Wednesday, October 19, 2016
The U.S. Department of Transportation issued a press release yesterday informing the public about a host of forthcoming measures that could be fairly categorized as consumer protections for airline passengers. Impending changes include broadening reporting requirements for on-time performance and baggage mishandling to include more carriers and flights operated by code-share partners, as well as more precise reporting of mishandled baggage and new reporting requirements for mishandled wheelchairs. The DOT also issued an advanced notice of proposed rulemaking that will eventually lead to a requirement that airlines refund baggage fees when bags are substantially delayed. And the DOT signaled an intent to crack down on instances of undisclosed bias by online ticket brokers in favor of specific airlines. None of the proposed changes promise to be overly consequential, but they reflect an ongoing preference in U.S. aviation for addressing what has been referred to elsewhere as "passenger rights" via minor regulatory tweaks as opposed to sweeping legislative enactments.
Tuesday, October 18, 2016
Last week the United Kingdom and China reached agreement on amendments to the existing air services agreement between the two countries. Under the new terms, the cap on weekly flights between the two countries will be raised from 80 to 200, and UK carriers will no longer be restricted in the number of Chinese destinations they choose to serve. This is the first major air services deal announced by the UK since the summer vote to leave the European Union and is being promoted as an attempt to broaden the UK's horizons beyond its previously Eurocentric commercial relations. As the linked Financial Times' article observes, however, for the UK to take full advantage of expanded service opportunities in China and elsewhere, it will first have to resolve bottlenecks related to visa policy and congestion at Heathrow.
Monday, October 17, 2016
The first installment of Volume 16 of the International Aviation Law Institute's journal, Issues in Aviation Law & Policy, will arrive next month. The following articles will appear in the Autumn 2016 issue:
- Rene David-Cooper, Defining Common Law Property Rights - The Ownership Conundrum of Landing Slots Resolved
- Jae Woon Lee & Andrew Harrington, The Montreal Protocol 2014 and Unruly Passenger Cases On Board Aircraft: Is there Really a Jurisdictional Gap?
- Sarah Jane Fox, BREXIT: A Bolt from the Blue! - Red Sky in the Morning
- Eliot T. Tracz, Do Good Fences Make Good Neighbors? An Economic Approach to the Common Heritage Problem in Outer Space
- Delphine Defossez, International Conventions on Aviation and the Brazilian Constitution: The Case of the CDC
- Moses George, Environmental Impact of Airport Competition - A Case Study of Indian Airports
The new issue will also include a transcript of the Institute's most recent installment in the Conversations with Aviation Leaders Oral History Project, in which Professor Brian F. Havel served as interlocutor interviewing Paul Mifsud.
Issues of the journal are available for subscription or purchase via the IALI web page.
Friday, October 7, 2016
The International Civil Aviation Organization concluded it's 39th Assembly by recommending adoption of a final resolution text authorizing the organization's long-awaited scheme to reduce greenhouse gas emissions from international aviation, the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA). The details mostly conform to those that had leaked out over the past month. The scheme will begin with a voluntary phase from 2021-2026, with mandatory participation required thereafter. Participating airlines will be required to purchase carbon offsets for emissions beyond a given cap, benchmarked against 2020 emissions levels. Language has been included stressing the need for meaningful carbon offsets and avoidance of double-counting. Exceptions have been made for certain classes of developing countries and de minimis emitters. The plan will be reviewed, and subject to adjustment every three years. Most environmental advocates have recognized the importance of aviation taking the historic step of producing the first global, sector-specific agreement, while expressing hopes that the caps may be tightened during future reviews. IATA has also endorsed the plan, signifying industry acceptance. A more thorough review of the resolution text is forthcoming.
Tuesday, September 6, 2016
ICAO has released the latest draft text of its forthcoming global market-based mechanism for addressing greenhouse gas emissions from international air transport. The plan, which is now being referred to as the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA), will be submitted for consideration at the upcoming meeting of the ICAO Assembly. The plan now calls for three chronological stages, a pilot phase from 2021-2023, a voluntary phase from 2024-2026, and mandatory participation beginning in 2027. Europe, China, and the United States have all publicly pledged to begin participating during the early stages.
Monday, August 29, 2016
The ICAO Council has reportedly signed off on a draft of the climate change mitigation plan the organization intends to submit to the upcoming 2016 Assembly. Full details of the plan have not been made public, and are reportedly still being finalized. According to Bloomberg News, participation in the plan, which enters into effect in 2020, will be voluntary for the first six years. It is hoped that the plan will garner sufficient support to cover approximately 80 percent of emissions from international flights worldwide.
The FAA's new rule, known as Part 107, permitting small UAS use under specified conditions took effect today. The final rule was announced in June. Testing centers are now open for operators to begin the process of applying for a remote pilot certificate. Operators can also begin applying for authorization to operate in various classes of controlled airspace, but authorizations are note expected to be approved before October.
