Andreas Fankhauser
Lawyer biography
Andreas Fankhauser is the principal attorney at Proton Legal LLC, a Zurich-based law firm. He has over 18 years of experience in handling and resolving complex disputes through mediation, litigation and arbitration arising out of a variety of business transactions, including in the fields of aviation, transportation, international trade and investment, construction and engineering, product risk and liability, insurance and reinsurance, as well as fraud and asset recovery. He regularly acts as counsel to parties in proceedings before Swiss courts as well as in international commercial and investment arbitrations. Andreas Fankhauser also sits as arbitrator.
His non-contentious work involves giving advice in matters arising in the course of mergers and acquisitions, venture capital and private equity deals as well as joint ventures. These matters often involve the business of aviation/aerospace as well as drones and digital technology.
Andreas Fankhauser has substantial exposure to business legal systems and culture in Europe and Asia, in particular China.
Updates
Aviation
Damning investigation report of Ju 52 crash and its legal fallout
Switzerland | 12 May 2021Swiss Transportation Safety Investigation Board investigators recently released a report on the crash of a vintage Junkers Ju 52 aircraft, operated by Ju-Air. The report found that the aircraft had stalled after the pilots navigated it in a high-risk manner into a narrow valley at a low altitude and a dangerously low airspeed with its centre of gravity out of limits. The investigation detailed a deficient safety culture that permeated every aspect of Ju-Air.
EU drone regulations will apply in Switzerland
Switzerland | 24 June 2020In 2019 the European Union issued a package of regulations relating to the use of drones. Although Switzerland is not a member of the European Union, both the EU Commission Implementing Regulation and the EU Commission Delegated Regulation will be adopted into Swiss law. The current Swiss regime on the operation of drones will remain in force until the end of 2020.
Federal Administrative Court weighs in on penalty levied on airline for carrying inadmissible persons
Switzerland | 04 March 2020'Inadmissible persons' ('INADs') is a term used for passengers who are or will be refused admission to a state by its authorities. Pursuant to Article 122a of the Foreign and Integration Act, a violation of airlines' duty of care is presumed if the airline carries INADs. However, Article 122a departs from the presumption of innocence by requiring airlines to prove specific matters in order to avoid conviction. The Federal Administrative Court recently ruled on the matter.
Supreme Court acquits air traffic controller
Switzerland | 08 January 2020The Supreme Court recently upheld an appeal against the conviction of an air traffic controller who had cleared two aircraft in quick succession to take off from two crossing runways at Zurich airport. The decision is welcome news and contrasts with recent convictions of air traffic controllers handed down in Switzerland for operational incidents that resulted in neither injury nor damage.
Supreme Court upholds air traffic controller conviction
Switzerland | 14 August 2019The Supreme Court recently dismissed an appeal against the conviction of an air traffic controller for negligent disruption of public transport. In so doing, the court established a new precedent that allows for criminal prosecution and conviction for operational incidents that result in neither injury nor damage. As this decision makes it difficult for aviation professionals to treat their mistakes as learning opportunities, it is a major step backwards for aviation safety.
Air traffic controller convictions draw criticism
Switzerland | 15 May 2019Air traffic controller and pilot organisations have criticised recent convictions handed down in Switzerland for operational incidents that resulted in neither injury nor damage. Critics have asserted that criminal prosecutions in the aviation sector tend to do more harm than good. Further, there is widespread concern that criminalisation leads to a loss of cooperation from individuals who could provide the most critical insight into the circumstances of an incident.
Switzerland and United Kingdom sign post-Brexit bilateral air transport agreement
Switzerland | 06 February 2019Amid tumultuous Brexit developments, the Swiss and UK authorities recently signed a new bilateral air transport agreement to ensure the continuation of flights between the two countries post-Brexit. Switzerland can apply the new agreement provisionally, pending its entry into force following an exchange of diplomatic notes confirming each country's fulfilment of internal procedures for committing to the agreement. The Swiss government may finalise the new agreement without prior parliamentary approval.
Liability regime governing JU-Air Junkers Ju-52 crash
Switzerland | 19 September 2018While many legal issues surrounding the recent JU-Air Junkers Ju-52 crash have yet to be determined by the Swiss Transportation Safety Investigation Board, claims for passenger deaths will be governed by the EU-Swiss Air Transport Agreement. The agreement extends the scope of the liability provisions of the Montreal Convention for passenger deaths to domestic carriage by Community air carriers and requires advance payments to cover the victims' families' immediate economic needs after an accident.
