Navigating the skies: Arbitration in aviation disputes

Abstract

Listen

Translate article

While the International Civil Aviation Organization (ICAO) Council is sometimes criticized for the potential influence of political agendas on its decisions, while the International Court of Justice (ICJ) is criticized for its limited jurisdiction and dependence on the party’s willingness to accept the ICJ’s jurisdiction, a crucial concern is raised over the efficiency of the current Dispute Resolution Mechanisms (DRM) for aviation industry related disputes. Unravelling the compelling inquiry that hangs in the air: Just how efficient is the current aviation arbitration legal system? Is the efficiency of this system available to ad hoc arbitration1 or arbitral tribunals2? The authors aim to analyze the existing legal guidance to navigate the complex arbitration system. This article sheds light on precedent cases by the ICAO Council and the ICJ studying challenges, such as the lack of efficiency of the ICAO Council and the criticism of the Council’s ineffectiveness for being hampered by the political interests of Member States. As well as the ICJ as it may be a more powerful authority in resolving such disputes, it also faces multiple challenges including the lack of enforcement, jurisdiction issues, and political influence, which in return makes it unlikely for dispute parties to seek the ICAO or the ICJ for resolution of their disputes, instead parties have now mostly adopted arbitration clauses as their primary dispute resolution method under Air Services Agreements (ASAs) and other aviation related agreements. While ad hoc arbitration has shown effectiveness and success, its secrecy and confidentiality might result in inconsistency and the inability to develop a case law system. The authors note the urgent need for an arbitration institution3 under the United Nations (UN) umbrella specialized in air law and aviation technology disputes, with the power to issue an enforceable, legally binding ruling. The article also examines the realm of arbitration in the aerospace industry, analyzing legal resources, current aviation arbitration systems, centres, and platforms, and further analyzing case studies to assess the results of the efficiency of each Dispute Resolution Mechanism.