A quick footnote to our recent article on the challenges facing airlines in cross-border investments (Finding a new Frontier Airline Business May 2011) – here are some thoughts on the subject from Brian Havel – director of the International Aviation Law Institute at DePaul University Chicago – you can find this and other thoughts at the Aviation Law Prof Blog
David Knibb has an informative piece in the latest issue of Airline Business on the incremental movement toward crossborder investment in the airline industry and the formidable challenges which remain. See Ownership: Finding a New Frontier, Airline Bus., Apr. 18, 2011. As the article discusses, the tolerance for foreign ownership of airlines varies from region to region and, thus far, has often been allowed on an ad hoc basis. So long as States retain the right under their respective air services agreements (ASA) to limit or revoke the traffic rights of airlines which are not owned and controlled by the citizens of their home countries, international air carries which ingest foreign capital or come under the control of a foreign entity risk losing valuable market access privileges. For instance, once the merger between Chile’s LAN and Brazil’s TAM is approved, the United States could, under the terms of its ASA with Brazil, lock-out TAM on the grounds that it is owned and controlled by Chileans.
In an effort to inject a high-level of stability into the international aviation investment regime, the United States has proposed a Multilateral Convention on Foreign Investment in Airlines. See Facilitating Airline Access to International Capital Markets, ICAO Working Paper No. A37-WP/190 (Sept. 13, 2010). Under the agreement, signatories would provide a list of partner States against which they will not enforce the nationality clauses in their ASAs. This would have the benefit of providing greater legal certainity with respect to which air carriers could freely engaged in crossborder mergers and acquisitions without potentially forfeiting their traffic rights. While a final draft of the Convention has yet to appear, the International Civil Aviation Organization is currently assessing its terms and whether or not to open the treaty up for formal ratification.
For more from Brian Havel, check out this piece he wrote as part of Airline Business’ 25th anniversary issue on why open skies is a milestone and not the culmination of liberalisation