New Delhi, 22 May 1974The Government of INDIA
AND
The Government of MALAYSIA.
BEING parties to the Convention on International Civil Aviation (hereinafter referred to as the Convention) opened for signature at
Chicago on the 7th 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 1
For the purpose of this Agreement, unless the context otherwise requires :
(a) the term “aeronautical authorities” means, in the case of India, the Director General of Civil Aviation, and in the case of Malaysia,
the Minister of Communications or any person or body authorised to perform the functions exercised by the said Director General or
by the said Minister or similar functions;
(b) the term “designated airline” means an airline which one Contracting Party has designated in writing to the other Contracting
Party, in accordance with Article III of this Agreement;
(c) the terms “territory”, “air-services”, “international air services”, “airline” and “stop for non-traffic purposes” have the meanings
respectively assigned to them in Articles 2 and 96 of the Convention.
Article II
Each Contracting Party grants to the other Contracting Party the rights specified in this Agreement for the purposes of establishing
air services (hereinafter called “the agreed services”) on the route specified in the Annex hereto (hereinafter called “the specified
route”).
2. Subject to the provisions of this Agreement, the airline designated by each Contracting Party shall enjoy the following rights
:
(a) to fly without landing across the territory of the other Contracting Party;
(b) to make stops in the territory of the other Contracting Party for non-traffic purposes; and .
(c) while operating an agreed service on a specified route, to make stops in the territory of the other Contracting Party at the
point or points specified for that route in the annex to this Agreement, for the purpose of putting down or taking on international
traffic in passengers, cargo and mail, originating in or destined for the territory of the first Contracting Party or of a third
country.
3. Nothing in paragraph (2) of this Article shall be deemed to confer on the airline of one Contracting Party the privilege of taking
on, in the territory of the other Contracting Party, passengers, cargo or mail destined for another point in the territory of that
other Contracting Party.
4. The laws, regulations and instructions of one Contracting Party relating to entry into or departure from its territory, of aircraft
or air services operated in international air navigation or to the operation of such aircraft or air services while within its territory
shall apply to aircraft and agreed services of the designated airline of the other Contracting Party.
Article III
l. Each Contracting Party shall have the right to designate in writing to the other Contracting Party one airline for the
purpose of operating the agreed services on the specified routes.
2. On receipt of the designation, the Contracting Party shall, through its own aeronautical authorities and subject to the provisions
of paragraphs (3) and (4) of this Article, without delay grant to the designated airline the appropriate operating authorisation.
3. The aeronautical authorities of one Contracting Party may require the airline designated by the other Contracting Party to satisfy
them that it is qualified to fulfil the conditions prescribed under the laws and regulations normally applied by them to the operation
of international commercial air services.
4. Each Contracting Party shall have the right to refuse to accept the designation of an airline or to withhold the grant to an airline
of the rights specified in paragraph (2) of Article II of this Agreement or to impose such conditions as it may deem necessary on
the exercise by an airline of those rights in any case where it is not satisfied that substantial ownership and effective control
of that airline are vested in the other Contracting Party or its nationals. For the purpose of this paragraph, the expression “substantial
ownership and effective control” means that in any case where the designated airline operates its services under this Agreement by
entering into any agreement with the airline of any other country or the Government or nationals of any other country, the Contracting
Party designating the airline or its nationals; shall not be deemed to have substantial ownership and effective control of the designated
airline, unless the Contracting Party or its nationals, in addition to the ownership of a substantial part of the assets of the designated
airline, have also :
(i) effective control in the management of the designated airline; and
(ii) ownership and effective control of a substantial part of the fleet of aircraft and equipment used in the operation of the services.
5. The airline so designated and authorised may begin to operate the agreed services at any time provided that the provisions of Article
X and XIII have been complied with.
Article 1V
Each Contracting Party reserves the right to itself to revoke the operating authorisation or impose such appropriate conditions as
it may deem necessary in case of failure by a designated airline of the other Party to comply with the laws and regulations of the
former Party, or in case, in the judgement of the former Party, there is a failure to fulfil the conditions under which the rights
are granted in accordance with this Agreement. This shall also apply if the provisions of paragraph (4) of Article III are not complied
with. Such action shall be taken only after consultation between the Contracting Parties in accordance with Article XV of this Agreement
unless an immediate suspension of operations or imposition of conditions is necessary to avoid further infringements of laws, regulations
or provisions of this Agreement.
