printable banner

U.S. Department of State - Great Seal

U.S. Department of State

Diplomacy in Action

U.S.-Kenya Memorandum of Consultations and Initialed Air Transport Agreement of May 30, 2008


May 30, 2008

   
Share

MEMORANDUM OF CONSULTATIONS
Delegations representing the Republic of Kenya and the United States of America
met in Washington May 28-30, 2008, to discuss their civil aviation relationship. The
delegation lists are found at Attachment A. The discussions proceeded in a friendly and
constructive manner, consistent with the close relationship between the two countries.

1. The delegations reached ad referendum agreement on, and initialed the
text of, an Agreement (the "Agreement," appended as Attachment B). The delegations
intend to submit the draft Agreement to their respective authorities for approval, with the
goal of its entry into force in the near future.

2. In response to an inquiry from the Kenyan delegation, the U.S. delegation
noted that Kenya's unrated status under the FAA's International Air Safety Assessment
(IASA) program would not prevent a Kenyan carrier from placing its code on flights
operated by an airline of the United States, or a "Category 1" country, between Kenya
and the United States. For example, if a U.S. carrier were to operate service over, e.g., a
JFK-LHR-NBO routing, a Kenyan carrier could offer service pursuant to a code-sharing
arrangement over both segments of that route. If, however, the LHR-NBO service were
operated by a Kenyan airline, the Kenyan code could not be placed on the LHR-JFK
segment until Kenya attains FAA IASA "Category 1" status.

3. The Kenyan delegation expressed its commitment to obtain Category 1
status and sought continued technical support and collaboration from the U.S. FAA in
this regard. The U.S. delegation, in response, welcomed that commitment. Both
delegations expressed the desire for continued technical support and cooperation in this
area by the appropriate U.S. and Kenyan authorities.

4. The two delegations expressed their expectation that their aeronautical
authorities would permit operations consistent with the terms of the Agreement on the
basis of comity and reciprocity pending its entry into force.

For the delegation of the
United States of America
Terri L. Robl
For the delegation of the
Republic of Kenya
Eng. Abdulrazaq Adan Ali

Washington
May 30,2008

Attachment A
U.S .-Kenya Aviation Negotiations
May 28-29,2008
Washington, DC

U.S. Delegation

Terri Robl, Head of Delegation
Director, Office of Aviation Negotiations
Bureau of Economic and Business Affairs
U.S. Department of State

Y. Viki Limaye-Davis
International Transportation/Commercial Officer, Office of Aviation Negotiations
Bureau of Economic and Business Affairs
U.S. Department of State

Rachel Meyers
Kenya Desk Officer
Bureau of African Affairs
U.S. Department of State

Kathleen Milton
Office of the Legal Adviser
U.S. Department of State

Daniel Hutchens
Observer
U.S. Department of State

Keith Glatz
Aviation Negotiator, Office of International Aviation
U.S. Department of Transportation

Kip Tourtellot
Office of International Law
U.S. Department of Transportation

Angela Cupas
Observer
U.S. Department of Transportation

Eugene Alford
International Trade Specialist
U.S. Department of Commerce

Becky Erkul
East Africa Desk Officer
U.S. Department of Commerce

U.S. Industry Observers
Cecilia Bethke
Air Transport Association

Sametta Barnett
Delta Air Lines

Jeff Morgan
Northwest Airlines

James Davis
FedEx

Oracio Marquez
United Airlines

Diane Peterson
Airports Council International - North America

Bradley Rubinstein
Port Authority of New York and New Jersey

Kenya Delepation

Eng. Abdulrazaq Adan Ali, Head of Delegation
Permanent Secretary
Ministry of Transport

Galma Boru
Deputy Chief of Mission
Embassy of Kenya

Chris A. Kuto
Director General
Kenya Civil Aviation Authority

Nicholas 0. Bodo
Director, Air Transport
Ministry of Transport

Beatrice Karago
Principal State Counsel
Ministry of Foreign Affairs

IVjeri Mwangi Wachira
Senior Principal State Counsel
State Law Office

John Joseph Titoo Olugwaru
Corporation Secretary
Kenya Airports Authority

Anthony G. Mwangi
Manager Government and Industry Affairs
Kenya Airways (KQ)

