The Government of the Kingdom of the Netherlands and the Government of the Republic of Malawi (hereinafter described as the "Contracting Parties");
Being parties to the Convention on International Civil Aviation opened for signature at Chicago on the seventh day of December, 1944; and
Desiring to conclude an Agreement for the purpose of establishing air services between and beyond their respective territories;
Have agreed as follows:
Article I. Definitions
For the purpose of this Agreement, unless the context otherwise stated, the term:
1. "Aeronautical authorities" means, in the case of the Kingdom of the Netherlands the Minister of Transport and Public Works and in the case of the Republic of Malawi the Minister responsible for Civil Aviation or in either case any person or body authorised to perform any functions presently exercised, or which may in the future be exercised by the said Minister.
2. "Agreement" means this Agreement, its Annex drawn up in application thereof, and any amendments thereto.
3. "Air services", "international air services", "airline" and "stop for non-traffic purposes" have the meanings respectively assigned to them in Article 96 of the Convention.
4. "Convention" means the Convention on International Civil Aviation opened for signature at Chicago on the seventh day of December, 1944, and includes any Annex and amendment adopted under Articles 90 and 94 (a) thereof, so far as those Annexes and amendments have become effective for, or been ratified by, both Contracting Parties.
5. "Designated airline" means an airline which has been designated and authorized in accordance with Article IV of this Agreement.
6. "Specified route" means a route specified in the appropriate Section of the Annex to this Agreement.
7. "Tarif" means any amount charged or to be charged by airlines, directly or through their agents, to any person or entity for the carriage of passengers (and their baggage) and cargo (excluding mail) in air transportation, including:
(i) the conditions governing the availability and applicability of a tariff, and
(ii) the charges and conditions for any services ancillary to such carriage which are offered by airlines.
8. "Territory" in relation to a State has the meaning assigned to it in Article 2 of the Convention.
9. The term "agreed services" means the air services established on the specified routes pursuant to Article III of this Agreement.
10. The term "aircraft equipment" means articles, other than stores and spare parts of a removable nature, for use on board an aircraft during flight, including first aid and survival equipment.
11. The term "spare parts" means articles of a repair or replacement nature for incorporation in an aircraft, including engines and propellers.
12. The term "stores" means articles of a readily consumable nature for use or sale on board an aircraft during flight, including commissary supplies.
Article II. Applicability of Multilateral Agreements
2 If a multilateral agreement concerning any matter covered by this Agreement, accepted by both Parties, enters into force, the relevant provisions of that agreement shall supersede the relevant provisions of the present Agreement.
Article III. Grant of Rights
2 While operating an agreed service on a specified route an airline designated and authorized in accordance with article IV of this Agreement shall enjoy, in addition to the rights specified in paragraph 1 of this Article, the right to make stops in the territory of the other Contracting Party at the points specified for that route in the Annex to this Agreement for the purpose of taking on board and discharging passengers, baggage, cargo and mail, separately or in combination, carried for remuneration or hire. Such passengers, baggage, cargo and mail may be destined for or originate in the territory of the other Contracting Party or of a third country.
3 Nothing in paragraph 2 of this Article shall be deemed to confer on a designated airline of one Contracting Party the privilege of taking on board, in the territory of the other Contracting Party, passengers, baggage, cargo and mail, separately or in combination carried for remuneration or hire, destined for another point in the territory of that other Contracting Party.
Article IV. Designation of Airlines
2 On receipt of such designation, the aeronautical authorities of the other Contracting Party shall, without delay, and subject to the provisions of paragraphs 3 and 4 of this Article, grant to an airline designated in accordance with paragraph 1 of this Article the appropriate operating authorisations.
4 Each Contracting Party shall have the right to refuse to grant the operating authorisations referred to in paragraph 2 of this Article, or to impose such conditions as it may deem necessary on the exercise by a designated airline of the rights specified in Article III of this Agreement, in any case where the said Contracting Party is not satisfied that substantial ownership and effective control of that airline are vested in the Contracting Party designating the airline or in nationals of such Contracting Party or in both.
Article V. Revocation or Suspension of Operating Authorisation
Article VI. Principles Governing Operation of Agreed Services
2 The air transportation performed by the designated airlines of either Contracting Party shall retain as its primary objective the provision, at a reasonable load factor, of capacity adequate to the current and reasonably anticipated traffic demands between the territory of the Contracting Party designating the airlines and the countries of ultimate destination of the traffic.
Article VII. Filing of Timetables
1 The designated airline of either Contracting Party shall, not later than 30 days prior to the date of the operation of any agreed service, submit its proposed timetables to the aeronautical authorities of the other Contracting Party. Such timetables shall include the type of service, aircraft to be used, the flight schedules, and as appropriate, tariffs.
