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Practice profile: Aviation law

Practice profile: Aviation law

Aviation legal work in Australia is certainly in limited supply, but its challenging nature and niche specialisation makes for a truly satisfying practice area, writes Angela Priestley.In…

Aviation legal work in Australia is certainly in limited supply, but its challenging nature and niche specialisation makes for a truly satisfying practice area, writes Angela Priestley.

In Australia, the lawyers undertaking aviation work are few, with experts rarely undertaking aviation as their sole area of practice. The scope of work is limited - given the local aviation market consists mainly of Qantas, Virgin Blue and the defence market - still, its significance for Australia's transport capabilities is essential.

But the aviation legal market - with its penchant for attracting media headlines, its large-scale deals and, of course, the appeal of grand technology flying high - offers some considerable challenges to those working in the field as well as a certain buzz through the adrenalin of the high-profile work.

An evolving industry

The breadth of expertise aviation lawyers require is wide. In general, the field can cover any area of law pertaining to aircraft, air travel and airports, but more specifically it will address areas as far-reaching and diverse as aircraft financing, outsourcing, maintenance contracts, insurance, liability and regulation.

At Carter Newell, Glenn Biggs is one of four lawyers practising in aviation law. The firm has had plenty of exposure to aviation work over the last 20 years through clients in Australia and in the broader Asia-Pacific Region where the firm does work for aviation insurers, aviation operators, airports, governance and compliance, and for commercial airlines. Biggs says aviation is a niche specialisation, and one that requires a very good understanding of the specific laws relevant to international conventions as well as the local industry.

But any knowledge of such laws must also keep up with the tendency for change that occurs so frequently in aviation. Biggs says the big changes have been around an increase in regulations - particularly for airports. "Especially the environmental side of regulating airports," he says. "Airports are often a growing phenomenon and a growing city. There is often at stake competing issues between the growth of an airport and the urban design of the city."

Meanwhile, another significant change has been the introduction into Australian law of the 1999 Convention for the Unification of Certain Rules for International Carriage by Air (the "Montreal Convention") which has changed the landscape of the liability regime for international carriage. "This has now been ratified in Australia and has been the most significant change in terms of the liability regime for passengers and cargo," says Biggs.

Joern Schimmelfeder is a partner at Middletons who found a niche in aviation from his original focus on infrastructure work, where he gained experience in the outsourcing process just before the aviation industry started making its own move into outsourcing. Schimmelfeder has seen the aviation focus of Middletons grow exponentially over the last ten years, as the firm has moved to involve itself in all tiers and aspects of aviation work and bring in expertise from varying practice groups. He says some of the biggest changes he has seen to aviation law come from generational shifts in the aircraft that are being used - particularly by the Australian military - and the ever increasing levels of security controls and regulations airports are facing. "From a security perspective, we've had changes to the Air Navigation Act, the Air Services Act and the Aviation Transport Security Act - so they have all been quite significant," he says. "Also the privatisation of a large number of airports has had an impact on the way aviation is dealt with in Australia."

The impact of the GFC

Aviation legal work may not be immune to the global slowdown in work, but it is certainly soldiering on in the current climate because contracts and acquisition and financing timetables for aircraft tend to be spread over long-term periods. While airlines have taken a hit, the infrastructure, financing and insurance aspects of aviation legal work continue and the lawyers involved in such deals are maintaining their workloads.

Trevor Danos, a partner at Corrs Chambers Westgarth who predominantly specialises in aircraft financing work, says his area of work has been affected by the slowing in the number of aircraft being delivered and the fact that fewer banks are prepared to lend against aircraft, or finance aircraft, in the current market.

Meanwhile, demand for aircraft has also dropped off, as the general commercial aviation area quietens and the executive jet market almost disappears. "There is generally a smaller demand for aircraft - even for people who just a few years ago had to have a private jet," says Danos. "Maybe they don't need their private jet now."

Biggs agrees that, as with any area of law, aviation has not been immune to the economic slowdown, but says it still hasn't fared too badly. "We've certainly continued to see buoyant litigation in the sense that parties are still agitating, there are still demands for compensation - be it personal injury or property damage or contract disputes," says Biggs. "But, at the same time, airports and airlines are not immune to economic slowdowns and there's no question that both of those sectors are affected ... particularly with reduced passenger and cargo movements."

But Danos is adamant that the market is in for a serious pick-up in the future. "There are fewer deals around now, but we know the Qantas fleet is getting older. At some point it will turn, and there will be a lot more new aircraft," he says.

"There are the Boeing 787 Dreamliners that are meant to come on stream soon, as well as new Airbus products. Like anything, eventually it will pick up again."

Making it in aviation

Compared to what goes on internationally - particularly in the US and the UK - the legal work surrounding aviation law is limited, so any lawyer in the field needs to be at the top of their game to truly be competitive.

The aviation lawyers Lawyers Weekly spoke to for this report agreed: the skills that make a good aviation lawyer fundamentally come down to a sound knowledge of the industry and experience. "Like anything, there is a jargon to it," says Danos. "There are particular insurance provisions - you need to know how aircraft are registered, where they are registered, what licences people need to operate aircraft."

Danos adds that a good understanding of tax may also come into play in aircraft financing, as well as knowledge regarding pooling and interchanging agreements, given that airlines will often exchange parts between themselves.

Schimmelfeder adds that the specific legislation and international treaties that aviation lawyers need to be aware of also add to the necessary jargon that an understanding of the aviation industry requires.

Despite the challenges, Danos believes that his area of aviation work is a fun and satisfying place to be. "When you're financing new aircraft, there's a buzz to it," he says. "There is an element of fun, it's exciting, [with] state-of-the-art assets."

Schimmelfeder notes that watching Black Hawk helicopters do laps of the city provides a reminder of the significance of the work they do and says media attention to aviation law means that the outcome of their work is frequently put in the spotlight. "That being said, the majority of the work can be dry as it's heavily contract based, or heavily regulatory based, or a mixture of both," he says. "Also it deals with particular areas of law to a very fine degree - for example liability and indemnity insurance aspects - so ... people have to have a high level of understanding of specialisation to really work in our group."

Dunn's not sure that he'd call it fun - but he'd certainly label it rewarding and challenging. "There are some very serious and difficult aspects of aviation law that, because of its specialisation, can be difficult at times," he says. "It's certainly rewarding and I think the junior lawyers in particular are attracted to that aspect of it."

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