and propose acceptable commitments to Competition Authorities. It also discusses both relevant case law of European Competition Authorities and air law doctrine and concludes that commitment decisions could lead to healthier and undistorted competition in the airline industry.
Negligent Entrustment of Leased Aircraft and Crew: Some Legal Issues
Authors: Abeyratne Ruwantissa
Published: March 2022

Negligent entrustment is a civil wrong grounding an action in tort law which arises when one party is held liable for negligence because he negligently provided another party with a an object that could cause harm to another and the latter caused injury to a third party with that object. The cause of action most frequently arises where one person allows another to drive his vehicle.

Common law countries apply the The Corporate Manslaughter and Corporate Homicide Act of 2007, which provides that an organization is guilty of an offence if the way in which its activities are managed or organized causes a person’s death, and amounts to a gross breach of a relevant duty of care owed by the organization to the deceased. The Act applies inter alia to a corporation. The offence is termed ‘corporate manslaughter’, insofar as it is an offence under the law of England and Wales or Northern Ireland; and ‘corporate homicide’, insofar as it is an offence under the law of Scotland. An organization that is guilty of corporate manslaughter or corporate homicide is liable on conviction to a fine and the offence of corporate homicide is indictable only in the High Court of Justiciary.

The Act provides, inter alia, that the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the Organization that were likely to have caused failures in the provision of services by the corporation could be taken into account in determining the culpability of that entity. The possible application of this legislation to air transport is a reality, as exemplified in the Helios trial which opened on 26 February 2009 in Cyprus. The trial pertains to the island’s worst air tragedy, when 121 people perished on a charter plane that slammed into a Greek hillside nearly four years ago. According to reports, at the time of writing, Helios Airways and four airline officials faced charges of manslaughter and reckless endangerment in one of the most complex and high-profile cases in the eastern Mediterranean island’s legal history. Plaintiffs, who are relatives of the dead, have called for criminal action against those deemed responsible when the Helios Airways Boeing 737–300 ran out of oxygen and crashed outside Athens in August 2005. It has also been reported that, although the authorities have not named those to be charged, the accused are known to be officials who held top management positions in the airline at the time of the crash.

Against this backdrop, this article analyses the offence of negligent entrustment and draws a link between the offence and the leasing of aircraft and crew.
Compensation for Passengers in the Event of Flight Delays
Authors: Kleve Guido , Giesberts Ludger
Published: March 2022

In November 2009, the European Court of Justice (ECJ) has issued a highly debated decision, which expands air passenger rights in Europe. In extending the compensation provisions to delays in excess of three hours, the court declared passenger rights far beyond the wording of Regulation (EC) No. 261/2004. Therefore, airlines might be liable to huge compensation in case of flight delays; not only because of the actual volcanic ash crisis, a fact with a broad economical impact. However, the decision of the ECJ raises numerous follow-up questions. This article will firstly examine the limitation of actions. It will be shown that this is subject to national law. Furthermore, this article will conclude that in the case of multi-causal circumstances airlines are only obliged to compensate passengers in the event of the delay being within the scope of responsibility of the air carrier for at least three hours. Finally, it will be shown that airlines are not obliged to compensate for a delay due to a missed connecting flight with the same carrier.
German Air Travel Tax (ATT): No Lessons Learned from the Dutch Ticket Tax
Authors: Steppler Ulrich
Published: March 2022

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.
UAVs and Their Integration into Non-segregated Airspace
Authors: Kaiser Stefan A.
Published: March 2022

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.
International Parental-Child Abductions: Air Carrier Exposure to Civil Litigation in the USA for Transporting Abducted Children
Authors: Elsasser Deborah A.
Published: March 2022

Incidents of international parental-child abductions have increased significantly over the past decade. The US government has recognized this problem but has yet to devise a mechanism by which potential abductors and 'at-risk' children can be identified and detained by authorities before boarding an international flight. The Hague Convention on the Civil Aspects of International Child Abduction is often invoked by the United States in seeking recovery of abducted children but does not address the central issue of prevention. Moreover, proceedings to recover abducted children under the Hague Convention are protracted and often unsuccessful.

