MEMORANDUM OF CONSULTATIONS
Delegations representing the United States of America and the State of Kuwait met in Kuwait City January 16-17,2005, to discuss the establishment of an open-skies regime that would govern air services between their countries. A list of both delegations appears as Attachment A.
During the cordial and productive discussions, the delegations demonstrated flexibility in resolving issues of concern to both sides. As a result, the delegations reached agreement, ad referendum, on the text of an Air Transport Agreement between the Governments of the United States of America and the State of Kuwait (Attachment B) with the exception of the bracketed text contained in Article 8, paragraph 3.
The Kuwaiti delegation expressed concerns that the operation by carriers of one Party of code sharing services with third-country carriers might establish capacity entitlements for third-country carriers that exceed those contained in the air transport agreements between the other Party and such third countries. In response, the United States delegation affirmed that, in accordance with Article 8, paragraph 7 of the Agreement, code sharing services between the airlines of either Party and third-country carriers would not create an obligation for either Party to approve or permit the operation of capacity beyond that contained in the relevant aviation agreements with third countries.
With respect to Article 9, regarding exemptions from customs duties, inspections fees and other duties or taxes, the U.S. delegation undertook to provide clarification on the scope of coverage for moveable properties, office equipment, ticket stock, and airway bills, as well as publicity material and giveaway items.
The delegations noted the positive relationship between the countries and expressed the intention of their Governments to reach agreement on the terms of an openskies air transport agreement at the earliest possible date in order to enhance for both countries the current and future benefits brought by air services.
Done in Kuwait City 17 January 2005
For the Delegation of the United States of America: Laura Faux-Gable
For the Delegation of the State of Kuwait: Fawaz AI-Farah
DELEGATION OF THE STATE OF KUWAIT
- Mr. Fawaz A. AI-Farah (Head)
Deputy Director General of Civil Aviation for Aviation Safety and Air Transport Affairs (Assistant Undersecretary)
- Mrs. Noura R. AI-Shuwaiee (Member)
Head of IntI. Affairs Division Directorate General of Civil Aviation
- Mr. Abdulla AI-Rajhi (Member)
Air Transport Researcher Directorate General of Civil Aviation
- Mr. Saleh AI-Eqab (Member)
Air Transport Researcher Directorate General of Civil Aviation
- Mrs. Nouriya AI-Muhanna (Member)
Legal Consultant Ministry of Foreign Affairs
- Mr. Dawoud AI-Dawoud (Member)
Director Planning and International Affairs KAC
- Mr. Wajdi AI-Misbah (Member)
Specialist (B) Government and Commercial Agreements KAC
- Mr. Rohinton R. Desai (Member)
Sr. Expert Planning and International Affairs KAC
DELEGATION OF THE UNITED STATES OF AMERICA
-Ms. Laura Faux-Gable (Head)
Deputy Director, Office of Aviation Negotiations Department of State
-Mr. Steven Hatley (Member)
Office of International Aviation Department ofTransportation
-Ms. Laura Trejo (Member)
Attorney Department of Transportation
-Mr. Stephen Carrig (Member)
Economic Counselor, U.S. Embassy Kuwait
-Ms. Jennifer Danover (Member)
Economic Officer, U.S. Embassy Kuwait
-Mr. David Short (Member)
Federal Express (FedEx)
AIR TRANSPORT AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE STATE OF KUWAIT
The Government of the United States of America and the Government of the State of Kuwait (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 facilitate the expansion of international air transport opportunities;
Desiring to make it possible for rlines to offer the traveling and shipping public a variety of service options at the lowest prices that are not discriminatory and do not represent abuse a dominant position, and wishing to encourage individual airlines to develop and implement innovative and competitive prices;
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 Convention on International Civil Aviation, opened for signature at Chicago on December 7, 1944;
Have agreed as follows:
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, or its successor, and in the case of the State of Kuwait, the Directorate General of Civil Aviation, and any person or agency authorized to perform functions exercised by the said Directorate General of Civil Aviation;
2. "Agreement" means this Agreement, its Annexes, and any amendments thereto;
3. "Air transportation" means the public carriage by aircraft of passengers, baggage, cargo, and mail, separately or in combination, for remuneration or hire;
4. "Convention" means the Convention on International Civil Aviation, opened for signature at Chicago on 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;
5. "Designated airline" means an airline designated and authorized in accordance with Article 3 of this Agreement;
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 (and their baggage) and/or cargo (excluding mail) in 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 and/or mail in air transportation;
10. "Territory" means the land areas under the sovereignty, jurisdiction, protection, or trusteeship of a Party, and the territorial waters adjacent thereto; and
11. "User charge" means a charge imposed on airlines for the provision of airport, 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; and
c. the rights otherwise specified in this Agreement.
