This article has been written by Amrita Chatterjee pursuing the Certificate Course in Arbitration: Strategy, Procedure and Drafting from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho), Zigishu Singh (Associate, Lawsikho) and Arundhati Das (Intern at Lawsikho).
This article has been published by Oishika Banerji.
Table of Contents
The Permanent Court of Arbitration (PCA) is a multilateral institution based in The Hague, Netherlands. It is not a court in the traditional sense, but it does provide arbitration services to resolve disputes arising from international agreements between member nations, international bodies, or private parties. The PCA is made up of 122 states who are members of two independent international treaties. The PCA is an official United Nations Observer, not a UN agency. This arbitral institution was solely responsible for resolving the renowned “Indus Waters Kishenganga Arbitration.” The PCA Outer Space Rules are based on the 2010 UNCITRAL Arbitration Rules (“UNCITRAL Rules“), which are well-established procedural rules that parties in international arbitration regularly employ. The PCA Outer Space Rules reflect the distinct characteristics of disputes involving the use of outer space by States, international bodies, and private entities, as well as the public international law elements and relevant international practices that apply to such disputes. The goal of this article is to investigate the effectiveness of PCA optional rules for resolving disputes involving space activities at a deeper level.
Overview of the PCA Outer Space Rules
The PCA Outer Space Rules provide for the highly technical nature of space conflicts in the following ways:
• A Panel of Expert Arbitrators:
The PCA Secretary-General shall maintain a list of individuals regarded to have expertise in the subject issues of the dispute at hand for which these Rules have been designed under Article 10(4) of the Rules, with the intention of aiding the parties in designating arbitrators. Twelve attorneys and non-lawyers from Argentina, Australia, Brazil, Chile, China, the Dominican Republic, Israel, Korea, Paraguay, Spain, and Thailand are now on the PCA’s Specialized Panel of Arbitrators. The parties to the dispute or the appointing body may, but are not required to, select individuals from the list when appointing arbitrators. In addition, unlike the UNCITRAL Rules, which allow the parties to choose, only the PCA’s Secretary-General may serve as the appointing authority under Article 6 of the Rules.
• Scientific Experts on a Specialized Panel:
An arbitral tribunal may select experts on specific subjects to be determined by the arbitral tribunal under Article 29(1) of the Rules. The PCA Secretary-General, in accordance with Article 29(7), maintains an indicative list of persons regarded to have knowledge in scientific or technical issues on which these Rules may be relied. Ten scientific and technical experts from Austria, Brazil, Chile, China, Israel, Korea, the Netherlands, Paraguay, and Thailand are now listed on the PCA’s Specialized Panel of Scientific Experts. The tribunal has the option, but not the obligation, to select expert witnesses from the list.
• Non-Technical Documents:
Under Article 27(4) of the Rules, the arbitral tribunal may ask the parties to submit a non-technical document summarising and explaining the background to any scientific, technical, or other specialised information that the arbitral tribunal believes is necessary to fully understand the issues in dispute. This non-technical material can help the tribunal grasp the difficult technical issues at hand and decide whether appointing a scientific or technical expert, as required by Article 29 of the Rules, would be beneficial.
A party may petition to the tribunal, pursuant to Article 17(6) of the Rules, to have specific information in the arbitration classified as confidential. The tribunal will decide whether the information should be classified as secret based on whether the absence of additional safeguards in the proceedings would be likely to cause substantial injury to the party or parties seeking secrecy. Alternatively, the tribunal may appoint a confidentiality adviser as an expert (in accordance with Article 29) to review the confidential information and report to the tribunal on specific issues designated by the tribunal, rather than a party disclosing the confidential information in the arbitration.
What are the characteristics of current Outer Space Activity?
Nowadays, a variety of outer space operations are being carried out all over the world in order to accelerate the growth of space science. Space activities such as launching satellites into various orbits, various terrestrial missions such as mars missions, moon missions, anti-satellite missile development, and so on are the most popular and common ones, which are carried out by various government agencies as well as various private players from various countries. This type of activity and development in outer space is becoming increasingly prevalent, both for improving communication power through numerous satellites and for any country’s 5th generation military augmentation. As a result, this burgeoning industry is not only a part of our present, but it will also shape our future in a variety of ways.