As a result, some parents seek to hold airlines civilly responsible for transporting a child out of the country without the consent of the non-travelling parent. This article examines the US government's efforts to prevent parental-child abduction generally and the decisions by the courts that have adjudicated civil claims brought by 'left-behind' parents against airlines.
Fatigue Risk Management Systems: Issues of Air Crew Integrity and Liability
Authors: Abeyratne Ruwantissa
Published: March 2022

On 3 March 2009, the Council of the International Civil Aviation Organization (ICAO) approved international standards, which stipulate that regulations on flight and duty time limitations must be based on 'scientific principles and knowledge'. These standards became effective on 19 November 2009 and remain applicable.

On 13 June 2011, the Council adopted international standards for Fatigue Risk Management Systems (FRMS) with a view to better addressing crew fatigue, which is considered a key contributor to aircraft accidents. The new standards, which would amend current standards of ICAO Annex 6 to the Convention on International Civil Aviation - Operation of Aircraft Part I - International Operations - Aeroplanes came into effect on 30 October 2011 and become applicable on 15 December 2011. Global standards on limitations applicable to crew duty hours have gradually become obsolete and inapplicable in the face of varying operational contexts that require globally harmonized management systems containing standards and guidance material. In July 2011, ICAO, the International Air Transport Association (IATA) and the International Federation of Air Line Pilots' Associations (IFALPA) issued guidance for operators that provide air operators with information for implementing an FRMS that is consistent with applicable standards and recommended practices (SARPs) of ICAO. Also in existence, hand in hand with this guidance, is the Regulator's Manual that guides regulators through the FRMS process. Both these documents are accessible through the ICAO website.

On 30 and 31 August 2011, ICAO held an FRMS Symposium where a unique gathering of more than 500 representatives from government, the air transport industry and the scientific community held important discussions that resulted in several conclusions. Both the regulatory regime and the discussions in the Symposium bring to bear important issues of air crew integrity and their responsibility to disclose vital information in terms of their fitness to pilot a flight as well as their continuing health. This article, written from the perspective of the crew with focus on the technical crew, discusses their liability for non-disclosure of critical information of a pre-existing medical condition and concludes by asking compelling questions to ensure safety of flight.
Nationality Requirements for EU Airlines: The Lufthansa/Swiss/Austrian Mergers as a Case Study
Authors: Rijke Robert
Published: March 2022

The Lufthansa Group, in its acquisition strategy over the past decennium, has been building up a conglomerate of 'independent' airlines within Europe. These cross-border acquisitions have been facilitated by the applicable EU common air transport regulations and the creation of a single EU aviation market. Historically however, such international airline mergers or acquisitions have not been easy to realize, due to regulatory barriers regarding foreign ownership restrictions, in both air service agreements and national laws. This so-called nationality rule prevents airlines from merging across-borders. These regulatory barriers for cross-border mergers and acquisitions are also the main reason for the emergence of transatlantic airline alliances. Transatlantic alliances or joint ventures merely exist because airlines cannot merge cross-border. In the absence of such transatlantic regulatory barriers it would be more efficient to merge, instead of forming an alliance. Desai describes this, using a romantic metaphor: 'If an alliance is like an engagement and a merger is like a marriage, for the majority of airlines the best they can do is get engaged because marriage is not an option. This is because of the restrictions on airline ownership and control that has been in place since the Chicago Convention over 60 years ago.'