Attachment B

AIR TRANSPORT AGREEMENT
BETWEEN
THE GOVERNMENT OF
THE UNITED STATES OF AMERICA
AND
THE GOVERNMENT OF THE REPUBLIC OF KENYA

The Government of the United States of America and the Government of the
Republic of Kenya (hereinafter, "the Parties");

Desiring to promote an international aviation system based on competition among
airlines in the marketplace with minimum government interference and regulation;

Desiring to make it possible for airlines to offer the traveling and shipping public a
variety of service options, and wishing to encourage individual airlines to develop
and implement innovative and competitive prices;

Desiring to facilitate the expansion of international air transport opportunities;

Desiring to ensure the highest degree of safety and security in international air
transport and reaffirming their grave concern about acts or threats against the
security of aircraft, which jeopardize the safety of persons or property, adversely
affect the operation of air transportation, and undermine public confidence in the
safety of civil aviation; and

Being Parties to the Convention on International Civil Aviation, done at Chicago
December 7, 1944;

Have agreed as follows:

Article 1

Definitions
For the purposes of this Agreement, unless otherwise stated, the term:

1. "Aeronautical authorities" means, in the case of the United States, the
Department of Transportation and, in the case of Kenya, the Ministry of Transport
and the Kenya Civil Aviation Authority, and any person or agency authorized to
perform functions exercised by the Department of Transportation, Ministry of
Transport, or Kenya Civil Aviation Authority;

2. "Agreement" means this Agreement and any annexes and amendments
thereto;

3.  "Air transportation" means the public carriage by aircraft of passengers,
baggage, cargo, and mail, separately or in combination, scheduled or charter, for
remuneration or hire;

4. "Airline of a Party" means an airline that is licensed by and has its principal
place of business in the territory of that Party;

5. "Convention" means the Convention on International Civil Aviation, done at
Chicago December 7, 1944, and includes:
a. any amendment that has entered into force under Article 94(a) of the
Convention and, has been ratified by both Parties, and
b. any Annex or any amendment thereto adopted under Article 90 of the
Convention, insofar as such Annex or amendment is at any given time effective for
both Parties;

6.  "Full cost" means the cost of providing service plus a reasonable charge for
administrative overhead;

7.  "International air transportation" means air transportation that passes
through the airspace over the territory of more than one State;

8. "Price" means any fare, rate, or charge for the carriage of passengers,
baggage, or cargo (excluding mail) in air transportation, including surface
transportation in connection with international air transportation, charged by
airlines, including their agents, and the conditions governing the availability of
such fare, rate, or charge;

9. "Stop for non-traffic purposes" means a landing for any purpose other than
taking on or discharging passengers, baggage, cargo, or mail in air transportation;

10. "Territory" means the land areas, internal waters, and territorial sea under
the sovereignty of a Party; and

11. "User charge" means a charge imposed on airlines for the provision of
airport, airport environmental, air navigation, or aviation security facilities or
services including related services and facilities.

Grant of Rights

1. Each Party grants to the other Party the following rights for the conduct of
international air transportation by the airlines of the other Party:
(a) the right to fly across its territory without landing;
(b) the right to make stops in its territory for non-traffic purposes;
(c) the right to perform international air transportation between points on
the following routes:
(i) for airlines of the United States, from points behind the United
States via the United States and intermediate points to any point
or points in Kenya and beyond;
(ii) for airlines of Kenya, from points behind Kenya via Kenya and
intermediate points to any point or points in the United States
and beyond; and
(d) the rights otherwise specified in this Agreement.

2. Each airline of a Party may, on any or all flights and at its option:
a. operate flights in either or both directions;
b. combine different flight numbers within one aircraft operation;
c. serve behind, intermediate, and beyond points and points in the
territories of the Parties in any combination and in any order;
d. omit stops at any point or points;
e. transfer traffic from any of its aircraft to any of its other aircraft at any
point;
f. serve points behind any point in its territory with or without change of
aircraft or flight number and hold out and advertise such services to the public as
through services;
g. make stopovers at any points whether within or outside the territory of
either Party;
h. carry transit traffic through the other Party's territory; and
i. combine traffic on the same aircraft regardless of where such traffic
originates;
without directional or geographic limitation and without loss of any right to carry
traffic otherwise permissible under this Agreement, provided that the
transportation is part of a service that serves a point in the homeland of the airline.

