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At the international level, standards and recommended practices adopted by the ICAO have settled the general framework followed by States in the provision of ATC services. However, as those international instruments have no binding effect, liability of air traffic controllers is governed by national regulations. Therefore, if in both the United States and France the liability regime is based on fault, nevertheless the nature of the fault and the one of the duties of air traffic controllers, as determined by the courts of each States, differ. This lack of uniformity is also obvious regarding the comparison between controllers' and pilots' liabilities. To mitigate the consequences of the deficiency of harmonisation, taking into account technical improvements inherent to the field of ATC and, broadly, to air navigation, two solutions have been suggested. The first one, Free flight, is still under study whereby the second one, privatisation, has already been successfully implemented in several countries and, while being strongly considered by the French government, has by now been initiated by the American one. However, we will have no option but to ascertain that such solutions will not solve the problem pertaining to disparities of regulations and holding of the courts on the matter of air traffic controllers' liability.

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