This article will show that marriage for intra-EU airline partners is now an option. Even marriage between an EU and a Swiss carrier is now an option. Transnational airline mergers and acquisitions in the single EU aviation market have become easier to establish due to regulatory developments. The internal EU regulatory regime at present facilitates intra-EU airline mergers and acquisitions. This article will focus on two acquisitions as done by The Lufthansa Group in the past decennium: the takeover of Swiss International Air Lines in 2005 and the takeover of Austrian Airlines in 2009, and will analyse the aviation legal aspects surrounding both transactions, in particular focussing on the 'nationality rule' and competition law aspects.
EU Competition Law Developments in the Aviation Sector from 1 January 2012 to 26 July 2012
Authors: Semper Kelly-Ann
Published: March 2022

The first part of 2012 has been relatively quiet in terms of competition law activity in the aviation sector, although this period finally brings us the European Commission's (the 'Commission') published decision in the Olympic Air / Aegean merger prohibition, the Commission's published clearance decision in the IAG / BMI merger, and a Commission decision in the freight forwarding cartel investigation. There has been an increase in merger activity in the aviation sector over the past few months, although most of these are still awaiting a decision by the Commission.

This article first summarizes any relevant judgments of the European Courts, and those judgments which are still pending, as well as any decisions and ongoing investigations by the Commission which occurred during the period under review. It then considers in further detail some of the more significant cases and important themes arising therefrom, and in particular the Commission decisions in the Olympic Air / Aegean merger and the IAG / BMI merger, in addition to the freight forwarding cartel decision.
Past its Use-By Date: Regulation 868 Concerning Subsidy and State Aid in International Air Services
Authors: McGonigle Sean
Published: March 2022

This article is about European Union (EU) Regulation 868 of 2004. It outlines EU rules on subsidy and state aid prior to 2001 and explains how Regulation 868 was a response to the events of September 2001. Regulation 868 is examined, focusing on the definition of subsidy and unfair pricing, the issue of non-commercial advantage and the determination of material injury to the Community air industry. Finally, the article considers the actual effectiveness of the Regulation, calls from the European airline industry for its revision and pragmatic alternatives using air services agreements (ASAs).
Liability of Air Navigation Service Providers: Towards an International Solution
Authors: Vrbaski Lazar
Published: March 2022

The rapid growth of air traffic is inevitably leading to congested skies, which may cause more flight delays, and more alarmingly, jeopardize the safety of air navigation. For this reason, the provision of air navigation services is undergoing constant modernization, necessitating a solid legal framework.

This paper examines the adequacy of the current legal framework, characterized by predominantly national regulation, with respect to traditional and cross-border arrangements for the provision of air navigation services. The Single European Sky legislative package, while reconfiguring European airspace into functional airspace blocks, does not address the liability of air navigation service providers. As will be discussed in this paper, complex cross-border services provision scenarios, such as those envisaged by the Single European Sky project, require a clear liability framework, which, in our view, would best be achieved through lawmaking on the regional level. This could serve as a basis for an international convention which would be desirable, should concepts such as the Single European Sky develop in other regions of the world.
Damages Resolution for the Victims of the Presidential Flight
Authors: Konert Anna
Published: March 2022

On 10 April 2010, Flight PLF 101 crashed near Smolensk 'Severny' Airport Russian Federation during a trial approach in bad weather and low visibility, killing eighty-nine passengers and seven crew members. It transported the President of Poland, with his retinue and fourteen civilians. Since neither the 1999 Montreal Convention nor the European Union Regulation (EC) No 889/2002 are applicable in the resolution of the damages incurred by PLF 101 victims' families, it is Polish Air Law that applies. The article will examine the question of civil liability for damages caused to passengers of the PLF 101 flight under Polish Law.
Ma Meilan v. Thai Airways International Public Company Limited
Authors: Yue Huang
Published: March 2022

