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The Protection of Satellite Telecommunications
Activities Under Bilateral Investment Treaties
Stephan Hobe
University of Cologne, Germany
stephan.hobe@uni-koeln.de
Rada Popova
University of Cologne, Germany
rada.popova@uni-koeln.de
Hussaine El Bajjati
University of Cologne, Germany
h.elbajjati@gmail.com
Julian Scheu
University of Cologne, Germany
julian.scheu@uni-koeln.de
Abstract
Telecommunications activities are based on the use of the satellite segment which
represents the largest sector in the space industry, generating revenues of hundreds
of billions of dollars annually and constantly growing. The article seeks to answer the
question of whether investments made for the realization of telecommunications ac-
tivities can enjoy protection under bilateral investment treaties (BITs) by taking into
consideration the scope of nancial contributions involved, the signicant duration
* Stephan Hobe is Director of the Institute of Air and Space Law and Managing Director of the
International Investment Law Centre, Cologne at the, University of Cologne. Rada Popova is
Teaching and Research Associate at the Institute of Air and Space Law, Cologne and gradu-
ate of the 2017 Centre for Studies and Research of Hague Academy of International Law, The
Hague. At the time of writing the article between March and July 2017, Hussaine El Bajjati
was Research Associate at the International Investment Law Centre Cologne. Julian Scheu is
Junior Professor and General Manager of the International Investment Law Centre Cologne.
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of a telecommunications project from planning to operating a satellite in outer space,
and the generally inevitable involvement of more than one national legislation for the
implementation of the activity. Through investigating the cross-sections and pitch
points between international space law and investment law and looking at all phases
of satellite-based telecommunications projects, the article demonstrates that invest-
ment law can be applied to space activities and that BITs may provide favorable pro-
tection standards for investors.
Keywords
space activities – satellite industry – investment protection – telecommunications
1 Introduction
Of the numerous human activities in outer space, so far only a small segment
is economically viable. If one speaks of emerging activities, space tourism and
launching services are the two major segments which have evolved on a private
basis during the past two decades. Launching activities, which make access to
space possible have been an inevitable part of space activities since the 1950s
until recently did not aim at making money. Therefore, and this is the interest-
ing and characteristic moment of international space law in general, the legal
framework was created basically for governmental non-commercial activities.
The telecommunications segment, which has evolved later, accounts for most
of the commercially relevant space market. It includes activities such as televi-
sion broadcasting, telephone services, Earth observation, space sciences and,
of course, meteorology and navigation.
Undoubtedly, today, the satellite industry is on a good path. It has, from the
rst moment on, been the largest commercial sector of space activities. It has
doubled in the past decade and, in 2016, generated global revenues of more
than USD 260 billion, constituting a steady growth by 4 percent in average over
the preceding three years. Therefore, we can say that the market of satellite
services, which builds nearly 50% of all global revenues in the satellite industry
and 77% of the global space economy, is indeed ourishing.
Bryce Space and Technology, ‘2016 Satellite Industry Indicators Summary, State of the Satellite
Industry Report’ (June 2017) <www.sia.org/wp-content/uploads/2017/07/SIA-SSIR-2017.pdf>
accessed 1 June 2018.
ibid.
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Against this background, the purpose of the present article is to rst out-
line the legal basis for satellite activities and then assess whether private
companies involved can rely on investment treaties against interference with
their rights. In making (foreign) investments in the satellite telecommunica-
tions sector, private investors are subjected to many risks. It is possible that the
(host) State breaches contracts and unilaterally changes granted conditions
and/or the national legal framework after the investment had been made.
With regard to the space industry, any project is a long-term activity and re-
quires the allotment of signicant nancial resources and extensive planning.
Thus, by nature, space activities are an example for large-scale and long-term
investments.
In order to nd an appropriate balance between the protection of the host
State’s public interests, the protection of its private subjects from harm caused
by space operations, and the creation of a favourable and stable investment
climate under which an investor in the space industry can operate, it is worth-
while to examine whether and in how far the standards and principles of in-
vestment law are applicable to space-related activities. In consideration of the
fact that currently more than 3,000 bi- and multilateral investment treaties
exist, one can infer that those treaties are the most important source of inter-
national investment law.
This article will make an attempt to ask the (so far rarely posed) question of
how far bilateral investment treaties (BITs) can contribute to the protection of
the investments of private actors in outer space ventures, in concreto in the sat-
ellite telecommunications market. One hypothesis why this question never
came up before could be that the respective scope of application of invest-
ment law and space law are too diferent to overlap evidently. For this purpose,
this article will examine whether the scope of a typical BIT is applicable to
outer space activities at all. This will be done by providing an overview of the
general legal framework for space activities and satellite telecommunications,
Marc Bungenberg, Jörn Griebel, Stephan Hobe and August Reinisch, ‘General Introduction to
International Investment Law’ in Marc Bungenberg, Jörn Griebel, Stephan Hobe and August
Reinisch (eds), International Investment Law: A Handbook (Beck-Hart-Nomos 2015) 1.
At the time of nalizing this article, it has been reported that the French satellite com-
pany Eutelsat SA brought a new arbitration at the International Centre for Settlement of
Investment Disputes (ICSID) against Mexico and reportedly claimed that it has been put at
a disadvantage through Mexican regulations by being required to allocate 362 MHz of their
capacity to the government, as compared to the requirement for foreign licensees to provide
8 MHz for government use. See Zoe Williams, ‘Mexico Faces New Investor-State Arbitration
Brought by French Satellite Company’ (Investment Arbitration Reporter, 17 August 2017)
<https://www.iareporter.com/articles/mexico-faces-new-investor-state-arbitration-brought
-by-french-satellite-company/> accessed 1 June 2018.
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of the applicability of investment law and BITs hereto, and by outlining the
major issues which might contribute to or, possibly hinder, investment protec-
tion in the satellite telecommunications market.
The approach we will apply is to divide the process of satellite telecommu-
nications activities into single phases – from the planning and manufactur-
ing stages, to the end of the operational lifetime of satellites – and examine
whether the (main) criteria for an investment are present for each phase. If
this is the case, this would lead to the applicability of international investment
law. Generally, as regards space activities, due to the costs involved, consid-
erable investments and cooperation with an international element between
multiple stakeholders are generally the case. One of the typical examples is the
process of launching: while there are currently about 30 States active in space
and many more cooperating in joint space projects, not more than 10 have
their own launching capability. Thus, the complex process of the launching of
space objects often requires the participation of more than one State and thus
involves the application of more than one national legal order.
2 Telecommunications Activities and International Space
and Telecommunications Law
2.1 The Treaties on Space Law
Telecommunications activities are based on the satellite industry, which makes
up the largest sector of the space market. Thus, the complex legal framework
governing the uses of outer space and consisting of international treaties, reso-
lutions of the United Nations (UN) General Assembly, national space laws and
telecommunications law is applicable also to telecommunications activities.
Before looking into the applicability of investment protection hereto, an over-
view of the main specicities of the legal regime for outer space thus has to be
provided.
If one looks into the genesis of international space law, one sees that already
less than ten years after the rst articial satellite, Sputnik I, was launched on
4 October 1957, the rst and most important international agreement – the
Outer Space Treaty (OST) of 1967 – came into existence. All the important
basic concepts of international space law have been developed (in a nutshell)
in this treaty.
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, Including the Moon and other Celestial Bodies (signed 27 January 1967, entered into
force 10 October 1967) (Outer Space Treaty or OST) 610 UNTS 2015.
