International Instruments in Air, Space, and Telecommunications Law: The Need for a Supranational Dispute Settlement Mechanism

In this paper (Paragraph No. 10,011), the author critiques existing dispute resolution mechanisms, notably arbitration, in international air, space, and related telecommunications law, and asks that the reader consider their limited reach. The author argues that all air, space, and telecommunications law ("AST") disputes with an international character be subject to mandatory mechanisms of settlement before permanent arbitral tribunals and that private parties be afforded full participation in international schemes of dispute settlement for these sectors. According to the author, ad hoc arbitration, where parties agree to a general arbitration clause that does not mandate any specific institutional tribunal, is entrenched as the preferred dispute settlement mechanism in AST international law instruments, and is found in numerous multilateral and bilateral aviation agreements. The author argues that ad hoc arbitration, which has perceived advantages of flexibility, should be superseded at the international level by the compulsory jurisdiction of a permanent supranational arbitral institution specializing in AST disputes. Acknowledging the radicalism of his approach, the author nonetheless argues that it can garner assured state support for three reasons. First, a permanent, sectoralized arbitral mechanism would build upon the dominance of arbitration in modern bilateral and multilateral AST treaty systems. Second, past experience with transnational ad hoc arbitration in the AST sector has been isolated, overpoliticized, and is of limited precedential and norm-generating value. Finally, permanent arbitration has certain important structural and strategic advantages over ad hoc approches, including its ability to promote much greater certainty, consistency, normative coherence, and decisional rigor. The author discusses the ongoing hushkit controversy between the United States and the European Union, as well as the United States / United Kingdom dispute concerning airport user charges at Heathrow Airport, to help him demonstrate ad hoc arbitration's shortcomings. A detailed proposal for mandatory supranational arbitration in the AST sector follows, along with a suggestion that the Permanent Court of Arbitration leverage its new profile under the Eurocontrol Revised Convention to evolve into the designated permanent tribunal for transnational AST disputes. The author urges that his model, like all supranational adjudicative systems, be evaluated in light of the expanded jurisdictional and enforcement powers of the World Trade Organization dispute settlement system established in 1995. In the final part of his essay, the author proposes that supranational arbitral jurisdiction be enhanced through a grant of standing to private parties, citing examples of how modern practice is gradually accommodating some forms of private party recognition. The global trend toward alliances and deregulation invites consideration of why private commercial interests should continue to be mediated through inter-state dispute settlement, and the author envisions private party arbitration that allows globally oriented businesses to enforce trade rules directly against both foreign and domestic governments--or against one another. He concludes that the ruling jurisprudence of the U.S. and the EU legal systems can be configured to accept the new supranational order for AST dispute settlement.

• Corporate Authors:

  International Aviation Law Institute

  DePaul University College of Law, 25 E Jackson Boulevard
  Chicago, IL  United States  60604
• Authors:
  • Havel, Brian F
• Publication Date: 2004

Language

• English

Media Info

• Media Type: Print
• Edition: Transfer Binder 1: 2001 to 2004
• Pagination: pp 4051-4096
• Monograph Title: Issues in Aviation Law and Policy

Subject/Index Terms

• TRT Terms: Airspace (Law); Arbitration; Aviation law; Disputes; International law; Telecommunications
• Subject Areas: Aviation; Law;

Filing Info

• Accession Number: 01149558
• Record Type: Publication
• Files: TRIS
• Created Date: Jan 29 2010 12:03PM