UK: European News (Aviation Industry)

Last Updated: 30 September 2002

Sky Law is Clyde & Co’s dedicated aviation bulletin distributed to clients and contacts involved in the aviation industry. It covers selected recent aviation developments particularly in relation to English and European Union laws and decisions. Further copies are available upon request.

Expansion Of Clyde & Co's Paris Office – HPMBC Clyde & Co

We are pleased to announce that Clyde & Co has recently merged with a 30 lawyer French firm, Honig Preel Mettetal Buffat Coulon. Clyde & Co’s partnership has been increased by the addition of ten French partners and the Paris office is known as HPMBC Clyde & Co. In addition to non-contentious work, the primary focus of the new office is insurance, aviation, marine, transportation, energy and product liability work.

The merger has enabled us to create the largest insurance practice in France and also one of the largest aviation practices. Apart from representing aviation insurers the office acts for, amongst others, major aviation manufacturers and has experience of many high profile cases. The office’s strength in air-carriage work in general has now been supplemented by a particular expertise in product liability work, aviation transactions and regulatory services.

Developments in European aviation law continue unabated. We report below on some recent developments in European aviation law.

The re-certificated aircraft regulation

Following last year’s developments at ICAO level on the noise front, the European Parliament passed a Directive which has repealed the Re-certificated Aircraft Regulation, colloquially known as the "Hushkits Regulation". The Re-certificated Aircraft Regulation had a damaging impact on the aviation industry and directly affected certain operators of re-certificated Chapter 3 aircraft. The Directive adopts the so called "balanced approach" to noise management, consistent with wider international policy and it allows some flexibility to enable local solutions to be developed for local problems where appropriate.

European single sky

The debate on the European Single Sky continues. The UK Government has submitted a response to the European Commission’s second consultation paper. Although there is still much discussion to occur, it is anticipated that a European Single Sky will be introduced in 2004.

Airline league tables

The European Commission is formulating plans to implement league tables which illustrates airlines with the worst record of delays, lost baggage and cancelled flights. Unsurprisingly, leading airlines are strongly resisting this claiming that a ranking system would be unfair. The European Commission wishes to follow the process used in the USA, where airlines are ranked according to their performance.

European Aviation Safety Agency

This year has seen the adoption of a regulation creating the European Aviation Safety Agency (EASA). The EASA will assist in devising common standards for safety and environmental protection as well as ensuring the uniform application of such standards within the EU. The EASA has one year to become operational from the adoption date of the Regulation.

European Commission - Accession to ICAO and Eurocontrol

The European Commission presented a proposal for Community accession to ICAO. It is seeking a mandate from the European Council to negotiate with ICAO, the long-term aim being to enable the European Commission to co-ordinate with ICAO.

The European Council has reached an agreement on a decision agreeing to community accession to Eurocontrol. It is expected that the Accession Protocol will be signed at a diplomatic conference this year.

Slot allocation

The European Parliament has approved a European Commission proposal which lays down new rules for the introduction of the fair allocation of slots at EU airports. One of the key principles is that new air carriers should be given a fair chance when entering the market for slots. Parliament’s approval was subject to amendments for clarifying the wording of the proposal, to preserve planning certainty and flexibility for carriers and to confirm that EU Member States have discretionary powers in transport and environmental policy. There are still further discussions to come and the plan is that decisions on airport slot allocation should be taken by the end of 2002.

HI-JACKING

President Bush has stated that intelligence sources have been alerted to the possibility of ‘simple’ hi-jackings, rather than what actually happened on September 11. Although there have been comparatively few unlawful airliner seizures since Dawson’s Field, there have been many unlawful takings of smaller aircraft which have provoked debate as to whether they constituted "hi-jackings".

The insurance position

Very broadly, unlawful seizures of general aviation type aircraft take place either when the aircraft is in flight, or a pilot on the ground is taken captive and coerced to fly an aircraft to which they have access. In common parlance both would be described as hi-jackings but at least in the United Kingdom only the former is actually a hi-jacking on a legal basis.