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The OST was followed by the Rescue Agreement of 1968, in which the
basic requirements for the rescue of astronauts in distress as a fundamental
humanitarian duty were laid down. The Liability Convention of 1972 provides
for a rather progressive legal regime of strict liability for damages caused by
space objects on Earth or in airspace (Art. II Liability Convention) and on
liability based on fault with regard to damages to other space objects while
in outer space (Art. III Liability Convention). Moreover, the Registration
Convention of 1975 enshrines the basic obligation of States to register their
space objects in a national registry and transfer this information to the UN
Secretary General. Finally, in the Moon Agreement of 1979 some of the prin-
ciples enshrined in the OST were developed further, particularly with regard
to environmental protection (Art. 7 Moon Agreement) and with regard to pos-
sible economic uses of celestial bodies and their resources (Art. 11(5) Moon
Agreement). It should be mentioned, however, that the Moon Agreement has
not found much support in the international community.
Whereas the OST has so far been ratied by 106 countries and, due to this
widespread support, the main principles contained in it (including the free-
doms of outer space, the applicability of general international law to activities
in outer space, the character of outer space as an international common, lia-
bility for space activities, and registration of space activities) are considered
to have acquired the character of norms of customary international law, the
Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of
Objects Launched into Outer Space (signed 22 April 1968, entered into force 3 December
1968) (Rescue Agreement) 672 UNTS 119.
Convention on the International Liability for Damage Caused by Space Objects (signed
29 March 1972, entered into force 1 September 1972) (Liability Convention).
On the liability regime in space law, see in general Armel Kerrest and Lesley Jane Smith,
‘Article VII’ in Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds),
Cologne Commentary on Space Law Vol. I (Carl Heymanns Verlag 2009) 128–130; on the dif-
ferences between state responsibility and liability see also Frans von der Dunk, ‘Liability
versus Responsibility in International Space Law: Misconception or Misconstruction?,
Proceedings of the Thirty-Fourth Colloquium on the Law of Outer Space (1992) 363–371.
Convention on Registration of Objects Launched into Outer Space (signed 14 January
1975, entered into force 15 September 1976) (Registration Convention) 1023 UNTS 15.
Registration Convention, art II(1).
Registration Convention, art IV.
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies
(signed 18 December 1979, entered into force 11 July 1984) (Moon Agreement) 1363
UNTS 21.
See ‘Status of International Agreements Relating to Activities in Outer Space as at
1 January 2018’ UN Doc. A/AC.105/C.2/2018/CRP.3 (9 April 2018).
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Moon Agreement has been ratied by only 18 States. Its Article 11 declares
the Moon, other celestial bodies, as well as their resources, to be the ‘common
heritage of mankind,’ but falls short of creating a specic legal regime for their
economic uses. Article 11 of the Moon Agreement only announces that such a
regime is to be drafted as soon as the exploitation of the Moon and other celes-
tial bodies becomes feasible.
As already mentioned, the OST contains the basic principles of interna-
tional space law. All starts from the premise that outer space and the celestial
bodies are to enjoy the legal status of res communis omnium, which cannot be
appropriated (Art. II OST). As appropriation of celestial bodies by claim of
sovereignty and by means of occupation is prohibited, installing the American
ag on the Moon has only a symbolic value, and orbital slots in outer space can-
not be permanently used as this would amount to appropriation. A bit unclear,
however, is what is meant by the prohibition of Article II OST of appropria-
tion ‘by means of use.’ A systematic interpretation of the wording of Article II
requires to take into consideration Article I OST, which suggests that, as there
should be freedom of exploration and use, as well as of scientic investigation
of outer space, also the economic and commercial uses of outer space are
subject to the freedom of use. Therefore, the non-appropriation principle in
Article II OST cannot result in a complete prohibition of commercial uses.
If the OST is interpreted systematically in light of its overall context, it
becomes clear that per se only specic, exclusive commercial uses of space –
which are made use of by only some States, but would exclude other States to
make the same use – are prohibited. It also becomes clear that, as outer space
is a global common, any kind of legal order for its use must evolve as a public
order. This means that only the international community is entitled to legal-
ly regulate this global common so that individual States cannot efectively
ibid. The latest country to have accessed to the Moon Agreement is Armenia as per UN
Reference C.N.40.2018.TREATIES-XXIV.2 of 19 January 2018.
Article II OST reads: ‘Outer space, including the moon and other celestial bodies, is not
subject to national appropriation by claim of sovereignty, by means of use or occupation,
or by any other means.’
The term ‘use’ encompasses both the economic and the non-economic uses of outer
space, see Stephan Hobe, ‘Article I’ in Hobe and others (n 8) 35.
Adrian Bueckling, ‘Die Freiheiten des Weltraumrechts und ihre Schranken’ in Karl-Heinz
Böckstiegel (ed), Handbuch des Weltraumrechts (Carl Heymanns Verlag 1991) 57 et seq.
As per Article 31 of the Vienna Convention of the Law of Treaties (opened for signature on
23 May 1969, entered into force on 27 January 1980) 1155 UNTS 331.
Along with the high seas and Antarctica, see eg Stephan Hobe and Philip de Man, ‘National
Appropriation of Outer Space and State Jurisdiction to Regulate the Exploitation,
Exploration and Utilization of Space Resources’ (2017) 3 ZLW 460.
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proscribe, through their national laws, a specic, non-international commer-
cial order for the use of outer space and celestial bodies.
In this regard, the American, as well as the Luxembourg unilateral leg-
islative initiatives of more recent times (which entered into force in 2015 and
2017, respectively) must be heavily criticized. They are legally void as prescrip-
tive jurisdiction to regulate over global commons lies with the international
community and is not subject to the prescriptive jurisdiction of single States.
Regardless of the issue of compatibility with international space law principles
it is, however, not excluded in an investment law context that a host State may
create legitimate expectations by issuing commercial concessions, which are
valid under its national space legislation.
Another basic principle of space law is contained in Article III OST: space
law is a branch of international law, so that the general principles of interna-
tional law are applicable to human activities in outer space. This holds true
only insofar as they are not replaced by more specic rules of space law as lex
specialis.
Furthermore, Article VI OST claries that States are responsible for their
nationals’ activities in outer space. Thus, private activities are indeed al-
lowed, but only under the condition that the State remains responsible for all
such activities that stem from and have a link to its territory. Any private ac-
tivity must be specically authorized and continuously supervised (Art. VIII
OST). Only through such mechanisms can it be assured that the respective
responsible State still has control over such activities.
Moreover, States are, as is more precisely laid down in the Liability
Convention, internationally liable for damage caused by its space objects
US Commercial Space Launch Competitiveness Act, Public Law No 114–90 of 11 November
2015.
The English translation of the ocial French text of the law can be found at <www.
spaceresources.public.lu/content/dam/spaceresources/news/Translation%20Of%20
The%20Draft%20Law.pdf> accessed 1 June 2018.
Hobe and de Man (n 19).
It is generally accepted that an investor’s expectation is legitimate and protected by the
fair and equitable treatment standard if the host State explicitly assumes a specic legal
obligation for the future. See Total SA v The Argentine Republic, ICSID Case No ARB/04/01,
Decision on Liability (27 December 2010) para 117.
This means that, in principle, the specic rules of space law are to be applied to space
activities, but where lacunae exist, recourse can be had to general international law.
The international responsibility of States under Article VI OST can result in a claim for
compensation for a breach of a rule of international law (a wrongful act or an omission)
when the damage resulting from the breach is attributable to the State.
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(Art. VII OST; Arts II and III Liability Convention). The Liability Convention
entails a diferentiated liability system. Article I of the Liability Convention
introduces the term ‘launching State’ and establishes four options for a State
involved in the launch of a space object to be a launching State. Thus, liability
derives from a State’s involvement in the launch of a space object and imposes
a duty on States for compensation for all private activities of their nationals.
Article II of the Liability Convention foresees absolute liability for damages
caused by space objects in airspace and on Earth. Article III of the Liability
Convention provides for fault-based liability for damages caused to space ob-
jects while in space. Thus, space law may be applicable also in cases in which
the launching rocket with the satellite as its payload crashes shortly after the
take-of on Earth or in airspace (Art. II of the Liability Convention) and has not
yet reached outer space. It derives from the OST and the Liability Convention
that liability in space law is always state liability and never private liability.
