Arbitration in Spaaaaaaace!

Much like English lawyers having to wear wigs in the court room, space law arbitrators have to wear Apollo-era space suits (not really). Image credit:NASA

The future of commercial space travel is bright, and many in the industry hope that where governmental organizations like the US Congress, NASA, and Roscosmos failed to deliver the dream of easy access to space to the masses, the private industry will succeed.  With increased access to space, however, comes significantly increased possibility of dispute between individuals, companies, or governments. Who or what, if anyone, has jurisdiction over such disputes is an extremely complex issue. The orbits of space vehicles can potentially take the vehicle over any number of countries. However, these countries’ borders do not extend upward for infinity.  Treaties like the UN Outer Space Treaty of 1967 lay out general principles in this area, specifically stating that areas like low earth orbit and The Moon are the property of all mankind, much like Antarctica. Additionally, some US states have adopted laws limiting the liability of commercial space tourism companies if their clients sign informed consent waivers.  In such a scenario, it is an open question about how much protection, if any, such a waiver provides regarding accidents that occur in space, or even outside such state’s jurisdiction.  Determination of causation and liability is also complicated by the complexity of the technologies involved.  Because resolving space related disputes is complicated by many factors, including those listed above, it is an area that is ripe for arbitration.  Fortunately, the Societe Francaise de Droit Aerien et Spatial established and international arbitration organization specifically for air and space disputes.

Headquartered in Paris, France, the International Court for Aviation and Space Arbitration (ICASA) was established in 1994 and is, to date, the only such organization that specializes in this area. When it was initially formed, 17 countries joined the organization. Membership “is open  to  any  individual,  company  or  entity,  whatever  its  nationality  may  be,  such  as  corporations,  Societies,  trade organizations,  state  and  government  authorities  and  public  or  private entities  engaged  in  any  activities  whatsoever  that  is  directly  or  indirectly related  to  the  aviation  and  space  sectors.” Such a liberal membership policy makes the ICASA an ideal forum for space dispute resolution.  The ICASA focuses solely on air and space issues and its arbitrators specialize in space and aviation law and space issues.

Compared to traditional lawsuits, the ICASA is a low cost alternative and provides speedy interim decisions when necessary.  Many international organizations, like the UN, have partially adopted French standards and the French language as a working language of their organization, and the ICASA is no different in this regard. ICASA follows the relatively low cost French arbitration cost system based on a time basis therefore ICASA arbitration costs are “lower than in lawsuits in the national courts of many countries or in certain other arbitration organs.” The ICASA also maintains records of pre-approved experts in most areas related to possible space disputes and has rules that allow the arbitrators to recommend such experts, if they are needed.

Parties embroiled in a space-related dispute may be irreparably harmed if immediate, interim relief is not granted.  The ICASA recognizes this need and its rules provide for “an interim arbitration procedure which the parties may implement when they deem urgent provisional measures [are] necessary.”  A more traditional arbitration scheme is also laid out in the rules, providing relief in much the same manner as other arbitration organizations, while providing for experts, as mentioned earlier.

The ICASA was set up to address “the specificity and complexity (rather than the volume) of disputes arising from air and space activities.” As companies such as Virgin Galactic, SpaceX, and others grow in revenue and volume it is likely that the ICASA will increase in importance and influence because of its unique current position as the only arbitration body specializing in aviation and space disputes.  The existence of an organization such as the ICASA may also fuel the development of the commercial space industry because it provides some legal stability to an industry that inherently has no controlling legal doctrine or jurisdiction.

Happy Creating!