The correct classification is of importance to the insurance industry because hi-jacking is normally excluded from Aviation All Risks covers by virtue of the War, Hi-jacking and Other Perils Exclusion Clause, which typically states that:

… this policy does not apply:

To claims caused by hi-jacking or any unlawful seizure or wrongful exercise of control of the Aircraft or crew in Flight (including any attempt at such seizure or control) made by any person or persons on board the Aircraft acting without the consent of the Insured.

This Exclusion is sometimes, but not always, written back by the Extended Coverage Endorsement, in which case there is no conflict, but if it is not written back, the prudent insured also obtains separate War Risks cover.

The Aviation Hull "War and Allied Perils" Policy provides cover for hi-jacking by a mirror image of this Exclusion. Thus simplistically, if an unlawful seizure is a hi-jacking it is covered by the War Risks Policy, if it is not, then it is prima facie covered by the All Risks. To be a hi-jacking, at the time of the incident the aircraft must be "in Flight" and the person or persons doing the hi-jacking must be on board the aircraft.

Subject to the normal rules of proof as to when and where the offence took place, "hi-jacking" claims should not pose too many problems, and they probably would not were it not for the fact that "hi-jacking" is an English term of art which does not necessarily mean the same, or indeed anything, in other countries.

The international law position

Article 1 of the Convention for the Suppression of Unlawful Seizure of Aircraft. The Hague, 16 December 1970 ("Hague Convention 1970") states:

Any person who on board an aircraft in flight:

unlawfully, by force or threat thereof, or by any other form of intimidation seizes, or exercises control of, that aircraft, or attempts to perform any such act…commits an offence (hereinafter referred to as "the offence")

and by Article 3:

For the purposes of this Convention, an aircraft is considered to be in flight at any time from the moment when all its external doors are closed following embarkation until the moment when any such door is opened for disembarkation. In the case of a forced landing, the flight shall be deemed to continue until the competent authorities take over the responsibility for the aircraft and for persons and property on board.

There is no mention of "hi-jacking", it is merely "the offence".

The Hague Convention 1970 was enabled into United Kingdom law by the Hi-jacking Act 1971, now repealed and replaced by identical provisions in the Aviation Security Act 1982, Section 1 of which paraphrases Article 1 of the Convention as follows:

A person on board an aircraft in flight who unlawfully, by the use of force or by threats of any kind, seizes the aircraft or exercises control of it commits the offence of hi-jacking…

The definition in the Act of "in flight" is the same as in the Convention.

So "hi-jacking" has been substituted for "the offence", and we thus have a definition of "hi-jacking", but applicable only for offences tried within the United Kingdom.

Some other English speaking States chose to call "the offence" air (or aerial) piracy. This is perhaps doubly unfortunate, as not only is there an immediate danger of confusion, but on most normal historical definitions of piracy there must be two vessels, the pirate vessel and the victim; indeed to compound potential confusion, there is an English offence of air piracy – which does require two ‘vessels’.

The reason for the distinction between aircraft seizures "in flight" and otherwise is clear from the definition of "in flight". The transition occurs when the aircraft is sealed to the outside world by closing the last door, thus precluding easy access by security or police et alios ("the competent authorities"). Since the aircrew and cabin staff are then ‘on their own’, it was felt appropriate to apply a more draconian regime to the perpetrators.

This worthy objective is therefore defeated if another definition of "in flight" is applied, for example by a Policy wording.

In a recent Arbitration under the provisions of AVS.103 – the "50/50" Clause – relating to a helicopter loss in Colombia, although all those involved were outside the aircraft the learned Arbitrator applied the All Risks definition of "Flight", which includes when the rotors are in motion.

Since, almost by chance, the engine had been stopped before an armed seizure, he felt able to find that ‘although the helicopter was unlawfully hi-jacked or

seized it was not seized or hi-jacked in flight’ so that the All Risks Underwriters were fully liable for the loss.

For the reasons outlined above, and ignoring whether hi-jacking is a legal term of art in Colombia and whether the broad definition of "in flight" was correctly applied, whilst the helicopter could obviously have been unlawfully seized, it could not have been hi-jacked. However, it seems that if the rotors had been in motion, the arbitrator would have held that the helicopter was "in flight" and thus "hi-jacked", although the participants were outside the aircraft – thus defeating the clear intention of the drafters of the Hague Convention 1970.