The Warsaw Convention and the Montreal Convention have coined different mechanisms for the calculation of damages payable by the airlines engaged in international carriage in the event of injury to passengers during the flight. Apparently, passengers who receive such international carriage services are entitled to claim for damages under specified circumstances. Nevertheless, such claim may be frustrated by various expected or unexpected obstacles and the Ma Meilan case is a typical example of such frustration. This thesis intends to explore into the diversified and intricate issues with respect to the claim made by the injured passenger against an airline conducting business of international carriage. Such issues, as perceived and surveyed by the author, may not only exclusively be relevant to the claim in the Ma Meilan case under Chinese legal regime but may likewise be encountered in other jurisdictions, which need to be classified and analysed for proper solutions. Such issues include but are not necessarily limited to the jurisdiction of the national court seizing the case, the legal basis or rationale upon which the court may render its judgment or decision, the construction by the court of the different international treaties for the purpose of their application or exclusion or even the relationship between the municipal law and international law with regard to the legal processing of the claim raised by the passenger against international airlines. All these issues are examined in this thesis perhaps without definite solutions or answers, yet it is still conducive if these issues are clearly identified and raised for further discussions with both academic and practical significance.
EU Competition Law Developments in the Aviation Sector from 29 July 2012 to 31 December 2012
Authors: Deasy Geoffrey
Published: March 2022

The second part of 2012 has seen a moderate increase in competition law activity in the aviation sector, coupled with the European Commission's (the 'Commission') announcing a package of proposals to increase the competitiveness of the European Union's (EU) aviation industry. A summary of the Commission's decision in the freight forwarding cartel investigation has finally been published, however the non-confidential version is still awaited. Since July, there have been a number of mergers announced, including Aegean/Olympic and IAG/Vueling.

This article first summarizes the Commission's package of proposals, reviews the ongoing and closed investigations, considers the mergers that have been notified to the Commission or other regulators (as opposed to potential mergers that have been announced in the media), reviews relevant judgments of the European Courts (the General Court and the Court of Justice), as well as those judgments that are still pending and concludes with a review of some relevant State Aid decisions.
The 6th Air Transport Conference of ICAO: A Critical Analysis
Authors: Abeyratne Ruwantissa
Published: March 2022

Every once in ten years the International Civil Aviation Organization (ICAO) holds a worldwide air transport conference. The most recent such event - the 6thWorldwide Air Transport Conference (ATConf/6) - was held in Montreal from 18 to 22 March 2013. At this conference, delegates mulled over 'achievements' since the 5th Worldwide Air Transport Conference (ATConf/5), held ten years earlier in Montreal from 24 to 29 March 2003.

ATConf/6 decided, after consensually agreeing that ICAO should play a 'leadership role' in meeting its aim to 'meet the needs of the people of the world for safe, regular, economical and efficient air transport'(as prescribed in the Convention on International Civil Aviation) that ICAO should continue to assist States in liberalization efforts by enhancing the 'market place' facility offered to States; continue to update the Template Air Services Agreements (TASAs) to keep pace with regulatory evolution; undertake and promote the development of additional training courses, regional seminars or similar activities for the benefit of States, in accordance with available resources; continue to monitor regulatory developments, conduct studies on major issues of global importance, and provide policy guidance and assistance to States; and continue to develop relevant databases such as the Database of the World's Air Services Agreements as well as case studies of liberalization experiences.

The questions posed by this article are: are these tasks for ICAO which were decided on by ATConf/6 (and other such preceding conferences) those of one in a leadership role? Are they sufficient to meet the needs of the people of the world for safe, regular, economical and efficient air transport? Should ICAO not be allowed to think out of its 67 year old box and be a beacon to air transport regulators? In other words, shouldn't the bottom line of ICAO's existence in the field of air transport be to analyse trends and guide the air transport industry instead of continuing to act as merely a forum for global practitioners to gather and update information on their respective countries policies for air transport? Shouldn't ICAO provide direction with regard to one of its Strategic Objectives, as do other specialized agencies of the United Nations? A critical analysis follows.
EU Competition Law Developments in the Aviation Sector from 01 January 2013 to 3 July 2013
Authors: Deasy Geoffrey
Published: March 2022

The first half of 2013 has seen quite a substantial increase in competition law activity in the aviation sector. This is partly the result of quite a bit of merger activity (six cases with two phase II investigations ongoing) but there has also been considerable activity on the State aid front with the European Commission (the 'Commission') opening five new State aid investigations and announcing a consultation on proposals for new State aid guidelines for aid to airports, start-up routes and airlines.