Thursday, August 25, 2016
Air Transport World Online reported earlier this week that the European Commission has completed its investigation into Etihad Airways' 49 percent stake in Air Serbia and determined the relationship is consistent with EU requirements limiting foreign ownership and control of EU carriers. Etihad has been aggressively investing in EU carriers over the past few years, in multiple cases purchasing up to the maximum 49 percent stake permitted to foreign investors. Recently, observers have wondered if Etihad may be pushing the boundaries of the EU rules by effectively controlling the operations of EU carriers through ownership of substantial minority stakes. The conclusion of this investigation suggests the EC does not see a legal case to be made. The EC is also in the process of rewriting its ownership and control rules, so it may be postponing any difficult fights until they can be litigated under the new policy.
Monday, August 15, 2016
The United States Federal Aviation Administration has reportedly granted Indonesia a Category 1 rating after nearly a decade as a Category 2 state. Under the International Aviation Safety Assessment (IASA) program, the U.S. government evaluates the national aviation authorities of foreign states for their ability to oversee airlines and aviation operations that are compliant with international safety standards. Category 1 states are considered to be in compliance with international standards while Category 2 states are either deficient or lack the resources or legal framework to adequately insure compliance. The improvement in status will allow Indonesian carriers to expand operations to U.S. markets and to pursue previously restricted cooperative arrangements with U.S. carriers.
Thursday, July 28, 2016
In a thought-provoking post over at George Mason University's Mercatus Center, Eli Dourado and Michael Kotrus draw attention to an area of aircraft regulation that is rarely discussed: aircraft speed. The post argues that innovation in air travel has been hampered by the four-decade-old ban on supersonic air travel, which has discouraged aircraft manufacturers from pursuing speed gains in development of new aircraft. The authors contend that the original reasons for the ban, fears of the negative externalities created by supersonic booms, could be addressed through the same regulatory solutions with which aircraft noise is presently controlled. The blanket ban, by their account, has denied consumers significant potential gains in reduced travel times that may outweigh whatever negative consequences accompany supersonic travel.
Wednesday, July 27, 2016
The European Commission has informed U.S. officials that it intends to seek via arbitration proceedings a resolution to the dispute over the excessive delay by the U.S. in granting operating permission to Norwegian Air International's Irish subsidiary, Norwegian Air Shuttle (NAS). It is the EU's position that the US-EU Open Skies Agreement requires the U.S. to approve NAS's application without delay. This would be the first invocation of the Agreement's arbitration clause.
Wednesday, July 13, 2016
A 14-month extension of the United States Federal Aviation Administration's legal authority and existing funding levels has now passed both the House of Representatives as well as the Senate and is expected to be signed by President Obama prior to the expiration of the previous FAA authorization on Friday. While the bill contains no mention of air traffic control reorganization, which was once under consideration as part of the reauthorization package, there are some minor policy changes involving consumer protection and security. The passenger rights measures include requirements that airlines refund baggage fees for lost items and new rules on seating passengers with disabilities or young children. The decision to only extend operating authority for little more than a year is believed to indicate a hope on the part of some legislators to revisit the air traffic control debate next summer, in a non-election year.
Thursday, July 7, 2016
Saudi Arabia will soon be the latest country to mandate that carriers meet minimum standards with regard to treatment of passengers whose flights have been delayed or canceled. Similar rules have proliferated globally since the passage of the EU passenger rights law ten years ago. Saudi Arabia's new Consumer Protection Executive Regulations will also impose fines on carriers for lost baggage and for failure to properly accommodate passengers with special needs.
Wednesday, July 6, 2016
British low-cost carrier easyJet has been the first airline to publicly discuss how its business plans are being affected by last month's referendum vote for the United Kingdom to leave the European Union. The carrier will start by seeking an Air Operating Certificate (AOC) from an EU Member State. While most experts believe the UK will attempt to find a way to remain a part of the European Common Aviation Area in order to preserve unrestricted traffic rights for its carriers between any two EU cities, easyJet understandably wants to protect itself from possible loss of access to these markets. Reports last week also revealed that if the UK cannot successfully recreate its current relationship with the EU with regard to air transport services, easyJet is contemplating moving its official headquarters out of the UK as well. EasyJet has denied that will happen and sounds prepared to keep a significant portion of its operations based out of the UK in any future scenario. The carrier's stock price has suffered a substantial decline since the referendum vote two weeks ago.
Tuesday, July 5, 2016
A few weeks ago we linked to news of a bill passed in the Brazilian Chamber of Deputies that would permit 100 percent foreign ownership of airlines. That change will not take effect, however, as interim-President Michel Temer was only able to secure Senate passage of the overall air transport legislation bill by promising to veto the provision on foreign investment. Instead, the existing 20 percent cap on foreign ownership of airlines will remain in effect.
Wednesday, June 29, 2016
The United States Department of State has begun leaking how it plans to respond to accusations by U.S. carriers that the so-called "gulf carrier" contingent of Qatar, Emirates, and Etihad are benefiting from government subsidies and obtaining an unfair competitive edge in Open Skies markets. The State Department plans to discuss the matter with representatives of Qatar and the United Arab Emirates (UAE) informally next month, but won't seek to renegotiate existing Open Skies agreements or freeze gulf carrier access to U.S. markets. The State Department reportedly met with the big three U.S. carriers and labor unions to inform them of their chosen course last Friday and was scheduled to meet with opposing interests such as FedEx, JetBlue and travel groups today. This is being spun as a victory by both sides, as the U.S. legacy carriers are encouraged to see some action taken while the remaining carriers are relieved that the government does not appear to be considering any action that would alter existing air services agreements.