2. 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, their baggage, cargo, or mail carried for compensation and destined for another point in the territory of that other Party.
Designation and Authorization
a. substantial ownership and effective control of that airline are vested in the Party designating the airline, nationals of that Party, or both;
b. the designated 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 Party designating the airline is maintaining and administering the standards set forth in Article 6 (Safety) and Article 7 (Aviation Security).
Revocation of Authorization
1. Either Party may revoke, suspend or limit the operating authorizations or technical permissions of an airline designated by the other Party where:
a. substantial ownership and effective control of that airline are not vested in the other Party, the Party's nationals, or both;
b. that airline has failed to comply with the laws and regulations referred to in Article 5 (Application of Laws) of this Agreement; or
c. the other Party is not maintaining and administering the standards as set forth in Article 6 (Safety).
Application of Laws
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 the designated airlines. 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, or limit the operating authorization or technical permission of an airline or airlines designated by the other Party in the event the other Party does not take such appropriate corrective action within a reasonable time.
1. In accordance with their rights and obligations under international law, the Parties reaffirm that their obligation to each other to protect the secu ty 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, done at Montreal February 24, 1988.
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 who 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, 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.
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 designated 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 designated airline shall have the right to perform its own ground-handling in the territory of the other party ("self-handling") or, at its 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 s~ch considerations preclude selfhandling, 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. Any airline of each 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, 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 on the agreed routes, any designated airline of one Party may enter into cooperative marketing arrangements such as blocked-space, codesharing 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. Notwithstanding any other provision of this Agreement, 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 transport to and from all airports with customs facilities, and including, where applicable, the right 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.
Customs Duties and Charges
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 r 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 boardi
b. ground equipment and spare parts (including engines) introduced into the territory of a Party for the servicing, maintenance, or repair of aircra 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 ter tory 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 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.
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.
1. Each Party shall allow prices for air transportation to be established by each designated airline 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 designated airlines of the Parties shall continue to 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 notify the other Party of the reasons for its dissatisfaction as soon as possible. These consultations shall be held not later than 60 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.
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. Any amendment to this Agreement agreed to as a result of such consultations shall be approved by each Party accordance with its constitutional procedures and shall enter into force on the date of the exchange of diplomatic notes indicating such approval.
Settlement of Disputes
a. Within 30 days after the receipt of a request for arbitration, each Party shall name one arbitrator. Within 60 days ~~er 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 disquali ed on that ground shall make the appointment.
3. Except as otherwise agreed! the arbitral tribunal shall determine the limits of its jurisdiction in accordance with this Agreement and shall establish its own procedural rules. The tribunal! once formed, may recommend interim relief measures pending its final determination. At the direction of the tribunal or at the request of either of the Parties! 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! each Party shall submit a memorandum within 45 days of the time the tribunal is fully constituted. Replies shall be due 60 days later. The tribunal shall hold a hearing at the request of either Party or on its own initiative within 15 days after replies are 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 date both replies are submitted. The decision of the majority of the tribunal shall prevail.
6. The Parties may submit requests for clarification of the decision within 15 days after it is rendered and any clarification 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 oart of the expenses of the arbitral tribunal.
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) immediately before the f t anniversary of the date of receipt of the notice by the other Party, unless the notice is withdrawn by agreement of Parties before the end of this period.
Registration with ICAO
This Agreement and all amendments thereto shall be registered with the International Civil Aviation Organization.
