Pub Date : 2022-01-06DOI: 10.1093/oso/9780192849274.003.0003
Luping Zhang
This chapter explores the evolution of dispute settlement clauses in both multilateral air law treaties and bilateral air services agreements (ASA)s. In order to achieve such a goal, this chapter sets out the frameworks of dispute resolution mechanisms in international civil aviation under both multilateral and bilateral agreements. Section B will focus on multilateral air law treaties. It first examines the dispute settlement mechanisms for sanctions that are provided under the Chicago Convention before turning to other major multilateral air law treaties. It then focuses on the dispute settlement clauses found in other multilateral air law treaties, divided into two categories: conventions dealing with aviation security and conventions dealing with civil liability. Besides multilateral air law treaties, Section C will concentrate on bilateralism in air services. It first introduces bilateralism in air services and then offers an overview of the Bermuda I Agreement, the Bermuda II Agreement, and the Open Skies Agreement. An updated typological study of dispute resolution clauses in bilateral ASAs has manifested the preferences of State parties in the text of bilateral treaties and how these preferences evolve throughout time. On the basis of the data, Section D will identify three main models of dispute resolution clauses found in ASAs: the Arbitration Model, the Diplomatic Channel Model, and the ICAO Model. The empirical output from Chapter 2 will serve as the first cornerstone for proposals in Chapter 5.
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Pub Date : 2022-01-06DOI: 10.1093/oso/9780192849274.003.0004
Luping Zhang
Chapter 3 examines the State practice and maps out the composition of the number and nature of cases. The purpose of this chapter has two layers: the first layer is to assess the loopholes of dispute resolution mechanisms in international civil aviation and test if the deficiencies embedded in the text of the treaties prove to be true. The second layer is to summarize and highlight the advantages and disadvantages of each forum—the ICAO Council, ad hoc arbitral tribunals, and the ICJ. Section B presents an overview of the case law filed along the same timeline as the air services agreements (ASAs) collected in Chapter 2 (1941–2020). It argues that the number of cases is on the rise and will continue rising in the future. Section C then introduces three fora: the ICAO Council, ad hoc arbitral tribunals, and the ICJ. Of these three fora, the ICAO Council has a special status as a United Nations specialized agency in international civil aviation. This forum is also the optimal choice for reforms proposed in Chapter 5. Section D provides an overview of case law arising out of these disputes under both multilateral air law treaties and bilateral ASAs. Chapter 3 serves as the second cornerstone with practical evidence for proposals in Chapter 5.
{"title":"The Practice of Dispute Resolution of International Civil Aviation","authors":"Luping Zhang","doi":"10.1093/oso/9780192849274.003.0004","DOIUrl":"https://doi.org/10.1093/oso/9780192849274.003.0004","url":null,"abstract":"Chapter 3 examines the State practice and maps out the composition of the number and nature of cases. The purpose of this chapter has two layers: the first layer is to assess the loopholes of dispute resolution mechanisms in international civil aviation and test if the deficiencies embedded in the text of the treaties prove to be true. The second layer is to summarize and highlight the advantages and disadvantages of each forum—the ICAO Council, ad hoc arbitral tribunals, and the ICJ. Section B presents an overview of the case law filed along the same timeline as the air services agreements (ASAs) collected in Chapter 2 (1941–2020). It argues that the number of cases is on the rise and will continue rising in the future. Section C then introduces three fora: the ICAO Council, ad hoc arbitral tribunals, and the ICJ. Of these three fora, the ICAO Council has a special status as a United Nations specialized agency in international civil aviation. This forum is also the optimal choice for reforms proposed in Chapter 5. Section D provides an overview of case law arising out of these disputes under both multilateral air law treaties and bilateral ASAs. Chapter 3 serves as the second cornerstone with practical evidence for proposals in Chapter 5.","PeriodicalId":393514,"journal":{"name":"The Resolution of Inter-State Disputes in Civil Aviation","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115259039","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-06DOI: 10.1093/oso/9780192849274.003.0006
Luping Zhang
Chapter 5 responds to the deficiencies from empirical data in Chapters 2 and 3, as well as theoretical analysis in Chapter 5 systematically. In Section B, it first discusses evolutionary trends in international dispute resolution: the first stage is the proliferation of international courts and tribunals; the second stage is the fragmentation of international courts and tribunals; the final stage is the exit or withdrawal of membership from international courts and tribunals (subsection B.1). Under subsection B.2, it reviews proposals that have been made in the past for the reforms of dispute resolution mechanisms in international civil aviation. In Section C, it argues that of all the proposed options, the reform of the ICAO Council is the optimal choice. It offers two frames for reforms by first assessing past proposals based on two pieces of the foundation. The first piece is a sectorized demand for dispute resolution mechanisms in international civil aviation (subsection C.1). The second piece is the possibility of establishing a new international judicial institution for civil aviation disputes (subsection C.2). Following the analysis of different models, past proposals, and the foundation of a sectorized demand in dispute resolution mechanisms, it sets two feasible frames for reforms: one is a procedural reform in the ICAO Council without creating new organs in subsection C.3, the other is establishing an arbitration institution in the ICAO Council with corresponding expertise, procedure, and a tailor-made arbitration policy in subsection C.4.
