Disputes from Commercial Space Activities: Potentialities and Hurdles of Investor-State Dispute Settlement

Abstract

Outer space is the “part of the universe which is simultaneously beyond the airspace of planet Earth and accessible to human activity”. The recent decades have seen significant developments in the commercial activities carried out in outer space as well as an increasing diversification in the actors engaging therein. In this context, private investment is on the rise and this trend is expected to continue. With more companies and entrepreneurs exploring opportunities in space exploration, satellite deployment, asteroid mining, space tourism, and other space-related activities, it has become of the utmost importance to establish a consistent legal framework for private actors in outer space. This is even more so considering that their increasing presence in the space industry is likely to result, in the near future, in disputes between said actors and States operating in outer space, the resolution of which needs clarity regarding the applicable mechanisms. Against this backdrop, International Space Law as the “part of existing legal systems on Earth which relates to outer space” does not seem capable of offering, at the state of play, sufficient protection to private investors engaged in space-related activities. On the contrary, International Investment Law has the potential to establish a structured framework for a rule-based system that promotes and maintains private investment flows in outer space. Starting from the above premises, the present work investigates the applicability of International Investment Law to private investments made in the context of commercial space activities and, a fortiori, of Investor State Dispute Settlement, as a dispute settlement mechanism developed within the frame of the above body of law, to conflicts arising in outer space between private investors and States. The purpose is to highlight that not only do investments in outer space fulfil the requirements to be granted international investment protection but also that the rationale behind International Investment Law justifies its extension to encompass such investments.