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 Law general and may not apply in a specific situation. [email protected] Business Legal advice should always be sought before taking any legal action based on the information provided. Subscriptions Research 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 Davis LLP CANADA Canada Laura M Safran QC and Prasad Taksal Davis LLP General CARs. The requirements include obtaining an airworthiness certificate and submission of an annual airworthiness report (except in the case of an 1 Which bodies regulate aviation in your country, under what ultralight aeroplane). Operators of unmanned air vehicles are required to basic laws? obtain a special flight operations certificate. The Aeronautics Act defines Under the Canadian Constitution Act 1867 aviation is a federal area of ‘commercial air service’ as any use of an aircraft for hire or reward, that is responsibility. Transport Canada is a department of the Government of in consideration of any payment or receipt of any benefit. In addition to the Canada under the federal Minister of Transport. It is responsible for the airworthiness requirements prescribed in Part V of the CARs, any use of an issuance of operating authorities and safety oversight. The principal leg- aircraft for a commercial air service is subject to the certification scheme islation administered by Transport Canada is the Aeronautics Act. Under created by the Aeronautics Act and associated regulations. For aerial work the authority of that statute, the Canadian Aviation Regulations (CARs) (consisting of helicopter external loads, towing or dispersal of products and more detailed standards respecting aviation have been promulgated. and involving the carriage of persons other than crew members) an opera- The Canadian Transportation Agency (CTA), formed under the Canada tor certificate is required, subject to limited exceptions. Transportation Act, is an independent, quasi-judicial agency, that makes Private operators that provide passenger transport using large decisions concerning air, rail and marine matters and whose jurisdiction or turbine-powered pressurised aircraft are governed by subpart 4 of extends to economic regulation and consumer protection. With respect Part VI of the CARs. Until March 2011, the Canadian Business Aviation to aviation, the CTA issues licences and permits, has authority to disallow Association, a non-profit association, was authorised to issue private oper- tariffs and imposes rules relating to the accessibility of air services. The ator certificates to private operators of business aircraft and monitor their Carriage by Air Act implements, among other matters, the provisions of the operations. However, subpart 4 of Part VI was suspended and, pending Montreal Convention as part of domestic law in Canada. The Canadian Air the introduction of new regulations by Transport Canada and by Interim Transport Security Act establishes and defines the authority and the pow- Order No. 10 Respecting Private Operators, the certification and oversight ers of the Canadian Air Transport Security Authority, the agency responsi- responsibilities have been transferred back to Transport Canada. In June ble for aviation security in Canada. The Transportation Safety Board (TSB) 2014, Transport Canada introduced revised regulations under subpart 4 is an independent agency established under the Canadian Transportation of Part VI of the CARs. Operators that held a Temporary Private Operator Accident Investigation and Safety Board Act. The TSB is responsible for Certificate on 28 May 2014 are automatically provided with replacement conducting independent investigations into aviation incidents and publicly documents that comply with the revised Regulations, including a Private reporting its findings, identifying safety deficiencies and making recom- Operator Registration Document and Special Authorization(s). Private mendations for eliminating such deficiencies. Civil air navigation services operators holding a Temporary Private Operator Certificate on 28 May are provided by NAV Canada, a private sector corporation established 2014 have also been given a 24-month transition period during which a under the Civil Air Navigation Services Commercialization Act (CANSCA). general exemption will be available for most requirements, subject to cer- tain conditions. Regulation of aviation operations 4 Is access to the market for the provision of air transport 2 How is air transport regulated in terms of safety? services regulated and, if so, how? The CARs and the associated standards form a comprehensive code for Financial and nationality requirements apply and there are limited exit the regulation of aviation safety. The standards required of commercial controls. Those requirements and Canadian competition law requirements operators are found in Part VII of the CARs, which divides commercial air are dealt with in more detail in the following questions; otherwise there are operations into six classes: no limitations on access to the domestic market. Access to the market for • foreign air operations, (subpart 1); international air services is governed by bilateral air service agreements • aerial operations (subpart 2); between Canada and various foreign states. In negotiating the terms of • air taxi operations (subpart 3); those bilateral air service agreements, the Government of Canada follows, • commuter operations (subpart 4); among other matters, the principles outlined in Canada’s international air • airline operations (subpart 5); and policy, entitled ‘Blue Sky’. Those bilateral air service agreements range • aircraft maintenance by aircraft operators and unmanned air vehicles from liberal open skies agreements to