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Air Transport in 43 Jurisdictions Worldwide Contributing Editor: John Balfour 2013

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Air Transport in 43 Jurisdictions Worldwide Contributing Editor: John Balfour 2013 ® Air Transport in 43 jurisdictions worldwide Contributing editor: John Balfour 2013 Published by Getting the Deal Through in association with: Alegre, Calderón y Márquez Abogados Allende Bascuñán y Cía Ltda Alves Pereira, Teixeira de Sousa & Associados Babalakin and Co Bahar & Partners Basch & Rameh Baumgartner Mächler Bhasin & Co, Advocates BOPS Law Firm Borenius Attorneys at Law Buddle Findlay Ça˘ga & Ça˘ga Clyde & Co LLP Corral & Rosales Davis LLP De Sola Pate & Brown Delacour Dania Law Firm Dingli & Dingli Law Firm Donald H Bunker and Associates Ehlers, Ehlers & Partner Freidenberg, Freidenberg & Lifsic Guzmán Escobar & Asociados HWL Ebsworth Lawyers Jarolim Flitsch Rechtsanwälte GmbH Katten Muchin Rosenman LLP Logos Legal Services Mesa & Mesa Law Firm Monard-D’Hulst Nassar Abogados SA Pierallini & Associati Rodrigo, Elias & Medrano Abogados Rodyk & Davidson LLP Setterwalls Shanghai Kai-Rong Law Firm Shearman & Sterling LLP Shepstone & Wylie Attorneys SNR Denton/Brandt Chan & Partners Sokolov, Maslov and Partners Stek SyCip Salazar Hernandez & Gatmaitan Watson, Farley & Williams (Thailand) Ltd WhitneyMoore Solicitors Yelpo & Facal Abogados CONTENTS ® Air Transport 2013 Global Overview John Balfour Clyde & Co LLP 3 Contributing editor Argentina Elizabeth Mireya Freidenberg Freidenberg, Freidenberg & Lifsic 7 John Balfour Clyde & Co LLP Australia Simon Liddy, Matthew Brooks and Richard Davis HWL Ebsworth Lawyers 14 Business development managers Austria Martina Flitsch and Stefan Rust Jarolim Flitsch Rechtsanwälte GmbH 21 Alan Lee Belgium Birgitta Van Itterbeek Monard-D’Hulst 29 George Ingledew Robyn Hetherington Brazil Kenneth Basch Basch & Rameh 34 Dan White Canada Laura M Safran QC and Prasad Taksal Davis LLP 40 Marketing assistants Zosia Demkowicz Chile José Luis Ibáñez B Allende Bascuñán y Cía Ltda 48 Megan Friedman Cady Atkinson China Jin Yu-Lai Shanghai Kai-Rong Law Firm 54 Robin Synnott Colombia José Vicente Guzmán and Andrés Reyes Guzmán Escobar & Asociados 59 Subscriptions manager Rachel Nurse Costa Rica Alina Nassar Nassar Abogados SA 64 Subscriptions@ GettingTheDealThrough.com Denmark Henrik Kleis and Rune Hamborg Delacour Dania Law Firm 69 Dominican Republic Rodolfo Mesa Chavez Mesa & Mesa Law Firm 76 Assistant editor Adam Myers Ecuador Xavier Rosales Corral & Rosales 81 Editorial assistant Lydia Gerges European Union Geert Goeteyn Shearman & Sterling LLP 85 Senior production editor France Carole Sportes BOPS Law Firm 98 Jonathan Cowie Germany P Nikolai Ehlers Ehlers, Ehlers & Partner 105 Chief subeditor Jonathan Allen Hong Kong Anthony WY Chan SNR Denton/Brandt Chan & Partners 111 Production editor Iceland Erlendur Gíslason Logos Legal Services 118 John Harris India Lalit Bhasin Bhasin & Co, Advocates 124 Subeditors Davet Hyland Indonesia Wahyuni Bahar and Anggia Rukmasari Bahar & Partners 133 Caroline Rawson Ireland Gerry Carroll, Robin Hayes and Suzanne Hannon WhitneyMoore Solicitors 138 Editor-in-chief Italy Laura Pierallini Pierallini & Associati 146 Callum Campbell Publisher Lithuania Jura¯ te˙ Rusteikaite-Bakšie˙ ne˙ Borenius Attorneys at Law 153 Richard Davey Malta Tonio Grech Dingli & Dingli Law Firm 160 Air Transport 2013 Mexico Javier Alegre and Carlos Campillo Alegre, Calderón y Márquez Abogados 167 Published by Law Business Research Ltd Netherlands Jeroen Timmermans and Laetitia Kunst-den Teuling Stek 174 87 Lancaster Road London, W11 1QQ, UK New Zealand Frank Porter and Anita Birkinshaw Buddle Findlay 180 Tel: +44 20 7908 1188 Fax: +44 20 7229 6910 Nigeria Olawale Akoni, Eleojo H Pitan and Kehinde Daodu Babalakin and Co 187 © Law Business Research Ltd 2012 Peru Jorge Velarde Rodrigo, Elias & Medrano Abogados 192 No photocopying: copyright Philippines Mia G Gentugaya, Bhong Paulo A Macasaet and Emmar Benjoe B Panahon 199 licences do not apply. SyCip Salazar Hernandez & Gatmaitan First published 2006 Seventh edition 2012 Portugal João Pedro Alves Pereira and João Marques de Almeida 203 ISSN 1751-9098 Alves Pereira, Teixeira de Sousa & Associados The information provided in this Russia Mikhail Sokolov, Anna Arkhipova and Sergey Seliverstov Sokolov, Maslov and Partners 210 publication is general and may not apply in a specific situation. Legal Singapore Lok Vi Ming SC and Joseph Lee Rodyk & Davidson LLP 216 advice should always be sought before taking any legal action based South Africa Matthew Thornton-Dibb and Louise McLachlan, assisted by Amy Harpur and Vanil Bagwandeen 221 on the information provided. This information is not intended to create, Shepstone & Wylie Attorneys nor does receipt of it constitute, a lawyer–client relationship. The Sweden Magnus Eriksson, Erik Hellners