Space Law and Arbitration

Space Law, Issues of Space Usage and Why is Space-based legislation, the need of the hour?

Space exploration has been the most ambitious dream of man ever since sails carried ships across the seven seas. The race to the Moon and then to Mars are a few instances that show how determined some pioneers were when it came to space and the answers it held. However, with every determined person comes disputes, conflicts over property, and interests.

Space law is a branch of international law that ties in events of space origin. It focusses on what can happen in space and for what can space be used.

Space law, however, is still in its stages of infancy. There is no solid law codified for the governance of space-related matters.

Another thing about space is its interdisciplinary nature as it stands now. Many, if not all cases are cases that happen within the boundary of the Earth. There are however some cases, that raise the question, why do we not have a strong codified law already?

Well, space law is futuristic. It cannot exist in our time because the need for space law in such a manner has not yet arisen. Some people have taken it upon themselves to research for the future, knowing that there will be a day when space law will be needed.

Issues in space law vary, as it is an interdisciplinary field which calls many laws and issues to question.

1. Environmental degradation due to space debris in certain nations
2. Crimes committed in space under no jurisdiction.
3. Satellites colliding due to orbital fluctuations.
4. Ownership in part of celestial bodies
5. ICBM (Inter-Continental Ballistic Missile) and their legality

These are a few topics of space law that are presently in question. The questions will keep on growing and call for various aspects of jurisprudence and general principles of law. Topics such as inter-planetary rights and citizenship, legislation, and governance are aspects that will arise in the future and therefore must be put under examination immediately.

Space law will be an integer that will combine all aspects and fields of law under one dynamic scope. Hence, our work must be directed towards the future and merely on the present.

Dispute resolution

When considering any international legal dispute, the first course of action anyone would take under normal circumstances would be the International Court of Justice, when the said dispute is concerned between States. However, space law as of now is dominated by private entities more than public ones. Out of the 3, 372 satellites that would orbit the earth by the end of 2022, 1,486 are from private entities in the United States alone.[1] This raises the question that where do all the private players go in case a dispute arises?

Arbitration comes into play for most of the cases in the modern era. Companies prefer arbitration for distinct reasons such as saving costs of legal counsel and trial, faster resolution and other benefits. The procedure is simple, there will be one arbitrator who will sit with the lawyers of both parties and discuss what happened and come to an agreement on what be done to best satisfy the parties in question.

The process is quite simple:

• Request for arbitration: The need for arbitration is satisfied when one customer from a particular member state or other, files a request by submission of the same to the ICC International Court of Arbitration along with 5000 USD as an administrative fee. The request filed must contain the nature of the dispute, facts of the dispute, and what is the ‘wanted’ compensation. When this is accepted, the two parties meet and sign one agreement pertaining to the procedures and rules of the arbitration, to bind them to the procedure itself. This method takes about 30 days and is the most sought-after method by private players all over the world.

• Before the tribunal: If the other party has any other issues with the concerned arbitration agreement or the party forgets to respond within the stipulated time then the ICC will rule on these questions.

• The tribunal: Given all the procedural work is over, the tribunal is set and the dispute resolution begin. The main aim of the arbitration is to arrive at the best solution that benefits both parties and not either one of the parties. These meetings can be of any nature and are designed to be as flexible as possible throughout the arbitration process itself.

• After the tribunal: When the tribunal has made its decision, the timetable for the final award is set and given to the ICC International Court of Arbitration. Which will then administer the execution and the procedure ends.[2]

The procedure is in itself simple to understand, as to why arbitration is preferred by most, if not all private entities. With the ramping up of space usage across the world, it is only natural, that with time we create an independent body for the arbitration of such matters.

The reason arbitration is preferred over litigation is its private nature and flexible procedure. As mentioned earlier, the entire procedure happens by any means, both in real and over digital platforms under an agreed-upon agreement by both parties. It is also by far the faster and cheaper procedure available to all private and public entities. The best-known arbitral institutions include:

• the International Court of Arbitration at the International Chamber of Commerce (the ICC);
• the London Court of International Arbitration (the LCIA);
• the Singapore International Arbitration Centre (the SIAC);
• the Hong Kong International Arbitration Centre (HKIAC);
• the Arbitration Institute of the Stockholm Chamber of Commerce (the SCC); and
• the American Arbitration Association’s International Centre for Dispute Resolution (the AAA/ICDR).

These institutions have their own rules and procedures, but their principles are remarkably similar. The rules that these institutions follow are covered under the United Nations Commision on International Trade Law (UNCITRAL).

The UNCITRAL Arbitration Rules adopted in 1976, provided for the settlement of a wide range of disputes, which arose between private commercial parties where no arbitral institution is involved, Investor-State disputes, State-to-State disputes, and commercial disputes administered by arbitral institutions.

In 2006, the Commission decided that the UNCITRAL Arbitration Rules must be revised to meet required changes in arbitral practice. The revision aimed at enhancing the efficiency of arbitration under the Rules without altering the original structure of the text, its spirit, or drafting style.

“With the adoption of the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (the “Rules on Transparency”) in 2013, a new article 1, paragraph 4 was added to the text of the Arbitration Rules (as revised in 2010) to incorporate the Rules on Transparency for an arbitration initiated according to an investment treaty concluded on or after 1 April 2014. The new paragraph provides for utmost clarity concerning the application of the Rules on Transparency in investor-State arbitration initiated under the UNCITRAL Arbitration Rules.”[3]

In the case of Avanti Communications the Artemis satellite owned by Avanti Communications (“Company”) was under dispute for not performing the duties promised by the company to the Indonesian Government. After which the Indonesian Government stopped paying their required amount to the Company which led to the initiation of arbitration proceedings with the Government. Beginning in 2017, the end of the proceedings saw the Government pay 20.075 million USD to the company. The highlight of the case being the speed at which it was disposed of.

This case also brought out another point of having an independent body exclusively for the arbitration of space-related disputes. The same is supported via a few significant reasons:

1. The unique nature of disputes;
2. A domain with specific jurisdiction;
3. Inter-disciplinary field; and
4. Lack of solid common codification.

So where does all this point?

Well, the nature of space law as it stands today is similar to that of an infant. Disputes related to space are also such that can are handled on the ground. These disputes are often of the nature of the property and on specific performance, and not in the realm of serious criminal or civil offenses. Despite, recording the first crime to be committed in space, the circumstances of the case dictated that it be treated as an ‘Earth’ issue and not a space issue.

However, this does highlight the need to have one sturdy base for arbitration as it is the most sought-after method of dispute resolution in the current space era. This will also help the advisory councils to produce better methods of legislation and governance due to the streamlining of issues that can teach us what space law should be and how it should operate.

This article can be cited as:

Adithya Prasad, Space Law and Arbitration, Metacept- Communicating the Law, accessible at https://metacept.com/space-law-and-arbitration/

Resources:

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[1] UCC SATELLITE DATABASE, SATELLITE DATABASE | UNION OF CONCERNED SCIENTISTS (UCSUSA.ORG), (Visited on 16^th April 2021).

[2] International Commercial Arbitration, UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW, INTERNATIONAL COMMERCIAL ARBITRATION | UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW (Visited: 17^th April 2021).

[3] UNCITRAL ARBITRATION RULES,  UNCITRAL ARBITRATION RULES | UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW (Visited 17^th April 2021).