Article VIII. Tariffs
1 The tariffs to be charged by the designated airlines of the Contracting Parties for carriage between their territories shall be those approved by the aeronautical authorities of both Contracting Parties and shall be established at reasonable levels, due regard being paid to all relevant factors, including cost of operation, reasonable profit and the tariffs of other airlines for any part of the specified route.
4 Approval of tariffs may be given expressly; or, if neither of the aeronautical authorities has expressed disapproval within thirty (30) days from the date of submission, in accordance with paragraph 3 of this Article, the tariffs shall be considered as approved.
In the event of the period for submission being reduced, as provided for in paragraph 3, the aeronautical authorities may agree that the period within which any disapproval must be notified shall be reduced accordingly.
5 If, during the period applicable in accordance with paragraph 4 of this Article, one aeronautical authority gives the other aeronautical authority notice of its disapproval of any tariff filed in accordance with paragraph 3 of this Article, the aeronautical authorities of the two Contracting Parties shall, after consultations with the aeronautical authorities of any other State whose advice they consider useful, endeavour to determine the tariff by mutual agreement.
Article IX. Exemption from Taxes, Customs Duties and Charges
1 Aircraft operated on international air services by a designated airline of either Contracting Party, as well as their aircraft equipment, spare parts, supplies of fuel and lubricants, and aircraft stores (including food, beverages and tobacco) on board such aircraft shall be exempt from all customs duties, inspection fees and other similar charges and taxes on arriving in the territory of the other Contracting Party, provided such equipment and supplies remain on board the aircraft up to such time as they are re-exported or are used on the part of the journey performed over that territory.
2 Subject to paragraph 3 of this Article, there shall also be exempt from customs duties, inspection fees and similar charges, with the exception of incidental payments for services performed:
a) aircraft stores taken on board in the territory of a Contracting Party, for use on board outbound aircraft engaged on an agreed service by the designated airline of the other Contracting Party;
b) spare parts introduced into the territory of either Contracting Party for the maintenance or repair of an aircraft used on the agreed services by the designated airline of the other Contracting Party;
c) fuel and lubricants to be supplied to an outbound aircraft operated on agreed services by the designated airline of the other Contracting Party, even when such supplies are to be used on the part of the journey performed over the territory of the Contracting Party in which they are taken on board;
d) aircraft equipment temporarily introduced in the territory of a Contracting Party.
Article X. Unloading of Equipment
The regular airborne equipment, spare parts, aircraft stores and supplies of fuel and lubricants normally retained on board the aircraft of either Contracting Party may be unloaded in the territory of the other Contracting Party only with the approval of the customs authorities of that Party, who may require that those materials be placed under their surveillance up to such time as they are re-exported or otherwise disposed of in accordance with customs regulations.
Article XI. Prevention of Double Taxation
1 Income and profits from the operation of aircraft in international traffic by a designated airline of one of the Contracting Parties shall be exempt in the territory of the other Contracting Party of taxes on income and profits of every form, irrespective of the manner in which they are levied. These provisions shall also apply to income and profits from the participation in an airline-pool, joint venture or an international operating agency.
2 Aircraft operated on the agreed services by a designated airline of one of the Contracting Parties and movable property pertaining to the operation to the operation of such aircraft, shall be exempt in the territory of the other Contracting Party or taxes on capital of every form, irrespective of the manner in which they are levied.
Article XII. Application of Laws, regulations and Procedures
1 The laws, regulations and procedures of either Contracting Party relating to the admission to or departure from its territory of aircraft engaged in international air services, or to the operation and navigation of such aircraft, shall be compiled with by the designated airline of the other Contracting Party upon its entrance into, and until and including its departure from the said territory.
2 The laws, regulations and procedures of one Contracting Party relating to admission to, stay in, or departure from its territory of passengers, crew or cargo including mail, such as laws and regulations relating to entry, exit, emigration, immigration, passports as well as customs and health or sanitary measures, shall apply to passengers, crew and cargo including mail carried by the aircraft of the designated airline of the other Contracting Party upon entrance into or departure from or while within the territory of the said Contracting Party.
3 Fees and charges applied in the territory of either Contracting Party to the airline operations of the other Contracting Party for the use of airports and other aviation facilities in the territory of the first party, shall not be higher than those applied in the territory of that first party to similar operations of other airlines.
4 Neither of the Contracting Parties shall give preference to any other airline over the designated airline of the other Contracting Party in the application of its customs, immigration, quarantine, and similar regulations; or in the use of airports, airways and air traffic services and associated facilities under its control.
Article XIII. Aviation Security
The Contracting Parties agree to provide maximum aid to each other with a view to preventing unlawful seizure of aircraft or other unlawful acts against the safety of aircraft, airports and air navigation facilities and threats to aviation security. They shall have regard to security provisions established by the International Civil Aviation Organisation. When incidents or threats of unlawful seizure of aircraft or other unlawful acts against aircraft, airports or air navigation facilities occur, the Contracting Parties shall assist each other by facilitating the communication of measures intended to terminate such incidents or threats rapidly and safely.