3. On any segment or segments of the routes above, any airline of a Party may
perform international air transportation without any limitation as to change, at any
point on the route, in type or number of aircraft operated, provided that, in the
outbound direction, the transportation beyond such point is a continuation of the
transportation from the homeland of the airline and, in the inbound direction, the
transportation to the homeland of the airline is a continuation of the transportation
from beyond such point.

4. Nothing in this Article shall be deemed to confer on the airline or airlines of
one Party the rights to take on board, in the territory of the other Party, passengers,
baggage, cargo, or mail carried for compensation and destined for another point in
the territory of that other Party.

5. Neither Party shall impose charter-specific restrictions on the provision of
international charter air transportation by airlines of either Party. Such charterspecific
restrictions include, but are not limited to, those relating to the type of
traffic, charter eligibility, the country in which the traffic originates, the nature of
the traffic as one-way or round-trip, or the existence of other services. Nothing in
this paragraph shall limit the rights of a Party to require airlines of both Parties to
adhere to requirements relating to the protection of passenger funds and passenger
cancellation and refund rights.

Article 3
Authorization

Each Party, on receipt of applications from an airline of the other Party, in the form
and manner prescribed for operating authorizations and technical permissions,
shall grant appropriate authorizations and permissions with minimum procedural
delay, provided:
a. substantial ownership and effective control of that airline are vested in the
other Party, nationals of that Party, or both;
b. the airline is qualified to meet the conditions prescribed under the laws
and regulations normally applied to the operation of international air transportation
by the Party considering the application or applications; and
c. the other Party is maintaining and administering the provisions set forth
in Article 6 (Safety) and Article 7 (Aviation Security).

Article 4
Revocation of Authorization

1. Either Party may revoke, suspend, limit, or impose conditions on the
operating authorizations or technical permissions of an airline where:
a. that airline is not an airline of the other Party under Article l(4);
b. substantial ownership and effective control of that airline are not vested
in the other Party, the other Party's nationals, or both; or
c. that airline has failed to comply with the laws and regulations referred to
in Article 5 (Application of Laws) of this Agreement.

2. Unless immediate action is essential to prevent further noncompliance with
subparagraph 1 c of this Article, the rights established by this Article shall be
exercised only after consultation with the other Party.

3.  This Article does not limit the rights of either Party to withhold, revoke,
suspend, limit, or impose conditions on the operating authorization or technical
permission of an airline or airlines of the other Party in accordance with the
provisions of Article 6 (Safety) or Article 7 (Aviation Security).

Article 5
Application of Laws

1. The laws and regulations of a Party relating to the admission to or departure
from its territory of aircraft engaged in international air navigation, or to the
operation and navigation of such aircraft while within its territory, shall be
complied with by such aircraft upon entering, when departing from, or while
within the territory of that Party.

2. While entering, within, or leaving the territory of one Party, its laws and
regulations relating to the admission to or departure from its territory of
passengers, crew or cargo on aircraft (including regulations relating to entry,
clearance, aviation security, immigration, passports, customs and quarantine or, in
the case of mail, postal regulations) shall be complied with by, or on behalf of,
such passengers, crew or cargo of that Party's airlines.

Article 6
Safety

1. Each Party shall recognize as valid, for the purpose of operating the air
transportation provided for in this Agreement, certificates of airworthiness,
certificates of competency, and licenses issued or validated by the other Party and
still in force, provided that the requirements for such certificates or licenses at least
equal the minimum standards that may be established pursuant to the Convention.
Each Party may, however, refuse to recognize as valid for the purpose of flight
above its own territory, certificates of competency and licenses granted to or
validated for its own nationals by the other Party.

2. Either Party may request consultations concerning the safety standards
maintained by the other Party relating to aeronautical facilities, aircrews, aircraft,
and operation of airlines of that other Party. If, following such consultations, one
Party finds that the other Party does not effectively maintain and administer safety
standards and requirements in these areas that at least equal the minimum
standards that may be established pursuant to the Convention, the other Party shall
be notified of such findings and the steps considered necessary to conform with
these minimum standards, and the other Party shall take appropriate corrective
action. Each Party reserves the right to withhold, revoke, suspend, limit, or impose
conditions on the operating authorization or technical permission of an airline or
airlines of the other Party in the event the other Party does not take such
appropriate corrective action within a reasonable time and to take immediate
action, prior to consultations, as to such airline or airlines if the other Party is not
maintaining and administering the aforementioned standards and immediate action
is essential to prevent further noncompliance.

