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EXECUTIVE ROUNDTABLE SERIES
KEY LEGAL CONSIDERATIONS GOVERNING
THE NEXT GENERATION AIR TRANSPORT SYSTEM
Managing Liability Risks
Moderator: John D. Goetz, Partner, Product Liability and Tort – Jones Day
Speakers:: Ava Harter, General Counsel – Avionics, GE Aviation Services
Roderick van Dam, Head of Legal Services, EuroControl
Emmanuel Baud, Partner, Intellectual Property – Jones Day
Ozan Akyurek, Senior Associate, International Litigation and Arbitration – Jones Day
June 3, 2010
1
General Parameters of Liability Under
NextGen/SESAR
• NextGen/SESAR shifts decision-making responsibility from the
ground to the cockpit/computer.
• As private service providers are added to a public domain
function, who will be liable for what?
• Will there be changes to the traditional rules of liability?
EXECUTIVE ROUNDTABLE SERIES
2
Allocation of Liability Under
NextGen/SESAR
• How will liability be allocated between corporations
and governments (who traditionally provide ATC)?
– Chicago Convention 28: Governments are
responsible for ATC services.
– What rules of government immunity apply?
• Will liability be reallocated among operators, ANSPs,
manufacturers, and sovereign?
EXECUTIVE ROUNDTABLE SERIES
3
Allocation of Liability Under
NextGen/SESAR (cont’d)
• Will traditional rules of joint and several liability
result in equitable sharing of risks?
• Contractual limitations of liability: Can they be used
to allocate or limit liability?
• Who will assume the liability for companies who go
bankrupt, or "disappear" through mergers, etc.?
EXECUTIVE ROUNDTABLE SERIES
4
Eurocontrol Issues
• In Eurocontrol's view, what are unique risk issues
arising from the transition to SESAR?
• Are governments shouldering their share of risk to
ensure a successful, timely transition to SESAR?
• What risk-related issues/discussions have arisen in
your harmonization activities with the FAA and other
authorities?
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5
Product Manufacturers
• Are there legal mechanisms to ensure equitable
distribution of risk, so manufacturers are
incentivized to invest in new technologies?
• United States v. European court decisions
EXECUTIVE ROUNDTABLE SERIES
6
NextGen – Intellectual Property
•
How can NextGen’s software technology be efficiently protected in France?
 French copyright law: specificities of such protection applied to software
 French and European patent law: the judiciary approach
•
Enforcing NextGen’s technology in France
 overview of French competent jurisdiction regarding claims based on copyright
law and/or patent law
 overview of French existing legal measures aimed at combating counterfeiting
•
What legal consideration shall be taken into account by NextGen/its
partners when implementing its new technology in France?
 compliance with French copyright law
 compliance with French data privacy law
EXECUTIVE ROUNDTABLE SERIES
7
Criminalization of Aircraft Accidents
• What is "criminalization" of aircraft accidents?
• Who has primacy after an airline disaster?
• Why do some countries consider an accident
investigation a criminal matter?
EXECUTIVE ROUNDTABLE SERIES
8
Criminalization of Aircraft Accidents
• Why is "criminalization" of aircraft accidents
harmful?
• What will be the impact of the current trend on flight
safety?
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9
Criminalization of Aircraft Accidents
2009-2010 Proceedings:
• Paris, France (Concorde)
• Athens (Helios)
• Uberlingen, Germany (Midair)
• Yogyacarta, Indonesia (Garuda)
• Paris, France (AF447)
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10
Criminalization of Aircraft Accidents
• Action is necessary
-
Stricter guidelines need to be adopted before
bringing criminal investigations
-
Joint resolution issued on October 17, 2006
aimed at condemning the increasing tendency
to criminalize aviation accidents.
EXECUTIVE ROUNDTABLE SERIES
11
Aviation Insurance
• What impact will NextGen/SESAR technology have
on aviation insurance?
• Will insurers require new and additional training or
best practices -- during transition or other phases?
• How will insurers provide coverage to privatized air
navigation service providers and global information
system companies?
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12