And nally, but not less importantly, the State of registry (Art. I Registration
Convention) retains jurisdiction and control over its space object.
2.2 Non-Binding Instruments on Space Law
After a rst and very intensive phase of space law making between 1967 and
1979, during which the ve treaties of space law were adopted, the internation-
al community continued with a phase of adopting non-legally binding instru-
ments, namely Resolutions of the UN General Assembly. This phase started
with the Resolution on Direct Broadcasting by Satellites of 1982, followed by
resolutions on Remote Sensing in 1986, on Nuclear Power Sources in 1992,
on Space Benets in 1996, on the Launching State in 2004, on Registration
Here, the claim for compensation does not require an internationally wrongful act or
omission, which would be a condition for responsibility under Article VI OST. It suces
that damage was caused by a space object and is attributable to the State.
Article I(c) of the Liability Convention reads: ‘The term “launching State” means: (i) A
State which launches or procures the launching of a space object; (ii) A State from whose
territory or facility a space object is launched.’
Principles Governing the Use by States of Articial Earth Satellites for International
Direct Television Broadcasting, adopted by UN GA Resolution 37/92 of 10 December 1982.
Principles Relating to Remote Sensing of the Earth from Outer Space, adopted by UN GA
Resolution 41/65 of 3 December 1986.
Principles Relating to the Use of Nuclear Power Sources in Outer Space, adopted by UN
GA Resolution 47/68 of 14 December 1992.
Declaration on International Cooperation in the Exploration and Use of Outer Space for
the Benet and in the Interest of All States, Taking into Particular Account the Needs of
Developing Countries, adopted by UN GA Resolution 51/122 of 13 December 1996.
Application of the Concept of the ‘Launching State’, adopted by UN GA Resolution 59/115
of 10 December 2004.
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Practice in 2007, and on National Space Legislation in 2013. It is interesting
that since the adoption of the Moon Agreement in 1979, no further legally bind-
ing international instrument has come into existence. All these circumstanc-
es are indicative of the tendency that predominantly the main space powers
avoid to adopt any legally binding restrictive requirements for their activities.
With regard to telecommunications activities used for communications, re-
connaissance surveillance, navigation, Earth observation, or meteorology, par-
ticularly the OST, the Registration Convention, and the Liability Convention,
as well as the legally non-binding Principles on Broadcasting by Satellites of
1982, of Remote Sensing of 1986, and the International Telecommunication
Union (ITU) Convention and Constitution in its most recent version of 2014
are applicable.
While the international legal framework for space activities provides the
main regulatory standards for the use of satellite infrastructure in outer space,
investment protection is not provided for. Therefore, it should be investigated
whether international investment law is applicable in outer space and more
specically to satellite telecommunications activities.
2.3 The Phases of Satellite Activities
In the commercial space sector, several complex phases composed of various
interrelated operations and transactions between several actors shape the ex-
ercise of satellite telecommunications activities. They range from the manu-
facturing and delivery of the satellite to its launching through a spacecraft that
enables its transportation into orbit. To provide a better overview, the whole
process of putting a satellite into operation will be presented in four phases.
Recommendations on Enhancing the Practice of States and International
Intergovernmental Organizations in Registering Space Objects, adopted by UN GA
Resolution 62/101 of 17 December 2007.
Recommendations on National Legislation Relevant to the Peaceful Exploration and Use
of Outer Space, adopted by UN GA Resolution 68/74 of 16 December 2013.
Constitution and Convention of the International Telecommunications Union, ATS
(1994) 28, adopted by the Additional Plenipotentiary Conference (Geneva, 1992), incorpo-
rating the most recent amendments adopted by the Plenipotentiary Conference (Busan,
2014), ratied by 193 State parties.
A similar breakdown of space activities in three phases has been undertaken in the consid-
eration of a trac regime for outer space (so-called space trac management); see Wulf
von Kries, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl, Grundzüge des Weltraumrechts
(Beck 2002) 44.
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2.3.1 Pre-Launch Phase
Before a satellite is launched into outer space and becomes active, the satellite
telecommunications process must be initiated. The rst phase of this process
includes a long chain of sub-phases, including the manufacturing, the test-
ing, and the transportation of the satellite, as well as the registration, insur-
ance, and the licensing that need to be completed before the satellite can be
launched and become operative. Generally, there are a number of actors in-
volved in the fullment of this pre-launch phase. Since the satellite must rst
be manufactured, the satellite operator could thereby either undertake the
manufacturing alone, or commission a subcontractor. If the satellite has not
been manufactured in the launching State, the satellite operator must also sign
a contract for the transportation of the satellite to the launching spot.
2.3.2 Launching Phase
The next phase is the one lasting from the ignition of the launch vehicle to the
on-orbit release of the satellite. In fact, the launch phase is perhaps the most
precarious of all, as during launch unpredictable events may happen and re-
sult in severe damages to, or even the loss of, the satellite.
After a license has been obtained, the satellite must be launched into orbit.
Thus, a launching rocket is needed. This service is usually provided by a launch
services provider with whom a service contract is concluded. This constella-
tion does not difer much from a typical freight transport contract as the trans-
port company (the launch services provider) bears the responsibility to launch
the satellite successfully (meaning without any relevant damages) into space
and to release it successfully into orbit.
Because the satellite operator does not have a direct inuence on the
launching process, and having in mind the immense value of the satellite, it
is in his interest to have the satellite’s worth and his investments protected,
e.g. through an insurance covering the duration between the rocket launch
and the separation and release of the satellite. Because of the diculties re-
lated to receiving a sucient insurance package, the question arises in how far,
due to the trust relationship between the satellite operator and the launching
partner, damages can be claimed from any involved parties, e.g. the insurer or
the launching State. The private launch provider on his part, will also have ar-
ranged an insurance agreement to exclude his liability.
2.3.3 On-Orbit Phase
After reaching outer space, the satellite is separated from the launch vehicle to
reach its nal orbital position. Telecommunications satellites are often placed
in geostationary orbits. The launch vehicle releases the satellite at an elliptical
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orbit. From here, the satellite gradually circularises until it reaches its nal geo-
stationary orbit and is put into service. During the 10 to 15 years duration of this
on-orbit phase, the satellite must be operated and maintained.
2.3.4 End-of-Lifetime Phase
After the end of its lifetime, the satellite ceases to provide useful services and
becomes a non-functional object. Normally, while the satellite is running to-
wards the end of its operational lifetime, it may, depending on the type, its
construction, and the fuel availability, either be transported to a so-called
graveyard orbit away from crowded orbital regions and active satellites, or pas-
sivated to minimize the risk of collisions and explosions. In the average case,
however, satellites are not relocated and rather become large pieces of space
debris, which, due to collision probabilities, pose considerable risks for func-
tional objects on orbit.
3 Applicability of Investment Law to Satellite Telecommunications
Activities
3.1 Investment Protection and Access to Arbitration in the Space Sector
While the legal framework governing the use of satellite infrastructure in outer
space lays down the main principles for these activities, it must be stated that
until now, the question of supplementary protection of the satellite owner with
regard to satellite telecommunications activities through international invest-
ment law has not been raised. The question is why this has never happened.
The scope of satellite telecommunications activities, both on a nancial and
geographical level, requires not only signicant nancial contributions, but
also the involvement of actors from more than one State and thus seems, at a
rst glance, to be a case for international investment law. A hypothesis would
be that the respective scopes of application of investment law and space
law are too diferent. In the following, an answer will therefore be sought on
whether international investment law could ofer protection for investors in
the eld of space activities, concretely for satellite telecommunications activi-
ties from regulatory and physical risks.