and Christina Waering Setterwalls 227 publishers and authors accept no responsibility for any acts or Switzerland Andreas Fankhauser Baumgartner Mächler 233 omissions contained herein. Although the information provided is accurate Thailand Alan Polivnick and Monrawee Ampolpittayanant Watson, Farley & Williams (Thailand) Ltd 239 as of September 2012, be advised that this is a developing area. Turkey Barbaros H Çaga˘ Çaga˘ & Çaga˘ 245 Printed and distributed by United Arab Emirates Donald H Bunker, Ian Veall and Christine Veall Donald H Bunker and Associates 250 Encompass Print Solutions Tel: 0844 2480 112 United Kingdom John Balfour Clyde & Co LLP 254 United States Timothy J Lynes and James Calder Katten Muchin Rosenman LLP 260 Uruguay Gonzalo Yelpo Yelpo & Facal Abogados 269 Venezuela John R Pate De Sola Pate & Brown 274 Law Business Research www.gettingthedealthrough.com UNITED STATES Katten Muchin Rosenman LLP United States Timothy J Lynes and James Calder Katten Muchin Rosenman LLP General comply with applicable regulations. If the applicant certifies fitness, and the DoT learns of any special issues, the application is handled 1 Which bodies regulate aviation in your country, under what basic laws? with a ‘show cause order’. The certificate specifies the terminal and Aviation in the US is regulated primarily by the US Department intermediate points between which the air carrier is authorised to of Transportation (DoT) and the Federal Aviation Administration engage in transportation. The operating authority is not effective until (FAA) pursuant to title 14 of the Code of Federal Regulations (FARs), the applicant has been certified by the FAA to conduct operations 49 USC (Transportation Code), and the corresponding regulations. under the relevant category and it has obtained adequate liability insurance. See Paul Dempsey and Laurence Gesell, Air Commerce and the Law (2004), 226–231 (Air Commerce). Regulation of aviation operations If seeking an exemption, the applicant may file an application 2 How is air transport regulated in terms of safety? pursuant to part 298 of the FARs, which establishes a class of air carriers known as ‘air taxi operators’, and provides certain The FAA regulates safety of commercial and private air transport. exemptions to the economic regulations of the Transportation Code. Screening passengers and ensuring onboard security is the responsibility An air taxi operator does not generally use large aircraft, does not of the Department of Homeland Security’s Transportation Security hold a certificate of public convenience and necessity, has liability Administration. The National Transportation Safety Board (NTSB) insurance, and has registered with the DoT as an air taxi operator. conducts non-criminal aircraft accident investigations. 5 What requirements apply in the areas of financial fitness and 3 What safety regulation is provided for air operations that do not nationality of ownership regarding control of air carriers? constitute public or commercial transport, and how is the distinction made? Financial fitness To acquire a certificate of public convenience and necessity, an The FARs, at 14 CFR section 1.1, define a commercial operator as: applicant must demonstrate financial fitness. The DoT has not A person who, for compensation or hire, engages in the carriage identified specific financial fitness criteria. For a new applicant, by aircraft in air commerce of persons or property [...]W]here however, the DoT imposes a 90-day ‘zero revenue test’. This test it is doubtful that an operator is for ‘compensation or hire’, the requires proof of available funding to cover pre-operating costs plus test applied is whether the carriage by air is merely incidental a working capital reserve adequate to fund projected expenses for to the person’s other business or is, in itself a major enterprise three months of flight operations without revenue. See, for example, for profit. Application of Sunbird Airways Inc, DoT Order 94-6-30 (1994). Filing for bankruptcy is grounds for enhanced scrutiny by the DoT. An air carrier means ‘a person who undertakes directly by lease, or other arrangement, to engage in air transportation’. The operations Nationality of ownership and control of US air carriers and commercial operators are regulated by parts The DoT requires that an applicant for a certificate of public 119, 121 and 135 of the FARs. All other private operations are convenience and necessity be a citizen of the United States. The regulated under part 91 of the FARs. Large private operations are president and two-thirds of the board of directors and other also regulated under part 125 of the FARs. managing officers of the corporation must be US citizens and 75 per cent of the voting interest in the corporation must be owned or 4 Is access to the market for the provision of air transport services controlled
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