Harmonising Regulatory and Antitrust Regimes for International Air Transport (Routledge Research in Competition Law)

__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 multilateralisation and defragmentation of air law, and for international harmonisation 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. Cover Half Title Series Page Title Page Table of Contents List of tables List of abbreviations List of legal acts List of court rulings List of administrative decisions Foreword from the editor List of contributors PART 1: Multilateralisation of international civil aviation relations and defragmentation of international air law 1. The seven decades of scattered skies 2. Multilateralization of international civil aviation relations and defragmentation of international air law 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 liberalization 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 2: Balancing air policy and fair competition in international air transport 3. Airlines as allies: How to manage the market? 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 4. Regulatory schizophrenia: Mergers, alliances, metal-neutral joint ventures and the emergence of a global aviation cartel 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 5. Airline alliances: Permitted and prohibited practices in view of the EU law 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 6. Competition in international air transport: An overview of EU policy developments 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 3: Competition between air transport law and other regulatory regimes 7. Citius, Altius, Fortius: Regulating commercial spaceflight under air law or space law? 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 7.7 Finding the best mix 8. Between global climate governance and unilateral action: The establishment of the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) 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 9. Airline non-commercial advantages and fair competition: The issue of labour conditions 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 4: Regulation, deregulation or non-regulation of aerospace activities 10. Cheap liberalisation: Cutting regulatory corners in air transport or cutting one’s own throat? 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 11. Airline nationality: A reconstruction of the EU ownership and control rules 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 12. Sub-orbital traffic: A new regulatory or non-regulatory discipline 12.1 Introduction 12.2 Regulatory challenges in outer space commercialization 12.2.1 Status of sub-orbital 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 13. The need for regional liberalisation: The issue of Damascus Agreement of 2004 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 14. Air transport connectivity gap: Is regulation the answer? 14.1 Air transport connectivity 14.2 Measuring connectivity 14.3 The connectivity gap 14.4 Solutions to address connectivity gaps 14.5 Conclusions Bibliography List of official documents and materials Index The book addresses the timely and problematic issue of lack of uniformity in legal standards for international civil aviation. Focusing on discrepancies within the regulatory and antitrust framework, it comprehensively reveals the major legal limitations and conflicts, and presents possible solutions thereto.