From the perspective of private actors in the satellite telecommunications
sector, the possibility to enforce individual rights through investor-State arbi-
tration would amount to a great practical benet. Direct access to international
arbitration would overcome the unsatisfactory character of inter-State dispute
settlement in international space law, which is based on traditional diplo-
matic protection. Consequently, an individual rst needs to have exhausted
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local remedies before it can ask its country of origin to exercise diplomatic
protection. Since States exercise diplomatic protection at their discretion, dis-
pute resolution for harmed private actors under international space law lacks
eciency.
3.2 Applicability of the Notion of Investment to Satellite
Telecommunications Activities
The complexity and the involvement of several public and private actors in
satellite telecommunications activities make it dicult, without undertaking
a detailed analysis, to identify whether such activities qualify as ‘investments’
as dened by a BIT or under the Convention on the Settlement of Investment
Disputes Between States and Nationals of Other States (ICSID Convention).
In order to enjoy protection under a BIT, an economic activity has to qualify
as an ‘investment’. Typically, BITs contain a very broad denition of what con-
stitutes a protected investment (‘every kind of asset’), followed by a clarifying,
non-exhaustive list of diferent forms of investment. The 2012 US Model BIT,
for example, denes investments as
every asset that an investor owns or controls, directly or indirectly, that
has the characteristics of an investment, including such characteristics as
the commitment of capital or other resources, the expectation of gain or
prot, or the assumption of risk.
Forms that such an investment may take include, inter alia, shares, bonds,
loans, contracts, intellectual property rights, licenses, permits, and tangible or
intangible and movable or immovable property. Consequently, the satellite it-
self and contracts regarding its launch and operation will be considered as a
protected investment under most BITs. The same applies to licences, permits,
or frequency usage rights granted by a State to private satellite operators. An
operation in the satellite telecommunications sector will therefore meet the
denition of ‘investment’ as contained in most BITs currently in force.
Arthad Kurlekar, ‘Space – The Final Frontier: Analysing Challenges of Dispute Resolution
Relating to Outer Space’ (2016) 33 J Intl Arb 379.
Convention on the Settlement of Investment Disputes Between States and Nationals of
Other States (opened for signature 18 March 1965) 575 UNTS 159.
Limited Liability Company Amto v Ukraine, SCC Case No 080/2005, Award (26 March 2008)
para 36 (describing this approach as standard formula of investment treaties); Fedax NV
v The Republic of Venezuela, ICSID Case No ARB/96/3, Decision on Jurisdiction (11 July
1997) para 34; Christoph H Schreuer and others The ICSID Convention: A Commentary
(2nd edn, CUP 2009) Article 25, para 140.
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In addition to the applicability of the BIT, the notion of ‘investment’ is
also a jurisdictional requirement for arbitral tribunals acting under the ICSID
Convention. Only where an economic activity is in accordance with the
notion of investment of both the applicable BIT and Article 25 of the ICSID
Convention, an investor who has sufered harm is entitled to seek legal redress
before an arbitral tribunal established under the ICSID Convention. With re-
spect to interpreting the meaning of ‘investment’ under the ICSID Convention,
most tribunals have taken an objective approach based on the ordinary mean-
ing of the term ‘investment’, which is autonomous from the denition laid
down in the applicable BIT. Reecting general characteristics common to
all investments under Article 25 of the ICSID Convention, arbitral practice has
adopted a denition based on three criteria: contribution, duration, and risk.
In addition, some tribunals have required the economic activity to contribute
to the economic development of the host State.
The requirements for ICSID jurisdiction which are set forth in Article 25 of the ICSID
Convention are: (1) the dispute in question must be a legal dispute; (2) the dispute must
arise directly out of an investment; (3) one party must be a Contracting State to the ICSID
Convention; (4) the opposite party must be a national or company of another Contracting
State; and (5) the parties must have consented to ICSID jurisdiction.
This is the so-called ‘double keyhole’ approach or ‘double-barrel’ test. See Schreuer
and others (n 39) Article 25, para 124; Koch Minerals Sàrl and Koch Nitrogen International
Sàrl v Bolivarian Republic of Venezuela, ICSID Case No ARB/11/19, Award (30 October
2017) para 6.50; Marco Gavazzi and Stefano Gavazzi v Romania, ICSID Case No ARB/12/25,
Decision on Jurisdiction Admissibility and Liability (21 April 2015) para 95.
Saba Fakes v Republic of Turkey, ICSID Case No ARB/07/20, Award (14 July 2010) para
109; Joy Mining Machinery Limited v Arab Republic of Egypt, ICSID Case No ARB/03/11,
Award (6 August 2004) para 49; Quiborax SA, Non Metallic Minerals SA and Allan Fosk
Kaplún v Plurinational State of Bolivia, ICSID Case No ARB/06/2, Decision on Jurisdiction
(27 September 2012) para 212.
Saba Fakes v Turkey (n 42) para 110; Deutsche Bank AG v Democratic Socialist Republic of
Sri Lanka, ICSID Case No ARB/09/2, Award (31 October 2012) para 295; Antoine Abou
Lahoud and Leila Bounafeh-Abou Lahoud v Democratic Republic of the Congo, ICSID Case
No ARB/10/4, Award (7 February 2014) paras 313, 325; Nova Scotia Power Incorporated v
Bolivarian Republic of Venezuela, ICSID Case No ARB(AF)/11/1, Award (30 April 2014) para
84; Electrabel SA v Republic of Hungary, ICSID Case No ARB/07/19, Award (25 November
2015) para 543; Vestey Group Ltd v Bolivarian Republic of Venezuela, ICSID Case No
ARB/06/4, Award (15 April 2016) para 187; Orascom TMT Investments Sàrl v People’s
Democratic Republic of Algeria, ICSID Case No ARB/12/35, Award (31 May 2017) para 370.
See Salini Costruttori SpA and Italstrade SpA v Kingdom of Morocco, ICSID Case No
ARB/00/4, Decision on Jurisdiction (23 July 2001) para 52; Consortium RFCC v Kingdom of
Morocco, ICSID Case No ARB/00/6, Decision on Jurisdiction (6 July 2001) para 65; Helnan
International Hotels A/S v Arab Republic of Egypt, ICSID Case No ARB/05/19, Decision on
Jurisdiction (17 October 2006) para 77.
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3.2.1 Contribution and Risk
An investment must consist of a contribution with economic value. However, a
contribution can take any form and is not limited to nancial contributions. It
also includes know-how, equipment, personnel, and services. Throughout all
four phases of a satellite activity, from the manufacturing process to the end-
of-lifetime of a satellite, considerable nancial eforts and technical know-how
are required from the private actors involved. Already in the pre-launching
phase, manufacturing presupposes the disposal over sucient funds, as very
high costs are involved – approximately USD 150 to 400 million per telecom-
munications satellite. The launch itself is also very costly. Finally, the oper-
ation and deactivation of the satellite during the on-orbit and end-of-lifetime
phases require sophisticated technical maintenance and the costly lease of fre-
quency rights and orbital slots. Thus, a contribution of money, assets, or know-
how is given throughout all four phases.
Furthermore, with respect to the risk element, which means that the de-
ferred compensation of the investor must be dependent upon the loss and
prot of the venture, it seems clear that any activity involving outer space
is coupled with risks of technical, commercial, regulatory and political nature.
The exposure to such risks derives from the fact that outer space activities
are not only highly complex in a technical sense, and extremely costly, but
also closely related to geostrategic and national security interests of all States
involved. From the very beginning of starting the operation, the investment
Deutsche Bank v Sri Lanka (n 43) para 297.
Even though the commercial launching industry ofers signicantly lower prices com-
pared to governmental and intergovernmental programs, such as National Aeronautics
and Space Administration (NASA) or the European Space Agency (ESA), any launch
of large and heavy payload, such as telecommunications satellites costs around 150 mil-
lion USD. See Michael Sheetz, ‘Elon Musk Says the New SpaceX Heavy Rocket Crushes
Its Competition on Cost’ (CNBC Tec h, 12 February 2018) <www.cnbc.com/2018/02/12/
elon-musk-spacex-falcon-heavy-costs-150-million-at-most.html> accessed 1 June 2018.