Insurance or re-insurance of foreign risks

Turning to foreign risks written or re-insured in London, the position becomes more confused, especially if there is a local jurisdiction clause. The first case is the fairly typical one where a foreign insured is issued with the London Aircraft Insurance Policy AVN1C with no Extended Coverage Endorsement, but with a local jurisdiction clause. For the reasons outlined, their local jurisdiction will almost certainly not have any definition of "hi-jacking".

If an ensured also has War Risks cover, this should not affect them, so long as it is the London War Risks wording, but it might give rise to a heated dispute between the respective insurers.

Perhaps of more danger is the re-insurance in London of a local wording where the re-insurance policy includes the War, Hi-jacking and Other Perils Exclusion Clause. One does not have to travel far to find an example of the problem.

In France the Fédération Francaise des Sociétés d’Assurances ("FFSA") has issued standard wordings for use, among other things, in all French aviation policies. Convention Spéciale "A1" is broadly equivalent to the English War Risks cover, and is subtitled Assurance Corps des Aéronefs Contre Les Riques de Guerre et Assimilés. (i.e. Aircraft hull insurance against war and equivalent risks).

The "hi-jacking" coverage wording in Convention Spéciale "A1", in an unofficial translation is:

… unlawful taking of possession or unlawful exercise of control of the aircraft or crew (including all attempts at such acts) made by any persons or groups of persons on board the aircraft acting without the consent of the Insured.

The crucial difference between the two is the fact that the French wording does not refer to "in flight".

We therefore have the position not uncommon in jail breaks in France where, for example, armed men burst into a crew room and compel a pilot to fly them in a helicopter to a prison with the intention of liberating a colleague. Since at the time of the ‘unlawful exercise of control of the crew’ the helicopter is not in flight, either by the Hague Convention 1970, or on an English wording, it is not a "hi-jacking", and is thus prima facie covered by the All Risks, but by the FFSA wording it is a War Risk.

Even if the policy wording as issued to a French insured is an approved translation of the English wording, but with a French jurisdiction clause, in the event of a dispute there is a danger that a French Court would rely upon the FFSA wording! This leads to the anomalous position that any illegal seizure of an aircraft in France is a War Risk, be it on the ground or in flight.

Comment

In order to avoid disputes, the inclusion in Policies of a definition of "hi-jacking" which accords with the Hague Convention 1970 should be considered, and likewise if there is a Policy definition of "in flight" – as in helicopter policies – which includes periods when the aircraft doors are open, and passengers and/or crew are physically outside the aircraft – this should be again restricted to the Hague Convention 1970 definition for the purposes of "hi-jacking" claims.

One final point exists, which is almost invariably overlooked. Both under the Hague Convention 1970 and the Aviation Security Act 1982, if the seized aircraft’s flight terminates in the same State that it took off from – in other words the flight was wholly within that State’s boundaries, even if the seizure was ‘in flight’ as defined, it is neither "the offence" under the Hague Convention nor a "hi-jacking" under the English Act.

This article appeared in Insurance Day on 2 October 2002.

AIRLINES TAKE TO THE ROAD – QUANTUM CORPORATION AND OTHERS –v- PLANE TRUCKING AND AIR FRANCE

In our Autumn 2001 edition of Sky Law we reported on the First Instance decision in this case.

The Appeal has now been heard and by a unanimous judgment of the Court of Appeal the decision has been reversed.

In short, the Court of Appeal determined that the CMR Convention scheduled to the Carriage of Goods by Road Act 1965 applied, compulsorily, to the road leg of the carriage by the airline. As a result of the decision the opportunity now exists to break severe limits of liability which would not have been the case had Montreal Protocol (No. 4) applied or, indeed, the airline’s own Conditions of Carriage in the Air Waybill. The Court of Appeal judgment has already been cited in a New South Wales Court of Appeal decision (Schenker v Siemens).

A request for leave to appeal the decision was refused, but there is an attempt to obtain leave to appeal from the House of Lords.

