Abstract

http://ssrn.com/abstract=1885187
 
 

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The Emerging Lex Aviatica


Brian F. Havel


DePaul University College of Law

Gabriel S. Sanchez


DePaul University College of Law

July 13, 2011

Georgetown Journal of International Law, Vol. 42, No. 3, 2011

Abstract:     
Since the advent of international commercial air travel, every airline has been straitjacketed by treaty-based restrictions which mandate that, in order to be eligible to provide international air services on behalf of its home state, it must be owned and controlled by citizens of the home states (or by the home state itself). This citizenship “purity” requirement, commonly referred to as the “nationality rule,” is reinforced by national laws requiring substantial (share) ownership and effective control of national air carriers by the home state or its citizens. The combined effect of these treaty and national law restrictions has been to prevent airlines from merging across borders or from establishing subsidiaries in other states. Consequently, airlines are locked out of transnational capital markets at a time when the global operating environment (including oil price spikes and lingering demand weakness in the wake of the Great Recession) has never been more challenging. In this Article, we identify an emerging normative transition, which we dub the “lex aviatica,” that is attempting to displace the treaty-based nationality rule. This transition is rooted in an evolving consensus among airlines and sympathetic government officials. Thus, in contrast to its conceptual antecedent, the “lex mercatoria,” through which the merchant class consciously broke with the common law, the emergent lex aviatica suggests a lawmaking process where not only is the state no longer the sole actor or regulator, but there is an appreciably more open-textured collaboration between merchant and state. The Article analyzes how this normative transition could transform the global regulatory order for international aviation, liberating commercial and investment opportunities that will allow the industry that globalized the world to become global itself.

Number of Pages in PDF File: 34

Keywords: law, aviation, foreign investment, international trade, regulation, international law, airlines, lex mercatoria

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Date posted: July 14, 2011  

Suggested Citation

Havel, Brian F. and Sanchez, Gabriel S., The Emerging Lex Aviatica (July 13, 2011). Georgetown Journal of International Law, Vol. 42, No. 3, 2011. Available at SSRN: http://ssrn.com/abstract=1885187

Contact Information

Brian F. Havel
DePaul University College of Law ( email )
25 E. Jackson Blvd.
Chicago, IL Cook County 60604-2287
United States
Gabriel S. Sanchez (Contact Author)
DePaul University College of Law ( email )
25 E. Jackson Blvd.
Chicago, IL Cook County 60604-2287
United States
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