The American lawyer who negotiated a $2.7 billion Lockerbie settlement from Libya has warned Australians who lost family members in the MH17 disaster that their access to adequate compensation is at risk.
Jerry Skinner, co-associate of Sydney law firm LHD Lawyers, said their rights to adequate compensation might be taken away when an action is filed in the European Court of Human Rights by a German academic.
"A lot of Australian families will be unaware that this action could lock them into compensation levels that the families never approved," Mr Skinner said.
The German academic proposing to file the action in the European Court of Human Rights is Professor Elmar Giemulla, a legal adviser with a long career in consulting and writing.
Mr Skinner said the German academic had very limited civil aviation trial experience.
"Professor Giemulla represents only three German families but is filing his action on behalf of the families of all 298 passengers. If he is successful, Australian families who choose to pursue further damages from Russia, Malaysia or Malaysia Air could be limited or barred by a legal action they did not authorise," Mr Skinner said.
LHD Lawyers has written to Professor Giemulla demanding he exclude its Australian clients from his European Court of Human Rights action.
"But, of course, there are many more that may not even be aware that this is happening," Mr Skinner said.
Thirty-eight Australians died in the July downing of Malaysia Airlines flight MH17 over eastern Ukraine.
About 20 families are affected and LHD Lawyers is representing five Australian families – from Sydney, Wollongong, Canberra and Adelaide – who are seeking compensation.
The firm is also talking with representatives from other families.
LHD Lawyers had also written to Prime Minister Tony Abbott and Foreign Affairs Minister Julie Bishop about the families.
"The suit will request damages in a single amount from one party and will be filed before the Dutch-led investigation is complete, which in my opinion is a mistake," Mr Skinner said.
Professor Giemulla, who has frequently worked for the Russian government on aviation matters, told German media he would push for compensation of up to $1.3 million a victim.
Malaysia Airlines had offered survivors of each victim an advance payment of $50,000* in financial assistance but has said that would not be taken off final compensation or affect families' legal rights to claim.
In a statement, the airline said that it "continues to do its utmost to ensure that fair and adequate compensation is paid to the families of MH17 passengers".
Professor Giemulla said that under international law Ukraine should have closed its airspace if it could not guarantee the safety of flights.
"Each state is responsible for the security of its airspace," he told Reuters.
"If it is not able to do so temporarily, it must close its airspace. As that did not happen, Ukraine is liable for the damage."
These are the first opening legal arguments in the MH17 disaster but resolution is likely to take years.
One of the world's most experienced aviation litigation experts, Mr Skinner was a member of the team that finally negotiated a settlement with the Libyans for the families of the Lockerbie victims, in a Parisian hotel room 15 years after a terrorist bomb destroyed PAN AM Flight 103 over Scotland in 1988.
* Correction: An earlier version said that Malaysia Airlines had offered $5000 as an advance payment. A statement from the airline has also been added.