The Court of Appeal decision is important and could have very interesting repercussions, for example, can it always be said exactly when air carriage ends, so that there is no clash of Conventions and in what circumstances will the introduction of a road leg into a predominantly air carriage lead to the loss of the considerable limitation protection that might otherwise be afforded by Montreal Protocol (No. 4)?

An article discussing the case, and written by Clyde & Co’s casehandlers, appeared in Insurance Day on 18 April; copies of the article are available on request.

AIRLINES TAKE TO THE ROAD – AGAIN!

An air carrier has recently been held liable in the UAE for the full value of a cargo claim despite a clear limitation of liability provision in its Master Air Waybill ("MAWB").

The facts

Three house air waybills (HAWBs) were issued by freight forwarders, DFI, to the shipper of designer sunglasses for carriage from Milan to Sharjah – the financing bank was named as consignee. DFI signed the HAWBs "as agent for [the carrier]", although one HAWB noted that DFI acted as the "Applicant’s nominated freight forwarders". Remarkably, the terms on the reverse side of the HAWBs were never disclosed in the proceedings.

The consignments were consolidated into one MAWB, issued by DFI as carrier’s IATA agent on the carrier’s standard IATA form. The MAWB named DFI as the shipper and a local freight forwarder in the UAE as consignee.

The air waybills all permitted the carrier to substitute other means of transportation without notice. However, the HAWBs were also claused: "Transhipment: Not Permitted". The flight code shown on the air waybills represented a flight by the carrier from Schipol to Sharjah. The carrier had no direct flight from Milan to Sharjah and, as DFI knew from previous engagements, the first leg of the carriage from Milan to Schipol was sub-contracted to road hauliers, during which leg the cargo was stolen.

The submissions

Surprisingly, the claimants pleaded that the Warsaw Hague Convention (the "Convention") applied to the claim. However, they argued that under Article 25 of the Convention the carrier could not limit its liability due to gross recklessness in shipping the goods by road in breach of the prohibition of transhipment.

The carrier argued that, if the Convention did apply, the carrier could not be held liable because the loss occurred during the road leg and not during "carriage by air". Alternatively, the carrier argued it was entitled to the benefit of Article 20 having taken all necessary measures to avoid the loss and/or Article 21 in that the cargo owners had contributed to the loss by not declaring a value for the goods. If the Court still considered the carrier to be liable, the carrier was entitled to limit liability pursuant to the Convention, the terms of the MAWB and/or local law.

The judgment

The Court rejected the claimants’ apparent own goal and held that liability fell to be determined according to the terms of the contract.

The Court held that the contract was evidenced by the three HAWBs issued by DFI as the carrier’s agent. The Court did not require sight of the terms on the reverse side of the HAWBs and did not explain the function of the MAWB.

The Court found that the typed clausing on the HAWBs which prohibited transhipment meant that the carrier, through its agent, had contractually agreed to carry the goods directly by air from Milan to Sharjah. Accordingly, there was no need to consider the printed wording which allows change of mode of transport nor IATA Resolutions permitting such right.

As the Convention did not apply the carrier could not rely on Article 22 limits. Further, the analogous provision of domestic law applied only to "carriage by air" and therefore did not apply to a loss during carriage by road. The carrier could therefore rely upon a contractual right to limit liability but on the incomplete copy of the HAWBs (which evidenced the contract), there was no provision for limitation of liability. The carrier was accordingly found fully liable.

Comment

The case involves the reverse of the Quantum –v- Plane Trucking and Air France scenario since the road leg preceded the air leg.

The UAE Commercial Code is ultimately derived from its French equivalent and it will be interesting to see whether the Sharjah Court of Appeal ultimately allows the carrier to rely on the provisions of the Warsaw Hague Convention, by a theory of contractual incorporation, since such argument has received favour in France contrary to other European authorities.

THOMAS COOK GROUP LIMITED –v- TAP, 2002 - "CONVENTION WITH FORCE OF LAW"

Legislation giving effect to Montreal Protocol No. 4 ("MP4") in England was introduced in May 1999. Unlike its predecessor, the Warsaw-Hague Convention, which allowed for limits to be broken in cases of intentional or reckless conduct by the carrier, its servants or agents, MP4 provides that limits of liability for cargo loss or damage (being 17 Special Drawing Rights) "may not be exceeded whatever the circumstances".