SpaceX launch prices, which currently are the lowest on the market are USD 62 million
for a Falcon 9 rocket launch and USD 90 million for a Falcon Heavy launch. See <www
.spacex.com/about/capabilities> accessed 1 June 2018.
Emmanuel Gaillard, ‘Identify or Dene? Reections on the Evolution of the Concept
of Investment in ICSID Practice’ in Christian Binder and others (eds), International
Investment Law for the 21st Century (OUP 2009) 405. The idea of excluding commercial
risks from the ICSID Convention’s scope of application was dropped in the course of
the drafting process. See Julian Davis Mortenson, ‘The Meaning of “Investment”: ICSID’s
Travaux and the Domain of International Investment Law’ (2010) 51 Harv Intl L J 257,
298–299.
Nina Tannenwald, ‘Law versus Power on the High Frontier: The Case for a Rule-Based
Regime for Outer Space’ (2004) 29 Yale J Intl L 363; James Moltz, The Politics of Space
() –
could be frustrated in case a licence is withdrawn or limited during the pre-
launch phase. Once in outer space, the element of risk can also be denitely
conrmed because, as stated above, space operations involve numerous physi-
cal and legal risks both for the satellite and the rights necessary for its function-
ing. Such risks may emanate from nature, from private actors or from States.
Hence, the requirement of risk bearing is also met.
3.2.2 Duration
In addition to making a contribution and bearing risks, investments typically
involve the transfer of capital for a certain duration. The tribunal in Bayindir
v Pakistan noted that ‘duration’ is a ‘paramount factor which distinguishes in-
vestments within the scope of the ICSID Convention and ordinary commer-
cial transactions.’ In the Salini case, the tribunal remarked that 2–5 years is to
be considered a sucient duration.
Since the manufacturing process of a satellite lasts about 2–3 years and the
satellite’s lifetime is about 10–15 years, satellite telecommunications activities
are long-term projects. However, as stated before, the execution of the contract
with the launching service provider lasts only a few hours before the satellite
reaches its nal orbital position. It is thus questionable whether the duration
criterion is met throughout the whole operation. Although the duration of the
launch is rather short, this does not contradict the assumption of a protected
investment in the launching phase. Since the three elements of the denition
of an investment are not free-standing, but interdependent, the very risky
and costly nature of the launch operation allows to say that there is an invest-
ment despite the rather short time-frame of only a few hours on the average
for a launch. It therefore seems reasonable to assume that launching activities
also fall under the notion of investment as laid down in Article 25 of the ICSID
Convention.
Moreover, the launching must be considered as an integral part of the entire
venture. In this sense, the tribunal in Joy Mining Machinery v Egypt reasoned
Security: Strategic Restraint and the Pursuit of National Interests (Stanford University Press
2011).
Jan Asmus Bischof and Richard Happ, ‘The Scope of Application of International
Agreements’ in Bungenberg and others (n 3) 511.
Bayindir Insaat Turizm Ticaret Ve Sanayi AS v Islamic Republic of Pakistan, ICSID Case No
ARB/02/29, Decision on Jurisdiction (14 November 2005) para 132.
Salini v Morocco (n 44) para 52.
İçkale İnşaat Limited Şirketi v Turkmenistan, ICSID Case No ARB/10/24, Award (8 March
2016) para 290.
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that a ‘complex operation should not be examined in isolation because what
matters is to assess the operation globally or as a whole.’
3.2.3 Contribution to Host State Development
First developed by the Salini tribunal in 2001 in view of the ICSID Convention’s
preamble, several tribunals have considered that an investment should also
contribute to the economic development of the host State. But since the de-
velopment impact of transactions is extremely dicult to evaluate, it has been
argued that this requirement is implicitly existent, if the other three character-
istics are present. In addition, if the investment fails, and thus makes no con-
tribution at all to the economy of the host State, this cannot mean that there
has been no investment. Many tribunals generally contest the relevance of
the so-called Salini test and thereby also reject the development requirement.
Regardless of the controversial nature of this element it can be argued that all
space activities somehow contribute to the development of the host State’s
economy by promoting the national space industry, either by directly generat-
ing revenues from launching and registration fees or by indirectly getting local
service providers involved in the launch operation.
3.3 Identifying the Host State(s)
It has been shown that protected investments in the sense of most BITs and the
ICSID Convention are made throughout a satellite’s operation. Furthermore,
Joy Mining v Egypt (n 42) para 54. See also Ceskoslovenska Obchodni Banka AS v The Slovak
Republic, Decision on Objections on Jurisdiction (24 May 1999) para 72.
Salini v Morocco (n 44).
Bayindir v Pakistan (n 51) para 137; Biwater Gauf (Tanzania) Ltd v United Republic of
Tanzania, ICSID Case No ARB/05/22, Award (24 July 2008) para 314; MCI Power Group LC
and New Turbine Inc v Republic of Ecuador, ICSID Case No ARB/03/6, Award (31 July 2007)
para 165.
Bayindir v Pakistan (n 51) para 137; LESI SpA and ASTALDI SpA v People’s Democratic
Republic of Algeria, ICSID Case No ARB/03/08 (10 January 2005) para 13(iv).
KT Asia Investment Group BV v Republic of Kazakhstan, ICSID Case No ARB/09/8, Award
(17 October 2013) para 171.
Philip Morris Brands Sàrl, Philip Morris Products SA and Abal Hermanos SA v Oriental
Republic of Uruguay, ICSID Case No ARB/10/7, Decision on Jurisdiction (2 July 2013)
para 204 nds that it is ‘very doubtful’ whether the so-called Salini test has ‘any relevance
in the interpretation of the concept of “investment” under Article 25(1) of the ICSID
Convention.’ See also Bernhard von Pezold and Others v Republic of Zimbabwe, ICSID
Case No ARB/10/15, Award (28 July 2015) para 285; Quiborax v Bolivia (n 42) para 225;
KT Asia v Kazakhstan (n 59) paras 170–173; İçkale İnşaat v Turkmenistan (n 53) para 291;
Inmaris Perestroika Sailing Maritime Services GmbH and Others v Ukraine, ICSID Case No
ARB/08/8, Decision on Jurisdiction (8 March 2010) para 129.
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the application of international investment law to satellite activities requires
clarifying which State can be seen as the host State. Finding an answer to this
question is complicated by the multinational nature of telecommunications
activities. Since the investor will regularly interact with State entities from
more than one country in the course of a satellite project, several States could
potentially qualify as a host State. An illustrative example would be an inves-
tor using the launching facilities located in the territory of State A, while the
frequency rights for the satellite are granted by State B and the ground station
from which the satellite will be controlled during the on-orbit phase is located
in State C.
In view of these circumstances, it seems impossible to identify only one
single host State for the entire satellite project. It rather seems appropriate to
determine the host State in relation to each phase of a satellite telecommuni-
cations project. As a consequence, an investor may be able to bring investment
claims against several host States in the course of one satellite project. Which
of the host States is responsible under international investment law obviously
depends on the attribution of the State conduct in dispute. If State A arbitrar-
ily refuses to give access to the launching facility, after it has been promised,
while State B unilaterally amends the frequency allocation, the investor should
have the possibility to bring two separate investment claims against State A
for damages resulting from the failed launch and against State B for the loss of
attributed frequency rights.
