Aviation Law Prof Blog

Everyone at the International Aviation Law Institute was saddened to hear of Michael Levine's passing this weekend.  He was one of the airline industry's most influential figures, exemplified by a long and distinguished career at the Civil Aeronautics Board, Northwest Airlines, Continental Airlines, and New York Air. In celebration of his contributions, we would recommend following the embedded link to Levine's recorded conversation with Dorothy Robyn as part of the Institute's Oral History Series. Levine was the first person interviewed for the project.

Levine wrote extensively on airline markets and regulation and all of his scholarship is highly recommended reading. Today might be a particularly appropriate occasion to revisit his student note, "Is Regulation Necessary? California Air Transportation and National Regulatory Policy" for the July 1965 edition of Yale Law Journal, which helped to launch his career and stands out for its impact as a piece of student writing, one that continues to be read by aviation law students today.

February 6, 2017 | Permalink | Comments (0)

The U.S. Department of Justice has filed a proposed settlement that would resolve its antitrust claims against Alaska Air Group's proposed acquisition of Virgin America, on the condition that Alaska limit its existing codeshare agreement with American Airlines to avoid codesharing on routes on which American overlaps with either Virgin or Alaska.

December 7, 2016 | Permalink | Comments (0)

The U.S. Department of Transportation has finally granted Norwegian Air International Limited (NAI) its requested foreign air carrier permit to begin operating flights to the United States. The announcement brings to a close a three-year saga concerning  low-cost carrier Norwegian Air Shuttle's attempt to establish an Irish subsidiary to serve the transatlantic market. The dispute largely revolved around competing interpretations of the U.S.-EU Air Services Agreement, in particular Article 17bis added in 2010, which laid out goals for the maintenance of high labor standards. Some on the U.S. side believed that the objectives of this article were possibly endangered by Norwegian's proposed business plan, which entailed utilization of Ireland's more lenient labor laws as compared with those of the parent company's home state of Norway. Critics of the U.S. position accused the U.S. of engaging in thinly veiled protectionism, rejecting the notion that Article 17bis, which is textually vague, provides clear standards applicable to this case. The EU has complained that the U.S. was ignoring its responsibility under the Agreement to quickly approve foreign carrier permits for properly designated carriers, and had recently taken steps to begin arbitration proceedings against the U.S. on those grounds. The incoming U.S. presidential administration had yet to take a position on the dispute, but now it appears that won't be necessary.

December 5, 2016 | Permalink | Comments (0)

Bloomberg News solicited comments from Professor Brian F. Havel in an article this week speculating on what U.S. aviation policy might look like under President-elect Trump.

November 11, 2016 | Permalink | Comments (0)

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.

October 19, 2016 | Permalink | Comments (0)

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. 

October 18, 2016 | Permalink | Comments (0)

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.

October 17, 2016 | Permalink | Comments (0)

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.

October 7, 2016 | Permalink | Comments (0)

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.

September 6, 2016 | Permalink | Comments (0)

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.

August 29, 2016 | Permalink | Comments (0)

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.

August 29, 2016 | Permalink | Comments (0)

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.

August 25, 2016 | Permalink | Comments (0)

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.

August 15, 2016 | Permalink | Comments (0)

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. 

July 28, 2016 | Permalink | Comments (0)

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.

July 27, 2016 | Permalink | Comments (0)

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.

July 13, 2016 | Permalink | Comments (0)

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.

July 7, 2016 | Permalink | Comments (0)

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.

July 6, 2016 | Permalink | Comments (0)

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.

July 5, 2016 | Permalink | Comments (0)

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.

June 29, 2016 | Permalink | Comments (0)