Preliminary Remarks. The next sections illustrate the role of slots in several types of financial operations, including bankruptcies and insolvencies of airlines as well as take-overs, as previously referred to in section 5.2.2 above. As a result of COVID-19, several airlines have entered into financial proceedings.1056 Airline bankruptcies and/or airlines ceasing operations are, however, a perennial issue resulting from market dynamics in a broad sense and are not necessarily related to the COVID-19 pandemic. The slot rules would benefit greatly from clarity as to whether airlines entering bankruptcy proceedings should be able to hold and sell slots purely to raise finance to repay creditors. 1055 See Chapter 2, sections 2.2.2 and 2.2.3 for an overview of the capacity declaration and allocation processes respectively. 1056 See Eurocontrol, What COVID-19 did to European Aviation in 2020, and Outlook 2021, Aviation Intelligence Unit, Think Paper #8 (2021). Several pre-COVID-19 related court judgments and developments following the financial distress of, inter alia, Air Berlin and Monarch Airlines, will be analyzed below, since these cases have contributed to the ongoing debate amongst industry parties and regulators on the role, and the legal status, of slots in the event of airline bankruptcies and airlines ceasing operations for other reasons. The Monarch-case constitutes a particularly important precedent for the management of slots in financial proceedings as well as for legal analysis pertaining to secondary slot trading, to wit that a defunct airline is able to obtain and trade slots.1057
Preliminary Remarks. The art of writing legal texts, or légistique as it is called in French, is complex. Many documents explain how a bill or legal texts should be written in order to avoid possible confusion, and the need for recourse to interpretation mechanisms. As the law must be clear and predictable to fulfil its role,1 many techniques are applied during drafting.2 At the level of the European Union, the Joint Practical Guide for persons involved in the drafting of European Union legislation is a very useful kit that states: The drafting of a legal act must be clear, easy to understand and unambiguous; simple and concise, avoiding unnecessary elements; precise, leaving no uncer- tainties in the mind of the reader. This common sense principle is also an expres- sion of general principles of law, such as […] legal certainty, in that it should be possible to foresee how the law will be applied.3
Preliminary Remarks. After the aforementioned drafting elements, the Travaux Préparatoires confirm that the drafters of the Conventions sometimes agreed that uniform rules, including terms encompassed therein, could be applied differently. Two main reasons have been used to justify this breach in uniform applica- tion: first, to permit Courts to apply rules and terms to the facts of the case; and second, because no common position has been reached.
Preliminary Remarks. An additional source of fragmentation may come from the possibility of claims related to the same event being simultaneously heard by Courts in different jurisdictions. The following sections will examine decisions under the 1929 Warsaw Convention and 1999 Montreal Convention.
Preliminary Remarks. Next to the drafting elements examined above, factors which are not based on semantic choices have also limited the ability of the Conventions to fully deploy and realize their aim of uniformity from the time of their signing. The Conventions, singular in their nature of being international public instruments regulating private law relations, face typical international public law limits, such as reservations and declarations, while, at the same time, are deprived of the possibility that their uniform application could be ensured by a single common Court or by clear specific interpretation mechanisms.
Preliminary Remarks. As the question of reservations is nevertheless very limited in practice, the genuine non-semantic flaw of the Conventions stands in the absence of common jurisdiction and/or specific interpretation mechanisms.
Preliminary Remarks. The Parties shall undertake to settle any dispute regarding the handling of applications, examina- tions or granting of certificates as well as other measures of the Certification Body in connection with the certification agreement as far as possible by way of an objections procedure before an Arbitration Committee in accordance with Section I of this Agreement. If and to the degree that it is not possible to settle a dispute through the objection procedure be- fore an Arbitration Committee, the Parties shall agree to settle the dispute by way of arbitration proceedings in accordance with Section II of this Agreement.
Preliminary Remarks. 1. Innocoll AG is registered with the commercial register of the local court of Regensburg under HRB 14298. The registered purpose of the Company is the holding and managing of participations in enterprises, and of similar rights, in particular, but not limited to, the pharmaceutical area. The Company has been established by way of transformation (Formwechsel) of Innocoll GmbH, a limited liability company under German law. The Grantee is a member of the management of the Company or of a related company within the meaning of Sec. 15 et seq AktG (“Affiliate”).
Preliminary Remarks. Although the literature sometimes uses unclear wording,12 there exist two major categories of techniques of legislative approximation: Harmonization and Unification. This distinction was notably used in the United Nations Resolution 2205 (XXI) of 17 December 1966 on the Establishment of the United Nations Commission on International Trade Law,13 and in the Unidroit Statute.14 Due to the existence of several nuances, each instrument must receive an ad hoc analysis. This study will focus particularly on the distinction made between harmonization and unification, and assumes that harmonization entails changes in domestic legislations to ‘produce more or less similar law in different countries’,15 while unification concerns the ‘creation of identical rules’.16 These concepts should not, however, be confused with codification, which consists of a ‘more precise formulation and systematization of rules of international law in fields where there already has been extensive State 12 See, for example, Xxxxxxxx Xxxxx Xxxxxx, Harmonisation, unification et uniformisation en droit des contrats: plaidoyer pour un discours affiné sur les moyens d’intégration juridique, 13 Unif. L. Rev. 715-716, 722 (2008); Xxxxxxxxx Xxxxx-Xxxxxx, Unifying and Harmonizing Substantive Law and the Role of Conflict of Laws 32 (Pocketbooks of The Hague Academy of International Law, 2010); Xxxx Xxxxxx Xxxxxx, ‘The Concept of Unification and Harmo- nization’, in Xxxxxx Xxxx (eds), Unification and Harmonization of International Commercial Law – Interaction or Deharmonization 7 (Wolters Kluwer, 2012); Xxxxxxx Xxxxxxxx, Defining Uniformity in Law, 12 Unif. L. Rev. 5-54 (2007); Xxxxxxxx Xxxxxx-Xxxxx, Trois défis pour un droit mondial 104-134 (Seuil, 1998).
Preliminary Remarks. Significant attention will be paid to international, regional and domestic judicial decisions. The importance of judicial decisions is recognized in international law by Article 38(1)(d) of the Statute of the International Court of Justice,109 which reads as follows: The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: […] 107 United Nations Convention on the Contracts for the International Carriage of Goods Wholly or Partly by Sea, 11 December 2008, New York, not yet in force. 108 Convention Relating to the Regulation of Aerial Navigation, 13 October 1919, Paris, LNTS, 11, p. 173, entry in force 29 March 1922. 109 United Nations, <xxxxx://xxxxx.xx.xxx/avl/pdf/ha/sicj/icj_statute_e.pdf> (accessed 6 September 2020).