This article first summarizes the Commission's proposals for new State aid guidelines, reviews the ongoing and closed investigations, considers the mergers that have been notified to the Commission or other regulators, reviews relevant judgments of the European Courts (the General Court and the Court of Justice),1 as well as those judgments that are still pending and concludes with a review of some relevant State Aid decisions.
Summary of MC99 Judicial Updates 2013
Authors: Tompkins Jr George N.
Published: March 2022

This is the sixth in a series of articles summarizing significant judicial decisions interpreting and applying the liability rules of the 1999 Montreal Convention (MC99). This summary includes decisions from Canada, France, Israel and the US.
EU Competition Law Developments in the Aviation Sector from 4 July to 31 December 2013
Authors: Deasy Geoffrey
Published: March 2022

The second half of 2013 has seen continued activity in the aviation sector, particularly on the part of the European Commission ('Commission') which issued five new merger decisions. At the start of 2013 we saw the Commission prohibiting Ryanair's second takeover bid for Aer Lingus. Some no doubt wondered if the Commission would also prohibit Aegean Airlines' second takeover bid for Olympic which had previously been prohibited in January 2011.Also of note was the UK's Competition Commission ('CC') issuing its Final Report into Ryanair's minority shareholding in Aer Lingus

This article considers the UK consultation relating appeals of licence conditions imposed on operators of dominant areas at dominant UK airports, reviews the ongoing and closed investigations, reviews relevant judgments of the European Courts (the General Court and the Court of Justice), as well as those cases awaiting judgment and concludes with a review of some relevant State aid decisions. Somewhat surprisingly there do not appear to have been any aviation mergers notified to regulators in the EU over the last six months.
Conflict in the Skies: The Law of Air Defence Identification Zones
Authors: Lamont Christopher K.
Published: March 2022

Air Defence Identification Zones (ADIZs), designated areas of non-territorial airspace where States impose reporting obligations on civil and military aircraft, constitute a highly contentious security practice, and in the absence of an international legal framework to regulate unilateral ADIZ declarations by States, find themselves increasingly contested with States advancing competing claims on the limits of their scope and reporting obligations. China's 23 November 2013 declaration of an East China Sea ADIZ highlights two important questions that arise from this contested security practice. The first question stems from conflicting positions on the extent to which States can impose reporting obligations on aircraft operating outside of territorial airspace, while the second question revolves around what, if any, impact the exercise of administrative control in airspace can have upon territorial claims advanced by States. In order to explore both of the above questions this article will provide an introduction to the practice and law of ADIZs before examining two distinct ADIZ regimes, those maintained by the United States and China. This article will observe that while international law does not prohibit States from declaring ADIZs in non-territorial airspace, it does prohibit States from restricting air navigation outside of territorial airspace and thus certain reporting requirements demanded on the part of States may extend beyond what is permissible under international law.
Are the Objectives of the 1999 Montreal Convention in Danger of Failure?
Authors: Tompkins Jr George N.
Published: March 2022

This article is taken from a talk given by the author at a Symposium in Ankara, Turkey, on 15-16 November 2013. In the opinion of the author, the objectives sought to be achieved by the Montreal Convention of 1999 [MC99], which was drafted and adopted to consolidate in one instrument and replace the patchwork "Warsaw System", are being thwarted by a number of national, regional and international developments which have evolved since MC99 came into force on 4 November 2003. Hopefully, this article will be seen and accepted by all concerned as a "clarion call" to take action to ensure that MC99 does not fail of purpose due to these developments which, if not acted upon and reversed, present a "clear and present" danger that MC99 may very well fail of its intended purpose.
Air Transport Services, Non-discrimination and the General Rules of the EU Treaties
Authors: Janezic Joachim J.
Published: March 2022