Article XIV. Recognition of Certificates and Licences
Certificates of airworthiness, certificates of competency and licences issued, or validated, by one Contracting Party and unexpired shall be recognised as valid by the other Contracting Party for the purpose of operating the agreed services on the specified routes, provided always that such certificates or licences were issued, or validated, in conformity with the standards established under the Convention.
Each Contracting Party, however, reserves the right to refuse to recognise, for flights above its own territory, certificates of competency and licences granted to its own nationals by the other Contracting Party.
Article XV. Transfer of Receipts
1 The designated airlines of the Contracting Parties shall be free to transfer from the territory of sale to their home territory the excess, in the territory of sale, of receipts over expenditure. Included in such net transfer shall be revenues from sales, made directly or through an agent, of air transport services, and auxiliary of supplementary services, and normal commercial interest earned on such revenues while on deposit awaiting transfer.
Article XVI. Commercial Operations
The designated airlines of both Contracting Parties shall be allowed in the territory of the other Contracting Party:
(a) to establish offices for the promotion of air transportation and sale of air tickets as well as other facilities required for the provision of air transportation;
(b) to bring in and maintain managerial, sales, technical, operational and other specialist staff required for the provision of air transportation; and
(c) to engage directly and, at that airline's discretion, through its agents in the sale of air transportation.
The above operations shall be carried out in accordance with the laws and regulations of the other Contracting Party.
Article XVII. Consultation and Amendment
1 In a spirit of close cooperation the aeronautical authorities of the Contracting Parties shall consult each other from time to time with a view to ensuring the implementation of, and satisfactory compliance with, the provisions of this Agreement and shall consult when necessary to provide for modification thereof.
Article XVIII. Provision of Information
The aeronautical authorities of each Contracting Party shall supply to the aeronautical authorities of the other Contracting Party, on request by the latter, information relating to the traffic carried out on the agreed services operated by the respective designated airline. Such information shall include statistics and all other information required in determining the amount of traffic carried by those airlines on the agreed services and the origins and destinations of such traffic.
Article XIX. Settlement of Disputes
1 If any dispute arises between the Contracting Parties relating to the interpretation or application of this Agreement, the Contracting Parties shall in the first place endeavour to settle it by negotiation. If the Contracting Parties fail to reach a settlement by negotiations, the dispute shall, at the request of either Contracting Party, be submitted to arbitration in accordance with the procedures set forth below.
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 procedure. At the direction of the tribunal or at the request of either of the Contracting Parties, the tribunal shall seat no later than 15 days after its constitution to determine the precise issues to be arbitrated and the specific procedures to be followed.
4 Except as otherwise agreed, each Contracting Party shall submit a memorandum within 45 days from the date the tribunal is fully constituted. Replies shall be due within 60 days. The tribunal shall hold a hearing at the request of either Party or at its discretion within 15 days after replies are due.
5 The tribunal shall deliver a written decision within 30 days after completion of the hearing or, if no hearing is held, after the date both replies are submitted, whichever is sooner. The decision of the majority of the tribunal shall prevail.
7 The tribunal shall be competent, in any event and at any time, either upon its own motion or at the request of either Contracting Parties, to prescribe provisional measures necessary to safeguard the rights of the Contracting parties. A Contracting Party may make such request in its written pleadings, at the hearing, or subsequently.
9 The expenses of the arbitral tribunal, including the fees and expenses of the arbitrators, shall be shared equally by the Contracting Parties, unless otherwise decided by the arbitral tribunal.
Article XX. Applicability
As regards the Kingdom of the Netherlands, this Agreement shall apply to the Kingdom in Europe only.
Article XXI. Termination
Either Contracting Party may at any time give notice in writing through diplomatic channels to the other Contracting Party of its decision to terminate this Agreement.
Such notice shall be simultaneously communicated to the International Civil Aviation Organisation. In such case this Agreement shall terminate twelve (12) months after the date when the notice has been received by the other Contracting Party unless the notice to terminate is withdrawn by agreement before the expiry of this period. In the absence of acknowledgement of receipt by the Contracting Party, notice shall be deemed to have been received fourteen (14) days after the receipt of the notice by the International Civil Aviation Organisation.
Article XXII. Power to Supersede
This Agreement shall supersede any previous arrangements applicable between the Contracting Parties for air services operated between their respective territories.
Article XXIII. Registration with ICAO
This Agreement and any amendment thereto shall be registered with the International Civil Aviation Organisation.
Article XXIV. Entry into Force
The present Agreement shall be provisionally applied from the date of its signature and shall come into force on the day on which the Contracting Parties have informed each other in writing that the formalities constitutionally required in their respective countries have been complied with.