Leaving aside any discussion of how and when MP4 operates there are still actions ongoing in the High Court involving damage or loss, which occurred before May 1999. In a recent decision at a trial of a preliminary issue, Mr Justice Tomlinson held that, prior to May 1999, the Warsaw Hague Convention, as stated in the Carriage of Goods by Air 1961, had the "force of law" and accordingly was the applicable Convention in this action.

One might be forgiven for thinking "res ipsa loquitur" (i.e. "the matter speaks for itself"). The defendants thought otherwise. They argued that because the contract was made in Portugal, between a Portuguese shipper and carrier, for the carriage of Portuguese banknotes from Portugal to London, on a Portuguese registered aircraft, the "proper" law of the contract was Portuguese law, and that the proper law should determine the applicable version of the Convention in the action. Needless to say, at the time of loss, being March 1999, MP4 was already in force in Portugal, and its application could potentially have saved the defendants several hundred thousand pounds.

Mr Justice Tomlinson rejected the defendants’ submission that ratification of MP4 by the United Kingdom created an international law obligation to give effect to MP4 as "flawed" and "subversive of constitution". He noted that the defendants would have particular difficulty with their argument, had Parliament not given effect to MP4 in May 1999. He accepted the claimants’ submissions that, as the Warsaw Hague Convention, at the date of loss, had the "force of law", it was compulsorily applicable at the date of loss, that it formed a complete code in substitution for any contractual terms which sought to infringe the rules laid down in the Convention, and that, even if Portuguese law was the implied choice of law, since it would infringe rules laid down by the Convention, it would be null and void pursuant to Article 32.

The decision will probably have limited impact insofar as MP4 is now the applicable Convention in the United Kingdom. However, from a more general perspective, it is significant in that it reaffirms the findings of Donaldson J in Corocraft –v- Pan American Airways [1969] QB 616 that the liability imposed by the Carriage of Goods by Air Act of 1961 and its Convention (now MP4) would in any action before the English Court apply "in substitution" for any liability of the carrier at common law and in contract, and that the Act has "the force of law in the United Kingdom". That decision was not, as the defendants argued, one of construction as opposed to principle. Leave to appeal was refused.

JURISDICTION OVER AIRLINES AND OTHERS IN FRANCE

Recent developments concerning jurisdiction under French law have had an impact on some aviation cases, particularly those involving airlines and their insurers, as they can now be sued in France by claimants who can avoid the provisions of the Warsaw Convention by simultaneously suing a defendant residing in France.

1. General rules of international jurisdiction

The general principles of international jurisdiction are:

In order to decide whether or not they have jurisdiction over a lawsuit with an international element brought in a French court, French courts use the same criteria which are used in domestic law for determining domestic territorial jurisdiction.

French courts therefore should accept jurisdiction in the following cases:

  1. if the defendant resides in France (which does not necessarily mean that the defendant has French nationality);
  2. if the defendant is a company whose head office or subsidiary establishment is registered in France and whose business activities gave rise to the claim;
  3. if, in a contractual matter, the contract was performed in France (for example, France is the place of delivery or the place where the service was rendered);
  4. if, in a matter of tort liability, the originating cause occurred in France or if the loss was suffered in France.

French courts also have jurisdiction to hear related actions brought against several defendants when one of the defendants, against whom there is a good cause of action, resides in France (Article 42 of New Civil Code of Procedure – ("NCP"), which has recently taken on great importance, particularly in aviation matters (see 3 below).

2. Attachment of privilege based on nationality

Articles 14 and 15 of the French Civil Code also give French courts jurisdiction when the nationality of one of the parties, either the plaintiff or the defendant, is French.

Article 14 states that:

… a foreign citizen, even if not residing in France, can be sued in French courts for contractual obligations undertaken by him in France with respect to a French citizen; he may be sued in French courts for contractual obligations undertaken by him in a foreign country with respect to a French citizen.

Article 15 states that:

A French citizen may be sued in a French court for contractual obligations undertaken by him in a foreign country, even with a foreign citizen.