Article 7
Aviation Security

1. The Parties affirm that their obligation to each other to protect the security of
civil aviation against acts of unlawful interference forms an integral part of this
Agreement. Without limiting the generality of their rights and obligations under
international law, the Parties shall in particular act in conformity with the
provisions of the Convention on Offenses and Certain Other Acts Committed on
Board Aircraft, done at Tokyo September 14, 1963, the Convention for the
Suppression of Unlawful Seizure of Aircraft, done at The Hague December 16,
1970, the Convention for the Suppression of Unlawful Acts against the Safety of
Civil Aviation, done at Montreal September 23, 1971, and the Protocol for the
Suppression of Unlawful Acts of Violence at Airports Serving International Civil
Aviation, Supplementary to the Convention for the Suppression of Unlawful Acts
against the Safety of Civil Aviation, done at Montreal February 24, 1988, as well
as with any other convention relating to the security of civil aviation to the degree
in force for both Parties.

2. The Parties shall provide upon request all necessary assistance to each other
to prevent acts of unlawful seizure of civil aircraft and other unlawful acts against
the safety of such aircraft, of .their passengers and crew, and of airports and air
navigation facilities, and to address any other threat to the security of civil air
navigation.

3. The Parties shall, in their mutual relations, act in conformity with the
aviation security standards and appropriate recommended practices established by
the International Civil Aviation Organization and designated as Annexes to the
Convention; they shall require that operators of aircraft of their registry, operators
of aircraft that have their principal place of business or permanent residence in
their territory, and the operators of airports in their territory act in conformity with
such aviation security provisions.

4. Each Party agrees to observe the security provisions required by the other
Party for entry into, for departure from, and while within the territory of that other
Party and to take adequate measures to protect aircraft and to inspect passengers,
crew, and their baggage and carry-on items, as well as cargo and aircraft stores,
prior to and during boarding or loading. Each Party shall also give positive
consideration to any request from the other Party for special security measures to
meet a particular threat.

5.  When an incident or threat of an incident of unlawful seizure of aircraft or
other unlawful acts against the safety of passengers, crew, aircraft, airports or air
navigation facilities occurs, the Parties shall assist each other by facilitating
communications and other appropriate measures intended to terminate rapidly and
safely such incident or threat.

6.  When a Party has reasonable grounds to believe that the other Party has
departed from the aviation security provisions of this Article, the aeronautical
authorities of that Party may request immediate consultations with the aeronautical
authorities of the other Party. Failure to reach a satisfactory agreement within 15
days from the date of such request shall constitute grounds to withhold, revoke,
suspend, limit, or impose conditions on the operating authorization and technical
permissions of an airline or airlines of that Party. When required by an emergency,
a Party may take interim action prior to the expiry of 15 days.

Article 8
Commercial Opportunities

1. The airlines of each Party shall have the right to establish offices in the
territory of the other Party for the promotion and sale of air transportation.

2. The airlines of each Party shall be entitled, in accordance with the laws and
regulations of the other Party relating to entry, residence, and employment, to bring
in and maintain in the territory of the other Party managerial, sales, technical,
operational, and other specialist staff required for the provision of air
transportation.

3.  Each airline shall have the right to perform its own ground-handling in the
territory of the other Party ("self-handling") or, at the airline's option, select among
competing agents for such services in whole or in part. The rights shall be subject
only to physical constraints resulting from considerations of airport safety. Where
such considerations preclude self-handling, ground services shall be available on
an equal basis to all airlines; charges shall be based on the costs of services
provided; and such services shall be comparable to the kind and quality of services
as if self-handling were possible.

4. An airline of a Party may engage in the sale of air transportation in the
territory of the other Party directly and, at the airline's discretion, through its
agents, except as may be specifically provided by the charter regulations of the
country in which the charter originates that relate to the protection of passenger
funds, and passenger cancellation and refund rights. Each airline shall have the
right to sell such transportation, and any person shall be free to purchase such
transportation, in the currency of that territory or in freely convertible currencies.

5.  Each airline shall have the right to convert and remit to its country and,
except where inconsistent with generally applicable law or regulation, any other
country or countries of its choice, on demand, local revenues in excess of sums
locally disbursed. Conversion and remittance shall be permitted promptly without
restrictions or taxation in respect thereof at the rate of exchange applicable to
current transactions and remittance on the date the carrier makes the initial
application for remittance.