Article V
The charges imposed in the territory of one Contracting Party for the use of airports and other aviation facilities by the aircraft
of the designated airline of the other Contracting Party shall not be higher than the those paid by the aircraft of a national airline
engaged in similar international air services.
Article VI
Supplies of fuel, lubricating oils, spare parts, regular aircraft equipment and aircraft stores introduced into or taken on board
aircraft of the designated airline of one Contracting Party in the territory of the other Contracting Party and intended solely for
use by or in such aircraft and remaining on board on departure from the last airport of call in that territory shall be accorded,
with respect to customs duty, inspection fees or similar charges, treatment not less favourable than that granted by the second Contracting
Party to the national airlines operating scheduled international air services or to the airlines of the most favoured nation.
Provided that neither Contracting Party shall be obliged to grant to the designated airline of the other Contracting Party exemption
or remission of customs duty, inspection fees or similar charges unless such other Contracting Party grants exemption or remission
of such charges to the designated airline of the first Contracting Party.
Article VII
The designated airline of each Contracting Party shall, in all respects, enjoy fair and equal opportunity for the carriage of international
traffic between and beyond the territories of the two Parties.
Article VIII
In the operation by the designated airline of either Contracting Party of the agreed services, the interest of the designated airline
of the other Party shall be taken into consideration so as not to affect unduly the services which the latter provides on all or
part of the same route.
Article IX .
1. The capacity to be provided, the frequency of services to be operated and the nature of an air service, that is, transiting through
or terminating in the territory of the other Contracting Party shall be agreed between the designated airlines in accordance with
the principles laid down in Articles VII and VIII and the provisions of this Article. Such agreement shall be subject to the approval
of the aeronautical authorities of the two Contracting Parties.
2. Any increase in the capacity to be provided or frequency of services to be operated by the designated airline of either Contracting
Party shall be agreed, in the first instance, between the designated airlines and shall be subject to the approval of the aeronautical
authorities on the basis of the estimated requirements of traffic to be jointly agreed and determined. Pending such agreement or
settlement, the capacity and frequency already agreed to in accordance with paragraph 1 of this Article shall prevail.
3. If the designated airlines of the Contracting Parties fail to agree on any matter on which their agreement is required under the
provisions of this Article, the aeronautical authorities of the Contracting Parties shall endeavour to reach agreement thereon.
4. The capacity to be provided, the frequency of services to be operated and the nature of an air service, that is, transiting through
or terminating in the territory of the other Contracting Party as agreed to in accordance with the provisions of this Article shall
be specified in an exchange of letters between the aeronautical authorities of the Contracting Parties.
Article X
Each Contracting Party shall cause its designated airline to communicate to the aeronautical authorities of the other Contracting
Party, as long in advance as practicable, prior to the inauguration of the agreed services, the type of service, the type of aircraft
to be used, the flight schedules, tariff schedules, and all other relevant information concerning the operation of the agreed services
including such information as may be required to satisfy the aeronautical authorities that the requirements of this Agreement are
being duly observed. The requirements of this Article shall likewise apply to any changes concerning the agreed services.
Article XI
The aeronautical authorities of either Contracting Party shall furnish to the aeronautical authorities of the other Contracting Party
statistics relating to the traffic carried during each month on their air services to or from or through the territory of the other
Contracting Party showing the countries of origin and destination and the points of embarkation and disembarkation of such traffic.
Such statistics shall be furnished as early as possible.
Article XII
Each Contracting Party grants to the designated airline of the other Contracting Party the right to remit to its head office the excess
over expenditure to receipts earned in the territory of the first Contracting Party. The procedure for such remittances, however,
shall be in accordance with the foreign exchange regulations of the Contracting Party in the territory of which the revenue accrued.