Thus, pursuant to Articles 14 and 15, a French court may decide that it has jurisdiction if one of the parties to the suit is French – even if that party does not reside in France and/or has no other link with France – notwithstanding that the court would not have jurisdiction according to the general rules of international jurisdiction set forth above.

However, from the parties’ point of view Articles 14 and 15 are only optional, since the parties may waive them – but if the parties do wish to apply those articles, then the Court must do so. Such waiver of the application of these articles by the parties may be explicit, as in the case of a contractual arbitration clause.

That said, it is nonetheless unusual for a French court to accept jurisdiction on the basis of those Articles due to the numerous treaties to which France is a party, which bar the application of Articles 14 and 15.

Indeed, the Brussels Convention of 27 September 1968 (now replaced by EC Regulation No. 2001 dated 22 December 2000 and in force as from 1 March 2002) bars the application of Articles 14 and 15 of the French Civil Code to a defendant residing in an EC Member State. This is also the position under the Hague Convention dated 15 April 1958.

The Cour de Cassation (French Supreme Court) has therefore not rendered many judgments on Articles 14 and 15 recently, the last known decision concerning Article 14 having been handed down on 31 January 1995.

In that case, the claimant was a French company that had secured the rights of a bankrupt American company by taking over its debt. The Cour de Cassation confirmed that the French court must accept jurisdiction when the claimant is French, even though the parties to the contract were American and the contract was performed in the USA (place of delivery).

Cases where Articles 14 and 15 may continue to be of importance are where a defendant does not reside in the EC. Article 4.2 of EC Regulation of 22 December 2000 provides that any person residing in an EC Member State may, whatever their citizenship, invoke that State’s domestic rules of jurisdiction against a defendant who does not reside in an EC Member State (while such rules cannot be used against a defendant who does reside in an EC Member State).

This means that not only French citizens but also foreign citizens residing in France would be able to rely on Articles 14 and 15 of the French Civil Code against a defendant who does not reside in the EC, which was not formerly the case.

3. Recent developments alarm airlines

In fact, French courts do often accept jurisdiction, not however, pursuant to attachment of privilege, but by application of Article 42 of the New Code of Civil Procedure which, in this case, is applied at an international level.

Article 42 states that:

Unless any clause exists to the contrary, the courts in the place where the defendant resides have territorial jurisdiction.

In the case where there are several defendants, the plaintiff may select the jurisdiction in which one of those defendants resides.

A French court would thus accept jurisdiction if only one of the defendants resides in France, on condition that there is a serious cause of action against that defendant, that is to say that the defendant has not been sued for the sole purpose of having the whole matter heard in a French court.

In a case involving an aircraft crash, the Cour de Cassation ruled that pursuant to Article 42 above, French courts have jurisdiction over a case brought against an airline, even though the Warsaw Convention is applicable and France is not one of the four jurisdictions named in Article 28 of that Treaty, if there is also a proper French defendant.

In that decision, dated 25 November 1997, the Cour de Cassation found for the foreign claimants who sued the aircraft manufacturer (domiciled in France) and the foreign airline in France for an accident that occurred in Nepal. The court ruled that:

The Warsaw Convention does not contain any express provision to the effect that a court having jurisdiction to rule on a claim made against a defendant does not have jurisdiction to hear a connected claim made against an airline.

That decision caused a big stir amongst airlines, as it seems to be the sole example of a Court accepting jurisdiction in a Warsaw Convention case where the Court is not one of those designated in Article 28 as being mandatory and exclusive i.e.:

  • the Court where the air carrier is ordinarily resident
  • the Court where the air carrier has its principal place of business
  • the Court where the carrier has an establishment by which the contract has been made
  • the Court having jurisdiction at the place of destination.

The Cour de Cassation has not yet had the opportunity of confirming or modifying its position on this issue and for the time being the French first instance courts, and Courts of Appeal, follow this precedent, meaning that foreign claimants are still able to sue a foreign air carrier in France for an accident occurring abroad, provided that they also sue another defendant who resides in France (usually the aircraft manufacturer).

It is likely that the Cour de Cassation will have to rule again on several similar cases within the coming months, which should give a clear idea about the position of the French courts on this tricky problem.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.