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RULES OF PRACTICE & PROCEDURE OF THE OFFICE OF THE CARGO AGENCY COMMISSIONER/OMBUDSMAN
Introduction
These Rules of Practice and Procedure (‘the Rules’) have been drawn up by the Cargo Agency Commissioner/Ombudsman (hereinafter, both are covered by the term ‘the Commissioner’) to meet the requirements of IATA Cargo Agency Conference Resolutions 811e and 811f (hereinafter 'the governing Resolutions'). They do not replace or supersede the resolution provisions but are intended to complement them.
The Commissioner seeks to keep review proceedings as simple, informal, non-technical and as expeditious as the requirements of law, IATA resolutions and proper consideration of matters permit.
The review powers and duties of the Commissioner are set out in the governing Resolutions. In the course of carrying out those duties the Commissioner is bound to apply IATA’s resolutions, as published in the Cargo Agent's Handbook. The present Rules reflect the state of the governing Resolutions 811e as they stand in April 2022. It should, however, be borne in mind that the Cargo Agency Conference can and does amend its resolutions, notably at its annual meeting and by mail votes conducted between conference meetings.
The Commissioner reserves the right, within the parameters laid down in the governing Resolutions, to amend the Rules to take account of changes to the IATA resolutions, as well as the particular circumstances of the matter under review. In such event, the Parties concerned, i.e. the Appellant and the Respondent, shall be given notice in writing by the Commissioner of the amendments that have been made.
RULE 1a – Request for Review made by a Cargo Intermediary
A request for review may be made by a Cargo Intermediary in the following circumstances:
A) by one whose application to become an IATA Cargo Intermediary has been rejected, or has been rejected upon reconsideration, by the Agency Administrator (Resolution 811e, §1.1.1);
B) by one who has acquired ownership, or is seeking to acquire ownership of an IATA Cargo Intermediary and whose application for approval of a change of ownership has been disapproved, or has been disapproved upon reconsideration, by the Agency Administrator (Resolution 811e, §1.1.2);
C) by one who has received notice from the Agency Administrator of impending removal from the Cargo Agency List, for whatever reason;
D) by one who has received a notice of pending action by the Agency Administrator with regard to that entity that it considers unreasonably diminishes its ability to conduct business in a normal manner;
E) by one whose application for Change of Location and/or Name has been disapproved; and
F) by one who considers that the Agency Administrator has not followed correct procedures, as delegated by the Cargo Agency Conference, to that Intermediary’s direct and serious detriment.
A request for review may be made by the Agency Administrator (defined in Resolution 823) in any of the circumstances set out in Resolution 811e, §2 and shall be made pursuant to Resolution 801r, Section 2.6.6.2 following a declaration of technical default by the Agency Administrator.
RULE 1b – Request for Review made by a CASS Associate
A request for review may be made by a CASS Associate in the following circumstances:
A) by one whose status has been terminated by the Agency Administrator pursuant to the payment integrity and/or default provisions of the relevant Resolutions; or
B) by one whose CASS Associate Agreement has been terminated on grounds of non-payment and/or failure to meet CASS reinstatement conditions following default and/or per Resolution 851, Appendix 'D', or for any other reason, as notified by the Agency Administrator; or
C) by one which has been suspended from CASS for any reason by the CASS Management, including failure to provide review or maintain an industry financial guarantee requested by IATA; and
D) by a CASS Associate or applicant for CASS Associate status who has been subject to any other decision taken by the Agency Administrator that it considers unreasonably diminishes its ability to conduct business in a normal manner.
A request for review of a CASS Associate may be made by the Agency Administrator in any of the circumstances set out in Resolution 811f, §2 and shall be made pursuant to Resolution 801r, Section 2.6.6.6, following a declaration of technical default.
RULE 2 – Timing
A) In principle, a rejected applicant’s, a disapproved Intermediary's or a CASS Associate's request for review shall be submitted within 30 calendar days of the Agency Administrator’s notice of the decision under appeal; provided that such notice of decision informs the addressee of its right to appeal. Where that information has not been provided in the notice, the Commissioner may, at his discretion, extend the period in which the request may be made.
B) A request for review submitted by the Agency Administrator, either at his own discretion or because of a requirement of a Cargo Agency Conference resolution, shall be submitted within 30 calendar days of the date when the reason for seeking the review was established. However, a longer period may be authorized by the Commissioner, for cause shown.
RULE 3 – Form of Request for Review
A) The request for review is to be in writing and addressed to the Commissioner at the address given below. Email is the preferred medium for requests.
B) The request shall identify the Appellant by name and title and shall include email and full postal address.
C) The request shall be in writing and contain an adequate description of the reasons for which it has been made and shall include contact details of the person(s) concerned on the side of the Respondent, where they are known to the Appellant.
RULE 4 – Acceptance/Rejection Procedure of Request for Review
A) Upon receipt of a request for review, the Commissioner shall acknowledge the communication and determine whether or not, on the face of it, the request warrants action.
B) Where the Commissioner determines from the request for review that review action by him would not be warranted, he shall so notify the Appellant and the matter will rest.
C) Where the Commissioner determines from the request for review that it warrants action, he shall serve a copy of the request on the other Party and invite a written response, to be submitted within the deadline specified by him.
D) If the contents of the written response leads the Commissioner to determine that a review is warranted, he shall initiate a review proceeding.