6.  The airlines of each Party shall be permitted to pay for local expenses,
including purchases of fuel, in -the territory of the other Party in local currency. At
their discretion, the airlines of each Party may pay for such expenses in the
territory of the other Party in freely convertible currencies according to local
currency regulation.

7. In operating or holding out the authorized services under this Agreement,
any airline of one Party may enter into cooperative marketing arrangements such
as blocked-space, code-sharing, or leasing arrangements, with
a) an airline or airlines of either Party;
b) an airline or airlines of a third country; and
c) a surface transportation provider of any country;
provided that all participants in such arrangements (i) hold the appropriate
authority and (ii) meet the requirements normally applied to such arrangements.

8.  Airlines and indirect providers of cargo transportation of both Parties shall
be permitted, without restriction, to employ in connection with international air
transportation any surface transportation for cargo to or from any points in the
territories of the Parties or in third countries, including to and from all airports with
customs facilities and to transport cargo in bond under applicable laws and
regulations. Such cargo, whether moving by surface or by air, shall have access to
airport customs processing and facilities. Airlines may elect to perform their own
surface transportation or to provide it through arrangements with other surface
carriers, including surface transportation operated by other airlines and indirect
providers of cargo air transportation. Such intermodal cargo services may be
offered at a single, through price for the air and surface transportation combined,
provided that shippers are not misled as to the facts concerning such transportation.

Article 9
Customs Duties and Charges

1. On arriving in the territory of one Party, aircraft operated in international air
transportation by the airlines of the other Party, their regular equipment, ground
equipment, fuel, lubricants, consumable technical supplies, spare parts (including
engines), aircraft stores (including but not limited to such items of food, beverages
and liquor, tobacco, and other products destined for sale to or use by passengers in
limited quantities during flight), and other items intended for or used solely in
connection with the operation or servicing of aircraft engaged in international air
transportation shall be exempt, on the basis of reciprocity, from all import
restrictions, property taxes and capital levies, customs duties, excise taxes, and
similar fees and charges that are (a) imposed by the national authorities, and (b) not
based on the cost of services provided, provided that such equipment and supplies
remain on board the aircraft.

2. There shall also be exempt, on the basis of reciprocity, from the taxes,
levies, duties, fees, and charges referred to in paragraph 1 of this Article, with the
exception of charges based on the cost of the service provided:
a. aircraft stores introduced into or supplied in the territory of a Party and
taken on board, within reasonable limits, for use on outbound aircraft of an airline
of the other Party engaged in international air transportation, even when these
stores are to be used on a part of the journey performed over the territory of the
Party in which they are taken on board;
b. ground equipment and spare parts (including engines) introduced into the
territory of a Party for the servicing, maintenance, or repair of aircraft of an airline
of the other Party used in international air transportation;
c. fuel, lubricants, and consumable technical supplies introduced into or
supplied in the territory of a Party for use in an aircraft of an airline of the other
Party engaged in international air transportation, even when these supplies are to
be used on a part of the journey performed over the territory of the Party in which
they are taken on board; and
d. promotional and advertising materials introduced into or supplied in the
territory of one Party and taken on board, within reasonable limits, for use on
outbound aircraft of an airline of the other Party engaged in international air
transportation, even when these materials are to be used on a part of the journey
performed over the territory of the Party in which they are taken on board.

3.  Equipment and supplies referred to in paragraphs 1 and 2 of this Article may
be required to be kept under the supervision or control of the appropriate
authorities.

4. The exemptions provided by this Article shall also be available where the
airlines of one Party have contracted with another airline, which similarly enjoys
such exemptions from the other Party, for the loan or transfer in the territory of the
other Party of the items specified in paragraphs 1 and 2 of this Article.

Article 10
User Charges

1. User charges that may be imposed by the competent charging authorities or
bodies of each Party on the airlines of the other Party shall be just, reasonable, not
unjustly discriminatory, and equitably apportioned among categories of users. In
any event, any such user charges shall be assessed on the airlines of the other Party
on terms not less favorable than the most favorable terms available to any other
airline at the time the charges are assessed.

