Op-ed | The Case for Space Arbitration: Can you recover damages caused by space collisions?
Opening outer space to more and more private parties and multiplying the number of space objects being launched brings about infinite new opportunities — and substantial risks. Therefore, it is likely that the increasing congestion of the lower orbits will soon result in more contractual disputes. We will also see more disputes related to forced avoidance maneuvers and space collisions.
Unfortunately, there is no dispute resolution mechanism capable of efficiently addressing these scenarios, especially from the point of view of private parties. While private companies have the option of asking a state for diplomatic protection under the 1972 Liability Convention of the Outer Space Treaty, it is a burdensome procedure with an uncertain outcome because the dispute resolution mechanism offered by the Liability Convention remains non-binding, even for states. Alternatively, private parties can seek redress in national courts but are likely to face obstacles such as lengthy arguments over the competence of the court or the applicable law and more serious issues such as bias or sovereign immunity if the claim is directed against a state.
However, there is a dispute resolution system in the international legal arena well adapted to solving international disputes that touch upon international law issues and several jurisdictions: international arbitration. International arbitration allows parties to choose their arbitrator and, therefore, appoint someone with the technical knowledge and experience to quickly understand industry practices and scientific questions. It also allows parties to decide on the language and place of arbitration, influence the procedural calendar, and keep proceedings confidential. Finally, international arbitration results in a binding decision easily enforced through an international treaty, commonly called the 1958 New York Convention.
Then how can space users gain access to international arbitration? Space companies can and should provide for international arbitration in their contracts to have the option of settling any contractual disputes that might arise. Yet, it is for disputes arising out of forced avoidance maneuvers and space collisions that international arbitration is not as easily available. Space accidents can happen between parties that are not bound by any contractual link and therefore did not have the opportunity to agree on arbitrating disputes that could arise between them. However, international arbitration being a private form of justice, it presupposes the parties’ consent to submit their dispute to arbitration. Suppose there is no contract between two parties that includes such consent. In that case, arbitration is not available unless the parties agree on arbitration once a dispute has already arisen – an agreement often difficult to reach once animosity is starting to grow.
This situation could be remedied through an international treaty, or coordinated domestic legal rules, conditioning any launch into space upon the mandatory consent to arbitration. This would still not provide access to dispute resolution for any collisions with objects already in space or unidentified pieces of debris. However, it could contribute to enhanced legal certainty in space and cause space actors to increase their efforts to avoid future disputes, as escaping liability for any preventable harm would be rendered more difficult than it is today.
Laura Yvonne Zielinski is an international arbitration and foreign investment attorney with Holland & Knight in Mexico City. She founded the Space Arbitration Association in 2021 to provide a forum for space law and arbitration professionals.
This article originally appeared in the March 2022 issue of SpaceNews magazine.