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Choice of Forum in International Aviation Litigation / David Cluxton

DOI (Published version): 10.23889/Suthesis.53056

Abstract

By its nature, international air transport exposes carriers and their customers to risks that arise from crossing jurisdictional borders. For these reasons, treaties, such as the Montreal Convention 1999 (MC99), lay down provisions on jurisdiction aimed at securing uniformity while assuring an equit...

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Published: Swansea 2019
Institution: Swansea University
Degree level: Doctoral
Degree name: Ph.D
Supervisor: Leloudas, George ; Tettenborn, A.M.
URI: https://cronfa.swan.ac.uk/Record/cronfa53056
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Abstract: By its nature, international air transport exposes carriers and their customers to risks that arise from crossing jurisdictional borders. For these reasons, treaties, such as the Montreal Convention 1999 (MC99), lay down provisions on jurisdiction aimed at securing uniformity while assuring an equitable balance of interests between stakeholders. However, these provisions have caused controversy and fuelled wasteful litigation over the matter of choice of forum in passenger claims. In this context, the common law doctrine of forum non conveniens (FNC) has been employed by defendants to defeat claimant passenger’s choice of forum. This thesis critically examines whether FNC is consistent with MC99 and/or its policies. In so doing, the broader question of how to regulate choice of forum in international aviation litigation is analysed. It is argued that MC99, as the successor to the Warsaw Convention 1929, is predicated on an anachronistic understanding of itself as a discrete system grounded on the two-party paradigm of claimant passenger versus defendant carrier. It is demonstrated that this does not correspond to the reality of modern international aviation litigation where third-parties play a critical role. Claimant passengers now have access to alternative remedies and with it, additional choices as to forum. In turn, the liability relationships between carriers and third parties (such as aircraft manufacturers) have evolved and bound them together, often in opposition to the claimant passenger. Behind the carrier and third parties stands the aviation insurer, calling the shots and pulling the strings. MC99 is merely a component of a bigger aviation accident passenger compensation system, the interdependency of which means that evaluating choice of forum under MC99 requires understanding this system’s organization and operation. This thesis puts forward a proposal for reform which takes account of this bigger picture and will regulate choice of forum more equitably and efficiently.
Keywords: Private air law, conflict of laws, treaty interpretation, jurisdiction, legal history, comparative law, aviation litigation, forum non conveniens