A new open skies deal currently being negotiated between the US and Japan could hinge on a Japanese requirement that its domiciled carriers – specifically Japan Airlines (JAL) and All Nippon Airways (ANA) – are granted antitrust immunity for tie-ups with their US partner airlines.

ANA will seek immunity for its partnership with United Airlines and perhaps Continental, while its not clear yet what will be the outcome of the restructuring of financially troubled JAL. JAL is being courted by members of two rival global airline alliances who have reportedly offered cash as part of a bail-out investment deal.

“We’re clearly closer to open skies (with Japan) than we’ve ever been before,” says John Byerly, the US deputy assistant secretary of State who has negotiated all of the US’ open-skies treaties over the past eight years and who is leading the US delegation at the talks with Japan, according to a USA Today report.

The problem for the Japanese carriers however, is that the open skies agreements are negotiated by one department with another – the Transportation Department – having the final say on antitrust immunity.

If the US rejects either of the Japanese airlines’ immunity applications, the Japanese government would have the option of not implementing the openskies deal. Officials at American Airlines – which has a 15-year-old trans-Pacific partnership with JAL – warned this will be the case if JAL’s management and its government-appointed panel overseeing its bailout, select Delta instead of American to be its US partner.

Both American and Delta are eyeing access to JAL’s extensive and lucrative Asian markets and are willing to pay for it. American has teamed with US investment firm TPG and others in the Oneworld global alliance, of which JAL is a member, to offer US$1.1 billion in cash and equity investment to aid in JAL’s restructuring.

Delta and its partners in the SkyTeam global alliance have offered a package of US$1 billion in cash and loans to persuade JAL to switch partners.

Delta, with its acquisition last year of Northwest, already has more service between the US and Japan than any other carrier.

Tom Horton, American’s No. 2 executive, speaking at a Tokyo news conference last week warned that because a JAL-Delta combination would have a 62 per cent share of the USJapanese market, it would violate the US government’s chief goal in granting antitrust immunity, of enhancing competition.