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Air Traffic and Air Traffic Path Dispute: Emerging Challenges in Aviation Law

Aviation laws are one of the least visited laws in India when it comes to legal awareness. According to a statement issued by Union Civil Aviation Minister Jyotiraditya M. Scindia on 18th April, 2022, India's daily domestic air passenger traffic crossed the 4 lakh mark on Sunday - for the first time in the last two years.[1] Air Passenger Traffic is the crowd or the population who use air travel and Air Traffic is the traffic created by aircrafts.

The Ministry of Civil Aviation is the body which frames laws relating to aviation and airlines. According to the Aircraft Act, 1934 and the Aircraft Rules, 1937, The Directorate General of Civil Aviation ( DGCA) enforces civil air regulations, regulates air transport services, air safety and airworthiness standards.[2]

The Aviation industry faces a lot of disputes with regards to passenger complaints and several issues relating to the staff of the airlines as well. Recently, the Ministry of Civil Aviation proposed the draft Protection and Enforcement of Interests in Aircraft Objects Bill, 2022. The Bill implements the provisions of the Convention on International Interests in Mobile Equipment and Protocol on Matters Specific to Aircraft Equipment which was adopted at a conference in Cape Town in 2001.[3]

However, one of the major unanswered questions remains in the field of dispute resolution. Alternative Dispute Resolution is a convenient form of dispute redressal in the forum as compared to litigation as it consumes less time and resources. The basic principles and ideals of dispute redressal have been adopted from the Chicago Convention which marks negotiation as the first step towards dispute resolution.

Prioritization strategy is one out of the various methods of conflict resolution in aviation industry. The use of this method comes into play usually in cases of air traffic where the use of a particular path is in dispute. The special characteristic of this strategy is that it arrives at a decision after a study entirely based on figures.

This is done by comparing the scores of the aircrafts in conflict. The scores of each aircraft are specified based on situation of that aircraft in airspace.[4] In the process of application of the prioritization strategy, the scores of the aircrafts are compared and the one with the highest score is given priority over the other.

In conflict resolution process, the aircraft with a lower priority must change its original flight path in order to prevent of occurring conflicts.[5] This shows that even if this is a hierarchy way of resolving conflicts, it is very general and practical in nature.

The allotment of scores primarily determines the aircraft to be prioritized depending which was at the least deviation from the mainstream and the requisite path. Thus, this prioritization strategy seems to be appropriate for dispute resolution because of its formulated manner of analyzing situations and working our solutions as per the focus of the aircraft on the path.

After analyzing various cases and situations, it has been found that alternative dispute resolution methods do not always work out in aviation sector unless it is a labor dispute specifically.

This is why the proposed model of prioritization strategy seems pretty appropriate. It is useful for parties to negotiate over a number of issues or resources, since they can try to create value and maximize benefits by trade-offs between them. This is because the order of priority among these issues for one party may differ from that of the other and provide an opportunity for exchanges.[6]

In negotiating on the basis of interests, parties will need to [7]:
  • distinguish between positions and interests
  • move from positions to interests
  • list all the interests according to priority
  • think of positions as only one of many solutions to the problem.

Even after such implementation of negotiation procedures, with the application of the BATNA (Best Alternative to Negotiating Agreement), the prioritization strategy or any possible alternative which seems better than the one on the negotiating table can be given effect to.

BATNA is a concept of strategic negotiation wherein the negotiator analyses what alternative is available instead of the negotiated agreement so that the negotiator can have an upper hand at the bidding table. More than law, BATNA is a principle of corporate or business negotiations. The option of BATNA can be taken up by the negotiating party when the terms of the negotiating agreement do not work out. Identifying the BATNA and understanding its benefits is extremely essential before entering into any form of negotiation.

One of the best examples of BATNA is Iberia's negotiations with Boeing where he cracked an agreement with Boeing while keeping Airbus also through its prior negotiations with resale price guarantees. Overall, it has become pertinent that alternative dispute redressal methods turn out to be successful in the aviation industry especially with regards to competition.

When it comes to the disputes faced by the consumers, the Director General of Civil Aviation has issued certain guidelines which aide in securing the rights of the consumers and the Consumer Protection Act also covers this area to a major extent. Largely, it is extremely essential to understand air traffic and laws relating to air traffic considering the fact that the aviation industry contributes towards the nation's revenue to a huge extent.

End-Notes:
  1. https://www.business-standard.com/article/current-affairs/india-s-domestic-air-passenger-traffic-crosses-400-000-mark-on-sunday-122041800920_1.html
  2. http://nalsarpro.org/Portals/23/16_Domestic%20Air%20Law%20in%20india%20Civil%20Aviation%20Governace%20in%20India%20Feb%2007-02-2020.pdf
  3. https://www.thehindu.com/news/national/draft-law-to-enable-aircraft-lessors-to-repossess-aircraft-during-dispute/article65332964.ece
  4. Hojjat Emami and Kamyar Narimanifar, A Conflict Resolution Approach using Prioritization Strategy, Journal of Information Systems and Telecommunication, 2013.
  5. Ibid.
  6. Yona Shamir, Alternative Dispute Resolution Approaches and Their Application, Israel Center for Negotiation and Mediation (ICNM), UNESCO available at http://webworld.unesco.org/water/wwap/pccp/cd/pdf/negotiation_mediation_facilitation/alternative_dispute_resolution_approaches.pdf
  7. Ibid.

Written By: Dr Farrukh Khan is an Advocate and Managing Partner of Law Firm- Diwan Advocates.

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