Space Law and Arbitration: An introduction to Space Law in France

This is the second article in Clyde & Co’s latest international arbitration series covering the topic of Space Law & Arbitration. In this piece, Associate Leonor D’Albiousse reviews the French legal landscape to determine whether France is a suitable forum for the arbitration of commercial space-related disputes.

Introduction

France, on the one hand has a robust legal framework capable of dealing with underlying technical matters that may arise as a result of space-related disputes. On the other hand, however, there is a level of uncertainty, introduced by the fact that public policy dictates that certain (limited) issues are not arbitrable which may give parties pause for thought before choosing France as the seat for space arbitration. 

Arbitration in France

In France, the law relevant to arbitration is primarily governed by the French Code of Civil Procedure (“Code de Procédure Civile”).¹  It was substantially revised in 2011 to align with modern international standards, particularly the UNCITRAL Model Law on International Commercial Arbitration. The law emphasises party autonomy, allowing parties to choose the arbitral tribunal, select applicable procedural rules, and determine the language of the arbitration, thus granting parties significant flexibility in shaping the arbitration process according to their preferences.

French arbitration law provides for the confidentiality of domestic arbitration. Such confidentiality is however not guaranteed for international arbitration, so it is for the parties to expressly agree on the level of confidentiality they require to either supplement existing rules or to put in place in the event that the applicable arbitration rules are silent on this issue.²   

France is a signatory to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), facilitating the enforcement of both domestic and international awards in France. France will refuse to recognise a foreign arbitral award on five limited grounds, including where the arbitral tribunal wrongly upheld or declined jurisdiction, where the arbitral tribunal was not properly constituted, and where recognition or enforcement of the award would be contrary to international public policy.³ 

Paris, boasts, several international arbitration institutions that can and do administer arbitration proceedings. They are the International Court of Arbitration of the International Chamber of Commerce (the “ICC”), the International Arbitration Chamber of Paris (the “CAIP”) and most recently the Paris Arbitration Centre by Delos. For a fee, these institutions administer and facilitate international arbitrations in France by offering procedural rules, administrative support and arbitration facilities. 

While space-related disputes are rarely publicly available, the ICC has already administered a few cases related to satellite launch and delivery, regulatory measures, and lease of satellite capacity, including the Eutelsat v. SES case which was seated in Paris. 

Space law framework 

As with many countries, France's international space obligations⁴ arise out of the five United Nations Space treaties, namely (i) the 1967 Treaty on Principles Governing the Activities of States in Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, (ii) the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, (iii) the 1972 Convention on International Liability for Damage Caused by Space Objects, (iv) the 1975 Convention on Registration of Objects Launched into Outer Space 1975, and (v) the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979⁵. France has ratified all the UN treaties except the Moon Agreement.

Arbitration Institutions in France

At a national level, the French Space Operations Act (the “FSOA”)⁶ was adopted in 2008 and provides a legal framework to regulate space activities, including authorization procedures, liability, safety, and environmental protection. The FSOA was also designed to absorb the commitments undertaken by France towards the European Space Agency (“ESA”) relating to the Guiana Space Centre and other European states participating in the Ariane, Vega and Soyuz programmes.

France does not have a specialized space or technical court dedicated solely to handling legal matters related to space or technical issues. Legal matters pertaining to space and technology would typically be handled within the existing legal courts’ framework, often by specialized judges or courts with expertise in relevant fields such as administrative law or intellectual property law. France does, however, have various administrative bodies and agencies responsible for regulating and overseeing space activities, such as the Centre National d'Études Spatiales (“CNES”), which is responsible for coordinating and implementing the country's space policy. 

Legal Uncertainties and Non-arbitrability 

While France is generally an arbitration-friendly jurisdiction, there are still certain matters that are non-arbitrable such as criminal offences, tax-related disputes or disputes over extra-patrimonial rights. In addition to this, matters involving fundamental human rights, environmental protection, or involving regulatory compliance or matters of public interest may be subject to regulatory oversight and may not therefore be arbitrable. Finally, disputes concerning the ownership, licensing, or violation of intellectual property rights, including patents, copyrights, and trademarks, would generally be arbitrable in France. However, there could be limited issues surrounding the validity of patent rights may not because they may require adjudication by a relevant judicial court. With regard to space-related disputes, most contractual and commercial disputes would in principle be arbitrable.

Conclusion 

Arbitration can and should play a role in resolving space law disputes in France, particularly in commercial and contractual matters related to space activities. Space law encompasses a broad range of legal issues and arbitration offers several advantages for resolving such disputes, including flexibility, expert-driven mechanism and confidentiality. However, parties will want to keep in mind the fact that some issues are in principle, not arbitrable in France.  

This series will continue next week with a perspective on Space Law and arbitration in the UK.

¹ See for instance, Articles 1442 to 1527 which deal with arbitration and enforcement proceedings.

² For more information on the confidentiality of arbitration proceedings in France, see Confidentiality versus Transparency in International Arbitration: Where to Draw the Line? French Law Perspective. 

³ Article 1520 of the Code of civil proceedings (applicable by reference to Articles 1524 and 1522).

⁴ France has also ratified a number of intergovernmental space related agreements such as with the international telecommunications union (ITU), international mobile satellite organisation (IMSO), European Space Agency (ESA), etc.  

⁵ France has signed the 1979 Moon agreement, but they have not ratified it. 

⁶ Loi no 2008-518 du 3 juin 2008 relative aux opérations spatiales.