Are We Ready For Mediation In Outer Space Disputes?

Are We Ready For Mediation in Outer Space Disputes?
L-R: Mrs. Sandra Oyewole, Dr Ucheora Onwuamaegbu, Dr. Timiebi Aganaba-Jeanty and Mr. John Ohaga, C.Arb (on screen) having a panel discussion on Emerging Areas of Law in ADR

On the 17th February 2020 in Lagos, Nigeria, over 50 participants from some of Nigeria’s leading law firms based in Lagos, the Lagos Ministry of Justice and some of the contestants of the Arizona State University (ASU) Space Governance Innovation Contest based across Nigeria, gathered together for a panel discussion. Sponsored by the Space Advisory Project of the ASU Interplanetary Initiative and in partnership with the Lagos Court of Arbitration, this gathering discussed the topic of emerging areas of Alternative Dispute Resolution (ADR) in Space, Sport and Entertainment Sectors. Led by Dr Uche Onwuamaegbu, International Attorney at Arent Fox, Washington D.C, USA and Dr Timiebi Aganaba-Jeanty, Assistant Professor at the School for the Future of Innovation in Society at ASU, Arizona, USA, the potential for mediation as an appropriate method for dispute resolution in light of the United Nations Convention on International Settlement Agreements Resulting from Mediation 2019 (Singapore Convention) was discussed.

This new Convention arguably adds some certainty, stability and credibility to this form of dispute resolution through the establishment of a harmonized legal framework for the right to invoke settlement agreements as well as for their enforcement. While it cannot be used in all cases, mediation is particularly relevant where (1) there is an ongoing need to maintain relationships, as is required from the increasing collaboration expected from African regional space cooperation and collaboration, (2) a more capacity building environment exists, where actors of differing capabilities are collaborating and learning together, rather than where an adversarial fault-based scenario exists (3) using a realist lens and based on practice, it is important to think more about how the idea of “consultations” that are proposed in the diplomatic context, and in Article 9 and 12 of the Outer Space Treaty, the premier governing international law relating to space activities, can be given a more structured framework, perhaps through mediation principles and processes. This includes techniques for establishing a relationship between disputants, building trust, ventilation, information gathering, issue and interest identification, agenda setting, caucusing, option generation, reality testing, bargaining and negotiation.

The purpose of this article is to project into the future by addressing the resolution of disputes between public and/or private entities in outer space. Technology is evolving so quickly that increasing outer-space disputes will arise that will possibly have a public interest component, particularly in the context of satellite collisions, as the world moves towards the scale-up of large satellite constellations, proposed space settlement and the integration of new national/commercial actors or actors from new sectors. Assuming new disputes situations arise in and occur in outer space, we will need to rethink the resulting legal implications, caused by the lack of an adequate institutional framework for comprehensively dealing with space disputes.

As of now, one of the issues we will face is difficulties relating to the choice of law: What law should apply? Which legal system has jurisdiction to address the dispute? If a judgment was somehow entered, how will the plaintiff enforce it in the defendant’s home country? In the short term, however, the dispute situations will arise between actors based on Earth, with more of the regular issues that arise due to conflicts, mistrust, incompetence or negligence. As of today, most space business dispute resolution has avoided the public route of being resolved through an adjudicative courts system, but rather by Arbitration, where parties choose their own system of rules and adjudicator to resolve the dispute. Arbitration, however, is increasingly losing some of its appeal as a fairer, quicker and cheaper way to resolve disputes, and still suffers from the hostility of a lose-win scenario.

The answers to some of the questions raised are unpredictable at this point because there is no internationally-agreed-upon structure which addresses some of the disputes that could arise, particularly in the context of new dispute opportunities raised through the new regional space institutions and programs, such as that proposed by Mexico for Latin America, UAE for the Middle East and the African Union for Africa and also as a result of increased public-private partnerships, where private actors may wish to bring suits against governments.

Despite that the Permanent Court of Arbitration Optional Rules for Arbitration of Disputes Relating to Outer Space Activities was adopted in 2011 and provides for the establishment of a panel of arbitrators considered to have expertise in this area, its evaluation has been inconclusive, at best. The International Institute of Space Law Colloquium at the International Astronautical Congress in 2019 addressed the issue of “Dispute Settlement in Space Law: Are we Ready for the Commercial Challenge?” The arguments were made in the context of satellite communication and breach of coordination agreements, infringement of intellectual property rights, orbit spectrum resources and importantly the subjects of international law.

With all the variation, it’s clear that how exactly disputes are resolved is not clear, based on the survey of industry practices and future needs discussion by research undertaken at McGill University, and this calls for more research. The article builds on some of the existing commentaries primarily by highlighting the prospect of Alternative Dispute Resolution (ADR) methods, paying focus to the viability of mediation in particular.

