GETTING THROUGH THE DEAL Air Transport Air Transport Contributing editors John Balfour and Mark Bisset 2016 2016 © Law Business Research Ltd 2015 Air Transport 2016 Contributing editors John Balfour and Mark Bisset Clyde & Co LLP Publisher Law Gideon Roberton The information provided in this publication is [email protected] Business general and may not apply in a specific situation. Research Legal advice should always be sought before taking Subscriptions any legal action based on the information provided. Sophie Pallier Published by This information is not intended to create, nor does [email protected] Law Business Research Ltd receipt of it constitute, a lawyer–client relationship. 87 Lancaster Road The publishers and authors accept no responsibility Business development managers London, W11 1QQ, UK for any acts or omissions contained herein. Alan Lee Tel: +44 20 3708 4199 Although the information provided is accurate as of [email protected] Fax: +44 20 7229 6910 September 2015 be advised that this is a developing area. Adam Sargent © Law Business Research Ltd 2015 [email protected] No photocopying without a CLA licence. First published 2oo6 Printed and distributed by Dan White Tenth edition Encompass Print Solutions [email protected] ISSN 1751-9098 Tel: 0844 2480 112 © Law Business Research Ltd 2015 CONTENTS Global Overview 7 Iceland 90 John Balfour Erlendur Gíslason Clyde & Co LLP Logos Legal Services Afghanistan 11 India 95 M Wisal Khan and Ghazi Khan Amir Singh Pasrich and Mohana Malhotra Legal Oracles I.L.A. Pasrich & Company Argentina 15 Indonesia 106 Elizabeth Mireya Freidenberg Wahyuni Bahar and Anggia Rukmasari Freidenberg, Freidenberg & Lifsic Bahar & Partners Austria 21 Italy 110 Joachim J Janezic Laura Pierallini Recht & Co – Janezic & Schmidt Rechtsanwälte OG Studio Pierallini Bahamas 25 Japan 117 Arthur K Parris Shuji Yamaguchi ParrisWhittaker Okabe & Yamaguchi Belgium 28 Malta 121 Birgitta Van Itterbeek Tonio Grech Monard Law Dingli & Dingli Law Firm Brazil 33 Mexico 127 Renata Iezzi Javier Alegre and Carlos Campillo Basch & Rameh Advogados Associados Alegre, Calderón y Márquez Abogados Canada 38 Netherlands 133 Laura M Safran QC and Prasad Taksal Jeroen Timmermans, Laetitia Kunst-den Teuling and DLA Piper (Canada) LLP Ruben Elkerbout Stek Cayman Islands 45 Louise Groom and Ellie Crespi-McCarthy New Zealand 139 Harneys Frank Porter, Anita Birkinshaw and Rishalat Khan Buddle Findlay Denmark 49 Henrik Kleis and Rune Hamborg Nigeria 145 Delacour Law Firm Etigwe Uwa SAN, Chinasa Unaegbunam and Queenette Hogan Streamsowers & Köhn Dominican Republic 55 Rodolfo Mesa Chavez Norway 151 Mesa & Mesa Abogados Knut Boye, Ingar Fuglevåg and Camilla Flatum Advokatfirmaet Simonsen Vogt Wiig AS European Union 59 Geert Goeteyn Poland 155 Shearman & Sterling LLP Krystyna Marut, Edyta Michalak and Anna Burchacińska-Mańko MMMLegal Legal Counsels France 71 Vonnick Le Guillou, Edouard Sarrazin, Marie Bresson, Portugal 160 Jonathan Rubinstein and Guilhem Argueyrolles João Pedro Alves Pereira and João Marques de Almeida DLA Piper France APTS – Alves Pereira & Teixeira de Sousa RL Germany 77 Russia 166 P Nikolai Ehlers Mikhail Sokolov, Anna Arkhipova and Sergey Seliverstov Ehlers, Ehlers & Partner Sokolov, Maslov and Partners Greece 83 Singapore 172 Betty Smyrniou and Konstantina Linardou Rajaram Ramiah and Amos Tan Bahas, Gramatidis & Partners Quahe Woo & Palmer LLC 2 Getting the Deal Through – Air Transport 2016 © Law Business Research Ltd 2015 CONTENTS Sweden 178 United Arab Emirates 198 Stephan Eriksson and Erik Hägnefors Sander Donald H Bunker, Ian Veall, Christine Veall and Henock Girma Advokaterna Liman & Partners AB Donald H Bunker and Associates Switzerland 183 United Kingdom 202 Andreas Fankhauser John Balfour Baumgartner Mächler Clyde & Co LLP Turkey 189 United States 208 M Ali Kartal Andrew J Harakas and Christopher Carlsen Aybay & Aybay Clyde & Co US LLP Ukraine 193 Uruguay 216 Anna Tsirat Gonzalo Yelpo Jurvneshservice International Legal Services Yelpo & Facal Abogados www.gettingthedealthrough.com 3 © Law Business Research Ltd 2015 PREFACE Preface Air Transport 2016 Tenth edition Getting the Deal Through is delighted to publish the tenth 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 jurisdictions featured. Our coverage this year includes Austria, the Cayman Islands, France, Singapore, Sweden, Turkey and Ukraine. 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 the contributing editors, John Balfour and Mark Bisset of Clyde & Co, for their continued assistance with this volume. London September 2015 5www.gettingthedealthrough.com Getting the Deal Through – Air Transport 20165 © Law Business Research Ltd 2015 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