GOVERNMENT REGULATION OF AIR TRANSPORT (2008)



Faculty of Law – McGill University

GOVERNMENT REGULATIONS OF AIR TRANSPORT

Course No : ASPL 613

Professor Martine De Serres

Winter Term

3 credits

COURSE DESCRIPTION

This course focuses on the domestic and international economic regulation of air transport. Key subjects are: open sky and other bilateral air services agreements, economic regulation of domestic and international air transport including air carrier licensing and authorization, governmental review of tariffs, competition and anti-trust regulations, dynamics of airline alliances, safety, security, environmental regulation, and a wide variety of consumer protection regulations including accessibility requirements, delays, tarmac delays, cancellations, denied boarding, advertising regulations and disclosure requirements, travel agencies and global distribution systems. It also examines why governments regulate or deregulate markets for air transport, how the economics of the aviation sector impact regulatory policies, whether there is a need to harmonize new types of regulations over aviation and how such harmonization could be achieved. The present challenges and trends in the regulatory regime of air transport also are discussed.

METHOD OF EVALUATION:

- Oral Presentation and in-class participation: 25%

In-class participation will be evaluated based on in-class discussions around selected articles and cases. Oral presentations are prepared and delivered in teams of two, using one of the topic distributed in class. Teams and topics are to be selected by students and confirmed by the 3rd week of class, otherwise they will be assigned randomly.

Approximate duration of oral presentation: approximately 30 minutes

Dates of presentations: Mid to end of March 2017

- Final Examination: 75%

The final examination is a take-home exam (open-book) due 24 hours from picking up the examination. You may not discuss the examination, nor collaborate with, any other student on the examination.

TEACHING HOURS: 17:35 – 20:25

PROFESSOR INFORMATION:

Preferred method of communication is by email, telephone or by appointment before or after class. Contact: martine.deserres@aircanada.ca or by phone (514) 422-5883.

ROOM: NCHD 203

OUTLINE:

1. ECONOMIC Regulation of Airlines

A. Structure of Aeronautical Authorities

B. Domestic Regulation of Carriers

- Air Carrier Certification

- Licencing

- Tariffs

C. Competition, Fitness, Insurance

D. Foreign Certifications, Permits and Operating Licences

E. Wetleases, Charters and Feeders

F. Small Community Service and Service Withdrawal Notification in Canada

G. National Ownership and Control and Foreign Ownership Restrictions

H. Airline Relationships and Evolving Rules on Foreign Ownership

2. INTERNATIONAL REGULATION OF AVIATION

A. Chicago Convention Regime

B. Freedoms of the Air and their commercial importance

C. Types of Air Services Agreements

D. Elements of an Air Service Agreement

- Air Traffic Rights

- Designation

- Pricing

- Routes

- Substantial Ownership and Control

- Authorization /Certificates / Licences

- Fairness and Non-Discrimination

- Safety

- Security

- Customs

- Taxation

- Environment

E. Traffic Rights and Restrictions

F. Capacity Restrictions

G. Pricing Freedoms

H. Open Skies Agreements

I. Computer Reservations Systems

J. Travel Agencies

K. IATA Regime

L. Customs

M. Currency Remittance

3. ANTITRUST AND COMPETITION LAW

A. Effects of National Ownership and Control Laws

- Multinational Airlines

- Alliances

- Joint Ventures

- Codesharing and other airline partnerships

B. Key Competition Principles

- Conspiracy

- Monopoly

- Mergers

- Predation

C. Canadian Competition Regime

- Self-Assessment and Required Notifications

- Regulatory Structure: Competition Bureau and Tribunal

- Carve-outs and pro-competitive Measures

- Key Aviation Case Law

D. U.S. Anti-trust Immunity

E. EU Competition Commission

- Merger Reviews

- Commission Questionnaires to Key Stakeholders

- Pro-Competitive Commitments

F. Other National Competition Regimes

G. Need for a Harmonized Approach

4. DISABILITY RULES

A. US 14 C.F.R. Part 382

B. The EU Approach and Conflicts with US Part 382

C. Canadian Transportation Agency Accessibility Cases

5. CONSUMER PROTECTION

A. Airline Tariffs

- Content of Tariffs

- Historical Regulatory Oversight

- Distribution of Tariffs to Regulators Internationally

- Public Access to Tariffs

- Canadian Approach to Regulating Passenger Rights

B. Conditions of Carriage Content and Disclosure

C. Passenger Rights Regimes

D. Flight Delays and Cancellations

E. Oversales and Denied Boarding Compensation

F. Tarmac Delays

G. False and Misleading Advertising

- One-way vs. round trip purchases

- “Free” tickets

- Local currency requirements

- Availability displays, etc

H. All-inclusive Pricing Regulations

I. Ancillary Fees Disclosures and Impact on Global Distribution Systems

J. Code Sharing

- Disclosure Obligations

- Applicable terms and conditions

K. Baggage Allowance for Multi-Carrier Journeys

- IATA Resolution 302

- US DOT Approach

- Other International Responses

6. SAFETY REGULATION

A. Domestic Air Carrier Certification

B. Personnel Licencing

- Pilot (Airman) Certification

- Mechanic Certification

- Flight Attendant Certification

- Repair Station Certification

C. Airport Certification

D. Air Navigation Service Providers Certification and Oversight

E. Regulation of Training Facilities

7. SECURITY REGULATION

A. Legal Reaction to Sept 11

B. Creation of a Security Bureaucracy

C. Inefficient security regimes

D. Screening of Passengers and Bags

E. Securing the Cockpit

F. Dangerous Airports

G. Disruptive Passengers

H. APIS/PNR Passenger screening

I. Privacy Rights and International Conflicts of Laws

J. Sharing Confidential Passenger Information

K. No-Fly Lists, laws and problems

L. Trusted Travellers

M. Airport Security and Restricted Areas

N. International Connections – Lounges and Visas

O. Carry-on Items; Liquids and Gels

- Volumetric Controls

- ICAO’s Sealed Tamper-Evident Bag (STEB) for Duty-Free

8. ENVIRONMENTAL LAW IN AVIATION

A. Need for action

B. Kyoto Protocol

C. ICAO Environmental Measures on Emissions

D. International Environmental Regulation

- EU Emissions Trading System

- Fuel Taxes

- Ad Hoc National Environmental Initiatives Targeting the Airline Industry

E. Operational Improvement

F. Off-set Programs

G. Noise

- Aircraft Noise

- Airport Noise

H. Constitutional Issues in Canadian Environmental Law

9. AIRPORT GOVERNANCE

A. Legal Framework of Canadian Airports: Development, Operation, Management

B. Ownership Model

C. Regulatory Compliance

D. Corporate Governance

E. Operations (Gates, Slot Access and Control, etc.)

LEGAL RESEARCH TOOLS

– US Code of Federal Regulations:

– US DOT (enforcement orders, etc):

– US DOT guidance:

– CTA Rulings:

– Canada Transportation Act and Air Transportation Regulations:

– CTA industry guidance:

– EU Air Transport policy, directives and regulations:

BIBLIOGRAPHY

1. Required Material – To Be Discussed in Class –

Friedenzohn, Daniel, Code-Sharing in the U.S. Airline Industry: Effective Disclosure Requirements for an Aspect of Air Transport That is Complex, Important, and Often Misunderstood, 10:1 Issues in Aviation Law and Policy 39 (2010)

Leocha, Charlie, The Consumer Protection Perspective on DOT’s “Transparency of Airline Ancillary Fees and Other Consumer Protection Issues” Rulemaking, 27:3 Air & Space Lawyer (2014)

Mosner, Anita, DOT’s Rulemaking Is a Step Toward Reregulation, 27:3 The Air & Space Lawyer (2014)

Sanchez, Gabriel, Toward Comprehensive Slot Rule Reform in the EU, 9 Issues in Aviation Law and Policy 89 (2009)

Rapoport, David E.; Brown, Jan; Epstein, Lindsey A., Babies Have a Right to a Safe Seat with Proper Restraints - The Infant Seat Exception Should Be Abandoned, 12 Issues in Aviation Law and Policy 67 (2012)

Whalen, Thomas, EU Regulation No. 261 and the US Department of Transportation Regulation on Advertising, Tarmac Delays and Customer Service, 38 Annals of Air and Space Law 75 (2013)

Fitzgerald, Paul, Air Passenger Rights; the first Canadian efforts; an inauspicious beginning, 9 Issues in Aviation Law and Policy 33 (2009).

McLaughlin, Una, Head in the Clouds? Is the European Commission’s Analysis of the “Relevant Market” in Airline Mergers Appropriate?, 39 Annals of Air and Space Law 595 (2014)

Report by the European Commission and the United States Department of Transportation, Transatlantic Airline Alliances: Competitive Issues and Regulatory Approaches (2010)



Tretheway, Mike and Andriulaitis, Robert, What Do We Mean by a Level Playing Field in International Aviation? International Transport Forum, 06 Discussion Paper No. 2015-06



Piera, Alejandro and Gill, Michael, Unruly and Disruptive Passengers: Do We Need to Revisit the International Legal Regime?, 35:1 Annals of Air and Space Law 75 (2010)

Ahmad, Tanveer, Environmental Effectiveness of ICAO’s Basket of Mitigation Measures to Arrest Emissions from International Civil Aviation, 39 Annals of Air and Space Law 75 (2014)

Piera, Alejandro, The challenge of finding a legal vehicle to enforce compliance with a global aviation emissions scheme, GreenAirOnline,

2. Recommended Material

Routledge Handbook of Public Aviation Law, (Routledge Taylor and Francis Group 2017)

Dempsey, Paul S., Law and Foreign Policy in International Aviation (Dobbs Ferry, N.Y. Transnational Publishers, 1987).

Fitzgerald, Paul, A Level Playing Field for "Open Skies" - the Need for Consistent Aviation Regulation (Eleven International Publishing 2016)

Piera, Alejandro, Greenhouse Gas Emissions from International Aviation: Legal and Policy Challenges (Eleven International Publishing 2015)

Weber, L., The International Civil Aviation Organization, An Introduction, (Kluwer Law International, 2007)

REQUIRED STATEMENTS:

1) Right to submit in English or French written work that is to be graded [approved by Senate on 21 January 2009]:  

In accord with McGill University’s Charter of Students’ Rights, students in this course have the right to submit in English or in French any written work that is to be graded.

2) Academic Integrity statement [approved by Senate on 29 January 2003]:

McGill University values academic integrity.  Therefore all students must understand the meaning and consequences of cheating, plagiarism and other academic offences under the Code of Student Conduct and Disciplinary Procedures (see mcgill.ca/students/srr/honest/ ) for more information).

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