In 2019 a number of airlines challenged fines issued by the Immigration Authority (DNM) – in particular, fines relating to an entrance tax imposed on US, Canadian and Australian citizens. A number of recent court decisions revoked such fines and may lead the way towards a new conceptual approach by the Argentine courts regarding the fines that the DNM regularly, and often incorrectly, imposes on airlines.
The COVID-19 pandemic has resulted in the introduction of several new resolutions in Argentina. For example, on 12 March 2020, in a general agreement of ministers, the president decreed a state of public emergency for one year and on 19 March 2020 a number of social, preventive and mandatory isolation measures were established. This article examines the effects of COVID-19 on the Argentine aviation industry.
Federal Civil and Commercial Court 2 recently dismissed a damages claim against Aeromexico brought by two passengers for the rescheduling of their flights. The court found that the decision to reschedule the relevant flights had been approved by the Argentine Aviation Authority and that the plaintiffs had been informed of the rescheduled flights in a correct, clear and detailed way.
On 23 December 2019 a 30% tax on services hired abroad by travel agencies located in Argentina was introduced. The fact that the new tax applied the day after its introduction created chaos for air companies as non-compliance can trigger fines with interest. The Argentine Tax Authority recently introduced a resolution to address the lack of clarity surrounding the collection of the new tax, but it will take time for carriers to implement the measures required to comply with the new regulations.
The Immigration Authority (DNM) repeatedly imposes substantial fines on carriers. Despite the fact that in many cases these fines have been wrongly imposed, airlines must pay any outstanding fines in order to file a judicial complaint against the DNM, so the fines are widely viewed as another cost of operating in Argentina. That said, a number of airlines have recently challenged the DNM's fines and the courts have given a clear sign that, even with the above difficulties, it is worth challenging this legal loophole.
In 2020 the Civil Aviation Authority Bahamas made several important advances despite the COVID-19 pandemic, including restoring and boosting air travel to, from and within The Bahamas, presenting three pieces of legislation to Parliament and addressing other ongoing challenges. These developments will place the country on a strong footing as it emerges from the pandemic.
The introduction of three new bills will herald the dawning of a new age in aviation in The Bahamas and position the jurisdiction to attain the international recognition that it deserves. These bills – the Civil Aviation Bill, the Civil Aviation Authority Bill and the Air Navigation Services Authority Bill – address the issues arising from, and remedy the defects found in, the 2017 International Civil Aviation Organisation audit, the current Civil Aviation Act and the Civil Aviation (General) Regulations.
Like the rest of the world, the Bahamian aviation sector continues to reel from the effects of the COVID-19 pandemic. Minister of Tourism and Aviation Dionisio D'Aguilar recently addressed the easing of restrictions on air travel to, from and within The Bahamas. A travel health visa, subject to certain exceptions (eg, children under 10 years of age and crew of commercial airlines), is still required by persons travelling into or within The Bahamas.
The overall effect of the COVID-19 crisis on the Bahamian aviation sector is unknown and may be for some time; however, there is no doubt that the short-term effects have been severe. Tourism and aviation in The Bahamas go hand in hand, with one affecting the other. The pandemic may provide an opportunity for the country's aviation industry, as there is increasing interest from private aircraft owners and those willing to spend a little more in order to avoid the constraints of scheduled commercial travel.
The COVID-19 pandemic has turned the global aviation industry on its head with operations slowly grinding to a complete halt. At present, no international or domestic flights are permitted to operate to, from or within The Bahamas with the exception of those authorised by The Bahamas Civil Aviation Authority to conduct cargo or emergency relief flights.
As a result of the Cape Town Convention on International Interests in Mobile Equipment coming into force in Bermuda, leasing companies, owners, lenders and other parties that deal with Bermudian entities participating in aircraft transactions and/or aircraft registered in Bermuda may opt to take the additional steps necessary to obtain the protections conferred by the convention. This article revisits key points concerning the implementation of the convention and declarations relating thereto.
Issues relating to withholding tax have long plagued the Brazilian airline sector. When the special rates of 0% and 1.5% for aircraft rents became ineffective in 2021, the rate soared to 15%, which is the general rate applicable to cross-border leases of any equipment. The latest developments have resulted in confusion, widespread lease defaults and erratic payments from Brazil's airlines.
In June 2020 the Global Aircraft Trading System (GATS) was launched to facilitate aircraft trading and financing by reducing the burden on industry participants – in particular, airlines. Since the GATS relies on the use of trusts, a traditional common law concept, a question arises as to whether the GATS can be used in jurisdictions such as Brazil that are not based on common law.
The COVID-19 crisis has brusquely forced businesses and professionals to close offices and work from home. Luckily, the Brazilian government began implementing measures relating to electronic filings and electronic signatures approximately 20 years ago, all of which have made closing aircraft deals from home offices relatively easy. The Brazilian Aeronautical Registry has adjusted some of its requirements on an interim basis to serve the aviation community by facilitating compliance with necessary formalities and filings.
Brazil's airlines are now being subjected to a withholding tax that has not been charged on most leases for more than three decades. Airlines may be able to successfully challenge the legality of the withholding tax; however, this will require dedication of legal and administrative resources that might have been used elsewhere to fortify the airlines. In any event, under the final text of the law, the likelihood of lessors being liable for withholding tax has been reduced significantly.
A draft law providing emergency relief due to the COVID-19 pandemic has been submitted to the lower house of Congress. The impact of the draft law on the rights of aircraft lessors would be significant and would place into question Brazil's compliance with the Cape Town Convention on International Interests in Mobile Equipment and the Protocol to the Convention on Matters Specific to Aircraft Equipment.
The British Columbia Supreme Court recently certified two class actions against WestJet. In one, the central allegation was that WestJet had charged baggage fees despite stating in its tariff (at least in part) that the first checked bag would be carried for free. In the other, the one-year expiry on travel credits issued by the airline was alleged to violate consumer protection legislation in several provinces.
The British Columbia Civil Resolution Tribunal recently ruled on a dispute involving an air carrier which had refused to transport a disruptive passenger. This decision lays out the type of evidence which a carrier should be prepared to present to avoid liability and serves as a reminder to passengers that they have an obligation to be respectful while travelling.
Air carriers offering scheduled international services to or from Canada must, by virtue of the Canada Transportation Act, file proof of insurance each year as a condition of maintaining their licence. Historically, the Canadian Transportation Agency has, in some instances, allowed for leniency in the form of granting extra time for air carriers to file the proper certificates. However, a review of the agency's recent decisions demonstrates that such leniency is no longer being extended.
Even before the first tranche of Air Passenger Protection Regulations (APPRs) provisions came into effect, the International Air Transport Association, Airlines for America and numerous Canadian and foreign air carriers commenced a challenge to the legality of several provisions in the Federal Court of Appeal (FCA). The FCA recently issued a decision in a motion brought by the government to strike portions of two expert reports filed by the airlines in support of their position.
In March 2020 the Canadian Transportation Agency (CTA) issued public statements suggesting that it could be reasonable for airlines to provide travel vouchers for flights cancelled as a result of the COVID-19 pandemic, rather than providing refunds. An advocacy group commenced an application for judicial review of the statements, asserting that they violated the CTA's Code of Conduct and misled passengers as to their rights. The Federal Court of Appeal recently dismissed the motion.