THE AUTHOR: Sebastiano Nessi, Partner at Curtis Mallet-Prevost Colt & Mosle and Arthad Kurlekar, Associate at Curtis Mallet-Prevost Colt & Mosle
By resolution dated 11 February 2000, the United Nations General Assembly (“UNGA”), declared “4 to 10 October World Space Week”. The start of the World Space Week (4 October) commemorates the launch of Sputnik I, the first artificial satellite, on 4 October 1957. The end (10 October) marks the entry into force of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (“Outer Space Treaty”) on 10 October 1967.
The Outer Space Treaty was based on principles on the use of outer space, unanimously adopted by the UNGA (see here and here). Between 1967 and 1984, four other treaties entered into force: in 1968, the Agreement on the Rescue of Astronauts, The Return of Astronauts and the Return of Objects Launched into Outer Space; in 1972, The Convention on International Liability for Damage Caused by Space Objects (“Liability Convention”); in 1976, Convention on Registration of Objects Launched into Space; and in 1984 the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. These five treaties establish a basic rubric of the international law governing outer space.
The Emergence of Private Space Actors
Until the 1990s, space remained reserved as primarily the domain of States. There were only a few examples of private actors in the 1970s and 1980s (for instance see and see), typically operating in launching or related services. Since the 2000s, the State-centric structure of the space industry has materially changed (e.g., see). Private space actors are currently developing or engaged in industries including but not limited to satellite telecommunication, cargo-faring in the lower-earth orbit, space manufacturing, mining, construction, and testing and development of active space-debris removal technologies. Advances in science and technology and the resultant increase in participation of private actors has brought with it legal and regulatory challenges, including the availability of means of settlement of disputes.
The Interstate Dispute Resolution Galaxy
Within the five treaties mentioned above, the provisions for the means of dispute settlement are provided under the Liability Convention and are geared towards inter-State disputes. The Liability Convention covers issues relating to damage suffered on account of space objects. It requires for a claim for compensation by a state to be presented first through diplomatic channels. Failing that, it allows for the establishment of a Claims Commission, the decision of which will only be binding if States expressly agree.
As an inter-State organism, if injury is suffered by the nationals of a State or an entity organised under the laws of a State, the Liability Convention allows for a State to present a claim for damage suffered by its nationals. It posits two rules: first, the presentation of a claim under the Liability Convention “shall not require the prior exhaustion of any local remedies which may be available to a claimant state or to natural or juridical persons it represents”; and second, a fork-in-the-road provision whereby a non-State actor could either seek redress before the courts or tribunals of the respondent-State or could seek espousal under the Liability Convention “in respect of the same damage”.
However, the Claims Commission is limited in its scope to that of the Liability Convention. Thus, potentially, States may not be able to submit disputes unrelated to collision or damage, but which may nevertheless engage international responsibility to the Claims Commission. Even in cases of collision or damage, non-State actors may have to address the possibility that the State of their nationality may opt not to espouse a particular claim at its discretion. Alternatively, in either case, it would only leave the option of recourse to courts of the respondent-State. While courts may be one possible alternative, given the multiplicity of actors and complexities involved in space operations, other means of dispute resolution may offer certain advantages which non-State actors may look upon favourably.
The Investor-State Dispute Settlement Galaxy
Some commentators (see and see) have proposed the possibility of using investor-State dispute resolution mechanisms under bilateral and multilateral investment treaties as one available alternative. Although several such treaties provide for the possibility of Investor-State arbitration, the prescriptive scope of such treaties in the context of outer space disputes will become one point of contention. This may include issues pertaining to inter alia, the definition of investment, whether a non-State actor would be a covered investor, as well as the territorial scope of such treaties. The differing roles of the registry, the launching State, and the potential involvement of other actors in the operations may also create a further layer of discussions. Additionally, with increasing public-private partnerships, the role of international organisations, and joint operations, discerning the appropriate party against whom a valid claim exists may also present a challenge. Arguably, the nature of the space industry is unique such that States may not have foreseen the scope of their investment protections to extend beyond conventional industries to space. Importantly, investor-State dispute resolution may also present a challenge for State-actors seeking to enforce duties and obligations under applicable international and domestic law (for instance environmental, labour, or other ethical regulations) upon non-States actors.
The International Commercial Arbitration Galaxy
With no relatively new international treaties or binding instruments addressing the regulation of private space actors, regulation is taking a “bottom-up” approach. Private actors negotiating contracts inter se, with international organisations or with States, for commercial activities is a common phenomenon. In addition to contractual frameworks, national space legislation of several countries also attempts to regulate these matters (see). The Sofia Guidelines which provide a model law on national space legislation – a set of recommendations for harmonizing national space legislation – also recommend the use of contractual arbitration clauses (in cases where litigation may not be an effective option). In particular, as of December 2011, the Permanent Court of Arbitration published the Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (“PCA Rules”), providing a flexible framework of rules which could be voluntarily adopted in arbitration clauses by private entities, international organizations or by States. The PCA Rules also lend themselves to being adopted in contractual relationships between parties (and beyond), envisage the technical complexities of the space industry and reflect the public international elements relevant to disputes. Within the applicable law framework, it would be up to private actors to opt for suitable processes for dispute resolution.
Conclusion
The five treaties and “bottom up” regulation present contrasting views in which space governance could be achieved. Indeed, robust engagement of States in defining obligations and regulations applicable to private space actors may also include ways to provide effective means of dispute settlement. To that end, some commentators have called for the establishment of permanent international institutions governing private space operations (for instance see and see). But with a lack of consensus among States to agree on new binding norms regulating private actors, industry regulations may develop organically in a “bottom-up” manner, either through establishment of commercial practices, contractual frameworks or through national space legislation. In such a case, contractual arbitration may allow for parties to have greater control over means for dispute resolution, including the processes adopted and the applicable law. In either case, suitability or efficacy of certain means of dispute settlement available to private space actors will likely echo the approach to the regulation of the industry.
ABOUT THE AUTHOR
Sebastiano Nessi is an international arbitration and disputes Partner at Curtis Mallet-Prevost Colt & Mosle based in Geneva. He has a wealth of experience in representing clients in complex international commercial, investment and sports arbitration matters both ad hoc and under all major institutional rules, as well as in enforcement and setting-aside proceedings (including before the Swiss Supreme Court). In addition to his counsel work, Sebastiano Nessi, who is a Fellow of the Chartered Institute of Arbitrators, sits frequently as an arbitrator.
Arthad Kurlekar is an Associate in the International Arbitration group of Curtis Mallet-Prevost Colt & Mosle with a practice that focuses on representing States and State-owned entities in complex investor-state arbitrations, international commercial arbitrations and public international law matters. His areas of focus include public international law issues, international trade, international environmental law, law of the sea, law of international organisations and outer space law. Prior to joining Curtis, Mr. Kurlekar received a Fellowship to work with the Permanent Court of Arbitration in the Hague, Netherlands.
