Tuesday, October 27, 2009

Agenda for Freedom

The International Air Transport Association has a website dedicated to its "Agenda for Freedom."  From the website:

The rules that govern the international aviation business are out of date.  They place heavy restrictions on airline ownership and market access. This prevents airlines from enjoying the commercial freedom that other businesses take for granted. And in the current economic environment, this is a serious threat to their very survival.

The Agenda for Freedom initiative is leading the charge to remove these restrictions.

How is it doing this?  By promulgating a non-legally binding statement for States to sign which commits them to waiving the nationality clause and other restrictions in their bilateral air services agreements.  (A discussion paper setting out the waiver commitment is available here.)

The Agenda for Freedom is joined by the U.S.-circulated Multilateral Convention on Foreign Investment in Airlines (Sept. 14, 2009) (available here).  The draft U.S. agreement would be a binding treaty requiring States to forgo the nationality clauses in their bilaterals.  It does not, however, require that State parties "permit foreign ownership or control of [their] airlines."  See id. art. 5.  So, for example, under the Multilateral Convention, Air Canada could be substantially owned and controlled by, say, Germany's Lufthansa and still be designated by Canada under its open skies treaty with the U.S. to serve Canadian/U.S. city pairs.  The only "catch" being that Air Canada would have to have received its air operator certificate from Canada and retain its principal place of business within Canadian territory.  See id. art. 1(1).  This would prevent Canada from designating, say, Lufthansa to operate Canadian/U.S. service under the aforementioned open skies treaty.


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