This article analyses two recent judgments of the European Court of Justice concerning the applicability of the 'general rules' of the EU Treaties, in particular the principle of non-discrimination, on air transport, and focuses on the relationship between those general rules on the one hand and the special status of air transport under the transport policy provisions on the other hand. The latter one being increasingly questionable, the European Court at least clarified this relationship as meaning different legislative instruments, but the same guiding principles within the scope of the EU Treaties.
Considering Regulation of Small Unmanned Aerial Systems in the United States
Authors: Nordlie John , Straub Jeremy , Vacek Joe
Published: March 2022

The regulation of small unmanned aerial systems, in the United States, currently consists of a narrowly defined exemption for hobbyists and a general ban, without special authorization, for all commercial and most other activities. Recent challenges to the FAA's authority to regulate small UAS have raised interesting legal questions. This paper examines the basis for such regulation and proposes a way forward analogous to the use of free balloons and ultralight vehicles. It is proposed that small Unmanned Aerial Vehicles (UAVs) not require registration, pilot certification or licensing. Instead, a regime for limiting harm from their operations through design requirements (to qualify for the registration/certification/licensing exemption) and a code of conduct is proposed. This regime, which would apply to all prospective uses of this class of craft (hobbyist, educational, scientific, commercial, etc.), is presented and evaluated through the consideration of several case studies.
Report on the European Air Law Association 9th Munich Liability Seminar: Liability, Insurance and Reinsurance, Passenger Rights and Procurement of Legal Services in the Air Transport and Aircraft Fina
Authors: Cluxton David
Published: March 2022

The 9th edition of the European Air Law Association (EALA) Munich Liability Seminar took place on the 19 May 2014. There were panels addressing current issues in private air law: passenger rights and the proposed revision of Regulation 261/2004; criminalization of aviation accidents and accident reporting; assessment of the Montreal Protocol 2014, amending the Tokyo Convention 1963, including the problem on unruly passengers. The seminar also included a presentation of reinsurance in the aviation sector from Munich Re. The seminar touched on space law with a panel consisting of two presentations on the topic of liability for damage caused by sub-orbital spacecraft. The seminar concluded with an in-house counsel panel of current trends in the procurement of legal services.

On 19 May 2014 the Kempinski Hotel Airport Munich once again played home to the European Air Law Association (EALA) Munich Liability Seminar, this time back for its 9th edition. The seminar itself was preceded the previous night by a visit to the BMW Museum, which included a private tour of the exhibition. The following morning, the President of EALA, Prof. Dr P.M.J. Mendes de Leon, gave his welcoming address to the delegates, noting the international appeal of the seminar's programme, evidenced by the attendance of so many delegates from the United States. Dr Ehlers, reiterating the warm welcome to the delegates gave the floor to Dimitri de Bournonville, Partner at Kennedys Law Firm in Brussels, and moderator of the day's first panel.
Micro Satellites: The Smaller the Satellites, the Bigger the Challenges?
Authors: Rosher Peter , Shaw Alan
Published: March 2022

Miniaturized satellites (hereinafter ‘microsats’) are becoming increasingly popular and more accessible to a wider range of industries operating in space. Their size and relative cost efficiency, together with the exponential rate at which technology continues to develop, has enabled their usage to expand from purely research-based missions to commercial missions operated by public and private entities alike. This article explores the factors in favour of the development of microsats and the technical challenges that have resulted from this development. The article summarizes the international regulation of the space industry, including liability for damage caused by space activities, and the ways in which regulation is implemented nationally. The article subsequently addresses the inadequacies of this framework in its regulation of the industry to date (such that registration of such space objects has in fact decreased) and discusses the further challenges the industry will face as it continues to expand, such as inappropriate registration procedures, overcrowding of radio frequencies and increased space debris, resulting in a greater risk of collisions, which has the potential to expose States to vast claims for compensation. It is clear that a more appropriate regulatory regime must be developed to address the development of the microsat industry.
Air Cargo Liability Revisited in Italy
Authors: Guerreri Giuseppe
Published: March 2022