2. User charges imposed on the airlines of the other Party may reflect, but shall
not exceed, the full cost to the competent charging authorities or bodies of
providing the appropriate airport, airport environmental, air navigation, and
aviation security facilities and services at the airport or within the airport system.
Such charges may include a reasonable return on assets, after depreciation.
Facilities and services for which charges are made shall be provided on an efficient
and economic basis.

3.  Each Party shall encourage consultations between the competent charging
authorities or bodies in its territory and the airlines using the services and facilities,
and shall encourage the competent charging authorities or bodies and the airlines to
exchange such information as may be necessary to permit an accurate review of the
reasonableness of the charges in accordance with the principles of paragraphs 1
and 2 of this Article. Each Party shall encourage the competent charging
authorities to provide users with reasonable notice of any proposal for changes in
user charges to enable users to express their views before changes are made.

4. Neither Party shall be held, in dispute resolution procedures pursuant to
Article 14, to be in breach of a provision of this Article, unless (a) it fails to
undertake a review of the charge or practice that is the subject of complaint by the
other Party within a reasonable amount of time; or (b) following such a review it
fails to take all steps within its power to remedy any charge or practice that is
inconsistent with this Article.

Article 11
Fair Competition

1. Each Party shall allow a fair and equal opportunity for the airlines of both
Parties to compete in providing the international air transportation governed by this
Agreement.

2. Each Party shall allow each airline to determine the frequency and capacity
of the international air transportation it offers based upon commercial
considerations in the marketplace. Consistent with this right, neither Party shall
unilaterally limit the volume of traffic, frequency, or regularity of service, or the
aircraft type or types operated by the airlines of the other Party, except as may be
required for customs, technical, operational, or environmental reasons under
uniform conditions consistent with Article 15 of the Convention.

3.  Neither Party shall impose on the other Party's airlines a first-refusal
requirement, uplift ratio, no-objection fee, or any other requirement with respect to
capacity, frequency, or traffic that would be inconsistent with the purposes of this
Agreement.

4. Neither Party shall require the filing of schedules, programs for charter
flights, or operational plans by airlines of the other Party for approval, except as
may be required on a non-discriminatory basis to enforce the uniform conditions
foreseen by paragraph 2 of this Article or as may be specifically authorized in this
Agreement. If a Party requires filings for information purposes, it shall minimize
the administrative burdens of filing requirements and procedures on air
transportation intermediaries and on airlines of the other Party.

Article 12
Pricing

1. Each Party shall allow prices for air transportation to be established by
airlines of both Parties based upon commercial considerations in the marketplace.
Intervention by the Parties shall be limited to:
a. prevention of unreasonably discriminatory prices or practices;
b. protection of consumers from prices that are unreasonably high or
restrictive due to the abuse of a dominant position; and
c. protection of airlines from prices that are artificially low due to direct or
indirect governmental subsidy or support.

2. Prices for international air transportation between the territories of the
Parties shall not be required to be filed. Notwithstanding the foregoing, the airlines
of the Parties shall provide immediate access, on request, to information on
historical, existing, and proposed prices to the aeronautical authorities of the
Parties in a manner and format acceptable to those aeronautical authorities.

3.  Neither Party shall take unilateral action to prevent the inauguration or
continuation of a price proposed to be charged or charged by (i) an airline of either
Party for international air transportation between the territories of the Parties, or
(ii) an airline of one Party for international air transportation between the territory
of the other Party and any other country, including in both cases transportation on
an interline or intraline basis. If either Party believes that any such price is
inconsistent with the considerations set forth in paragraph 1 of this Article, it shall
request consultations and noti& the other Party of the reasons for its dissatisfaction
as soon as possible. These consultations shall be held not later than 30 days after
receipt of the request, and the Parties shall cooperate in securing information
necessary for reasoned resolution of the issue. If the Parties reach agreement with
respect to a price for which a notice of dissatisfaction has been given, each Party
shall use its best efforts to put that agreement into effect. Without such mutual
agreement, the price shall go into effect or continue in effect.

Article 13
Consultations

Either Party may, at any time, request consultations relating to this Agreement.
Such consultations shall begin at the earliest possible date, but not later than 60
days from the date the other Party receives the request unless otherwise agreed.

Article 14
Settlement of Disputes

1. Any dispute arising under this Agreement, except those that may arise under
Article 12 (Pricing), that is not resolved within 30 days of the date established for
consultations pursuant to a request for consultations under Article 13 may be
referred, by agreement of the Parties, for decision to some person or body. If the
Parties do not so agree, either Party may give written notice to the other Party
through diplomatic channels that it is requesting that the dispute be submitted to
arbitration.

