On 31 March 2022, as part of Paris Arbitration Week 2022, Debevoise hosted a webinar entitled "The New Space Race: Risks and Opportunities." Catherine Amirfar, Co-Chair of Debevoise's International Dispute Resolution and Public International Law Groups, moderated the discussion. The panelists were David Bertolotti, Director of Institutional & International Affairs at Eutelsat; Julien Cantegreil, Founder & CEO of SpaceAble; Chris Kunstadter, Global Head of Space at AXA XL; and Lynn Zoenen, Principal and Managing Director at Alpine Space Ventures. The panel discussed the 21st century "new space race," driven by private commercial development, and how the international legal landscape is adapting to this paradigm shift.
A recording of the session is available here, and key takeaways from the discussion are highlighted below.
Key Role of National Legislation
Activities in space are regulated by both national and international laws. This legal framework is still evolving, however, with gaps at the international level leading to overlapping standards, or an absence of regulation altogether, at the national level. The foundational international instruments of space law were concluded in a bygone era of space exploration dominated by a small number of State actors. These foundational treaties primarily govern the activity of States, speaking little to the obligations of private entities in space. As private space activity has boomed since the beginning of the 21st century, national laws have proliferated to regulate commercial space actors. The panel focused on the example of France's national space law.
Quasi-Regulating Function of Insurance
Aside from national law obligations and industry-led norm generation, space insurance providers may incentivize behavior through their underwriting policies. The panel illustrated this through the example of insurers offering more attractive policy options and lower premiums to space operators utilizing propulsion mechanisms - technology that allows objects in orbit to better avoid collision - on their spacecraft. Insurers thereby encourage more space actors to mitigate risk and make space safer. Moreover, the existence of insurance promotes greater investment, further spurring technological progress.
Private space activity is a rapidly growing field with enormous investment potential: at the same time that space-based activity has become more economically viable for private actors, technological developments are creating increasingly compelling business opportunities. For example, the panel highlighted increasing interest among venture capital and private equity institutions in start ups developing lightweight and reusable materials for launch systems and satellites, and those focused on increasing Internet connectivity outside of urban areas or enhancing Earth observation from space.
Process and Norm Creation
In the absence of binding and cohesive legal rules that take into account the growth of private-actor activity, practical questions are therefore often left to industry-specific norms, in a "bottom-up" process of norm creation. The panel discussed the example of industry players developing and testing new technologies and capabilities, and then creating their own guidelines for deploying those technologies and capabilities, which, as adopted across the industry, become industry standards. Those standards in turn often influence regulation at the national level. Over time as many national laws adopt the same standards, they may be formalized at the international level, as customary international law.
Counterbalancing the opportunities for increased investment in space are the growing risks of overcrowding, collision, and debris creation. These risks are compounded by increased military activity in space, including the targeting of space objects with signals jamming or cyberattacks. The panelists agreed that to effectively manage the most serious risks of space commercialization, binding, enforceable laws - developed through the cooperation of governments and commercial actors to ensure they are in touch with industry realities and avoid overregulation - are necessary.
Likely Increase in Space-Related Disputes
Recent years have seen an uptick in space-related disputes. The panel mentioned the examples of disputes between satellite manufacturers and operators and insurance disputes. As space continues to become more crowded, it can be expected that attribution of liability in cases of collision will be a central issue. Development of technology to precisely identify and chronicle the location and velocity of debris and other objects in orbit will become integral to the resolution of such disputes.
Originally Published by Space Arbitration
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