Some of the contestants of the Space Governance Innovation Contest.

Current International Law Framework

The first port of call is a discussion of the original international space law framework.
In 1967, the United Nations adopted the first international treaty relating to outer-space, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies— commonly known as the outer-space treaty (OST). Despite it being a novelty at the time, OST was forged during an era of increased tensions and therefore reflects international aspirations to de-escalate any potential confrontation.

States, in their official capacities, are held ultimately responsible for any damage caused by their activities and the activities of their nationals. In addition, the treaty holds the state liable for damages caused by a space object which the state has either launched or assisted in its launching. Subsequently, the treaty puts the burden on the state for authorization and continuous supervision of “national” space ventures in Article 6 of the Outer Space Treaty. The treaty, despite it being referred to as the “constitution” of space activities, failed to mention directly and specifically private entities and their space ventures, and it is an issue of continuing debate whether Article 6 covers them or not.

The Liability Convention moves one step ahead by laying out ADR processes in case of space object-related dispute (either in outer space, in the air, or on the surface of the earth). It sets out a two-tier process for settling disputes between states. The process encourages diplomatic efforts to solve the dispute; therefore the use of bilateral (or multilateral, in case more parties are involved) diplomatic channels to settle the dispute peacefully. Only when diplomacy fails after one year of good faith efforts, is a state allowed to bring a claim under the Liability Convention.

The treaty also provides for the establishment of a Claims Commission—an ad hoc type of commission—to solve the matter. The commission will make its decision after evaluating the merits and has the authority to award monetary compensation. The Commission’s award is binding only if the parties agree to that, in writing, beforehand. In the decentralized environment of space business, there is a capacity to develop private dispute resolution fora where participants themselves could be the key dispute resolvers.

 

The Role of Mediator in Mediation of Commercial Space Disputes

Unlike an arbitrator, a mediator does not act as a judge, but rather as an independent go-between who facilitates communication and information between disputing parties. The mediator does not make any decisions, but assists parties in reaching an agreement that resolves their dispute. The neutrality/impartiality of a mediator is favourable in providing the parties with a flexible approach to dispute resolution.

Developing a new ADR-oriented forum, with mediators that have the correct philosophical or objective leanings to address outer-space disputes provides a number of benefits. If a superior dispute resolution system—different from the confrontational aspect of litigation and arbitration—is created, it will result in a better, more cooperative, and less hostile environment, for those parties motivated to resolve disputes, in an interest-based, win-win manner.

Such an environment could allow for better relief subsequent to a dispute, which will trigger a series of positive reactions (due to the parties understanding that the benefits of entering into a mediated settlement agreement overcome the costs of solving a potential dispute) between both private and public actors, reflecting the initial aspirations of a peaceful, cooperative space exploration program. Parties would benefit from a system that promotes collaboration and capacity building as opposed to an adversarial “winner takes all” approach.

However, as with all methods, there are a few drawbacks to mediation that must be investigated and potentially mitigated. Firstly, there will always remain the risk that the mediator will act outside his or her authority, exert their own will or power, or may not have the requisite skills to settle the dispute, especially in a technical and niche field such as space law.

It will be necessary for the mediator to have a sound understanding of the often ambiguous and still developing body of international space law, in addition to understanding how these international norms have been translated to the respective jurisdictions of the parties in disagreement, and the particularly issues and nuances related to space business and collaboration, which would need to be communicated to new entrants.

Secondly, different dispute mechanisms may be suitable for each different form of dispute. Looking at mediation does not preclude that a system that would rely on the assumptions of independent third parties may not be in the best interests of justice in some cases, say in the instance of a crime being committed in space.

Also, in contractual or commercial disputes, it is common for parties to include arbitration clauses which call for final and binding resolutions between parties in cases of disputes. Taking a realist lens, many disputes due occur in a hostile environment. Arbitration is usually preferred in a commercial dispute due to its enforceability across the jurisdiction, a benefit that does not accord to mediation to the same extent.

However, following the entry into force of the Singapore Convention, this could change as the Convention adds weight to Mediation and arguably the decisions would be more in line with what the party’s want, as a trusted third party can assist the parties in reaching a settlement. Conclusively, there is much room for further development of mediation in resolving space disputes and is worth further discourse. It will be especially interesting to note the development of this particular method as a capacity-building tool in the African context.



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New Report: The African space economy is now worth USD 7 billion and is projected to grow at a 7.3% compound annual growth rate to exceed USD 10 billion by 2024. Read the executive summary of the African Space Industry Report - 2019 Edition to learn more about the industry. You can order the report online.


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