• Journal of the Korean Society for Aviation and Aeronautics
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• v.15 no.1
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• pp.38-53
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• 2007

In a seminal judgment of November 2002 (Case C-476/98) relating to the compatibility with Community laws of the 'nationality clause' in the 1996 amending protocol to the 1955 U.S.-German Air Services Agreement, the European Court of Justice(ECJ) decided that the provision constituted a measure of an intrinsically discriminatory nature and was thus contrary to the principle of national treatment established under Art. 52 of the EC Treaty. The Court, rejecting bluntly the German government' submissions relying on public policy grounds(Art. 56, EC Treaty), seemed content to declare and rule that the protocol provision requiring a contracting state party to ensure substantial ownership and effective control by its nationals of its designated airlines had violated the requirement of national treatment reserved for other Community Members under the salient Treaty provision. The German counterclaims against the Commission, although tantalizing not only from the perusal of the judgment but from the perspective of international air law, were nonetheless invariably correct and to the point. For such a clause has been justified to defend the 'fundamental interests of society from a serious threat' that may result from granting operating licenses or necessary technical authorizations to an airline company of a third country. Indeed, the nationality clause has been inserted in most of the liberal bilaterals to allow the parties to enforce their own national laws and regulations governing aviation safety and security. Such a clause is not targeted as a device for discriminating against the nationals of any third State. It simply acts as the minimum legal safeguards against aviation risk empowering a party to take legal control of the designated airlines. Unfortunately, the German call for the review of such a foremost objective and rationale underlying the nationality clause landed on the deaf ears of the Court which appeared quite happy not to take stock of the potential implications and consequences in its absence and of the legality under international law of the 'national treatment' requirement of Community laws. Again, while US law limits foreign shareholders to 24.9% of its airlines, the European Community limits non-EC ownership to 49%, precluding any ownership and effective control by foreign nationals of EC airlines, let alone any foreign takeover and merger. Given this, it appears inconsistent and unreasonable for the EC to demand, $vis-{\grave{a}}-vis$ a non-EC third State, national treatment for all of its Member States. The ECJ's decision was also wrongly premised on the precedence of Community laws over international law, and in particular, international air law. It simply is another form of asserting and enforcing de facto extraterritorial application of Community laws to a non-EC third country. Again, the ruling runs counter to an established rule of international law that a treaty does not, as a matter of principle, create either obligations or rights for a third State. Aside from the legal problems, the 'national treatment' may not be economically justified either, in light of the free-rider problem and resulting externalities or inefficiency. On the strength of international law and economics, therefore, airlines of Community Members other than the designated German and U.S. air carriers are neither eligible for traffic rights, nor entitled to operate between or 'free-ride' on the U.S. and German points. All in all and in all fairness, the European Court's ruling was nothing short of an outright condemnation of established rules and principles of international law and international air law. Nor is the national treatment requirement justified by the economic logic of deregulation or liberalization of aviation markets. Nor has the requirement much to do with fair competition and increased efficiency.

• Journal of the Korea Society of Computer and Information
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• v.6 no.4
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• pp.188-205
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• 2001

Insurer's duty of declaration is based on reciprocity of principle of the highest good, and recently it is widely recognized in the British and American insurance circles. The conception of fiduciary relationship is no longer equity or the legal theory which is only confined to the nations with Anglo-American laws. Therefore, recognizing the fiduciary relationship as the essence of insurance contract, which is more closely related to public interest than any other fields. will serve an efficient measure to seek fair and reasonable relationship with contractor, and provide legal foundation which permits contractor to bring an action for damage against violation of insurer's duty of declaration. In the future, only when the fiduciary relationship is approved as the essence of insurance contract, the business performance and quality of insurance industry is expected to increase. Therefore, to keep well this fiduciary relationship, or increase the fiduciary relationship persistency rates seems to be the bottom line in the insurance industry. In this paper, we developed a fiduciary relationship maintenance ratio based on comparison by case, which is represented with usually maintained contract months to paid months, based on each contract of the basis point. In this paper we have developed a new business model seeking the maximum profit with low cost and high efficiency, management policy of putting its priority on its substantiality, as an improvement measure to break away from the vicious circle of high cost and low efficiency, and management policy of putting its priority on its external growth(expansion of market share).