Space Law and Arbitration: An introduction to space law in Australia

This is the final article in Clyde & Co’s international arbitration series covering the topic of Space Law & Arbitration. The rapidly growing commercial space industry has ushered in a new era of space exploration and technology, leading to an inevitable increase in space-related disputes. In this piece we consider whether arbitration in Australia is suitable to resolve space related disputes. We also briefly consider the jurisdiction of New Zealand.

Space law in Australia

Australia’s involvement in space law is underpinned by its ratification of the five major space treaties: the 1967 Outer Space Treaty, the Moon Agreement, the Rescue Agreement, the Liability Convention and the Registration Convention, and signing of the US Artemis Accords. Australia’s Space Activities legislation provides a regulatory framework for space activities.  With space activities becoming increasingly commercialised, the need for a voluntary and binding dispute resolution process accessible to all parties has become paramount.

Arbitration offers a viable solution to address the complexities of space related disputes involving private companies, States (governments) and third parties.  

Arbitration in Australia

Australia has a federal system of government and arbitration in Australia is governed by a federal regime regulating international arbitration (the International Arbitration Act 1974 (Cth)) and by state based regimes which regulate domestic arbitration.  The Australian arbitration framework is based on the UNCITRAL Model Law on International Commercial Arbitration (UNCITRAL Model Law), the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (New York Convention) and the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States 1965 (ICSID).  This robust legal framework, coupled with Australia’s political stability and multicultural society, positions the country as an impartial and fair venue for international arbitrations, particularly in space disputes involving parties from diverse nations and regions.

The Australian Centre for International Commercial Arbitration (ACICA) is Australia’s preeminent arbitral institution, responsible for administering international commercial arbitration in Australia. ACICA’s cooperation agreements with 30 global arbitral bodies (including the Permanent Court of Arbitration at The Hague) further bolsters its credibility and reach. 

Australia’s arbitration framework allows parties to choose between institutional or ad hoc arbitration, accommodating tailored rules to their specific needs. The availability of institutional rules such as LCIA, ICC or the Permanent Court of Arbitration Outer Space Rules further helps with providing a dedicated framework for resolving space-related disputes. 

The ACICA Rules provide for the appointment of an emergency arbitrator to be appointed in circumstances where an arbitration has been commenced pursuant to its rules, but the tribunal has not yet been appointed. The mechanism for emergency arbitration is particularly important when considering space related disputes as they may require urgent attention, especially those involving space related technologies. The ACICA Rules discourage expensive and lengthy proceedings by introducing a time limit for rendering the final award, typically within 9 months from transmission of the file to the tribunal or 3 months from closure of the proceedings. This time-bound approach aligns with the entrepreneurial ethos of the space industry, where cooperation and efficiency are highly valued.

Australian arbitration law and practice places a strong emphasis on the confidentiality of proceedings, which is crucial in space disputes where sensitive technologies, proprietary information, or national security concerns may arise. This confidentiality safeguards the interests of parties involved in the space sector. 

International arbitrations seated in Australia benefit from the flexibility to tailor evidentiary rules, aligning with the unique requirements of space-related disputes involving complex technical and scientific evidence. Parties enjoy the autonomy to select their own arbitrators and number of arbitrators suitable for their dispute ensuring the tribunal comprehends the intricate legal and technical nuances. Australia’s technical expertise in sectors closely relating to space activities, such as mining, resources and energy, satellite technology, provides access to a pool of qualified individuals who can serve as arbitrators or as experts. This instils confidence in parties seeking to resolve space related disputes. The Australian legal profession comprises lawyers which are experienced in international arbitration, thus offering expertise and cost effectiveness in any arbitration. The Arbitration rules also permit foreign qualified lawyers. This combination of subject matter expertise and seasoned advocacy in international arbitration, positions Australia as an attractive venue for resolving complex challenges inherent in space related disputes.

Australia’s independent judiciary, firmly committed to the principles of the rule of law and free from interference by the legislature or executive, enhances the country’s attractiveness as a seat for arbitration.  The courts’ limited powers to intervene in international arbitrations, coupled with restricted grounds for setting aside awards, ensure enforceability of arbitral awards in Australia and across the 171 contracting states of the New York Convention. 

Australia is a signatory to the ICSID Convention, which further adds to the appeal for arbitrating space disputes in Australia when State parties are involved. With the increasing collaboration between governments and private companies in the space sector, investor-state disputes are likely to increase. ICSID arbitration, if allowed under bilateral or multilateral investment treaties, offers a neutral process tailored for these kinds of cross-border investment disagreements. Parties can rely on Australia's fair and specialised arbitral framework to navigate the unique considerations surrounding international investments in space activities.

New Zealand – space law and arbitration

Whilst the focus of this article is primarily on Australia, it is worth mentioning New Zealand’s arbitration landscape in the context of space-related disputes.  New Zealand is a party to four of the five major space treaties (it is not a signatory to the Moon Convention) and has enacted the Outer Space and High-altitude Activities Act 2017 (NZ) (OSHAA) to regulate space law within the country. 

New Zealand’s Arbitration Act 1996 (NZ), based on the UNCITRAL Model Law and incorporating the New York Convention, governs domestic and international arbitration. The New Zealand International Arbitration Centre (NZIAC) and New Zealand Dispute Resolution Centre (NZDRC) provides arbitration services, including ad hoc arbitrations and institutional arbitrations under the NZDRC Rules. 

Like Australia, New Zealand is an attractive seat for arbitration for space disputes in that it is a neutral and independent seat, has modern arbitration legislation based on the UNCITRAL Model Law, has a trusted legal system, and promotes party autonomy in arbitration. However, it is possible that the relatively small population and geographical isolation of the country may pose some barriers to its popularity as an arbitration venue for space disputes. Additionally, the nascent stage of New Zealand’s space industry could also potentially limit the availability of specialised expertise for certain space disputes. 

Conclusion

As the commercial space industry transcending national boundaries continues to expand, the need for effective and impartial dispute resolution mechanisms becomes increasingly crucial. Australia’s robust legal framework, commitment to space law, and well-established arbitration landscape positions the country as an attractive venue for arbitrating space-related disputes. With its focus on efficiency, confidentiality, flexibility, and judicial independence, Australia’s arbitration framework offers a tailored and reliable solution for resolving the complexities inherent in this rapidly evolving sector.

While New Zealand’s arbitration landscape also presents opportunities, its relatively small size and nascent space industry may pose challenges in attracting a significant number of space-related disputes. 

Ultimately, the choice of the seat of arbitration will depend on the specific needs and considerations of the parties involved in space-related disputes. Both Australia and New Zealand provide suitable and reliable mechanisms for space arbitrations. 

For further information about our Space Law practice, please contact Patrick Slomski or Darcy Beamer-Downie.