Arbitration in Aviation

Topics: Arbitration, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, International arbitration Pages: 9 (2862 words) Published: April 3, 2013
Can Arbitration resolve International Aviation disputes?
Author: Mr. Vishwam Jindal
Co-Author: Mr. Gaurav Govinda
National Law University, Delhi
Phone No: +91-9958867718

On systematic classification, aviation disputes are either commercial or non-commercial. Whereas the former requires interpretation of bilateral arrangements, the latter concerns the Chicago convention. In any case, ADR methods are unique to aviation disputes. A careful reading of Article 84 and 85 of the Chicago convention portray the importance of arbitration while appealing a decision of the ICAO. Furthermore, the fact that commercial disputes are increasingly resorting to international arbitration cannot be disputed. In cases of non-commercial disputes, the Chicago convention is silent on the scope of appellate review i.e. whether or not new matters could be introduced. This is a grey area where international arbitration could score brownie points for solving disputes over matters that are hindering future growth. This paper seeks to study the pattern of dispute resolution in the international aviation sector. The researcher believes that arbitration holds the key to future international dispute resolution in the aviation sector. Any doubts to the contrary can be removed by studying the landmark aviation disputes resolved by arbitration. It is not assailed that arbitration has been used infrequently under the bilateral agreements; however it has demonstrably been successful in each case at fashioning an acceptable outcome.

Can Arbitration resolve International Aviation disputes?

“It is well established in international law that no state can without its consent, be compelled to submit its disputes with other states either to mediation or arbitration, or to any other kind of pacific settlement”.

Aviation is inherently international in character, shrinking the planet and drawing together disparate peoples, cultures, and economies. As aircraft cross borders into foreign airspace and land at foreign airports, conflicts inevitably arise at both commercial and political levels. The settlement of international aviation disputes generally takes place under the multiple umbrellas of the Convention on International Civil Aviation (the Chicago Convention) and multilateral and bilateral agreements between states, including bilateral air services agreements. Aviation disputes may be classified as either commercial that is arising out of the application and interpretation of bilateral agreements, or non-commercial, that is, between states and involving interpretation of obligations under the Chicago Convention. Non-commercial air transport disputes generally involve the application and interpretation of the Chicago Convention with Articles 9 (prohibited zones) and 15 (airport and similar charges) generating inter-state disputes. Maniatis suggests that conflicts involving Article 15 of the Chicago Convention often result from revenue generating actions, with the state whose designated airline is subjected to increased charges objecting on the grounds that they are discriminatory. Sometimes these kinds of disputes have political differences at their core.

Major commercial aviation disputes revolve around the bilateral air transport agreements which themselves incorporate provisions from the Chicago Convention. While many of these agreements are very similar in important respects, there may be differences in how they handle dispute resolution. Back in 1952 ‘the Secretariat of the International Civil Aviation Organisation (ICAO) analysed over two hundred such agreements and classified them according to their provisions on dispute settlement’. While some failed to address dispute resolution at all, others provided for recognition of the competence of an arbitral tribunal or provided for the exclusive competence of the ICAO in the event of a dispute. Subsequently, in 1962, the eminent scholar Bin...
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