The Italian Supreme Court has been called to consider whether the limitations of liability provided for in Article 30 of the Montreal Convention ( 999) apply to employees and agents of the carrier. In reality, the person appointed by the carrier to effect the delivery of the goods is an agent of the carrier, as without his assistance, the contract of carriage cannot be fully executed. Although the meaning of servants and agents is definitely a question of national law, the term agent generally denotes independent contractors with whom the carrier has contracted for the performance of a specific task.
The 59th Colloquium on the Law of Outer Space at the 67th International Astronautical Congress
Authors: Johnson Christopher D.
Published: March 2022

The 59th International Institute of Space Law (IISL) Colloquium on the Law of Outer Space was held from 27–30 September 2016 in Guadalajara, Mexico, in conjunction with the 67th International Astronautical Congress (IAC). Comprised of seven technical sessions and one session for interactive presentations, the Colloquium focused on a range of thematic issues in space law, and featured papers from almost seventy presenters. Topics discussed included the legal aspects related to the remote sensing principles, regional cooperation and Latin American space activities, large satellite constellations, space resource utilization, planetary defence, and spectrum management. The 8th Nandasiri Jasentuliyana Keynote Lecture was delivered by incoming IISL president Kai-Uwe Schrogl, entitled ‘Space Law and Diplomacy’. The Manfred Lachs Space Law Moot Court semi-finals and world finals were also held in Guadalajara, as well the General Assembly of the IISL.
Incorporation of International Aviation Security Conventions into Chinas Legislation: Further Integration Is Needed for Effective Implementation
Authors: Zhang Chrystal , Diao Weimin
Published: March 2022

Aviation security is governed by a series of international treaties adopted by International Civil Aviation Organization (ICAO) which are binding to its signatory contracting Member States. Its effective implementation to a great extent relies on each individual Member State in its integration of these international instruments to its domestic legal system. While having made significant efforts in this endeavour, China is unable to implement these treaties in full, with one of the difficulties being ambiguous, implicit, narrower, dispersed, fragmented, and inconsistent stipulations and provisions in its domestic legislation. This article examines China’s practice in incorporating and implementing international aviation security conventions in its domestic legal framework, hence identifying the discrepancies and challenges in China’s application practice. It argues that China should take a more unified approach to ensure a further coherent integration of international treaties and domestic law so as to fulfil its international obligation more responsibly. Suggestions are made in the hope that a well-developed and all-embracing legal order can be established to combat any acts threatening the safety of international air transport to safeguard a safe, healthy, and orderly development of the industry.
Global Positioning System Evidence in Court Proceedings and Privacy: The Case of Italy
Authors: Vettorel Arianna
Published: March 2022

This article focuses on privacy concerns related to the use of GPS data as evidence in court proceedings and suggests the need for updated, comprehensive international rules on this topic. Indeed, with the lack of international rules on the use of GPS evidence as well as other satellite evidence in trials, domestic courts, when admitting this data as proof, do not always adequately address the need to protect individual fundamental rights, especially the right to respect for private life. This situation is currently a problem in Italy, where there are no specific provisions on this issue and domestic jurisprudence sidesteps these concerns, in spite of the European Court of Human Rights’ statements in Uzun v. Germany. In short, in this report Italy will be treated as a case study, which shows the need for international rules on this matter.
Unmanned, Remotely Piloted, or Something Else? Analysing the Terminological Dogfight
Authors: Huttunen Mikko
Published: March 2022

Throughout their existence, several attempts have been made at naming and categorizing aircraft which are flown without a pilot on board. Regulatory documents by the International Civil Aviation Organization (ICAO), European Aviation Safety Agency (EASA), and Federal Aviation Administration (FAA) have called them unmanned and remotely piloted aircraft (systems), drones, and other less popular names. This has resulted in a risk of gaps and incoherence being introduced into the system of international aviation law. The growing field of unmanned aviation has proved difficult to encapsulate in a single term which would serve as a regulatory basis.

