Update on IFTTA News

• German Court challenges EU Regulation on security standards for passports and travel documents; 
• UK: airlines to include debit card surcharges in headline prices;
• Canada: Transportation Agency decides in flight cancellation and overbooking cases; 
• Germany: lugagge to be carried on a later flight is no legitimate reason to deny boarding; 
• Denmark: passengers of a cancelled flight entitled to rerouting at the earliest opportunity; 
• New Body Scanners at Scottish Airports; 
• Netherlands: new reference for ECJ preliminary ruling regarding air passenger rights; 
• German Supreme Court: no compensation for flight cancellation caused by strike; 
• EU Economic and Social Committee publishes opinion on passenger rights in all transport modes; 
• Egypt: new tourism minister appointed; 
• IFTTA Law Review 2-2012 available online; 
• USA: DOT fines companies for violating Consumer Protection and Price Advertising Rules; 
• UK: Bad Taste Tweets Not Criminal; 
• USA: Airlines lose appeal against DOT fare rules;
• EU Commission publishes consumer tips for visitors to the 2012 Olympic Games; 
• UK and Unfair Contract Terms Reforms; 
• CJEU: inclusion of flight cancellation insurance as a default setting unlawful when selling air tickets over the internet;
• UK: British Airways to check passengers on Google?; 
• Austria: regulation on proper rail passenger behaviour; 
• USA: new law to require airlines to seat families together?; 
•  Scottish Jurisdiction over Shetland; 
• Austria: Appelate court decides on "fly all or pay up" clauses; 
• Spain: Court of Appeal of Barcelona regards Ryanair's boarding pass printing policy lawful; 

Most recent postings on IFTTA News

• USA: airlines ask DOT for another delay in new rules;
• USA: no private right of action pursuant to Air Carrier Access Act;
• UNESCO recognizes Aceh’s Saman Dance as Intangible World Heritage
• Scotland: Human Trafficking Report;
• EU: Commission requests Italy to comply with new safety rules for passenger ships;
• Taiwan: Hong Kong Dragon Airlines accused of discrimination;
• European Commission updates airline black list;
• New EU-US agreement on PNR;
• USA: DOT fines Spirit Airlines for deceptive price advertising;
• European Union: new rules on the use of security scanners at European airports;
• European Union: new Directive on Consumer Rights published in Official Journal;
• IFTTA Europe Workshop Website Online;
• Cruise conference - May 21-23, 2012;
• UK: OFT takes next procedural step in airline fuel surcharges case;
• USA: DOT issues first fine for tarmac delay rule violations;
• India: tiger reserves may ban tourists;
• Court of Cassation (FR) on Deep vein thrombosis;
• UNWTO: European tourism grows above expectations;
• European Consumer Centre Network launches Air Passengers Rights Report 2011;
• USA: DOT fines Caribbean Airlines for improperly limiting reimbursements for delayed baggage;

Scotland. Montreal Convention Damages

O’Carroll v Ryanair 2009 SCLR 125

O, a married couple, successfully claimed against Ryanair in the Sheriff Court for a 48 hour delay in delivery of their luggage. The sheriff awarded £215 in compensation for out of pocket expenses and £535 for stress and inconvenience. R appealed on grounds that the latter was excluded by the Montreal Convention (implemented in the UK by the International Carriage by Air Act 1999) as this amounted to exemplary or non-compensatory damages. The Sheriff Principal rejected the appeal. The £ 535 damages for stress and inconvenience were plainly compensatory under the Law of Scotland and did not amount to punitive damages, which Scots Law does not permit

Reform of Scottish Arbitration Law

Arbitration (Scotland) Act 2010

The aim of the Act was to “set the scene for a renaissance of Scottish arbitration” and to provide a “modern, impartial and efficient arbitration regime”. It codifies existing Scots legislation and Case Law on arbitration.

The New York Convention on Recognition and Enforcement of Arbitration Awards 1958 requires contracting states to give effect to private agreements to go to arbitration and to recognise and enforce arbitration made in other contracting states. There are 142 contracting state, including the UK. The Arbitration Act 1975 gave effect to this in Scotland.

The Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 adopted the UNCITRAL Model Law on International Commercial Arbitration in Scots Law but its provisions were not applied to domestic arbitration. The model law assisted states in reforming and modernising their law or arbitral procedures so as to take into account the needs of international commercial arbitration. This model was repealed in Scotland by the 2010 Act.

This Act has similar objectives to the Arbitration Act 1996 in England, Wales and Northern Ireland. Sections 89-91 of the 1996 Act dealt with consumer arbitration agreements and these also apply to Scotland and will continue to do so as Consumer Law is not a devolved matter. Those provisions protect those that might inadvertently agree to unfair, low-value consumer arbitration clauses.

The 2010 Act replaces the dual arbitration system that existed in Scotland with a single codified set of rules that now apply to domestic, cross-border and international arbitration proceedings. Though it abolished the UNCITRAL Model Law in Scotland, the Act is based on those model law principles. It aims to encourage trades, professions and industries to establish their own low cost arbitration schemes like that provided by ABTA.

The Act sets out the following founding principles:

• The object of arbitration is to resolve disputes fairly, impartially and without unnecessary delay or expense;
• Parties should be free to agree how to resolve disputes subject only to safeguards that are necessary in the public interest;
• Courts should not intervene in arbitration except as provided for by the Act.

The Scottish Arbitration Rules are set out in a Schedule to the Act. They are divided into mandatory rules that must be followed and cannot be altered even by consent of the parties and non-mandatory rules that can. There is a presumption of confidentiality in relation to the matters in dispute, the arbitral proceedings and the arbitral award unless the parties agree otherwise. Breach of this provision entitles the other party to seek an interdict and/or damages.

It is for the arbitrators to determine whether or not they have jurisdiction to determine the case; though a party may object if they act beyond their powers or where they do not have jurisdiction. The Act enshrines the “separability doctrine” i.e. an arbitration agreement is not affected by the alleged invalidity of the commercial contract. The agreement to arbitrate is distinct and separate from the contract or agreement of which it forms part.

The “stated case” procedure provided by Section 3 of the Administration of Justice (Scotland) Act 1972 was abolished. This had made it too easy for a party to invoke spurious points of law for referral to the Court of Session, thereby considerably delaying the proceedings and substantially increasing the costs. The 2010 Act provides a more limited procedure whereby a party can challenge errors in law made by the arbitrator.

The only valid grounds for challenging a decree arbitral are:

• the arbitrator(s) did not have jurisdiction to make the award;
• “serious irregularity” that has caused or will cause substantial injustice to the appellant;
• The arbitrators erred on a point of Scots Law.

Where an appeal is made to the court the identity of the parties must not, generally, be disclosed outside of the court. An arbitral award may be enforced in the sheriff court or the Court of Session.

The Scottish Government intend to establish a self-financing Dispute Resolution Centre in Scotland to attract international arbitration business.

UK: consultation on creating new consumer right

Altough Consumers are protected from traders' misrepresentations and unfair dealing by the Consumer Protection from Unfair Trading Regulations, which implement EU law, they cannot take direct action under these Regulations. The Law Commission and Scottish Law Commission are therefore reviewing whether or not consumers should be able to take direct action against retailers who treat them unfairly. It has asked consumers and businesses if the action would be too severe.

Source: out-law.com; find article here>>.

Scotland: Hotel Premises

Bass Taverns Ltd v Secretary of State for Scotland 2000 SLT 775

An enforcement notice was served on the owners of a hotel alleging that they were in breach of planning consent. They had had permission to have a beer garden as an ‘incidental use’ of the hotel premises. They extended the use of the beer garden by increasing the number of tables. The enforcement notice alleged that they had thereby breached their planning permission, causing a detriment to the amenity of local residents due to the increased noise and nuisance. They successfully appealed against the notice.

The Court of Session held that, as the beer garden had existed for some years, it was covered by existing planning permission. The fact that they had increased its use did not stop it being ‘incidental’ to the main hotel premises.

