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TDM Call for Papers Special Issue on: "Old and New Disputes in Aerospace Law"

3 December 2020

Yun Zhao and Jędrzej Górski will be editing a Special Issue of Transnational Dispute Management (TDM, ISSN 1875-4120, www.transnational-dispute-management.com) on "Old and New Disputes in Air and Space Law."

While the aviation industry had first been disrupted by the Boeing 737 Max grounding and later battered by the COVID pandemic, the space industry has recently witnessed a spectacular renaissance. About half a century after the culmination of the US-Soviet space race, the geopolitical tensions stemming from ongoing economic policentrisation have regained their space-dimension and attracted new actors like China and India and several more or less state-backed private enterprises. The new space race is on for the creation of 'new economies,' and the resulting control of new technological cycles, space resources and connectivity. In the wake of the demise of the terrestrial rule-based multilateral trading system, the new game is also for the arbitration of the new rule-based order which will also embrace extraterrestrial strategic flows of people, resources and information.

The existing regulatory framework shaped during the cold war, and directly thereafter, is falling behind the challenges posed by the new race and imminent controversies arising between competing governmental and non-governmental actors. Very vague rules of the moon and asteroid mining under the Space Treaty lack any settlement mechanism concerning competing claims to resources, and do not withstand the test of time. They are being challenged with recent domestic legislative acts by powers capable of self-launched human spaceflights, addressing commercial use of space. The conclusion of plurilateral agreements like the Artemis Accords foretells fragmentation of the existing universal framework and clustering around several competing frameworks by blocs of countries involved in joint space projects. Also, the break-up of states' monopolies over launching services, and emancipation of private enterprise in this sector, challenges the exclusively state-to-state settlement mechanism available under the Space Liability Convention. Current developments beg the question of integrating private launching-services providers' direct liability for damage, and standing of harmed private persons to directly seek damages, into international law instruments.

Meanwhile, old disputes persist in air law and aviation sector. Several air boundaries disputes tangled with maritime boundaries disputes remain unresolved. Long-lasting Western trade disputes at the WTO about subsidies for Boeing, Airbus or Bombardier have not yet spilt over to Russia's United Aircraft Corporation (UAC) or its joint venture with Chinese Comac (China-Russia Commercial Aircraft International Corporation Limited or CRAIC). The showdown between competing geo-economic blocs in the Asia-Pacific region (RCEP vs TPP) has not yet contributed to the liberalization of aviation services. Industry players and governments have to deal with existing hardship within the current framework, including the fallout from 737Max malfunctions, or new aircraft orders cancelled due to COVID. New mutual accusations of state aid to aircraft producers, airlines and airports could barely be addressed at the WTO in the lack of fully-functional WTO Appellate Body.

Finally, the expected technical progress allowing broad commercialization of passenger and cargo sub-orbital flights will blur the lines between an air/aviation regime and a space regime. It will raise the question of how to best amalgamate separate rules on liability, market access or even subsidies to private enterprises, along with related settlement mechanisms, into one body of aerospace law. Altogether, the following topics raise interesting points for discussion. We welcome submissions which address these and other relevant topics:

