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Vol 24 No 4 April/May 2019

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Harmonising Regulatory and Antitrust Regimes for International Air Transport

Edited by: Jan Walulik

ISBN13: 9780815353867
Published: December 2018
Publisher: Routledge
Country of Publication: UK
Format: Hardback
Price: £110.00

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Harmonising Regulatory and Antitrust Regimes for International Air Transport addresses the timely and problematic issue of lack of uniformity in legal standards for international civil aviation. The book focuses on discrepancies within the regulatory and antitrust framework, comprehensively reveals the major legal limitations and conflicts, and presents possible solutions thereto. It discusses possible strategies for multilateralization and defragmentation of air law, and for international harmonization of airline economic regulation with fair competition standards. This discussion extends to competition between air transport law and other legal regimes as well as to specific regulatory problems related to air transport. The unique feature of the book is that it reconciles distinct perspectives on these issues presented by renowned aviation and aerospace experts who represent the world’s key air transport markets and air law academic centres.

By providing unbiased solutions that could serve as a base for future international arrangements, this book will be invaluable for aviation professionals, as well as students and scholars with an interest in air law, economic regulation, antitrust studies, international relations, transportation policy and airline management.

Competition Law, Air and Space Law
Foreword from the Editor
Part One: Multilateralization of International Civil Aviation Relations and Defragmentation of International Air Law
Chapter 1. The Seven Decades of Scattered Skies (by Marek Żylicz)
Chapter 2. Multilateralization of International Civil Aviation Relations and Defragmentation of International Air Law (by Peter P.C. Haanappel)
2.1 Introduction
2.2 History
2.2.1 1919-1944: The Interbellum
2.2.2 1945-1975: The Regulatory Period
2.2.3 1975-Today: Deregulation and Liberalisation
2.3 Economic Theory and Practice
2.4 Airline Privatization and Multilateralization
2.5 Intergovernmental multilateralization
2.5.1 The United States
2.5.2 The European Union
2.5.3 Elsewhere
2.6 Ownership and Control of Airlines
2.7 Global reform
2.7.1 The International Civil Aviation Organization (ICAO)
2.7.2 The World Trade Organization (WTO)
2.8 Conclusions and Prospects for Multilateralization and Defragmentation
Part Two: Balancing Air Policy and Fair Competition in International Air Transport
Chapter 3. Airlines as Allies: How to Manage the Market? (by Pablo Mendes de Leon)
3.1 The Trend towards International Alliances
3.2 The First Significant Case: KLM – Northwest Airlines
3.3 Competition and Trade in Air Transport
3.4 Airline Behaviour Affecting Competition
3.5 Competition Regimes in Air Transport
3.5.1 The US Law and Policy
3.5.2 The EU Regime
3.5.3 Other countries
3.6 Frictions between Competition Law and Bilateral ASAs
3.7 Implications of Cross Border Service Provision
3.7.1 The ‘Effects’ Doctrine
3.7.2 The Air Cargo Fuel Charges Cases
3.7.3 Multilateral Efforts in Harmonising Competition Laws
3.7.4 Achievements on Convergence of Competition Law and Policy
3.8 Conclusions and Recommendations
Chapter 4. Regulatory Schizophrenia: Mergers, Alliances, Metal-Neutral Joint Ventures and the Emergence of a Global Aviation Cartel (by Paul S. Dempsey)
4.1 Introduction
4.2 The Metamorphosis of Air Transport Agreements
4.3 Airline Alliances
4.3.1 Antitrust and Competition: A Succinct Summary of US and EU Laws
4.3.2 Restraint of Trade
4.3.3 Mergers and Consolidations
4.3.4 Airline Alliances and Antitrust Immunity
4.4 Analysis
Chapter 5. Airline Alliances: Permitted and Prohibited Practices in View of the EU Law (by Agnieszka Kunert-Diallo)
5.1 Introduction
5.2 Diversity of Airline Alliances
5.3 Airline Alliances in View of the EU Competition Law
5.4 Airline Alliances in View of Market Access Regulations
5.4.1 Combining Services and Code-sharing
5.4.2 Aircraft Leasing
5.4.3 Franchising and Common Branding
5.4.4 Other Inter-Airline Agreements
5.5 Conclusions
