Conflict of Laws in Cross-Strait Air Transport: Issues and Solutions

Author:Chaohan Zhang - Luping Zhang
Position:Associate Professor & Deputy Director of Bin Cheng Institute of Air and Space Law of China Northwestern University of Political Science and Law; Executive Editor of China Aviation Law Review. LL.M. (NWUPL), Ph.D. (Jilin/Montreal). The author may be contacted at: charley135@163.com /Address: Post Box 89, No.300 South Chang'an Road, Yan Ta ...
Pages:283-303
SUMMARY

Since the political and legal systems are different between mainland China and Taiwan, conflict of laws issues arose in both public and private air transport laws after the launch of direct routes. Three models can be used as solutions to these issues: uniform substantive law, conflict of laws, and agreements by private institutions. The uniform substantive law model is ideal but not feasible;... (see full summary)

 
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


Associate Professor & Deputy Director of Bin Cheng Institute of Air and Space Law of China Northwestern University
of Political Science and Law; Executive Editor of China Aviation Law Review. LL.M. (NWUPL), Ph.D. (Jilin/Mon-
treal). The author may be contacted at: charley135@163.com /Address: Post Box 89, No.300 South Chang’an Road,
Yan Ta District, Xi’an, Shaanxi, China.
∗∗ Ph.D. candidate in law at King’s College London; Attorney-at-Law (New York Bar); Editor of China Aviation Law
Review. LL.B. (Jinan U.), LL.M. (NYU & Leiden). ORCID: http://orcid.org/0000-0002-9276-4133. The author may
be contacted at: luping.zhang@kcl.ac.uk/Address: Flat 23, West Kensington Mansion, W14 9PE, London, United
Kingdom. All websites cited in this article were last visited on October 28, 2019.
Chaohan Zhang
& Luping Zhang
∗∗
Since the political and legal systems are different between mainland China and
Taiwan, conflict of laws issues arose in both public and private air transport laws
after the launch of direct routes. Three models can be used as solutions to these issues:
   
       
possible but not realistic. The agreements by private institutions model respects private
autonomy, which seems to be a supplementary yet feasible option with fragmented and
conservative characteristics. Based on the characteristics of each model, the ideal way
to solve this issue is to prioritise the model of agreements by carriers at this early stage
and, finally, to consider uniform conflict of laws rules or substantive law when the

Keywords
Cross-Strait Direct Flights, Conflict of Laws, Uniform Substantive Law,

J. EAST ASIA & INTL L. Vol. 12/No.2 (2019); 283-304
Publication type : Research Article
Section : Article
DOI : http://dx.doi.org/10.14330/jeail.2019.12.2.03
284 C. Zhang & L. Zhang

To promote cross-strait business and trade and facilitate travel, the chairperson
of the Association for Relations across the Taiwan Straits, Chen Yunlin, and the
chairperson of the Straits Exchange Foundation, Chiang Pin-kung, signed the Cross-
Strait Air Transport Agreement (hereinafter the Agreement)
1
in Taipei on November
4, 2008, after a period of negotiation on equal terms. The agreement stipulated that
the northern route of the direct cross-strait airways would be launched on December
   Three Links. This was especially
meaningful for cross-strait travel.
According to the Agreement, both parties agreed to launch the northern two-
way direct route of the Taiwan Strait and established a direct transfer procedure of
the air control departments of the two sides. Both parties also agreed on continuing
negotiations regarding the southern route and other more convenient routes. On
April 26, 2009, both parties signed the supplementary agreement,
2
and on July 29,

launch of the direct routes.
Since the launch of the direct cross-strait flights in 2008, the two sides have
developed communication, economic and social cooperation for the expansion of
routes and carriers, the simplification of administrative approval procedures, and
        
      
  
and annual cargo transportation exceeds 0.4 million tons.
3
The direct routes have
promoted free trade and transfer of personnel, goods, capital, and information to

When an air accident involves one of the direct flights, there will be issues of
compensation for the victims. The political systems and air laws of Taiwan, however,
1 Cross-Strait Air Transport Agreement (Nov.5, 2008) [󰪨󱞫󲴁󲣟], available at http://www.gov.cn/test/2008-
11/05/content_1140329.htm.
2 Association for Relations across the Taiwan Straits and Straits Exchange Foundation signed the Cross-Strait
Supplementary Air Transport Agreement (Apr. 26, 2009) [󰪨󱞫󲴁󲖖󲣟], available at http://www.gov.cn/
jrzg/2009-04/26/content_1296611.htm.
3 Civil Aviation Administration, The 40th Anniversary of the Publication of the Message to Compatriots in Taiwan -
Civil Aviation Has Played an Important Role in Great Communication, Great Relationship, and Great Cooperation
(Jan. 2, 2019) [󰮯󱸏󲖙40 󰥂󱽛󰩲󰁖󱜠󰒲󱉙], available at http://
www.caac.gov.cn/XWZX/MHYW/201901/t20190104_193845.html.

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