As humanity's reach extends beyond our atmosphere and into the cosmos, the complexities of space law and governance are evolving at a rapid pace. With the commercial space industry booming, and international collaborations on the rise, the potential for disputes in outer space, and thus the potential for space-related arbitrations, is higher than ever.
This note explores the current landscape of space-related arbitrations and questions whether space-specific dispute resolution mechanisms and rules are really the final frontier.
Space Law
Space-related activities are governed by a variety of international agreements and national laws concerning diverse matters such as environmental concerns, information sharing about space-related topics, the use of technologies, liability for damages caused by space objects and the settlement of disputes.1
In the international sphere, the following treaties govern space-related issues:2
- Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (1963);
- Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967);
- Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (1968);
- Convention on International Liability for Damage Caused by Space Objects (1972);
- Convention on Registration of Objects Launched into Outer Space (1976);
- Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1984); and
- Space Station Intergovernmental Agreement (1998).
However, none of these treaties provides for dispute settlement through arbitration.3
Nationally, examples of domestic laws include:4
- British Outer Space Act (1986);
- Russian Law No. 5663-I "On Space Activities" (1993);
- South African Space Affairs Act (1993);
- French Space Operations Act, No. 2008-518 (2008);
- American National Aeronautics and Space Act, (Pub. L. No. 85-568) (2010).
Likewise, none of these domestic space laws provide for arbitration.
Nonetheless, while the above space-specific treaties and laws do not provide for dispute resolution through arbitration, many space-related disputes still arise out of contracts containing arbitration agreements or investments covered by bilateral investment treaties and thus subject to arbitration. Consequently, in response to a growing number of space-related arbitrations, space-specific arbitration rules have been developed.
Arbitration Rules for Space-Related Disputes
On 6 December 2011, the Permanent Court of Arbitration (PCA) published its Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (Outer Space Rules). This set of rules contains the same 43 articles as the general 2012 PCA Arbitration Rules, with changes in order to:
- "reflect the particular characteristics of disputes having an outer space component involving the use of outer space by States, international organizations and private entities";
- "reflect the public international law element that pertains to disputes that may involve States and the use of outer space, and international practice appropriate to such disputes";
- "provide for establishment of a specialized list of arbitrators mentioned in article 10 and a list of scientific and technical experts mentioned in article 29 of these Rules"; and
- "provide suggestions for establishing procedures aimed at ensuring confidentiality."5
These changes are reflected in the text of the Outer Space Rules in the following ways:
Article 1 of the Outer Space Rules defines the scope of application of the rules and provides that it is not necessary to characterize the dispute as relating to outer space in order for jurisdiction to be established, as long as the parties have agreed to arbitrate under the Outer Space Rules:6
The characterization of the dispute as relating to outer space is not necessary for jurisdiction where parties have agreed to settle a specific dispute under these Rules.
Article 10 notifies parties that a list of arbitrators with expertise in outer space matters is available for their use:7
In appointing arbitrators pursuant to these Rules, the parties and the appointing authority are free to designate persons who are not Members of the Permanent Court of Arbitration at The Hague. For the purpose of assisting the parties the Secretary-General will make available a list of persons considered to have expertise in the subject matters of the dispute at hand for which these Rules have been designed.
Article 13 of the Outer Space Rules does not include the possibility for the appointing authority to indicate the reasons for its decision on a challenge of an arbitrator, as does Article 13 of the 2012 PCA Arbitration Rules.8
Article 17 contains the following additional paragraphs regarding the confidentiality of information:9
- A party invoking the confidentiality of any information it wishes or is required to submit in the arbitration, including to an expert appointed by the arbitral tribunal, shall make an application to have the information classified as confidential by notice containing the reasons for which it considers the information confidential to the arbitral tribunal, with a copy to the other party and the International Bureau.
- The arbitral tribunal shall determine whether the information is to be classified as confidential and of such a nature that the absence of special measures of protection in the proceedings would be likely to cause serious harm to the party or parties invoking its confidentiality. If the arbitral tribunal so determines, it shall decide and communicate in writing to the parties and the International Bureau under what conditions and to whom the confidential information may in part or in whole be disclosed and shall require any person to whom the confidential information is to be disclosed to sign an appropriate confidentiality undertaking.
- The arbitral tribunal may also, at the request of a party or on its own motion, appoint a confidentiality adviser as an expert in accordance with article 29 in order to report to it on the basis of the confidential information on specific issues designated by the arbitral tribunal without disclosing the confidential information either to the party from whom the confidential information does not originate or to the arbitral tribunal.
