GETTING THROUGH THE DEAL Air Transport Air Transport In 37 jurisdictions worldwide Contributing editors John Balfour and Mark Bisset 2015 2015 Air Transport 2015 Contributing editors John Balfour and Mark Bisset Clyde & Co LLP Publisher The information provided in this publication is Gideon Roberton general and may not apply in a specific situation. [email protected] Legal advice should always be sought before taking any legal action based on the information provided. Subscriptions This information is not intended to create, nor does Sophie Pallier Published by receipt of it constitute, a lawyer–client relationship. [email protected] Law Business Research Ltd The publishers and authors accept no responsibility 87 Lancaster Road for any acts or omissions contained herein. Business development managers London, W11 1QQ, UK Although the information provided is accurate as of George Ingledew Tel: +44 20 7908 1188 September 2014, be advised that this is a developing [email protected] Fax: +44 20 7229 6910 area. Alan Lee © Law Business Research Ltd 2014 [email protected] No photocopying: copyright licences do not apply. Printed and distributed by First published 2006 Encompass Print Solutions Dan White Ninth edition Tel: 0844 2480 112 [email protected] ISSN 1751-9098 CONTENTS Global Overview 7 Hong Kong 88 John Balfour Michael Kan and Lawrence Cheng Clyde & Co LLP Brandt Chan & Partners in association with Dentons HK LLP Afghanistan 11 Iceland 94 M Wisal Khan and Ghazi Khan Erlendur Gíslason Legal Oracles Logos Legal Services Argentina 15 India 99 Elizabeth Mireya Freidenberg Amir Singh Pasrich and Mohana Malhotra Freidenberg, Freidenberg & Lifsic I.L.A. Pasrich & Company Australia 21 Indonesia 109 Simon Liddy, Matthew Brooks and Richard Davis Wahyuni Bahar and Anggia Rukmasari HWL Ebsworth Lawyers Bahar & Partners Bahamas 28 Italy 113 Arthur K Parris Laura Pierallini ParrisWhittaker Studio Pierallini Belgium 31 Japan 119 Birgitta Van Itterbeek Shuji Yamaguchi Monard-D’Hulst Okabe & Yamaguchi Brazil 36 Malta 123 Kenneth Basch Tonio Grech Basch & Rameh Dingli & Dingli Law Firm Canada 41 Mexico 129 Laura M Safran QC and Prasad Taksal Javier Alegre and Carlos Campillo Davis LLP Alegre, Calderón y Márquez Abogados Colombia 48 Netherlands 135 José Vicente Guzmán and Andrés Reyes Jeroen Timmermans and Laetitia Kunst-den Teuling Guzmán Escobar & Asociados Stek Denmark 53 New Zealand 140 Henrik Kleis and Rune Hamborg Frank Porter, Anita Birkinshaw and Rishalat Khan Delacour Law Firm Buddle Findlay Dominican Republic 59 Nigeria 146 Rodolfo Mesa Chavez Olawale Akoni, Kehinde Daodu and Olamide Aiyeola Mesa & Mesa Abogados Babalakin & Co European Union 63 Norway 151 Geert Goeteyn Knut Boye, Ingar Fuglevåg and Camilla Flatum Shearman & Sterling LLP Advokatfirmaet Simonsen Vogt Wiig AS Germany 75 Philippines 154 P Nikolai Ehlers Mia G Gentugaya, Emmar Benjoe B Panahon and Ma Luisa D Manalaysay Ehlers, Ehlers & Partner SyCip Salazar Hernandez & Gatmaitan Greece 80 Poland 158 Betty Smyrniou and Konstantina Linardou Krystyna Marut, Edyta Michalak and Anna Burchacińska-Mańko Bahas, Gramatidis & Partners MMMLegal Legal Counsels 2 Getting the Deal Through – Air Transport 2015 CONTENTS Portugal 164 United Arab Emirates 192 João Pedro Alves Pereira and João Marques de Almeida Donald H Bunker, Ian Veall, Christine Veall and Henock Girma APTS – Alves Pereira & Teixeira de Sousa RL Donald H Bunker and Associates Russia 170 United Kingdom 195 Mikhail Sokolov, Anna Arkhipova and Sergey Seliverstov John Balfour Sokolov, Maslov and Partners Clyde & Co LLP South Africa 175 United States 201 Vanil Bagwandeen, Kamiel Rajah, Sally Mashiane and Jennifer Finnigan Andrew J Harakas and Christopher Carlsen Shepstone & Wylie Attorneys Clyde & Co US LLP Switzerland 181 Uruguay 209 Andreas Fankhauser Gonzalo Yelpo Baumgartner Mächler Yelpo & Facal Abogados Thailand 186 Venezuela 214 Alan Polivnick and Joe Osgerby-Lacey John R Pate Watson, Farley & Williams (Thailand) Ltd De Sola Pate & Brown www.gettingthedealthrough.com 3 PREFACE Preface Air Transport 2015 Ninth edition Getting the Deal Through is delighted to publish the ninth edition of Air Transport, which is available in print, as an e-book, via the GTDT iPad app, and online at www. gettingthedealthrough.com. Getting the Deal Through provides international expert analysis in key areas of law, practice and regulation for corporate counsel, cross-border legal practitioners, and company directors and officers. Throughout this edition, and following the unique Getting the Deal Through format, the same key questions are answered by leading practitioners in each of the 37 jurisdictions featured. Our coverage this year includes the Bahamas, Greece, Japan and Poland. Getting the