At rst sight, this legal analysis seems fragmented and contrasting the ho-
listic approach taken by tribunals when it comes to the legal assessment of a
complex economic operation. As stated above, tribunals have held that the
existence of an investment requires taking into account the general unity of an
investment operation. In view of the rationale of investment law, this holistic
approach has been developed in order to avoid that investment protection for
complex economic ventures is undermined by an overly formalistic interpreta-
tion of the notion of ‘investment’. Taking into account the economic operation
as a whole ensures that a transaction that, standing alone, would not qualify
as an investment, is nevertheless protected provided that it forms an integral
part of an overall operation that qualies as an investment. In the context of
establishing whether a protected investment exists, it therefore makes sense to
consider the whole satellite telecommunications project, beginning from the
manufacturing process to the satellite’s end-of-lifetime, as a holistic process.
Joy Mining v Egypt (n 42) para 54; Pierre Lalive, ‘The First World Bank Arbitration (Holiday
Inns v. Morocco) – Some Legal Problems’ (1980) 51 BYIL 123.
Ceskoslovenska Obchodni Banka v Slovak Republic (n 54) para 72.
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In the context of identifying the host State, however, the legal analysis
should take into account the multinational character of satellite telecommu-
nications projects by identifying the host State among all States involved in
relation to the State conduct afecting a protected investment. This approach is
in line with the approach of international space law. The liability regime of in-
ternational space law considers the multinational aspect of satellite activities.
Article VII OST and equally Article I(c) of the Liability Convention state that
[e]ach State Party that launches or procures the launching of an object
into outer space, and each State Party from whose territory or facility an
object is launched, is internationally liable for damage….
Consequently, there are four categories of launching States: the State that
launches, the State that procures the launch, the State from whose territory
an object is launched, and the State from whose facility an object is launched.
Article V of the Liability Convention stipulates that in case of a joint launch by
two or more launching States, they shall be ‘jointly and severally liable for any
damage caused.’
If the responsibility under international investment law were limited to one
single host State despite the involvement of other States, the level of invest-
ment protection for the entire satellite telecommunications project would suf-
fer from clear deciencies. The mere fact of a private investor engaging with
several foreign States at the same time to realize a complex, large-scale, and
long-term venture would result in the lowering, or even deprivation, of invest-
ment protection. Taking into account the rationale of international invest-
ment law, such a restrictive approach does not seem appropriate. Accordingly,
the tribunal in Sanum v Lao People’s Democratic Republic pointed out that it
does not consider that the concomitant application of two BITs would
lead to ‘legal chaos’. The more dispute settlement options an investor has,
the better it is protected, and the more enhanced the economic coopera-
tion will be between the concerned States.
An investor should therefore be able to rely on investment protection stan-
dards ofered by all States involved in the course of a satellite project. Against
which of the potential host States an investment claim can be brought must
Sanum Investments Limited v Lao People’s Democratic Republic, PCA Case No 2013–13,
Award on Jurisdiction (13 December 2013) para 294.
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be assessed on a case by case basis in relation to the harmful State conduct
in question.
3.4 Territorial Nexus with the Host State
Considering the fact that telecommunications activities take place to a large
extent in outer space, the question arises whether only activities performed
within the territory of a host State can full the territoriality requirement
that many investment treaties provide for. Due to the involvement of sever-
al potential host States, the question whether a territorial nexus exists, must
be answered in view of the respective activity and the potential host State.
Investments related to the pre-launch and the launch phase will most likely
have a close territorial connection to the State in whose territory the manufac-
turing process is taking place or the launching facility is located.
More problematic is the on-orbit phase, in which the satellite is circulat-
ing in outer space without any physical connection to the territory of a (host)
State. Here, however, a jurisdictional nexus exists between the satellite as a
space object and the State in which it has been registered. Practically very
relevant, and more dicult to establish, is the territorial nexus in case of more
than one launching State. The same applies to frequency rights and orbital
slots allocations, which are necessary for the satellite’s operation and may be
granted by States that are diferent from the State of registry.
In general, where investment treaties refer to an investment ‘in the territory’
of a State, a certain degree of exibility is appropriate since not all investment
activities are physically located in the host State. Arbitral practice seems to
agree that the lack of physical presence is not per se fatal to meeting the
With respect to the ‘double keyhole’ test mentioned above it is noteworthy that the ICSID
Convention does not contain a territoriality requirement. Under the Convention, the
decisive criterion for the foreignness of an investment is the nationality of the investor.
See Schreuer and others (n 39) Article 25, paras 187, 197; Rudolf Dolzer and Christoph
Schreuer, Principles of International Investment Law (2nd edn, OUP 2012) 78.
Article VIII, sentence 1 OST provides: ‘A State Party to the Treaty on whose registry an
object launched into outer space is carried shall retain jurisdiction and control over such
object, and over any personnel thereof, while in outer space or on a celestial body’.
The State of registry is ‘a launching State on whose registry a space object is carried’
(Registration Convention, art I(c)). While there can be more than one launching State for
one space object, only the State of registry ‘shall retain jurisdiction and control’ over the
space object (OST, art VIII).
Schreuer and others (n 39) Article 25, para 197; Inmaris Perestroika Sailing v Ukraine (n 59)
para 123.
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territoriality requirement. Any interpretation related to the meaning of
‘in the territory’ should therefore also take into account the type and nature
of the investment.
Against this background, the evaluation of the territorial nexus with re-
spect to the satellite itself should take into account that satellites are per se not
meant to be located within the territory of the host State, but in outer space.
Therefore, it seems reasonable to interpret ‘in the territory’ in the sense that
the host State must exercise exclusive jurisdiction over the satellite. Even if ter-
ritorial sovereignty and exclusive jurisdiction have to be distinguished, such
an interpretation would correspond to the rationale of international invest-
ment law, which aims at protecting investors from abusive state power. This
approach also reects the position adopted by the tribunal in Bayview v Mexico
which stated that ‘a salient characteristic will be that the investment is pri-
marily regulated by the law of a State other than the State of the investor’s
nationality.’
International space law confers to States the jurisdiction and control
over space objects that appear on their national registry (Art. VIII OST).
Consequently, satellites owned by a foreign investor meet the territoriality re-
quirement regardless of being physically located in outer space because ex-
clusive jurisdiction is exercised by the State of registry (Art. I(c) Registration
Convention).
Another relevant category of investments are the rights to use frequency
bands and orbital slots. Private investors can obtain such usage rights by apply-
ing for a licence from a State, which does not have to be the State from whose
territory the satellite is launched or operated. Here again, the question arises
whether a territorial connection can be established. At rst sight, the licence
agreement concerning the usage of frequency bands or orbital slots for the
operation of a telecommunications satellite in outer space does not seem to
take place ‘in the territory’ of the issuing State. But in light of the principles
Nova Scotia Power v Venezuela (n 43) para 130; Ambiente Ucio SpA and others v Argentine
Republic ICSID Case No ARB/08/9, Decision on Jurisdiction and Admissibility (8 February
2013) para 498.
Abaclat and others v Argentine Republic, ICSID Case No ARB/07/5, Decision on
Jurisdiction and Admissibility (4 August 2011) para 374; Schreuer and others (n 39) Article
25, para 198.
See, for example, in the context of the lease of territory: Christoph Staker, ‘Jurisdiction’ in
Malcolm Evans (ed), International Law (OUP 2014) 313.
Bayview Irrigation District et al. v United Mexican States, ICSID Case No ARB(AF)/05/1,
Award (19 June 2007) para 98.
See the legal framework governing the allocating of such rights set out in more detail
below in Section 4.3.3.
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outlined above, the meaning of ‘in the territory’ needs to be established by
taking into account the nature of the investment and does not necessarily re-
quire a physical presence. Since nancial operations, such as the payment of
a licence fee, are dicult to locate, an analogy to arbitral practice regarding
nancial instruments can be drawn. In this context, tribunals did not focus
on the physical location of the funds, but instead asked whether the State
actually beneted from the payment. By licensing usage rights for frequen-
cies and orbital slots, the issuing State directly benets from payments made
under the licence agreement. Thus, the territorial requirement is also met with
respect to the licensing of usage rights.
