09/12/2009 swim-suit user forum, rome swim-suit a proposal for a framework regulation anna masutti...

09/12/2009 SWIM-SUIT User Forum, Rome

SWIM-SUITSWIM-SUIT A A Proposal for a Framework Proposal for a Framework

RegulationRegulationAnna Masutti

AS&T Law Firm


22

The main features and objectives of SWIMThe main features and objectives of SWIM

main features

ATM information migration from one-to-one messages to many-to-many ATM information migration from one-to-one messages to many-to-many information distribution models.information distribution models.

A worldwide web for the distribution of ATM data. A worldwide web for the distribution of ATM data.

objectives

Improve information management and consequently airspace flow and Improve information management and consequently airspace flow and capacity.capacity.

Decouple the information producer from the information consumer to Decouple the information producer from the information consumer to allow every participant to be a producer or a consumer of information. allow every participant to be a producer or a consumer of information.


33

Example of SWIM Hazard Example of SWIM Hazard occurrence (1)occurrence (1)

Why do we need a regulation?

If the Trajectory is based on erroneous airspace data, an aircraft flying in the en-route/approach phase could be led into trajectories crossing forbidden or dangerous airspace areas.

Once detected, the need to reroute the affected flights increases the workload for ATCO and flight crews.

If not detected, an accident could occur.


44

Legal aspects Legal aspects && principles for principles for a SWIM regulatory framework a SWIM regulatory framework

Objective and scope of future SWIM Regulations Parties involved and their Roles Main Principles of SWIM Governance Liability Compulsory Insurance Certification (and/or Authentication) process Sanctions (a system of administrative sanctions) Implementation and codes of conduct Dispute settlement and Jurisdiction Users Committee

SWIM-SUIT User Forum, Rome

55

Parties involved and their rolesParties involved and their roles

The Publisher/ManagerThe Publisher/Manager is is responsible for maintaining the consistency of a particular for maintaining the consistency of a particular partition. partition. It receives update requests regarding the Flight Object It receives update requests regarding the Flight Object from the the contributors and does and does the necessary processing to ensure that a coherent and consistent partition is maintained the necessary processing to ensure that a coherent and consistent partition is maintained and and made available to the to the publisher. .

The ContributorThe Contributor sets the value for a partition subset and the value for a partition subset and makesmakes it available to the it available to the Manager for consolidation into the Flight Object. Manager for consolidation into the Flight Object.

The UserThe User subscribes to a partition and receives updates from the publisher. to a partition and receives updates from the publisher.

All parties involved can be natural persons or legal entities

09/12/2009


66

Governance (1)Governance (1)

To To prepare recommendationsprepare recommendations for a legal framework allowing full for a legal framework allowing full functionality of SWIM in the European ATM System foreseen by functionality of SWIM in the European ATM System foreseen by the SES Regulations, the SES Regulations, we shall analyse the following topicswe shall analyse the following topics::

1. The nature of SWIM Services

2. The nature of the relationships among the different SWIM participants

09/12/2009


77


The importance of establishing the The importance of establishing the nature of SWIMnature of SWIM services is related to the services is related to the possibility of a State invoking “possibility of a State invoking “State immunity”” i.e. the protection which a i.e. the protection which a State is given from being sued in the courts of other States (no liability).State is given from being sued in the courts of other States (no liability).

It is important to note thatIt is important to note that

Immunity applies not only to the respective State or but also to its respective Agencies “performing acts in the exercise of sovereign authority”.

Some SWIM services will be provided by Some SWIM services will be provided by State bodies such as ANSPsState bodies such as ANSPs and/or and/or Military Agencies/OrganisationsMilitary Agencies/Organisations, while others will be provided by , while others will be provided by private private entitiesentities..

09/12/2009


88


The provision of air traffic servicesair traffic services, as envisaged by Regulation 550/2004, is connected with the exercise of the powers of a public authority, which are not of an economic nature.

SWIM is a programme for implementing ATM services, and in theory should not have an economic nature.

***

However, SWIM services should be provided by ANSP for a fee, thus becoming a “commercial transaction”.

09/12/2009


Governance (4)

Definition of Commercial Transaction

A Commercial transaction means the exchange of materials, products, and services for a payment regardless the naturenature of the of the entities involved. entities involved.

09/12/2009


1010

Governance (5)(State Immunity)

To invoke ‘state immunity’, it is of fundamental importance whether the State acts as a State (acta jure imperii, in the exercise of its sovereignty) or as a private person (acta jure gestionis) involved in a “commercial transactioncommercial transaction”. ”.

In the first case it is possible to invoke State immunity, while in In the first case it is possible to invoke State immunity, while in the second it is not.the second it is not.

If immunity is granted, it will be extended to State Agencies or companies such as ANSP.

09/12/2009


Governance (6)

TThe nature of a state activity depends on the nature of the transaction.

For example, SWIM services could be used for a typical State service such as SAR (Search and Rescue) activities.