In a nutshell, there are presently three major categories of outer space operations:
a) Military activity.
b) Public usage and activities and research and development.
c) Scientific advancements and research.
Is arbitration effective as a dispute resolution mechanism for space activity?
Yes, arbitration is a useful instrument for resolving many conflicts outside of the courtroom and traditional legal system. Even with the rapid expansion in outer space activity, various disagreements regularly arise as a result of business disputes, and arbitration is the best approach to resolve conflicts. International arbitration is being used to settle disputes in outer space by states, international bodies, and private entities. In fact, institutional and ad hoc arbitration rules and procedures, such as those of the International Chamber of Commerce (“ICC“), the London Court of International Arbitration (“LCIA“), and the International Centre for Dispute Resolution (“ICDR“), have been used to resolve several space-related disputes.
The 10th Anniversary of the PCA Outer Space Rules
The Permanent Court of Arbitration (“PCA”) released its Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (the “PCA Outer Space Rules” or “Rules”) about a decade ago. The Rules, unlike the five UN treaties on outer space, provide for a voluntary and binding dispute resolution process accessible to all space actors. They are unique in that they are custom made expressly for the space industry and constitute a significant advancement in the subject of space law. Surprisingly, the PCA Outer Space Rules have received little attention in the space industry.
We seek to examine whether the Rules were a failed mission or the next generation for resolving space disputes, as the traditional 10-year anniversary gift is meant to represent preservation, durability, and the ability to last through time. No publicly acknowledged arbitrations under the PCA Outer Space Rules have yet been completed. The PCA has handled issues involving outer space, however, the parties used the 1976 UNCITRAL Arbitration Rules rather than the PCA Outer Space Rules to settle their differences.
According to preliminary findings, the present scenario of space-related concerns appears to be dominated mostly by private enterprises in the satellite and telecommunications industries. This raises the question of whether private enterprises are aware of the PCA Outer Space Rules and the PCA’s International Bureau (Secretariat) and refer to them in their commercial contracts and agreements, or, in the case of existing contracts and agreements, in the event of a conflict. Private entities are unaware of the PCA, despite the fact that it is a well-established institution that enjoys the trust of governments and international organisations. The PCA is not well-known, according to at least one informal survey of industry respondents.
Satellite launch and delivery, regulatory actions, and satellite capacity leasing have been the most common issues, according to a study of the types and subjects of conflicts so far. The PCA Outer Space Rules are not being tested to see if they are capable of resolving conflicts that arise from existing legal ties. The remarkable contribution and exceptional approach in PCA rules are truly missing in today’s highly competitive dispute resolution market.
In the existing United Nations treaties on space law, there are few efficient dispute settlement mechanisms. Although the Annex to the PCA Outer Space Rules contains a model arbitration clause for contracts, such model agreements are rarely used to resolve disputes. There is some serious doubt about PCA Outer Space Rules’ ability to hold any future promise. It can be anticipated that as the types of disputants and the complexity of space conflicts continue to expand, the usage of the PCA Outer Space Rules will certainly rise. This is because the future of international space law, as well as the space industry as a whole, is rapidly changing. To this aim, the recently signed plurilateral Artemis Accords show the interest of multiple spacefaring States in advancing civil exploration and usage of outer space, including resource extraction and utilisation under the auspices of the 1967 Outer Space Treaty, as previously addressed here. Several nations, including the United States, have established legal and regulatory frameworks for space exploration and resource management.
Future space treaties and governance structures will need stronger dispute resolution procedures to keep up. Industry responses largely support arbitration in handling space-related issues, according to the visionary drafters of the PCA Outer Space Rules. The Rules are well-suited to this preference and to addressing the next generation of space disputes. The transition away from state monopolies will open up new opportunities and interactions for private entities all over the world, as well as scientific, technical, and legal breakthroughs that are likely to exceed the scope of procedure foreseen in today’s basic institutional standards.
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