Article 27 allows the arbitral tribunal to request the parties to provide a non-technical document summarizing and explaining the background to any scientific, technical or other specialized information necessary to understand the dispute:10
- The arbitral tribunal may request the parties jointly or separately to provide a non-technical document summarizing and explaining the background to any scientific, technical or other specialized information which the arbitral tribunal considers to be necessary to understand fully the matters in dispute.
Article 29 provides that a list of experts with scientific or technical expertise in Outer Space matters will be provided to parties, though if the arbitral tribunal appoints an expert, it is not limited to choosing experts from this list.11
- The Secretary-General will provide an indicative list of persons considered to have expertise in the scientific or technical matters in respect of which these Rules might be relied upon. In appointing one or more experts pursuant to paragraph 1 above, the arbitral tribunal shall not be limited in its choice to any person or persons appearing on the indicative list of experts.
While this demonstrates that there are certain nuances to the Outer Space Rules not included in the general PCA Arbitration Rules, they do not materially differ in content or function.12 Further, over a decade later, an arbitration has yet to be brought under the PCA Outer Space Rules.13 Instead, all modern space-related disputes have been brought either on an ad hoc basis or under the general rules of existing arbitral institutions.
Space Disputes in Practice
In the future, space-related disputes may cover a wide range of issues, including space traffic management, space tourism, resource extraction and utilisation, etc. However, thus far, most disputes have pertained to satellites.
Satellites are used in a wide range of sectors, such as television, telephones, navigation, research, safety and security, development and climate and environmental monitoring, and accounted for 74% of the total global space economy in 2020.14 Satellite disputes may concern issues such as satellite launch and deployment contracts, operation and service agreements or spectrum allocation and frequency interference.
One well-known example of a commercial space dispute over satellite spectrum allocation is the 2015 case, Devas v. Antrix.15 In this case, an Indian company, Devas Multimedia Private Limited (Devas), along with its majority shareholders Deutsche Telekom Asia Pte Ltd (DT Asia), Telecom Devas Mauritius Ltd (Telecom Devas) and CC/devas (Mauritius) Ltd (CC/Devas) brought an arbitration under the Arbitration Rules of the International Chamber of Commerce (ICC) against another Indian company, Antrix Corporation Limited (Antrix), which was wholly owned by the government of India.16
The arbitration was brought under a written agreement between Antrix and Devas for the lease of space segment capacity on two satellites, under which Antrix agreed to build, launch and operate two satellites and lease spectrum capacity on those satellites to Devas to use for digital multimedia broadcasting in India.17 In return, Devas agreed to pay Antrix USD 20 million in Upfront Capacity Reservation Fees per satellite, along with lease fees of up to USD 11.25 million per year for a term of twelve years, with a right of renewal for a further twelve years.18
The parties executed the contract without incident for five years until 2010, when the Chairman of Antrix, who was also the Secretary of India's Department of Space, sought to annul the agreement, resulting in a decision by India's Cabinet Committee on Security to do just that.19 Devas was notified and subsequently brought the arbitration, arguing that Antrix wrongfully terminated the agreement.20 It was Antrix's position that it was permitted to terminate the agreement following the Cabinet Committee on Security's decision.21 Ultimately, the arbitral tribunal ordered Antrix to pay Devas USD 562.5 million for damages caused by Antrix's wrongful repudiation of the agreement.22
This commercial dispute was resolved without issue under existing institutional rules, which raises the question of whether space-specific arbitration rules are truly necessary.
It is perhaps possible that arbitration rules developed specifically for space-related disputes may be more useful within the context of investor-state arbitration, as space-related disputes may give rise to important jurisdictional questions, given that investment treaties generally stipulate that the term "investment" means assets invested in the territory of the host state, yet no state has a territorial claim to outer space.23 Nevertheless, trends in investor-state arbitrations have shown that extraterritorial activities may still be considered investments under such treaties, as long as the activities' territorial nexus concerns the host state.24 This then suggests that investor-state disputes over space-related investments could also be arbitrated under existing frameworks.