Tuesday, June 28, 2016
The Commercial Aircraft Corporation of China (Comac) celebrated today the successful operation of its first regional jet, the ARJ21, by Chengdu Airlines, between Chengdu and Shanghai. The flight represents a significant milestone for the Chinese government, which hopes to see Comac supply a significant share of the fleet for China's domestic aviation market, which is expected to be one of the world's fastest growing markets over the coming decade. More hurdles remain however, as alterations will need to be made before the aircraft can pass certification by U.S. or European authorities necessary for operation in those markets, and Comac remains behind schedule in its development of a larger aircraft suitable for long-haul operations.
Monday, June 27, 2016
The consequences of last week's referendum, in which the United Kingdom voted in favor of leaving the European Union, will be a leading source of concern for the European aviation market for the foreseeable future. IATA already has a brief report available on the potential consequences for airline traffic and regulation. Other sources had earlier written about the potential consequences in anticipation of this possibility, and those analyses should prove useful now that the decision to leave has been made. Even when restricting one's examination solely to the consequences for the aviation sector, ignoring knock-on effects from developments in the currency markets or changes to customs policy, the potential complications arising from the referendum are enormous. The following, non-exhaustive list offers some quick thoughts on the most important legal and policy questions that will need to be resolved with regard to aviation:
- Traffic rights with the EU. The immediate assumption since last Thursday's referendum has been that the United Kingdom will want to maintain as much of its existing trade relationships with the EU as possible, but that the EU will be loathe to allow unfettered access to its markets without an agreement that also includes free movement of persons and labor, a concession that is likely to be highly politically problematic for the new UK government. Aviation is one area where an agreement may be reachable despite this impasse, as the EU has been willing to extend the liberal terms consistent with membership in the European Common Aviation Area (ECAA) to even those neighboring States with which the EU still has barriers to immigration. Unrestricted access to the EU market is of fundamental importance to British carriers, particularly EasyJet, which may seek to open European affiliates should European traffic rights be threatened. Of course, the competitive threat posed by British carriers may provoke greater resistance than is typical for expansion of the common aviation market to smaller, less threatening neighbors.
- Traffic rights with the rest of the world (particularly the U.S.). Of nearly equal importance will be the establishment of new Air Services Agreements with those non-EU countries with which the UK had been relying on it's membership in the EU as part of broader, multilateral agreements. The most prominent example being the US-EU Open Skies Agreement. Non-EU States such as Norway, have been allowed to sign on as parties to these agreements, so perhaps the UK's status with regard to these treaties could be reconfirmed relatively unchanged. If, however, a new agreement must be negotiated from scratch, access to Heathrow could reemerge as a source of conflict.
- Ownership and control - Community carrier clause. Perhaps more than even the full grant of all nine freedoms of the air, the creation of the idea of a "community carrier" reflecting the internal abolition of restrictions on airline ownership and control, has been the signature advance enabled by the integration of the European aviation market. British Airways' parent company, IAG, of course also owns Spain's Iberia. Airline ownership groups have grown quite adept in recent years at organizing their holdings to work around the industry's antiquated limits on cross-border ownership, but this is at least one more complication that will require attention.
- Participation in EASA and airworthiness certification. The UK is at present a member of the European Aviation Safety Agency (EASA), which consists of all EU Member States along with Switzerland, Norway, Iceland, and Liechtenstein. This relationship is an integral part of the UK's ability to administer a safe airspace. The UK Civil Aviation Authority relies on EASA's work when issuing airworthiness certificates to aircraft and the UK observes the so-called blacklist EASA produces for foreign carriers that fall short of compliance with international safety standards. Detaching itself from this relationship would require a significant expansion of resources and capacity for UK air safety administration.
- Participation in the Single European Sky (SES). Despite continuous delays, the Single European Sky initiative promises to eventually revolutionize the management and regulation of European airspace. As long as the UK remains in the ECAA, the consequences on SES should be minimized.
Friday, June 24, 2016
An astute commentator to yesterday's post pointed out that, like India, Brazil has also taken major steps this week toward removing barriers to foreign investment in airlines. A bill that would permit 100% ownership by foreign investors, including foreign airlines, passed Brazil's Chamber of Deputies earlier this week. Reportedly, the permission would be subject to a reciprocity requirement that Brazilian investors are offered the same opportunities.
Thursday, June 23, 2016
Earlier this week, India announced that it will allow businesses in a number of sectors, including airlines, to be 100 percent foreign-owned, with the caveat that foreign carriers will still not be permitted to own more than 49% of an Indian airline. Foreign investors seeking majority stakes will also have to work around restrictions in air services agreements which typically allow States to deny exercise of traffic rights by carriers with foreign ownership.