In sum, it can be argued that, despite taking place to a large extent in outer
space, investments made in connection with satellite telecommunications
activities are made ‘in the territory’ of the respective host State.
4 Relevant Investment Protection Standards for Telecommunication
Satellites
The previous parts have sought to give readers an overview of the various
space law sources and the general conditions for the application of investment
law to space activities, in particular in respect of telecommunication satel-
lites. The next step is to focus on the typical risks private investors encoun-
ter in the diferent phases of a satellite operation. On that basis, investment
protection standards which seem particularly relevant to the satellite telecom-
munications sector can be identied. In addition, there are many unresolved
legal questions regarding the interaction between space law and internation-
al investment law. By taking a closer look at each of the phases, several legal
problems and peculiarities relating to the interaction of both regimes will be
outlined in the following.
4.1 Pre-Launch Phase
From the very beginning a satellite operation takes place within a legal envi-
ronment where the success of the private investment depends to a large ex-
tent on long-term commitments made by State entities through contracts and
Ceskoslovenska Obchodni Banka v Slovak Republic (n 54) para 78; CME Czech Republic BV v
The Czech Republic, UNCITRAL, Partial Award (13 September 2001) para 418; Nova Scotia
Power v Venezuela (n 43) para 130.
Fedax v Venezuela (n 39) para 41; Romak SA (Switzerland) v The Republic of Uzbekistan,
UNCITRAL, Award (26 November 2009) para 237; Inmaris Perestroika Sailing v Ukraine
(n 59) para 124; Abaclat v Argentina (n 68) para 374.
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administrative licences. Consequently, umbrella clauses are highly relevant
to investors since they make compliance with such legally binding host State
commitments into an obligation under applicable BITs. In cases where the
applicable BIT does not contain an umbrella clause, host State commitments
might still be protected as legitimate expectation under the fair and equitable
treatment (FET) standard.
Illustrative examples of risks in the pre-launch phase include a State’s un-
expected unwillingness to provide for a launching facility at the agreed point
in time or to refuse the issuing of a license for the launch of the space ob-
ject or for the telecommunications activity contrary to prior commitments.
Incurred costs could also be lost or frustrated in case the government changes
legislation or enacts further technical or legal requirements during the long
pre-launch process. Additional safety or environmental regulations could, for
example, result in making the design of a satellite already built obsolete or the
issuance of a license impossible. In this sense, unexpected changes in the regu-
latory framework requiring the investor to reorganize a space project can cause
a standstill or even abandonment of the planned launch. In such a scenario,
the investor could argue that the State did violate the investor’s expectations.
However, the legitimacy of such expectations will depend on whether an ar-
bitral tribunal considers the host State’s representations made in connection
with the satellite activity as suciently specic.
A specic issue in the pre-launch phase could result from the practice of in-
cluding waivers in Launch Service Agreements (LSAs). These agreements are
concluded between the (private) satellite operator as customer and the (pri-
vate or state-owned) launch service provider. They set out the obligations and
risks associated with the launch against the background of the liability expo-
sure under international space law and national space legislation. As discussed
above, States have established a licensing regime to regulate commercial space
Christoph Schreuer, ‘Travelling the BIT-Route – Of Waiting Periods, Umbrella Clauses and
Forks in the Road’ (2004) 5 JWIT 231, 250.
Marc Jacob and Stephan W Schill, ‘Fair and Equitable Treatment: Content, Practice,
Method’ in Bungenberg and others (n 3) 724; The tribunal in Saluka referred to the
concept of legitimate expectations as ‘the dominant element of the standard’ (Saluka
Investments BV v Czech Republic, UNCITRAL, Partial Award (17 March 2006) para 301).
For example, the tribunal in Glamis Gold set a relatively high threshold and demanded the
existence of ‘at least a quasi-contractual relationship’ between the State and the investor;
Glamis Gold Ltd v The United States of America, UNCITRAL, Award (8 June 2009) paras
549 and 627. In contrast, other tribunals held that a violation of the investor’s legitimate
expectation can solely result from express opinions and statements from the government.
See eg Metalclad Corporation v The United Mexican States, ICSID Case No ARB(AF)/97/1,
Award (30 August 2000) para 85.
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activities. Most States that have enacted national space legislation require a
license for a launch from their territory, or by their citizens from any location.
A common characteristic of LSAs is the direct or indirect participation of the
government. Even if only the launch service provider and the customer are
parties to the contract, the LSA forms part of a complex series of transactions
where several private and public entities are involved. Many space launch fa-
cilities are for example run by governmental agencies, such as Cape Canaveral
in the United States which is controlled by NASA. To ofer its customers a
launch from such a facility, the private launch service provider concludes a
separate contract with the controlling agency to which the satellite operator
is not a party.
Through the licensing regime, some national space laws require satellite op-
erators to accept a wide-ranging waiver of claims when entering into an LSA.
The aim of legally requiring a waiver of claims is to avoid unquantiable li-
ability risks and to prevent any recourse by and between the numerous par-
ties involved in a launching operation. The waiver covers not only all loss of
property and bodily damages, but also all direct and indirect consequences in
connection with the launch. In addition, the parties to the LSA oblige them-
selves to pass the waiver obligation along their respective chain of contractors
and customers. The waiver does therefore not only afect the parties to the
Paul Stephen Dempsey, ‘National Laws Governing Commercial Space Activities:
Legislation, Regulation, & Enforcement’ (2016) 36 Northwest J Intl L & Bus 14.
ibid 19.
Julian Hermida, ‘Commercial Space Launch Services Contracts in France and the United
States of America’ (2004) 9 Uniform L Rev 539.
Ralph L Kissick, ‘Commercial Space Launch Contracts: Disputes and Remedies’ (1989)
4 J L & Tech 31, 32.
Incorporating waivers of liability is a common practice in the space industry and some
national laws, such as that of the United States or France, do explicitly require such waiv-
ers. See Michael Gerhard and Kamlesh Gungaphul-Brocard, ‘The Impact of National
Space Legislation on Space Industry Contracts’ in Ingo Baumann and Lesley Jane Smith
(eds), Contracting for Space: Contract Practice in the European Space Sector (Routledge
2016) 63. 49 USC 701 § 70112(b)(1) states that
a launch or reentry license issued or transferred under this chapter shall contain a pro-
vision requiring the licensee or transferee to make a reciprocal waiver of claims with
its contractors, subcontractors, and customers, and contractors and subcontractors of
the customers, involved in launch services or reentry services under which each party
to the waiver agrees to be responsible for property damage or loss it sustains … from
an activity carried out under the applicable license.
ibid.
Claude-Alain du Parquet, ‘Specic Clauses of Launch Services Agreements’ in Baumann
and Smith (n 81) 385, 387–388.
() –
LSA, but indirectly includes the contractors, sub-contractors and insurers of
the aforementioned parties, including the customers of the satellite operator.
From the perspective of a foreign investor who sufered damages in connec-
tion with a launch and who is unable to bring a damage claim against a public
entity involved in the launch, it is worth considering whether the prohibition
of denial of justice, which is enshrined in the FET standard, could be rel-
evant. Under customary international law, the principle of ‘access to justice’
with respect to foreigners and their economic interests presupposes that an
individual who has sufered an injury abroad must be aforded the opportunity
to obtain redress before a court of law or appropriate administrative agency.
Only when ‘justice’ is not delivered, either because judicial remedies are not
available or efective, a denial of justice may be invoked. The obligation to
provide for efective judicial remedies implies that a State can also be held
responsible for indirectly restricting the access to justice. In addition, a State
which enters into a contractual relationship with a foreign investor must pro-
vide for internal legal means for ensuring its fulllment.
