Font Size: a A A

A Study On Dispute Resolution Of Private International Law Of International Passenger Carriage By Air

Posted on:2016-04-17Degree:DoctorType:Dissertation
Country:ChinaCandidate:W P ZhangFull Text:PDF
GTID:1226330467497596Subject:International Law
Abstract/Summary:PDF Full Text Request
In the early20th century, the exploration and utilization of the sky became morefrequent, and in1914the birth of the world’s first commercial air transport promotedthe legal regime of International Passenger Carriage by air. After the World War1, theprocess of unified international aviation legal system officially kicked off, the Warsawconvention of1929is the significant achievement in this unification. The CarrierLiability of Warsaw convention is based on the limitation of liability of the carrier andthe presumption of fault imputation principle.Obviously, such rules tend to protect thecarrier, this characteristics relate to the international air transport budding period.Although the Warsaw convention is considered to be one of the most successfulinternational treaty in private international law field, but with the progress of thesociety and the development of the aviation transportation industry, the liabilityRules of Warsaw convention turned inappropriate, in order to safeguard initialobjective of unifying the international aviation transportation rules, relatedorganizations formulated new treaties to remedy the defect of Warsaw convention,these treaties together with the Warsaw convention form the liability system ofinternational passenger carriage by air, namely "Warsaw system". Warsaw system iscomposed of a series of legal documents, since contracting states of each document isnot the same, internal conflicts and contradiction arose among the legal documents,this situation brought great difficulties and uncertainties to the dispute resolution ofinternational passenger carriage by air. In view of this, many countries andinternational organizations use a variety of ways to avoid or break the Warsaw system,this made the legal system of international passenger carriage by air turn to morediversity, conflicts of law like the sand of Ganges. By the end of the20th century, theactivities of modernize and unified Warsaw system carried out by ICAO, and finallythe Montreal convention of1999was successfully appear publicly. Montrealconvention of1999inherited the legal framework of warsaw system and created newliability rules of carrier, accord with the requirements of modern internationalpassenger carriage by air. The ultimate goal of Montreal convention is replace the Warsaw system, but itwill take a long time to achieve this goal. Since the Warsaw system and the Montrealconvention has different contracting states, there still exist two paralle liability systemand the legal conflicts more than before. In order to solve the disputes of internationalpassenger carriage, the significant issue is how to comb and analysis the relatedprivate international legal rules.According to the provisions of Warsaw convention and the Montreal convention,solve the disputes of international passenger carriage by air must be conducted by theproceedings, the two conventions regarding jurisdiction with mandatory, so citizensand courts of the contracting states should observe. Warsaw convention establishedfour jurisdiction rules, and still applicable in the disputes of international passengercarriage by air. Under this jurisdiction system, a lot of controversy happened in theoryand practice, it add more difficulties to the dispute resolution. Montreal convention of1999inherited the four jurisdiction rules of warsaw system, meanwhile, created thefifth jurisdiction. The goal of the fifth jurisdiction is to protect the passengers, it isadvantageous to the passengers filed a lawsuit, and solve it in a flexible way. BothWarsaw convention and Montreal convention caused a controversy about forum nonconveniens, this regime still needs further thinking.Both the two conventions did not define a clear legal attribute of the dispute ofinternational passenger carriage by air, which has caused a debate that whether thedispute is a contractual or infringement, it has not been solved. Meanwhile, the causeof action has become a focus of such disputes. In this context, how to complete thequalification is key point in dispute resolution process. In addition, a lot of key termsof the Warsaw system and the Montreal convention also need the qualification process,this is related to the liability regime of international passenger carriage by air whethercould effectively unified or not. From a practical point of view, the qualificationactivities are big differences in this part.Due to the international natural of aviation activities, a dispute of internationalpassenger carriage by air often involve more than one country, it is also the motivationof Warsaw system and Montreal convention strive to unified. However, Warsawsystem and Montreal Convention are not unified all legal issues in the field ofinternational carriage of passenger by air, many disputes still rely on relevantdomestic legislation. The significant thing is how to deal with the conflicts betweenthe conventions and domestic legislation, and select the most appropriate applicable law. For break through the constraints of Warsaw system and the of the Montrealconvention, the litigation of product liability has become a common phenomenon inthe field of international carriage of passenger by air, the applicable law of this kindof dispute problem also worth pondering.Since the Civil Aviation Law of China (1995) promulgated has been20years,during this period, the development of aviation transportation industry with a rapidspeed in our country’s. Unfortunately, the Civil Aviation Law of China still not beento revised, many rules could not meet the requirements of fact. China become thecontracting state of Montreal convention for ten years, but the rules of the CivilAviation Law of China maintained a lot rules of Warsaw system. It is the high time torevise the Civil Aviation Law of China (1995), the scientific legislative policy is notjust some words. The rules of international passenger carriage by air of China shallfollow the era, show the demeanour of an aviation power.
Keywords/Search Tags:International Passenger Carriage by Air, Dispute Resolution, PrivateInternational Law, Warsaw System, Montreal Convention, Civil Aviation Law ofChina
PDF Full Text Request
Related items