Deal Through titles are published annually in print. Please ensure you are referring to the latest edition or to the online version at www.gettingthedealthrough.com. Every effort has been made to cover all matters of concern to readers. However, specific legal advice should always be sought from experienced local advisers. Getting the Deal Through gratefully acknowledges the efforts of all the contributors to this volume, who were chosen for their recognised expertise. We also extend special thanks to John Balfour and Mark Bisset of Clyde & Co LLP, the contributing editors, for their continued assistance with this volume. London September 2014 www.gettingthedealthrough.com 5 Clyde & Co LLP GLOBAL OVERVIEW Global Overview John Balfour Clyde & Co LLP An international business needs international rules. So it is not surpris- One restrictive provision remaining in most bilateral agreements, ing that international conventions provide a number of rules that apply to however, is that of enabling one party to the agreement to refuse to grant international air transport. That the need was recognised at an early stage operating permission to, or to withdraw it from, a carrier from the other is evident from the fact that the Warsaw Convention was signed in 1929 party if that carrier is not substantially owned and effectively controlled and the Chicago Convention in 1944. by its home state or nationals of its home state. This provision in bilateral The Warsaw Convention deals with the liability of air carriers in agreements has essentially prevented cross-border mergers and takeovers respect of carriage by air. It has been amended on several occasions, and between airlines, and has encouraged the development of consolidation by has recently been replaced to a large extent by the Montreal Convention way of alliances. 1999. The Chicago Convention is concerned with various aspects of air transport, particularly aircraft and the right to fly, and also established the Liability and Warsaw/Montreal International Civil Aviation Organization (ICAO). It provides the basis for The Warsaw Convention was a visionary initiative, particularly as at the regulation of many areas of air transport. In addition, there are several the time it was conceived and agreed, aviation was still very much in its international conventions about crimes on board or involving aircraft, and infancy. Since 1929, the Convention has done much to bring order where the Cape Town Convention 2001, which is relevant to aircraft financing. there might otherwise have been chaos, and to contribute to the orderly Air transport is also highly regulated at a national level – principally development of a broadly harmonised system of liability in respect of car- from a safety point of view, but also from an economic point of view. riage by air. Traditionally, access to the market and the behaviour of airlines in the mar- The main features of the Warsaw Convention are: ket have been restricted and regulated, although there has been significant • presumed liability of the airline for passenger death and bodily injury, liberalisation recently, at least in some areas of the world. Somewhat para- loss or damage of baggage and cargo and delay, with only limited doxically, as access to markets is liberalised and deregulated, it becomes defences; more necessary to regulate behaviour in the market in other ways, particu- • limits of liability, breakable only in exceptional circumstances; larly through competition laws, which have an increasing relevance for the • rules on the jurisdiction in which claims may be brought; air transport industry. • a two-year time bar; and There is a third level of regulation, at regional level, most notably in • exclusivity of remedies regarding claims within its scope. the European Union, where much has been done to break down national barriers and liberalise air transport on the one hand, and to harmonise con- In many ways, the Convention has worked well, particularly in resolving ditions and introduce regulation intended to ensure that competition is not difficult conflicts of laws and jurisdictional questions that otherwise would distorted on the other. have arisen. Its liability limits, however, particularly in respect of passen- ger death and injury, became increasingly controversial. Starting some 40 The Chicago Convention years ago, various steps were taken outside the Convention to try to rem- Other than the establishment of the ICAO, the Chicago Convention is con- edy the situation – partly by airlines voluntarily agreeing a higher limit and cerned with two main areas: the basic system of the registration and regu- partly by certain countries, or groups of countries, requiring airlines to do lation of aircraft;