This article seeks to analyse the terminological dogfight between the most established terms used to regulate the aircraft in question. It presents the legal basis, meaning, implications, and relevance of each term and their mutual relationship.

The article recommends doing away with the concept of model aircraft, as it has become difficult to distinguish recreational from non-recreational use of the aircraft in question. A critical angle is taken at the concept of pilotless aircraft, employed in the Chicago Convention. The article acknowledges that both unmanned and remotely piloted aircraft are viable regulatory concepts, but preference is given to the former due to its simplicity and wide scope. The concept of a system is seen as necessary due to the distributed nature of the aircraft.
PNR: Passenger Name Record, Problems Not Resolved? The EU PNR Conundrum After Opinion 1/15 of the CJEU
Authors: Lazzerini Nicole , Carpanelli Elena
Published: March 2022

The long-standing debate concerning the transfer, processing and retention by national law enforcement authorities of Passenger Name Record (PNR) data has regained momentum with the adoption of Directive 2016/681/EU, which lays down a PNR regime operating within the EU, and, above all, with the delivery, on 26 July 2017, of the CJEU’s negative Opinion on the new envisaged EU-Canada PNR agreement. The Court’s finding that several provisions of the draft agreement do not comply with Articles 7 and 8 of the EU Charter of Fundamental Rights, on the protection of private life and personal data, inevitably raises doubts concerning the fate of the EU PNR bilateral agreements already in force (namely, with Australia and the United States) and of the PNR Directive. At the same time, this evolving scenario has immediate and very practical implications for air-carriers operating between the EU and third States, which may find themselves trapped by conflicting obligations due to the complex interplay between EU data protection laws, the EU PNR regime, and third States’ PNR legislation. Far from being limited to the EU legal order, the recent developments may exert an effect on foreign airlines’ operations to and from the EU and condition future negotiations between the EU and third countries.
EU Competition Law Developments in the Aviation Sector: January to June 2017
Authors: Deasy Geoffrey
Published: March 2022

The first half of 2017 continues to highlight the significant impact of competition law in the aviation sector.

This article summarizes the main competition law developments over the past six months and then provides the reader with greater detail of each of these developments.

The European Commission (‘Commission’) has cleared a number of mergers and taken a significant number of State aid decisions. It has also re-adopted its 2010 Air Cargo Cartel decision imposing fines on 11 airlines, all of whom are appealing this new decision. In addition, the National Competition Authorities in Italy, Germany and the UK have been involved in merger cases and investigations in the aviation sector. The Commission has also approved new State aid rules applicable to airports and published a draft Regulation which will potentially enable it to challenge anti-competitive behaviour occurring in markets beyond the EU but affecting EU carriers.
How Technology Drives Space Law Down Under: The Australian and New Zealand Experience
Authors: Freeland Steven , Sim Val , Hutchison Kirsty
Published: March 2022

The development of space-related technology since the dawn of the space age in 1957 has given rise to many new and exciting possibilities. It has also meant that space activities continue to evolve, facilitating the participation of a variety of space ‘actors’ other than States. Given the international responsibility of States for ‘national activities in outer space’ under the Outer Space Treaty, there is an imperative for States to enact relevant and contemporary national space law to regulate those non-governmental space actors within their respective jurisdiction. But enacting national space law is not enough – as the paradigm of space-related technology changes and evolves, it is clear that such shifts require the ongoing review of appropriate national regulatory standards over relatively short timeframes. National legislatures have to come to grips with the ever-changing range of space technology, particularly if they wish to become increasingly involved in space activities. Whatever rules are put in place, either during the initial drafting or the subsequent review process must find the right balance between, on the one hand, the need for regulation of the economic and technical elements, so as to minimize the risks to an acceptable level, and the facilitation of research and innovation to allow for greater and more efficient access to space, and the potential for commercial returns, on the other. This article will describe the current processes in both Australia and New Zealand, outlining how the resultant regulations seek to respond to technological advances in order to meet the specific goals and requirements within each country.