Article XIII
1. The tariffs on any agreed service shall be established at reasonable levels, due regard being paid to all relevant factors including
cost of operation, reasonable profit, characteristics of service (such as standards of speed and accommodation) and the tariffs of
other airlines for any part of the specified route. These tariffs shall be fixed in accordance with the following provisions of this
Article.
2. The tariffs referred to in paragraph (1) of this Article, together with the rates of agency commission used in conjunction with
them shall, if possible be agreed in respect of each of the specified routes between the designated airlines concerned, and such
agreement shall, wherever possible be reached through the rate-fixing machinery of the International Air Transport Association. The
tariffs so agreed shall be subject to the approval of the aeronautical authorities of both Contracting Parties.
3. If the designated airlines cannot agree on any of these tariffs, or if for some reason a tariff cannot be agreed in accordance
with the provisions of paragraph (2) of this Article, the aeronautical authorities of the Contracting Parties shall try to determine
the tariff by agreement between themselves.
4. If the aeronautical authorities cannot agree on the approval of any tariff submitted to them under paragraph (2) of this Article
or on the determination of any tariff under paragraph (3), the matter shall be referred to the Contracting Parties for settlement
in accordance with the provisions of Article XV of this Agreement.
5. Pending determination of the tariffs in accordance with the provisions of this Article, the tariffs already in force shall prevail.
Article XIV
In a spirit of close collaboration, the aeronautical authorities of the two Contracting Parties shall exchange views regularly on
the application and interpretation of this Agreement.
Article XV
Consultations may be request at any time by either Contracting Party for the purpose of initiating any amendments to this Agreement.
Consultations may also be requested on matters concerning the interpretation and application of this Agreement if either Contracting
Party considers that an exchange of views within the meaning of Article XIV has been without success. Such consultation shall begin
within a period of sixty days from the date of the request.
Contracting Party considers that an exchange of views within the meaning of Article XIV has been without success. Such consultation
shall begin within a period of sixty days from the date of the receipt. Any modification of this Agreement as a result of such consultations
shall come into effect after the respective constitutional requirements have been fulfilled and when it has been confirmed by an
exchange of diplomatic notes.
Article XVI
If any dispute arises relating to the interpretation or application of the present Agreement, the aeronautical authorities of the
Contracting Parties shall endeavour to settle it by negotiations between themselves, failing which the dispute shall be referred
to the Contracting Parties for settlement. If the Contracting Parties fail to reach a settlement by negotiations they may consult
as to the appropriate procedure for settlement of the dispute.
Article XVII
To the extent to which they are applicable to the air services established under this Agreement, the provisions of the Convention.
shall remain in force in their present form between the Contracting Parties for the duration of the Agreement, as if they were an
external part of the Agreement, unless both Contracting Parties ratify any amendment to the Convention, which shall have duly come
into force in which case the Convention as amended shall remain in force for the duration of this Agreement.
Article XVIII
1. The annex attached to this Agreement shall be deemed to be part of the Agreement and all references to the Agreement shall include
reference to the Annex, except where otherwise expressly provided.
2. This Agreement shall be subject to ratification and instruments of ratification shall be exchanged as soon as possible.
3. This Agreement shall come into force on the date of the exchange of instruments of ratification.
Article XIX
Either Contracting Party may, at any time, give written notice to the other, of its desire to terminate this Agreement. Such notice
shall be simultaneously communicated to the International Civil Aviation Organisation. If such notice is given, this Agreement shall
terminate twelve months after the date of receipt of the notice 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 other Contracting Party,
notice shall be deemed to have been received fourteen days after the receipt of the notice by the International Civil Aviation Organisation.
Article XXI
This Agreement and any Exchange of Notes in accordance with Article XV shall be registered with the International Civil Aviation Organisation.
DONE at New Delhi this twenty second day of May, One thousand Nine hundred and Seventy-four in six originals, two each in the Hindi,
Malay and English languages, all the six texts being equally authentic, In case of any divergence of interpretation, the English text
shall prevail.
Sd /-
N. SAHGAL
22 May 1974
For the Government of India
Sd /-
TUAN HAJI KHALID BIN AWANG OTHMAN
22 May 1974
For the Government of Malaysia
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ANNEX
SCHEDULE I