Chapter 6. Competition in International Air Transport: An Overview of EU Policy Developments (by Paweł Zagrajek)
6.1 Competition in Air Transport
6.2 International Legal Framework for Competition in Air Transport
6.3 Development of the EU Competition Policy in International Air Transport
6.4 Pillars of the EU Competition Policy in International Air Transport
6.4.1 Implementation of Fair Competition Provisions in ASAs
6.4.2 The Defence Instrument – Regulation 868/2004
6.4.3 Promoting Regulation of Competition at the ICAO
6.5 Conclusions
Part Three: Competition between Air Transport Law and Other Regulatory Regimes
Chapter 7. Citius, Altius, Fortius: Regulating Commercial Spaceflight under Air Law or Space Law? (by Frans G. von der Dunk)
7.1 Private Commercial Human Spaceflight – the Context
7.2 The Basic Tenets of Air Law
7.3 The Basic Tenets of Space Law
7.4 Private Manned Spaceflight Projects and the Legal Conundrum
7.5 The US Approach – Stressing the ‘Space’ in ‘Spaceflight’
7.6 The European Approach – Stressing the ‘Flight’ in ‘Spaceflight’
7.7 Finding the Best Mix
Chapter 8. Between Global Climate Governance and Unilateral Drifts: The Establishment of a Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) (by Elena Carpanelli)
8.1 Introduction
8.2 A Tale of Two Stories: The ICAO-EU ‘Dialogue’ on the Reduction of Aviation Emissions
8.3 After CORSIA: Unilateralism Reloaded or the End of the Game?
8.3.1 Effectiveness of CORSIA
8.3.2 Intersection between ‘Legal Orders’ and the Risk of a Resurgence of Unilateral Drifts
8.3.3 Interplay with Other International Norms
8.4 CORSIA and Market Distortions
8.5 Conclusions
Chapter 9. Airline Non-Commercial Advantages and Fair Competition: The Issue of Labour Conditions (by Andrea Trimarchi)
9.1 Introduction
9.2 Fair Competition in Aviation
9.2.1 A Patchwork of Regulatory Regimes
9.2.2 The Role of Bilateralism
9.3 The Notion of ‘Non-Commercial Advantages’
9.3.1 Trade Law and WTO
9.3.2 EU Regulation 868/2004
9.4 Labour Standards as Non-Commercial Advantages
9.5 The Regulation of Labour in the Aviation Industry
9.5.1 The Choice of International Forum
9.5.2 The Choice of Legal Instrument
9.6 Concluding Remarks
Part Four: Regulation, Deregulation or Non-Regulation of Aerospace Activities
Chapter 10. Cheap Liberalisation: Cutting Regulatory Corners in Air Transport or Cutting One’s Own Throat? (by Jan Walulik)
10.1 Introduction
10.2 Air Policy and Regulation
10.3 Liberalisation Trends and Drivers
10.4 Safety Oversight Challenges
10.5 Risks and Safeguards
10.6 Regulatory Alternatives
10.7 Summary
Chapter 11. Airline Nationality: A Reconstruction of the EU Ownership and Control Rules (by Elmar M. Giemulla)
11.1 Introduction
11.2 Ownership and Control as Legal Requirements
11.3 Review of Airline Ownership and Control
11.4 Interpretative Guidelines
11.4.1 The Notion of ‘Nationality’
11.4.2 EU Regulations on Control
11.4.3 Former Cases in the EU
11.4.4 National Guidelines on Ownership and Control
11.4.5 EU Guidelines on Ownership and Control
11.5 Ownership and Control Assessment Process
11.5.1 German Two Step Approach for Licensing
11.5.2 Ongoing Compliance
11.6 Conclusions
Chapter 12. Suborbital Traffic: A New Regulatory or Non-Regulatory Discipline (by Małgorzata Polkowska)
12.1 Introduction
12.2 Regulatory Challenges in Outer Space Commercialization
12.2.1 Status of Suborbital Flights
12.2.2 Transit Issues
12.2.3 Registration of Objects and Operations
12.2.4 Safety and Security
12.2.5 Passenger Status
12.2.6 Civil Liability and Insurance
12.2.7 Ownership in Space
12.2.8 Criminal Jurisdiction
12.3 Results of the Debate on Space Transport Regulation
12.4 Summary
Chapter 13. The Need for Regional Liberalisation: The Issue of Damascus Agreement of 2004 (by Shadi A. Alshdaifat and Bashar H. Malkawi)
13.1 Introduction
13.2 Economic Impact of Aviation in Arab States
13.3 Arab Civil Aviation Liberalisation Potential
13.4 The Damascus Agreement of 2004
13.5 Conclusions
Chapter 14. Air Transport Connectivity Gap: Is Regulation the Answer? (by Piotr P. Dziubak)
14.1 Air Transport Connectivity
14.2 Measuring Connectivity
14.3 The Connectivity Gap
14.4 Solutions to Address Connectivity Gaps
14.5 Conclusions
List of official documents and materials
List of legal acts
List of court rulings
List of administrative decisions