Preliminary Remarks. The next sections illustrate the role of slots in several types of financial operations, including bankruptcies and insolvencies of airlines as well as take-overs, as previously referred to in section 5.2.2 above. As a result of COVID-19, several airlines have entered into financial proceedings.1056 Airline bankruptcies and/or airlines ceasing operations are, however, a perennial issue resulting from market dynamics in a broad sense and are not necessarily related to the COVID-19 pandemic. The slot rules would benefit greatly from clarity as to whether airlines entering bankruptcy proceedings should be able to hold and sell slots purely to raise finance to repay creditors. 1055 See Chapter 2, sections 2.2.2 and 2.2.3 for an overview of the capacity declaration and allocation processes respectively. 1056 See Eurocontrol, What COVID-19 did to European Aviation in 2020, and Outlook 2021, Aviation Intelligence Unit, Think Paper #8 (2021). Several pre-COVID-19 related court judgments and developments following the financial distress of, inter alia, Air Berlin and Monarch Airlines, will be analyzed below, since these cases have contributed to the ongoing debate amongst industry parties and regulators on the role, and the legal status, of slots in the event of airline bankruptcies and airlines ceasing operations for other reasons. The Monarch-case constitutes a particularly important precedent for the management of slots in financial proceedings as well as for legal analysis pertaining to secondary slot trading, to wit that a defunct airline is able to obtain and trade slots.1057
Preliminary Remarks. The art of writing legal texts, or légistique as it is called in French, is complex. Many documents explain how a bill or legal texts should be written in order to avoid possible confusion, and the need for recourse to interpretation mechanisms. As the law must be clear and predictable to fulfil its role,1 many techniques are applied during drafting.2 At the level of the European Union, the Joint Practical Guide for persons involved in the drafting of European Union legislation is a very useful kit that states: The drafting of a legal act must be clear, easy to understand and unambiguous; simple and concise, avoiding unnecessary elements; precise, leaving no uncer- tainties in the mind of the reader. This common sense principle is also an expres- sion of general principles of law, such as […] legal certainty, in that it should be possible to foresee how the law will be applied.3
1 See, section 2.3.2. 2 See, for example, in France, a more than 700-page compendium, the Guide de Légistique (Documentation française, 3rd edition, 2017); and in Belgium, the Principes de techniques législatives – Guide de rédaction des textes législatifs et réglementaires (Conseil d’Etat, 2008).
Preliminary Remarks. After the aforementioned drafting elements, the Travaux Préparatoires confirm that the drafters of the Conventions sometimes agreed that uniform rules, including terms encompassed therein, could be applied differently. Two main reasons have been used to justify this breach in uniform applica- tion: first, to permit Courts to apply rules and terms to the facts of the case; and second, because no common position has been reached.
Preliminary Remarks. An additional source of fragmentation may come from the possibility of claims related to the same event being simultaneously heard by Courts in different jurisdictions. The following sections will examine decisions under the 1929 Warsaw Convention and 1999 Montreal Convention.
Preliminary Remarks. Next to the drafting elements examined above, factors which are not based on semantic choices have also limited the ability of the Conventions to fully deploy and realize their aim of uniformity from the time of their signing. The Conventions, singular in their nature of being international public instruments regulating private law relations, face typical international public law limits, such as reservations and declarations, while, at the same time, are deprived of the possibility that their uniform application could be ensured by a single common Court or by clear specific interpretation mechanisms.
Preliminary Remarks. As the question of reservations is nevertheless very limited in practice, the genuine non-semantic flaw of the Conventions stands in the absence of common jurisdiction and/or specific interpretation mechanisms.
Preliminary Remarks. The Parties shall undertake to settle any dispute regarding the handling of applications, examina- tions or granting of certificates as well as other measures of the Certification Body in connection with the certification agreement as far as possible by way of an objections procedure before an Arbitration Committee in accordance with Section I of this Agreement. If and to the degree that it is not possible to settle a dispute through the objection procedure be- fore an Arbitration Committee, the Parties shall agree to settle the dispute by way of arbitration proceedings in accordance with Section II of this Agreement.
Preliminary Remarks. Only a few years after the signing of the 1999 Montreal Convention, legis- lators in several parts of the world decided to increase general consumer protection. Among other concerns, this extended to the improvement of air passenger protection.
Preliminary Remarks. While it has been seen that modifications to the regulatory environment have caused a fragmentation to the uniformity wished by the drafters of the Conventions, it remains to be determined how Courts have responded, even in the absence of regulatory changes, to the specific features of the Conventions described in Chapter 2, namely the exclusivity of the Conven- tions and the autonomy of the terms used therein.
Preliminary Remarks. While the autonomy of the terms and concepts used in the Conventions was confirmed in Chapter 2, Chapter 3 showed that attempts made by Courts to give a definition to un-defined terms and concepts resulted in divergent interpretations. One could wonder whether the autonomy of the terms used 136 Supremo Tribunal Federal, 25 May 2017, RE 636331/RJ. See, Xxxxxxxx Xxxxxx Costa Xxxxxx, Xxxxx Xxxxx Xxxxxxxx, Seguridad jurídica vs. nueva caja de Pandora – Breves apuntes acerca de la reciente sentencia del Supremo Tribunal Federal en Brasil, 42 Revista Latino Americana de Derecho Aeronáutico (2018). 137 Trans Mediterranean Airways v. M/s Universal Exports & Anr., (2011) 10 SCC 316, at 32. 138 Juzgado Undécimo de Circuito de lo Civil del Primer Circuito Judicial de Panamá, 27 October 2017, Caisa c. KLM, Sentencia N° 25-2017, not published. This decision was over- ruled in Appeal. See, Primer Tribunal Superior del Primer Distrito Judicial, 25 April 2019, Caisa c. KLM, 18SA.069, not published. in the Conventions entails that each term should be interpreted according to a ‘special’ meaning pursuant to Article 31(4) of the 1969 Vienna Conven- tion, or if the ‘ordinary’ meaning developed under its Article 31(1) may be applicable.139