• Territorial disputes and access to resources:
  • disputes concerning freedom of overflight under UNCLOS through straits (art 38) and archipelagos (art 56),
  • disputes concerning satellite orbits under the International Telecommunication Union (ITU) allocation mechanism, and in the light of the Bogota Declaration,
  • jurisdiction, law and forum applicable to exploration under art VIII of the Outer Space Treaty along with conflict with cross-jurisdictional gov-2-gov dispute settlement under art IX of the Outer Space Treaty,
  • compliance of the national legislation like the Commercial Space Launch Competitiveness Act of 2015 (US) or declarations/designs like the Artemis Accords (US) with the Outer Space Treaty and other international agreement concerning the exploitation of resources,
  • Case studies
    • Appeal Relating to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia and the United Arab Emirates v. Qatar)
    • Appeal Relating to the Jurisdiction of the ICAO Council under Article II, Section 2, of the 1944 International Air Services Transit Agreement (Bahrain, Egypt and the United Arab Emirates v. Qatar)
    • Indonesia-Singapore dispute over Riau Islands airspace (case study),
    • Malaysia-Singapore dispute over southern Johor airspace (case study),
    • Freedom of overflight over the South China Sea in light of the Philippines v China(PCA case no 2013-19),
  • cessation of the Treaty on Open Skies,
• Market access and competition-related disputes:
  • Non-discrimination concerning airport charges (Chicago convention art 15), exemption from duties/taxes (Chicago convention art 24),
  • Disputes between the EU and third countries (eg US and China) concerning EU's application of the Emission Trading System (ETS) to the aviation industry,
  • Aircraft-producers dumping/state-aid disputes
    • implementation of the DS316 European Communities and Certain member States - Measures Affecting Trade in Large Civil Aircraft
    • implementation of the DS353: United States - Measures Affecting Trade in Large Civil Aircraft - Second Complain
    • aftermath of the Boeing-Bombardier trade dispute concerning dumping pricing of the CSeries aircraft,
  • challenging state-aid to airline and aircraft industries in the COVID and post-COVID area,
• Civil liability:
  • Operator's liability
    • jurisdiction, forum, applicable law, arbitrability, and recognition of judgments and arbitral awards in disputes under the Montreal Convention (arts 17-24)
    • jurisdiction, forum, applicable law, arbitrability, and recognition of judgments and arbitral awards in disputes concerning damage on surface/third parties under the Rome Convention 1952 (arts 19-22): changes under the Convention on Compensation for Damage Caused by Aircraft to Third Parties (General Risks Convention 2009) art 16-19.
    • Liability of commercial entities (whether SOES or private) for the damage caused by space objects, including Antrix Corporation Limited (ACL), China Aerospace Science and Technology Corporation (CASC), Eurockot Launch Services GmbH, International Launch Services (ILS), Mitsubishi Heavy Industries (MHI), Northrop Grumman Space Systems, Rocket Lab, Sea Launch, Spaceflight Industries, Starsem, SpaceX and United Launch Alliance (ULA)
    • insurance dispute settlement
    • space-debris-related dispute settlement.
  • Aircraft manufactures responsibility
    • Boeing's liability for grounded 737s (case studies)
    • Boeing's liability for accidents involving 737s (Lion Air Flight 610, Ethiopian Airlines Flight 302)
  • State liability
    • state-to-state dispute settlement under the Convention on the international liability for damage caused by space objects with an emphasis on state-responsibility for private launching firms, and under art VII of the Outer Space Treaty,
    • Iran's liability for Caspian Airlines Flight 6936 accident (case study)
  • Execution of dues
    • jurisdiction, forum, applicable law, arbitrability, and recognition of judgments as well as arbitral awards while exercising dues under the Convention on International Interests in Mobile Equipment 2001 (arts 42-45)
• Operation of aviation-dedicated dispute-resolution institutions:
  • ICAO Council along with the International Court of Justice as the appellate body (Chicago Convention arts 84-85)
  • CMAC (China Maritime Arbitration Commission) Aviation Dispute Arbitration Center and the Aviation Dispute Mediation Centre,
  • SHIAC (Shanghai International Arbitration Center) Shanghai International Aviation Court of Arbitration ("SHIACA")

Co-Editors:

Time line and submission guidelines:

Proposals, along with authors' profiles (150-200 words) should be submitted to Yun Zhao and Jędrzej Górski - contact info here - and copied to info@transnational-dispute-management.com at your earliest convenience. Full papers should be submitted by the end of September 2021.

Articles accepted for publication ahead of this schedule can also go through TDM's on-line advance publication process allowing your work to reach its target audience as soon as the paper completes peer review and the editing process. Contributors might be asked to cross-review up to two other papers.

The minimum word count of articles should be 5000 words (excluding footnotes, endnotes, appendices, tables, summary etc.). The maximum word count of articles should be 9000 words (10000 words including footnotes, endnotes, appendices, tables, summary etc. Longer contributions can be considered for publication on exceptional basis. Articles should include summaries (150-200 words).

Citation style, with emphasis on internet sources, should strictly conform to the 4th edn of the Oxford University Standard for the Citation of Legal Authorities (OSCOLA) along with the 'OSCOLA 2012 Citing International Law Sources Section'. [1] The layout of the articles should conform to Transnational Dispute Management's (TDM) submission guidelines available at: www.transnational-dispute-management.com/contribute.asp (more information available upon request)

Please feel free to circulate this call for papers amongst friends, colleagues and other people who you think may have an interest in this topic.

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