Airline Insolvency-Pasenger Rights

On the collapse of the Scottish airline, FlyGlobespan, previously reported, those customers who had booked a package holiday with the company were protected by the Civil Aviation Authority's Air Travel Organiser's Licensing scheme (ATOL). This enabled those abroad to continue with their holiday and arrangements were made to provide them with alternative flights home at the end of it. Those that had yet to travel were entitled to a refund.

Those who had booked a flight-only deal were not covered by the ATOL system, however. If they paid for the flight by credit card they could obtain a refund from the credit card company under Section 75 of the Consumer Credit Act 1974. This does not apply to charge cards (e.g. American Express, Diners etc.) or to debit cards but some of the companies that issue these do provide protection under their terms and conditions of issue. It did not matter whether the customer paid for the flight in total with a credit card: provided that even part of the payment was by credit card and that this amount was £100 or more then they were covered for a full refund.

There was some confusion in this case, however, as FlyGlobespan used the ATOL logo on their website leading to some travel agents and customers to think that all bookings, including flight-only were covered. The CAA stated that they were entitled to do this and that it was for the customer to read the terms and conditions to see which travel arrangements were and which were not included.

John

Scotland: airline bankruptcy leaves thousands of passengers stranded

The demise of Scottish carrier Flyglobespan leaves about 4,000 passengers stranded abroad. Around 1,300 people were due to fly tomorrow. The accounting firm brought in to take control of the failed airline, told passengers to stay at home and warned that the Civil Aviation Authority was only responsible for financially bailing out 1,000 people who have booked package holidays.

Source: The Guardian; find article here>>.

USA: Scotland boycott threat following al-Megrahi release

Protesters in the USA angered by the release of the Libyan Basset Ali al-Megrahi, the only man convicted of the 1988 bombing of Pan Am flight 103 over Lockerbie launched a "Boycott Scotland" campaign in the internet. The website BoycottScotland.com is an anonymous Internet protest calling upon Americans to avoid Scotland and Scottish products in protest at al-Megrahi’s release.

The anonymous Internet protest is receiving wide publicity in the US media, including the New York Times, Bloomberg, CNN and Forbes magazine. ETOA, the European Tour Operators Association, has announced to closely monitor the campaign and advises against any tourism boycott of Scotland.

Source: ETOA Briefing of Aug. 26, 2009; find full text here>>.

Scottish tourism going 'green'

Officials for the Scottish tourism industry have said that the sector must pay greater attention to 'green' issues.
The Scottish Tourism Forum (STF) has called for a reduction in the number of short-haul flights that service the country's airports and has warned that visitor numbers could fall if areas of beauty are littered with electricity pylons and wind farms, reports the Herald. The forum proposes the introduction of tourism-fragile zones, which would prohibit the installation of wind farms in the area as well as ensure that power lines ran along the seabed rather than overhead.

More information here.

Lockerbie trial Judges Named

The three judges that will hear the Lockerbie Trial, according to Scots Law, in the Netherlands have been named as Lords Sutherland, Coulsfield and MacLean. Lord Abernethy will also participate and will act as a substitute if necessary. There will be a preliminary hearing of the case at the High Court of Justiciary in Edinburgh before Lord Sutherland on 22 November 1999. Nb. There is a Lockerbie Trial wedsite provided by the University of Glasgow Law School at: http://www.law.gla.ac.ik/Lockerbie/index.htm

(Originally posted by John Downes)

Transfer of Powers in the UK

The Devolution of power in the UK means that new bodies are now responsible for travel and tourism matters. The UK Parliament has power to make laws governing all matters relating to travel and tourism in England and Wales. It also enacts legislation on the British Tourist Authority, the English and Welsh Tourist Boards, travel documents (passports and visas), regulation of trade associations (e.g.ABTA), consumer protection and employment law for the whole of the UK. The Scottish Parliament has powers in relation to all other travel and tourism law matters, including setting tourism policy in scotland and the functions and powers of the Scottish Tourist Board. No change may be made by the UK Parliament re the functions and powers of the BTA without prior consultation with Scottish Ministers. The Welsh National Assembly (Cynulliad Cenedlaethol Cymru) took over the functions and powers previously excercised by the Secretary Of State for Wales and this included tourism in the Principality. The Assembly has powers to set tourism policy and has a budget to support and encourage tourism development. It does not have legislative powers, however. The Northern Ireland Assembly will have similar legislative powers to the Scottish Parliament and provision is made in the Peace Agreement (Northern Ireland Act 1998) for cross-border cooperation with the Irish Republic on tourism matters. The UK Government has introduced a Bill to establish a Greater London Assembly which will have specific powers and duties on tourism, economic development, transport, planning, emergency services, environment and culture. The directly elected Mayor will have executive powers in these matters and a budget.