In this case it is rather certain that the State would enjoy immunity in the courts of other countries when wrong information causes damage.

09/12/2009


Governance (7)

Nature of SWIM servicesNature of SWIM services

If SWIM services are provided in If SWIM services are provided in exchange for a payment of moneyexchange for a payment of money, , they have the nature of “they have the nature of “commercial transactionscommercial transactions” ” even if they are even if they are supplied by a State (or its Agencies), which in this case acts as a supplied by a State (or its Agencies), which in this case acts as a private person. private person.

In this scenario, it is evident that Governance can not foresee a In this scenario, it is evident that Governance can not foresee a situation of State immunity and therefore must contemplate a situation of State immunity and therefore must contemplate a system system of liabilityof liability well designed in accordance with the well designed in accordance with the peculiaritiespeculiarities of of SWIMSWIM and and duly duly harmonized harmonized among all Member States.among all Member States.

09/12/2009


1313

Governance (8)

2. The nature of the relationships among the different SWIM participantsamong the different SWIM participants

The The nature of the relationshipnature of the relationship could be on: could be on:

A contractual basis,A contractual basis, considering that a SWIM participant could be a considering that a SWIM participant could be a publisher or a user. In the first case they should receive payment for the publisher or a user. In the first case they should receive payment for the information given; in the second case, they should pay money for the information given; in the second case, they should pay money for the information received. The nature of SWIM activity needs to be classified as a information received. The nature of SWIM activity needs to be classified as a “commercial transaction”.“commercial transaction”.

oror

A non-contractual basis in case no contract exists. A non-contractual basis in case no contract exists.

09/12/2009


1414


. The nature of the relationship could be on a could be on a contractual basis between one contractual basis between one SWIM actor andSWIM actor and::

- the other actors of the System - the other actors of the System (publisher, contributor, user), (publisher, contributor, user), or or

- the - the European UnionEuropean Union (Commission), if it is decided that the System will be (Commission), if it is decided that the System will be owned by the EU owned by the EU

oror

- a - a private companyprivate company [or a consortium] acting as concessionaire under a [or a consortium] acting as concessionaire under a public service contract with the EU (Commission).public service contract with the EU (Commission).

09/12/2009


1515

Liability

It is important to ensure a proper level ofIt is important to ensure a proper level of compensation for victimscompensation for victims involved in air accidents caused by incorrect information disseminated via involved in air accidents caused by incorrect information disseminated via SWIM.SWIM.

These protection norms should contemplate a These protection norms should contemplate a uniform liability system for: system for:

loss of, damage to, and/or destruction of persons or propertyloss of, damage to, and/or destruction of persons or property

ensuring ensuring simplesimple and and clear rulesclear rules for victims to easily identify the liable party for victims to easily identify the liable party avoidingavoiding legal action in the jurisdiction of the national law in force, legal action in the jurisdiction of the national law in force, without any without any form of legal protectionform of legal protection for the different participants of the for the different participants of the SystemSystem..

09/12/2009


1616

Liability: proposal A (1)

The first proposal concerns contractual liability arising from a arising from a breach of a

contract.

The main features of contractual liability are:

obligation assumed by any contracting party under the obligation assumed by any contracting party under the terms of a contractterms of a contract; ;

several contractual obligations could be several contractual obligations could be established by lawestablished by law on the basis of the following on the basis of the following principles:principles:

i) liability and i) liability and presumption ofpresumption of faultfault** of the contractual party; (ii) of the contractual party; (ii) burden of proofburden of proof of the of the contractual party on the basis of some exceptions; (iii) contractual party on the basis of some exceptions; (iii) compulsory minimum insurancecompulsory minimum insurance coverage per accident. coverage per accident.

* * Some legal systems require Some legal systems require faultfault, others provide for , others provide for strict liabilitystrict liability with certain exceptions. with certain exceptions. With respect to contracts for services the fault principle may prevail. With respect to contracts for services the fault principle may prevail.

09/12/2009


1717


Regarding contractual relationships, the guidelines will suggest the main

principles of future regulations governing the duties and liabilities of each party involved in the contracts.

These principles will refer in particular to the:

identificationidentification of the liable party;of the liable party; liability regime/system;liability regime/system; compensation system for the victims of an accident;compensation system for the victims of an accident; (compulsory) insurance coverage.(compulsory) insurance coverage.

09/12/2009


1818


Claims when there is a contract Claims when there is a contract

A damages claim when there is a contract generally requires:A damages claim when there is a contract generally requires:

An An injuryinjury to third parties; to third parties;

A A breachbreach of contract, and of contract, and

A A causal nexuscausal nexus between injury and breach of contract. between injury and breach of contract.

09/12/2009


1919

Liability: proposal B

Considering that in some cases a catastrophic event (causing substantial damages) could occur because of misuse of SWIM, a fair system for victims should be provided by legislation.