{"title":"Reforms of Dispute Resolution Mechanisms in International Civil Aviation","authors":"Luping Zhang","doi":"10.1093/oso/9780192849274.003.0006","DOIUrl":"https://doi.org/10.1093/oso/9780192849274.003.0006","url":null,"abstract":"Chapter 5 responds to the deficiencies from empirical data in Chapters 2 and 3, as well as theoretical analysis in Chapter 5 systematically. In Section B, it first discusses evolutionary trends in international dispute resolution: the first stage is the proliferation of international courts and tribunals; the second stage is the fragmentation of international courts and tribunals; the final stage is the exit or withdrawal of membership from international courts and tribunals (subsection B.1). Under subsection B.2, it reviews proposals that have been made in the past for the reforms of dispute resolution mechanisms in international civil aviation. In Section C, it argues that of all the proposed options, the reform of the ICAO Council is the optimal choice. It offers two frames for reforms by first assessing past proposals based on two pieces of the foundation. The first piece is a sectorized demand for dispute resolution mechanisms in international civil aviation (subsection C.1). The second piece is the possibility of establishing a new international judicial institution for civil aviation disputes (subsection C.2). Following the analysis of different models, past proposals, and the foundation of a sectorized demand in dispute resolution mechanisms, it sets two feasible frames for reforms: one is a procedural reform in the ICAO Council without creating new organs in subsection C.3, the other is establishing an arbitration institution in the ICAO Council with corresponding expertise, procedure, and a tailor-made arbitration policy in subsection C.4.","PeriodicalId":393514,"journal":{"name":"The Resolution of Inter-State Disputes in Civil Aviation","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122329009","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-06DOI: 10.1093/oso/9780192849274.003.0005
Luping Zhang
Chapter 4 distils the empirical data gathered from Chapter 2 and Chapter 3 and boils down two means of dispute resolutions—the political and legal means as two sets of toolkits for resolving disputes. This chapter first highlights the role of ‘aeropolitics’ in the resolution of disputes in international civil aviation under Section B. It starts with defining the notion of aeropolitics and analysis of diplomatic channels in the resolution of international civil aviation disputes in subsection B.1. The notion of aeropolitics is considered from two angles in subsections B.2 and B.3. Subsection B.4 explains the discrepancy between the text of treaties and State practices. Section C focuses on judicial powers in the aviation industry. In subsection C.1, it first defines judicialization in an international context by discussing quasi-judicial powers and their boundaries. In subsection C.2, it analyses how international civil aviation can move towards judicialization. In subsection C.3, even though there is not yet a perceived trend towards judicialization in handling disputes under bilateral air services agreements, it argues that institutionalizing dispute resolution mechanisms is still beneficial in this context. Section D concludes that there are two means of dispute resolution mechanisms in international civil aviation by focusing on two processes that are closely interlinked: the political aspect of dispute resolution, and the legal dimension thereof. This pendulum movement demonstrates an ever-evolving dispute resolution system in the aviation industry, which serves as the third cornerstone for Chapter 5.
{"title":"Means of Dispute Resolution in International Civil Aviation","authors":"Luping Zhang","doi":"10.1093/oso/9780192849274.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780192849274.003.0005","url":null,"abstract":"Chapter 4 distils the empirical data gathered from Chapter 2 and Chapter 3 and boils down two means of dispute resolutions—the political and legal means as two sets of toolkits for resolving disputes. This chapter first highlights the role of ‘aeropolitics’ in the resolution of disputes in international civil aviation under Section B. It starts with defining the notion of aeropolitics and analysis of diplomatic channels in the resolution of international civil aviation disputes in subsection B.1. The notion of aeropolitics is considered from two angles in subsections B.2 and B.3. Subsection B.4 explains the discrepancy between the text of treaties and State practices. Section C focuses on judicial powers in the aviation industry. In subsection C.1, it first defines judicialization in an international context by discussing quasi-judicial powers and their boundaries. In subsection C.2, it analyses how international civil aviation can move towards judicialization. In subsection C.3, even though there is not yet a perceived trend towards judicialization in handling disputes under bilateral air services agreements, it argues that institutionalizing dispute resolution mechanisms is still beneficial in this context. Section D concludes that there are two means of dispute resolution mechanisms in international civil aviation by focusing on two processes that are closely interlinked: the political aspect of dispute resolution, and the legal dimension thereof. This pendulum movement demonstrates an ever-evolving dispute resolution system in the aviation industry, which serves as the third cornerstone for Chapter 5.","PeriodicalId":393514,"journal":{"name":"The Resolution of Inter-State Disputes in Civil Aviation","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130773300","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-06DOI: 10.1093/oso/9780192849274.003.0007
Luping Zhang
This book has been finalised in early 2021, over seventy years after the conclusion of the Chicago Convention, which laid the foundation for the regulation of international civil aviation. The Chicago Convention created a United Nations specialized agency dedicated to international civil aviation—the ICAO—and endowed the ICAO Council with dispute resolution functions (together with ...
{"title":"Conclusion","authors":"Luping Zhang","doi":"10.1093/oso/9780192849274.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780192849274.003.0007","url":null,"abstract":"This book has been finalised in early 2021, over seventy years after the conclusion of the Chicago Convention, which laid the foundation for the regulation of international civil aviation. The Chicago Convention created a United Nations specialized agency dedicated to international civil aviation—the ICAO—and endowed the ICAO Council with dispute resolution functions (together with ...","PeriodicalId":393514,"journal":{"name":"The Resolution of Inter-State Disputes in Civil Aviation","volume":"16 3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125994570","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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