Lufthansa and Swiss request to waive merger commitments must be re-examined
Switzerland | 04 July 2018The General Court recently annulled the European Commission's rejection of a request by Lufthansa and Swiss International Air Lines to waive their fare commitments. The judgment clarifies the standard of review regarding assessments of requests for a waiver of merger commitments and is a reminder that, by virtue of the 1999 EU-Switzerland Air Transport Agreement, EU institutions have jurisdiction to assess competition concerns on air routes relating to the non-EU member state Switzerland.
Switzerland and European Union to link emissions trading systems
Switzerland | 06 December 2017In order for Switzerland and the European Union to recognise each other's emission allowances through a bilateral agreement, Switzerland is planning to include aviation in its existing emissions trading scheme (ETS) and to link the Swiss and EU ETS. The agreement is scheduled to be signed by the end of 2017, provided that ratification is agreed by the EU and Swiss Parliaments. Once the link between the EU and Swiss ETS is operational, prices for emission allowances should converge.
Emerging drone framework in the European Union
European Union | 19 July 2017As part of its ambitious aviation strategy, the European Commission has proposed harmonising European drone rules. The Single European Sky Air Traffic Management Research Joint Undertaking recently unveiled U-Space – a blueprint on the use of drones in low-level airspace. The European Aviation Safety Agency is seeing to it that U-Space has rules that ensure the safe integration of drones into the airspace.
'Stop the clock' decision does not infringe principle of equal treatment
Switzerland | 01 March 2017In a recent case, the European Court of Justice (ECJ) found that the 'stop the clock' decision does not infringe the EU principle of equal treatment. According to the ECJ, European law imposes no obligation on the European Union to the effect that all third countries, including Switzerland, must be treated equally. It follows that the principle of equal treatment does not apply to the moratorium on the requirements to surrender emissions allowances.
Does Sturgeon ruling apply in Switzerland?
Switzerland | 04 January 2017The Bulach District Court recently held that the European Court of Justice (ECJ) Sturgeon decision does not apply in Switzerland. While the Bulach court noted that Switzerland adopted the Air Passenger Rights Regulation by virtue of the 1999 EU-Switzerland Agreement on Air Transport, it had doubts over whether Swiss courts must also follow ECJ case law regarding the regulation.
Seaplane pilot found guilty of manslaughter
Switzerland | 09 November 2016The Supreme Court recently dismissed a pilot's petition to set aside the Bern Appellate Court judgment that he was liable for a trainee pilot's death in an aircraft accident on the basis of negligence or recklessness. The judgment is a reminder that, despite widespread criticism against the criminalisation of aircraft accidents, aviation is far from immune from criminal prosecutions. However, the judgment is not entirely persuasive.
Preventing aircraft accidents through occurrence reporting
Switzerland | 27 July 2016Switzerland recently adopted EU Regulation 376/2014, which aims to prevent accidents through the reporting of occurrences in civil aviation. The regulation seeks to encourage reporting by recognising the 'just culture' concept, which establishes that aviation professionals should not be punished for actions that are commensurate with their experience and training, but under which gross negligence, wilful violations and destructive acts are not tolerated.
Third-party liability of drone operators and insurance requirements
Switzerland | 27 April 2016Swiss law governs the issue of third-party liability for damage caused by drones. Where, due to the operation of an aircraft in flight, a person on the ground is killed or injured or surface property is damaged, the Aviation Act obliges the aircraft operator to compensate the victim. The act applies to both manned and unmanned aircraft. The Federal Office of Civil Aviation believes that Swiss insurance requirements are adequate for the time being.
OnDemand: Rise of the drones
Switzerland | 13 January 2016Switzerland has been reluctant to approach the integration of drones into the aviation system in a comprehensive manner. The Aviation Ordinance and the Ordinance on Special Category Aircraft are the national legal instruments apply to drones operating in Swiss airspace.
Federal Administrative Court decides on charges at Zurich airport
Switzerland | 14 October 2015The Federal Administrative Court recently handed down a decision on the determination of charges at Zurich airport. The court partly allowed an appeal and remanded the matter to the Federal Office of Civil Aviation (FOCA) for a reassessment of the charges. It remains to be seen whether the various reassessments which FOCA has yet to undertake will result in substantially lower charges.