Further, in many space-related investment cases, this may not even be an issue. This was the case in Eutelsat v. Mexico, when a French satellite operator, Eutelsat, brought an ICSID arbitration against Mexico in 2021 on the basis of the France-Mexico BIT, claiming that the reserved capacity for the free and exclusive use of the Mexican Government imposed on foreign competing satellites located in the orbital positions assigned to Mexico was much lower than that imposed on the Mexican company, SatMex, which Eutelsat had purchased in 2014.25 Despite the dispute concerning exclusively the state's treatment of satellite spectrums in space, the arbitral tribunal had no issue finding that Eutelstat had an investment in Mexican territory in this case based on Eutelsat's shares in SatMex.26
Thus, it appears that no significant barriers stand in the way of arbitrating space disputes using existing rules and institutions, as they are primarily contractual or treaty-based disputes like any other. So, should the arbitration community keep reaching for the stars by crafting space-specific arbitration tools and mechanisms, or should it stay firmly grounded and use the tools it already has?
Footnotes
1 United Nations Office for Outer Space Affairs, Space Law, https://www.unoosa.org/oosa/en/ourwork/spacelaw/index.html.
2 United Nations Office for Outer Space Affairs, Space Law Treaties and Principles, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html.
3 A. Torline, Looking Back While Looking Up: A Review of Space Arbitration Topics, 22 February 2023, https://arbitrationblog.kluwerarbitration.com/2023/02/22/looking-back-while-looking-up-a-review-of-space-arbitration-topics/.
4 United Nations Office for Outer Space Affairs, National Space Law, https://www.unoosa.org/oosa/en/ourwork/spacelaw/nationalspacelaw/index.html.
5 Permanent Court of Arbitration Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, Introduction.
6 Permanent Court of Arbitration Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, Article 1(1).
7 Permanent Court of Arbitration Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, Article 10(4).
8 Compare Permanent Court of Arbitration Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, Article 13 with Permanent Court of Arbitration Arbitration Rules 2012, Article 13(5).
9 Permanent Court of Arbitration Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, Article 17(6)-(8).
10 Permanent Court of Arbitration Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, Article 27(4).
11 Permanent Court of Arbitration Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, Article 29(7).
12 T. Sainati & J. Simmons, The New York Convention in Space: International Arbitration of Satellite Disputes, 17 August 2022, https://dailyjus.com/world/2022/08/the-new-york-convention-in-space_international-arbitration-of-satellite-disputes.
13 T. Sainati & J. Simmons, The New York Convention in Space: International Arbitration of Satellite Disputes, 17 August 2022, https://dailyjus.com/world/2022/08/the-new-york-convention-in-space_international-arbitration-of-satellite-disputes.
14 L. Zielinkski & J. Frohloff, What is Space Arbitration?, https://space-arbitration.com/what-is-space-arbitration/.
15 Devas Multimedia Private Limited v. Antrix Corporation Limited, ICC Case No. 18051/CYK, Award, 14 September 2015.
16 Devas Multimedia Private Limited v. Antrix Corporation Limited, ICC Case No. 18051/CYK, Award, 14 September 2015, paras. 1-2.
17 Devas Multimedia Private Limited v. Antrix Corporation Limited, ICC Case No. 18051/CYK, Award, 14 September 2015, para. 6.
18 Devas Multimedia Private Limited v. Antrix Corporation Limited, ICC Case No. 18051/CYK, Award, 14 September 2015, para. 6.
19 Devas Multimedia Private Limited v. Antrix Corporation Limited, ICC Case No. 18051/CYK, Award, 14 September 2015, paras. 7-8.
20 Devas Multimedia Private Limited v. Antrix Corporation Limited, ICC Case No. 18051/CYK, Award, 14 September 2015, para. 9.
21 Devas Multimedia Private Limited v. Antrix Corporation Limited, ICC Case No. 18051/CYK, Award, 14 September 2015, para. 11.
22 Devas Multimedia Private Limited v. Antrix Corporation Limited, ICC Case No. 18051/CYK, Award, 14 September 2015, para. 401.
23 A. Torline, Looking Back While Looking Up: A Review of Space Arbitration Topics, 22 February 2023, https://arbitrationblog.kluwerarbitration.com/2023/02/22/looking-back-while-looking-up-a-review-of-space-arbitration-topics/.
24 A. Torline, Looking Back While Looking Up: A Review of Space Arbitration Topics, 22 February 2023, https://arbitrationblog.kluwerarbitration.com/2023/02/22/looking-back-while-looking-up-a-review-of-space-arbitration-topics/.
25 Lear, Arbitration Dispute in the Mexican Market for Fixed Satellite Services, 2024, https://www.learlab.com/engagement/arbitration-dispute-in-the-mexican-market-for-fixed-satellite-services/.
26 Eutelsat S.A. v. United Mexican States, ICSID Case No. ARB(AF)/17/2, Award, 15 September 2021, paras. 76-77.
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