Entry into Force
This Agreement and its Annexes shall enter into force on the date of the later note in an exchange of diplomatic notes between the Parties confirming that each Party has completed the necessary internal procedures for entry into force of this Agreement.
IN WITNESS WHEREOF the undersigned, being duly authorized by their respective Governments, have signed this Agreement.
DONE at ________________, this________ day of ________, 20__, in duplicate, in the English and Arabic languages, each text being equally authentic.
FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA:
FOR THE STATE OF KUWAIT:
Scheduled Air Transportation
Airlines of each Party designated under this Annex shall, in accordance with the terms of their designation, be entitled to perform scheduled international air transportation between points on the following routes:
A. Routes for the airline or airlines designated by the Government of the United States:
B. Routes for the airline or airlines designated by the State of Kuwait:
Each designated airline may, on any or all flights and at its option:
1. operate flights in either or both directions;
2. combine different flight numbers within one aircraft
3. serve behind, intermediate, and beyond points and points in the territories the Parties on the routes in any combination and in any order;
4. omit stops at any point or points;
5. transfer traffic from any of its aircraft to any of its other aircraft at any point on the routes; and
6. serve points behind any point in its territory with or without change of aircraft or flight number and may hold out and advertise such services to the public as through services;
without directional or geographic limitation and without loss of any right to carry traffic otherwise permissible under this Agreement; provided that, with the exception of all-cargo services, the service serves a point in the territory of the Party designating the airline.
Change of Gauge
On any segment or segments of the routes above, any designated airline 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, with the exception of all-cargo s ces, in the outbound direction, the transportation beyond such point is a continuation of the transportation from the territory of the Party that has designated the airline and, in the inbound direction, the transportation to the ter tory of the Party that has designated the airline is a continuation of the transportation from beyond such point.
Charter Air Transportation
A. Airlines of each Party designated under this Annex shall, in accordance with the terms of their designation, have the right to carry international charter traffic of passengers (and their accompanying baggage) and/or cargo (including, but not limited to, freight forwarder, split, and combination (passenger/cargo) charters):
1. Between any point or points in the territory of the Party that has designated the airline and any point or points in the territory of the other Party; and
2. Between any point or points in the territory of the other Party and any point or points in a third country or countries, provided that, except with respect to cargo charters, such service constitutes part of a continuous operation, with or without a change of aircraft, that includes service to the homeland for the purpose of carrying local traffic between the homeland and the territory of the other Party.
B. In the performance of services covered by this Annex, airlines of each Party designated under this Annex shall also have the right: (1) to make stopovers at any points whether within or outside of the territory of either PartYi (2) to carry transit traffic through the other Party's territory; (3) to combine on the same aircraft traffic originating in one Party's territory, traffic orlginating in the other Party's territory, and traffic originating in third countries; and (4) to 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, except with respect to cargo charters, in the outbound direction, the transportation beyond such point is a continuation of the transportation from the territory of the Party that has designated the airline and in the inbound direction, the transportation to the territory of the Party that has designated the airline is a continuation of the transportation from beyond such point.
C. Each Party shall extend favorable consideration to applications by airlines of the other Party to carry traffic not covered by this Annex on the basis of comity and reciprocity.
A. Any airline designated by either Party performing international charter air transportation originating in the territory of either Party, whether on a one-way or round-trip basis, shall have the option of complying with the charter laws, regulations, and rules either of its homeland or of the other Party. If a Party applies different rules, regulations, terms, conditions, or limitations to one or more of its airlines, or to airlines of different countries, each designated airline shall be subject to the least restrictive of such criteria.
B. However, nothing contained in the above paragraph shall limit the rights of either Party to require airlines designated under this Annex by either Party to adhere to requirements relating to the protection of passenger funds and passenger cancellation and refund rights.
Except with respect to the consumer protection rules referred to in the preceding paragraph, neither Party shall require an airline designated under this Annex by the other Party, in respect of the carriage of traffic from the territory of that other Party or of a third country on a one-way or round-trip basis, to submit more than a declaration of conformity with the applicable laws, regulations. or rules granted by the applicable aeronautical authorities.