(Originally posted by John Downes)

Lockerbie: Update

The trial of the two men accused of the Lockerbie bombing is now scheduled to take place on 4 February 2000. Permission has been given to extend the 110 day rule whereby the accused must be brought before a Scottish court within 110 days of being charged. The extension was agreed because of the complexities of the case. The case will take place at Camp Zeist in the Netherlands which, for the purpose, will become Scottish territory and the case will be tried according to Scots law. The accused attempted to have the Sunday Times held in contempt of court, arguing that an article in the paper would jeopardise a fair hearing of their case. However, this was rejected by the High Court in Edinburgh on the grounds that, since the case would be before three judges rather than a jury, the accused would suffer no prejudice.

(Originally posted by John Downes)

Lockerbie: Update

n 13 January 1999, the UK Foreign Secretary, Robin Cook, visited Camp Zeist in the Netherlands which is to be used for the trial of the two Libyans accused of the Lockerbie bombing. The former US airbase currently used by the Dutch, will technically become part of Scotland for the purposes of the trial, which will be held according to Scots Criminal Law. Negotiations are continuing with the Libyan authorities who have expressed reservations about the men serving their prison sentences, if convicted, in a Scottish jail. One of the concerns is that they might be subject to UK and US intelligence' interrogations whilst in the prison. However, Mr Cook said that standards in Scottish prisons were as good as any in the world and Libyan and international bodies would be able to monitor the men's conditions. As soon as the men arrive in the Netherlands, the sanctions against Libya would be lifted. On 13 January, JANA, the Libyan news agency reported a "major headway" in the negotiations.

Scotland/Libya/USA - Lockerbie

Jim Swire, a spokesman for the relatives of the victims of the Lockerbie bombing has stated that he believes Libya has legitimate concerns about the proposals for a trial of the two Libyan suspects under Scots Law in the Netherlands. Libya has asked for guarantees that the two men will not be extradited to the UK or USA. The UK and USA governments have stated that their proposals are not up for negotiation. Mr Swire's daughter, Flora, was killed in the bombing. (2/10/98) UK Foreign Secretary, Robin Cook, stated that, if convicted the two Libyan suspects would be sent to prison in Scotland. (16/10/98) The British Ambassador to the United Nations, Sir Jeremy Greenslock, has stated that Libyan witnesses at the Lockerbie trial would be guaranteed immunity from prosecution. (17/10/98) Lockerbie - The Facts: On 21 December 1988, Pan Am flight 103 from Frankfurt to New York via London exploded over the small town of Lockerbie in South West Scotland. All 259 passengers and crew were killed as were 11 Lockerbie residents. On 14 November 1991, the investigation by the Lord Advocate (Scotland's chief law officer) concluded with a warrant for the arrest of two Libyans, Abdel Baset Ali Mohamed al Megrahi and Al-Amin Khalifa Fhimah on charges of murder, conspiracy and contravention of the Aviation Security Act 1982. The USA issued a similar indictment. Lockerbie Prosecution Team: The Lord Advocate has been accused of including a 'token woman' in the prosecution team for the Lockerbie trial. Morag Armstrong, 35, has been included despite the fact that she left the bar more that a year ago. Donald Findlay QC, one of Scotland's most noted defence advocates expressed surprise and concern and questioned why the Lord Advocate had not chosen one of a number of other noted female advocates with more criminal experience. (20/10/98)

(Originally posted by John Downes)