E) If the written response does not satisfy the Commissioner’s need for an adequate and meaningful answer to the request for review, he shall proceed to initiate a review proceeding. In particular, where the record relied upon by the Agency Administrator for the action taken under the provisions of Rules 1a or 1b is not made automatically available to the Commissioner, that shall constitute sufficient cause for him to initiate a review proceeding.
F) Where after studying the written response the Commissioner determines that there is no case to be answered, he shall so notify both Parties and the matter will rest.
RULE 5 – Review Proceedings
A) The governing Resolutions envisage that the Parties and/or their representatives shall be entitled to be heard in person before the Commissioner. If the Parties are in agreement, such hearing may be conducted by teleconference. In either event, the time limits for conducting the hearing shall apply per Resolution 811e, §3.3/3.3.1.
B) Subject to the Commissioner’s concurrence, the Parties may agree to dispense with a hearing in any form and to request the Commissioner to conduct the review on the documentary evidence submitted by each of them. In such event, the Commissioner shall have the discretion to seek and obtain such further documentary evidence from the Parties as he deems necessary to ascertain the facts and instrumental to securing an informed and impartial decision.
C) In the course of the review proceeding, the Parties shall be at liberty to arrive at a stipulated agreement on their difference and to submit it to the Commissioner for consideration and eventual endorsement as being his decision in the matter under review.
D) An Appellant may, at any time before publication of the Commissioner’s decision, withdraw its request for review by so notifying the Commissioner in writing, with copy simultaneously sent to the Respondent. In such event, the Commissioner shall rule the matter to be at a close and may require the Appellant to meet reasonable costs incurred up until that point.
RULE 6 – Option of a Conference
Upon considering any material lodged with him by the Parties and if he deems that it is desirable, the Commissioner may, with the Parties’ concurrence, direct that a conference of the Parties or of their representatives take place. Such conference, which may be in the form of a teleconference, shall be chaired by the Commissioner and if i) at or after such conference, agreement is reached between the Parties or their representatives as to the terms of a decision of the Commissioner, which would be acceptable to the Parties; and if ii) the terms of that agreement are put in writing, signed by the Parties and furnished to the Commissioner; and if iii) the Commissioner is satisfied that a decision in those terms is within his powers; then, the Commissioner may, without holding a hearing, make a decision in accordance with the terms of the agreement.
RULE 7 – Proceedings
A) Proceedings shall be informal and the Parties will not be held to observing the strict rules of evidence. The Commissioner shall be entitled to inform himself on any matter he considers relevant, in such manner as he deems appropriate.
B) At the opening of any hearing/conference the Commissioner shall record the time date and place of the event as well as the names of all taking part in it. He shall also formally receive for the record the requests for review, written response and any other documentary submissions of the Parties.
C) Having disposed of all outstanding preliminary matters, the Commissioner may, if he deems appropriate, ask for statements clarifying the issues involved.
D) The Appellant shall present its case and evidence. If there are witnesses, they may be questioned by the Respondent.
E) The Respondent shall thereafter present its case and evidence. If there are any witnesses, they may be questioned by the Applicant.
F) The Commissioner may adjourn the hearing at his discretion.
G) The Commissioner’s written decision containing his findings and conclusions shall be in writing and served on each Party.
RULE 8 – Hearing
A) Ordinarily, the hearing of the Parties will be held at the place where the Commissioner has his office; however, this rule may be disregarded, for cause, at the discretion of the Commissioner, to meet the Parties’ stated needs.
B) The Commissioner shall set the time and place of the hearing and shall so notify the Parties, not less than seven days in advance.
C) Each Party shall notify the Commissioner and the other Party, not less than five days before the hearing whether or not it plans to call one or more witnesses. If witnesses are to be called then their names and contact particulars are to be set out in the notice.
D) Parties, their representatives and their witnesses shall be entitled to attend the hearing. Other persons may be present only with the express advance approval of the Commissioner. At the request of a Party, the Commissioner shall require retirement of any witness during the testimony of any other witness.
E) The Commissioner may grant applications for adjournment, postponement and extension of time upon a showing of cause by the Party making the application.
RULE 9 – Failure by a Party to attend
If a Party or its representative fails to be present at a duly convened hearing or fails to obtain an adjournment, the decision shall be rendered on the basis of the written submissions previously tendered by the Parties.
RULE 10 – Decision
The Commissioner’s decision shall be in writing, contain findings and conclusions and specify the date on which it will become effective. The decision shall be served on the Parties simultaneously. Publication of a decision to third parties is permissible, by prior concurrence of the Parties.
RULE 11 – Subsequent Appeal
In the case of a Cargo Intermediary, the Commissioner’s decision shall point out the right of appeal to arbitration provided for in Resolution 811e, §4.
RULE 12 – Costs
The Office of Cargo Agency Commissioner does not normally charge Cargo Intermediaries or IATA for the use of its services. However, where cause lies, either or both Parties may be billed for additional costs incurred by the Office as a consequence of an act or omission on their part in the course of the review proceeding. CASS Associates may also be charged for using the services of the Office.
RULE 13 – Communications with the Cargo Agency Commissioner
Requests for review shall be submitted to the Commissioner at the following address:
Brian Barrow Cargo Agency Commissioner/Ombudsman 15, chemin du Pont-de-Ville CH-1224 Geneva Switzerland
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.">This email address is being protected from spambots. You need JavaScript enabled to view it.Tel: +41 22 788 0380 Cell: +41 79 332 0970 www.cargo-agency-commissioner.aero
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