Swiss International Air Lines challenges 'stop the clock' decision
Switzerland | 08 July 2015The European Commission's 'stop the clock' decision means that the aviation emissions trading scheme now applies to flights within and from the European Economic Area (EEA) to certain third countries, including Switzerland. Swiss International has argued that this decision breaches the EU law principle of equal treatment by treating Switzerland differently from other third countries.
Court dismisses responsibility claim for SAirGroup's Air Littoral acquisition
Switzerland | 11 March 2015The liquidator of SAirGroup lodged a responsibility claim with the Zurich Commercial Court, arguing that SAirGroup former board members had breached their duties by acquiring a shareholding in Air Littoral without creating a corresponding equivalent value. Since the decision appeared reasonable at the time it was made, the court rejected the claim that the defendants had breached their duty of care towards SAirGroup.
St Moritz-Samedan Airport not liable for Raytheon 390 corporate jet accident
Switzerland | 26 November 2014A jet crashed near St Moritz-Samedan Airport, killing both pilots. Following the accident, the father of the deceased co-pilot brought claims for damages against the airport operator. The Federal Administrative Court dismissed the claims, stating that it is an aircraft commander's duty to undertake all necessary measures to ensure the safe conduct and completion of the flight.
Steps towards integration of civil drones in Swiss and European aviation systems
Switzerland | 24 September 2014Remotely piloted aircraft systems (RPAS) operate under a fragmented regulatory framework. Switzerland has so far been reluctant to approach the issue of integration of RPAS into the aviation system in a comprehensive manner. However, one change in place is a prohibition from operating civil drones beyond the visual line of sight, in which the pilot maintains unaided visual contact with the remotely controlled aircraft.
Authorities must decide on effective control of Darwin Airline
Switzerland | 16 July 2014Following Etihad Airways' announcement that it intended to acquire a 33.3% stake in the Switzerland-based regional carrier Darwin Airline, the Swiss Federal Office of Civil Aviation and the European Commission have both launched investigations into the investment. As Etihad's stake does not amount to more than 50% of the ownership, the authorities may conclude that Darwin is not substantially owned by Etihad.
Federal Administrative Court decides on aircraft noise case
Switzerland | 07 May 2014In a recent case the Federal Administrative Court gave guidance on claims due to excessive aircraft noise and direct flyovers. The court stated that to claim compensation for direct flyovers, aircraft must fly over the properties each day . It is not necessary that the flights continue throughout the day if the aircraft fly over residential properties during early morning hours.
Vote restricting EU migrants puts air transport agreement at risk
Switzerland | 05 March 2014Swiss voters recently approved a referendum to reintroduce quotas on the number of foreigners allowed to live and work in Switzerland. This move may have far-reaching consequences for Switzerland's relations with the European Union – and could seriously harm business in the air transport sector.
Beijing Instruments on aviation security
Switzerland | 18 December 2013The Beijing Convention and the Beijing Protocol were drafted to criminalise terrorist attacks and improve international civil aviation security. Switzerland played a key role in the negotiations that led to the Beijing Instruments. It helped to broker a compromise solution in relation to the issue of whether the activities of military forces during an armed conflict are governed by the international criminal air law conventions.
Swiss International Air Lines must comply with security standards
Switzerland | 09 October 2013Following an order from the Swiss Federal Office of Civil Aviation (FOCA) that Swiss International Air Lines must ensure full compliance with security requirements, the Federal Supreme Court found that FOCA's order was insufficient on a legal basis. The court stated that the carrier must decide autonomously how to train its staff in order to achieve the relevant security standards.
ECJ dismisses appeal challenging measures over approaches to Zurich Airport
Switzerland | 07 August 2013To reduce noise surrounding Zurich Airport, Germany adopted measures prohibiting flight at low altitude over German territory close to the Swiss border between certain times. Switzerland complained that the measures were contrary to the Air Transport Agreement, but the European Commission decided that Germany could continue to apply them. Switzerland's appeal to the European Court of Justice was later dismissed.
Aviation occurrence reporting in Switzerland
Switzerland | 29 May 2013Occurrence reporting systems are vital tools in aviation safety. The effectiveness of any occurrence reporting system depends on the confidence that aviation professionals have in it. One concern is that individuals will be reluctant to report occurrences if they fear that criminal proceedings may be instituted against them. Aviation professionals should seek legal advice before deciding whether to report a certain occurrence.