2. Arbitration shall be by a tribunal of three arbitrators to be constituted as
follows:
a. Within 30 days after the receipt of a request for arbitration, each Party
shall name one arbitrator. Within 60 days after these two arbitrators have been
named, they shall by agreement appoint a third arbitrator, who shall act as
President of the arbitral tribunal;
b. If either Party fails to name an arbitrator, or if the third arbitrator is not
appointed, in accordance with subparagraph a of this paragraph, either Party may
request the President of the Council of the International Civil Aviation
Organization to appoint the necessary arbitrator or arbitrators within 30 days. If
the President of the Council is of the same nationality as one of the Parties, the
most senior Vice President who is not disqualified on that ground shall make the
appointment.

3.  The arbitral tribunal shall be entitled to decide the extent of its jurisdiction
under this Agreement and, except as otherwise agreed, shall establish its own
procedural rules. The tribunal, once formed, may at the request of either Party
recommend interim relief measures pending its final determination. If either of
the Parties requests it or the tribunal deems it appropriate, a conference to
determine the precise issues to be arbitrated and the specific procedures to be
followed shall be held not later than 15 days after the tribunal is fully constituted.

4. Except as otherwise agreed or as directed by the tribunal, the statement of
claim shall be submitted within 45 days of the time the tribunal is fully constituted,
and the statement of defense shall be submitted 60 days thereafter. Any reply by
the claimant shall be submitted within 30 days of the submission of the statement
of defense. Any reply by the respondent shall be submitted within 30 days
thereafter. If either Party requests it or the tribunal deems it appropriate, the
tribunal shall hold a hearing within 45 days after the last pleading is due.

5. The tribunal shall attempt to render a written decision within 30 days after
completion of the hearing or, if no hearing is held, after the last pleading is
submitted. The decision of the majority of the tribunal shall prevail.

6. The Parties may submit requests for interpretation of the decision within 15
days after it is rendered and any interpretation given shall be issued within 15 days
of such request.

7.  Each Party shall, to the degree consistent with its national law, give full
effect to any decision or award of the arbitral tribunal.

8.  The expenses of the arbitral tribunal, including the fees and expenses of the
arbitrators, shall be shared equally by the Parties. Any expenses incurred by the
President of the Council of the International Civil Aviation Organization in
connection with the procedures of paragraph 2b of this Article shall be considered
to be part of the expenses of the arbitral tribunal.

Article 15
Termination

Either Party may, at any time, give notice in writing to the other Party of its
decision to terminate this Agreement. Such notice shall be sent simultaneously to
the International Civil Aviation Organization. This Agreement shall terminate at
midnight (at the place of receipt of the notice to the other Party) at the end of the
International Air Transport Association (IATA) traffic season in effect one year
following the date of written notification of termination, unless the notice is
withdrawn by agreement of the Parties before the end of this period.

Article 16
Registration with ICAO

This Agreement and all amendments thereto shall be registered with the
International Civil Aviation Organization.

Article 17
Entry into Force

This Agreement shall enter into force on the date of signature.

IN WITNESS WHEREOF the undersigned, being duly authorized by their
respective Governments, have signed this Agreement.

DONE at ____________________ , this ___________day of_____________ 20__ , in two originals,
in the English language, both texts being equally authentic.

FOR THE GOVERNMENT OF THE
UNITED STATES OF AMERICA:

FOR THE GOVERNMENT
OF THE REPUBLIC OF
KENYA:

ANNEX
Notwithstanding any other provision of this Agreement:

1. Until March 31, 2009, airlines of the United States may not engage in
scheduled combination air transportation with local traffic rights between points in
Kenya and other points in Africa.

2. From April 1,2009, to March 31,20 1 1, airlines of the United States may not
engage in scheduled combination air transportation with local traffic rights
between points in Kenya and other points in Africa other than Senegal.

 



Back to Top
Sign-in

Do you already have an account on one of these sites? Click the logo to sign in and create your own customized State Department page. Want to learn more? Check out our FAQ!

OpenID is a service that allows you to sign in to many different websites using a single identity. Find out more about OpenID and how to get an OpenID-enabled account.