Therefore, this proposal could be based on the following principles: Therefore, this proposal could be based on the following principles:

[The [The channellingchannelling of liability to a of liability to a singlesingle liable party]. liable party].

Strict liabilityStrict liability of the liable party. of the liable party.

Limited liabilityLimited liability of the liable party (first tier). of the liable party (first tier).

Compulsory insuranceCompulsory insurance of the liable party, up to the limit of the of the liable party, up to the limit of the first tier, and the right to make a direct claim against the insurer.first tier, and the right to make a direct claim against the insurer.

Supplementary compensationSupplementary compensation if the damages exceed the first tier (entering the if the damages exceed the first tier (entering the second tier) (which could come from a European Fund). second tier) (which could come from a European Fund).

LimitationLimitation on the amount of compensation of the on the amount of compensation of the second tiersecond tier..

09/12/2009


2020

The principle of Channelling Liability

The channelling of liability is the most common solution adopted at the international level to protect victims, who as a result can easily identify the liable party and take legal action without risk that their claims can be rejected.

• With the channelling of liability, only one party will be identified as liable for the damage caused.

Is the channelling of liability suitable for SWIM, considering that there are many parties involved in the dissemination and use of information?

09/12/2009


2121

The Strict Liability Regime: Advantages for victims

Greater protection for victims:

the victims do not need to prove the liable party’s negligence or fault in order to make it liable.

Mitigation of the strict liability regimeMitigation of the strict liability regime:

there is no liability in case of force majeure or when the liable party proves that the damage was caused by an

act or omission of a claimant/victim.

09/12/2009


2222

Limited Liability of the Liable Party (first tier)

Protection of the liable party: The amount of the liable party’s liability cannot exceed

[X] amount

[A flexible system for liability could be[A flexible system for liability could be: :

(i) Up to the above [X] amount, the liable party shall not be able to deny or exclude its liability;

(ii) but beyond the above [X] amount, the liable party can exclude its liability ifif it proves one of the exemptions provided by law] .

09/12/2009


2323

Compulsory Insurance

The aim of compulsory insurance is twofold:

to assure victims of the financial strength of the liable party.

to avoid the risk of financial difficulties or bankruptcy of the

liable party.

The liable party shall be required to maintain insurance or other financial security covering its liability for damage up to the maximum of the first tier. Proof of insurance or financial security shall be required.

Compulsory insurance system could be established also in a contractual regime (proposal A)

09/12/2009


2424

Direct claims against the Insurer

Direct claims against the insurer is a common solution adopted at the international level to:

(i) protect victims, who thereby have a stronger guarantee of compensation, and

(ii) rationalise/reduce the cost of claims.

Direct Claim could be established also in a contractual regime (proposal A)

09/12/2009


Supplementary Compensation

(second tier)

It would be desirable to establish a two-tier liability system that comprises of a first tier funded by compulsory contributions and a second tier that could be made available when necessary.

The second tier of compensation increases the amount of compensation available to the victims.

The total contribution of supplementary compensation should not exceed, for example, double the amount of compensation paid by the liable party.

09/12/2009


2626

Circumstances in which Supplementary Compensation is Envisaged

Supplementary compensation is envisaged in three cases:

when the damage exceeds the liable party’s limit of liability,

when the presumed liable party is found not liable because the damage was a consequence of force majeure,

when the liable party, liable for the damage under a regulation, is financially incapable of meeting its obligations in full, and any financial security available does not cover the claims or is insufficient.

09/12/2009


2727

Provisions for the Right of Recourse

The liable party shall have the right of recourse against any person who has caused the damage*.

The Supplementary Compensation Mechanism allows the right of recourse against any person who has caused damage*.

* For example any person/entity who has committed, organized, and/or financed an act of (unlawful) interference which has caused a malfunctioning of the system.

09/12/2009


2828

Contribution to Supplementary Compensation - A Possible Solution

Contribution to the Supplementary Compensation Fund could be established as follows:

A percentage of the mandatory amounts collected in respect of each service offered to the users, or

Member States could contribute to the second tier in proportion to their contributions to the SESAR Programme.

09/12/2009


2929

Damage occurring in non-EU Member States

On a case by case basis, supplementary compensation could provide financial support to an EU MS liable party, when it offers its services outside the territory of Member States and damage occurs outside Member State territory

Such compensation may be provided if:

the damage is caused by incorrect SWIM information; the non–EU Member State where the damage occurs is not responsible for

such incorrect information; the non-EU Member State agrees to contribute to the supplementary

compensation fund and its terms and conditions; such financial support shall not exceed the amount established for the second

tier.

09/12/2009

Questions and FeedbackQuestions and Feedback

[email protected]

09/12/2009 swim-suit user forum, rome swim-suit a proposal for a framework regulation anna masutti...

Documents

rome swim

swimsuit user forum

functionality of swim

nature of swim services

different swim participants

partition subset

consistent partition

particular partition