In principle, accepting a contractual waiver is a deliberate choice. In the
context of space launches however, parties have no such choice, since States
will only issue a licence under the condition that the parties agree to a waiver of
claims. Against this background it can be argued that a liability regime which
forces all actors somehow involved in a space launch to accept wide-ranging
waivers of claims constitutes an indirect restriction of access to justice for for-
eign investors in the space sector. Strictly speaking, the connection to a poten-
tial denial of justice claim is not the contractual waiver itself, but the statutory
requirement to systematically implement wide-ranging waivers in LSAs. As a
ibid.
Jan de Nul NV and Dredging International NV v Arab Republic of Egypt, ICSID Case No
ARB/04/13, Award (6 November 2008) para 188; Dolzer and Schreuer (n 63) 154.
Francesco Francioni, ‘Access to Justice, Denial of Justice and International Investment
Law’ (2009) 20 EJIL 729, 730–31.
ibid.
See Jan Paulsson, Denial of Justice in International Law (CUP 2005) 44, 137.
ibid 145 (with further references).
In a publicly available LSA drafted by SpaceX it is, for example, stipulated that
each Party hereby agrees not to sue or otherwise bring a claim against the other Party,
such Party’s Related Third Parties or the U.S. Government or its contractors or sub-
contractors for any injury, death, property loss or damage (including loss of or dam-
age to the Satellite Batch or any Satellite, the Launch Vehicle, or other nancial loss),
sustained by it or its employees, ocers, directors or agents, arising in any manner
out of or in connection with activities relating to the performance of this Agreement.
The LSA is available at <www.sec.gov/Archives/edgar/data/1361983/000119312513112
208/d468141dex102.htm> accessed 1 June 2018.
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result, it is de facto impossible for a foreign investor to bring a claim against a
public entity involved in a space launch.
In addition, investors should be aware that the involvement of several States
makes it dicult to foresee whether a satellite operation will be eciently
protected under international investment law. As stated above, the investor
depends on long-term commitments made by various State entities through
contracts and administrative licences. Since international space law does
not identify the contours of any particular licensing regime, several States
may require under their respective laws a licence from an investor willing to
launch and operate a telecommunications satellite. Some States regulate the
launch site, some the launch provider, and still others may regulate the satellite
operator. How many licences are exactly needed consequently depends on
the number of States involved, the scope of application of their national space
laws, and the space activities in question.
This complex regulatory environment delineates the potential tension be-
tween space law, telecommunications law, and the potential ‘investment’ and
its implications. It cannot be excluded that multiple permits are required for,
e.g., a permit by the State from whose territory the satellite is being launched,
a licence for the use of frequencies, and a license for operating the satellite and
providing services. If only one State fails to honour the commitments made,
the whole project is at risk. However, the access to investment arbitration
might considerably difer depending on the commitment concerned, which
has been frustrated, and the State responsible for it. To optimize the level of
protection, far-sighted investors in the space sector relying on several States
for the realization of their project should therefore take into consideration the
(substantive and procedural) availability of investment protection.
4.2 Launching Phase
In view of the immanent physical dangers a satellite is confronted with dur-
ing the launch, the principle of full protection and security’ (FPS), which
The legal duty of States to provide private nationals with the legal possibility to perform
space activities results from Article VI OST and is linked with the duty of States to register
their space objects under the 1975 Registration Convention. Article VI OST reads: ‘States
Parties to the Treaty shall bear international responsibility for national activities in outer
space, including the Moon and celestial bodies, whether such activities are carried out by
governmental agencies or by non-governmental entities ….’
Dempsey (n 77) 14–15.
See for example section 18 of the Australian Space Activities Act of 1998, which provides:
‘The Minister may grant to a person a space license covering a particular launch facility in
Australia, a particular kind of launch vehicle and particular ight paths.’
Some treaties refer to ‘constant protection and security’ or to ‘security and protection’.
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is typically contained in investment treaties, is also of particular relevance to
telecommunications activities. Its specic purpose is to put an obligation on
the host State ‘to provide a certain level of protection to foreign investment
from physical violence.’ In this context, two main constellations must be dis-
tinguished: physical harm may either be caused by the host State itself through
its organs, or by third parties. The host State controlling the launching fa-
cility must therefore refrain from any physical or technical interference with
the launch and at the same time protect the complex launching infrastructure
from sabotage by third public or private parties.
In this sense, the obligation to provide FPS also applies to cases where only
private parties are directly involved in the launching process. The launching
State providing the territory from which the launch takes place (Art. I(c)(ii)
rst alternative Liability Convention) should be considered the host State for
the launching phase. Regardless of its concrete implication in the launching
process, the State is therefore not only liable under international space law
as set out above, but also remains obliged to provide FPS under internation-
al investment law. For an investor it is consequently not necessary to directly
commission a (host) State with the rocket launch in order to obtain physical
protection under international investment law during the launching phase.
4.3 On-Orbit Phase
The on-orbit phase is particularly relevant for investments in telecommuni-
cations activities since the economic viability of the whole venture largely
depends on the trouble-free operation and maintenance of the satellite for
approximately 10–15 years. Here, the main diculties and unsolved legal ques-
tions regarding the interactions and correlations between space law and in-
vestment protection become evident. A number of problems can be identied
here which will be briey analysed.
4.3.1 Physical Protection of Telecommunications Satellites in
Outer Space
In comparison to the launching phase, the immanent physical dangers of a sat-
ellite operation are even more evident during the on-orbit phase. Physical dan-
gers include the collision with space debris or other satellites. Under extreme
circumstances a private satellite could also face destruction by anti-satellite
Rumeli Telekom AS and Telsim Mobil Telekomunikasyon Hizmetleri AS v Republic of
Kazakhstan, ICSID Case No ARB/05/16, Award (29 July 2008) para 668.
Dolzer and Schreuer (n 63) 149–150; Christoph Schreuer, ‘Full Protection and Security’
(2010) 1 JIDS 353–369.
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missiles (ASAT weapon system) launched by a third State for strategic military
purposes.
The question here is which State is responsible for protecting the satellite
from such dangers in outer space. By applying the principles set out above on
how to identify the host State, the launching State which registered the sat-
ellite should be considered as the host State responsible for protecting the
space object under international investment law. This can be illustrated with
the following example: Take an investor from State A that operates a satel-
lite which has been launched from the territory of State B. In its capacity as
launching State (Art. I(a) Registration Convention) State B also has to regis-
ter the satellite (Art. II, rst sentence Registration Convention). The State of
registry is ‘a launching State on whose registry a space object is carried’ (Art.
I(c) Registration Convention). Consequently, State B retains, in its capacity as
State of registry, exclusive jurisdiction and control over the satellite pursuant
to Article VIII, rst sentence OST. As outlined above, and in view of the fact
that satellites are per se not meant to be located within the territory of the
host State, the jurisdictional nexus established by international space law is
sucient to meet the BIT’s territoriality requirement. Thus, for the purpose
of protecting the satellite as a physical object, State B must be considered as
host State in the sense of an international investment treaty.
The same principles apply to space launches where multiple States are in-
volved. Coming back to the example above this would be the case if the launch
service provider commissioned by the investor is owned or controlled by State
B, whereas the launching facility is located in the territory of State C. In this
case, States B and C are both launching States. While there can be more than
one launching State for one space object, only the State of registry ‘shall retain
jurisdiction and control’ over the space object (Art. VIII, rst sentence OST).
In case of multiple launching States, these have to agree on who will register
the space object. Since there can be only one State of registry it is possible to
unequivocally identify the responsible host State even in case of multinational
launches.
From a substantive point of view, the FPS standard has an important role
to play in the on-orbit phase. It is however questionable whether a host State
can be held absolutely liable for any damage to investments under the FPS
Emphasizing the long-term threat to civilian satellites caused by the development of
ASAT weapon systems: Geofrey Forden, ‘After China’s Test: Time For a Limited Ban on
Anti-Satellite Weapons’ (2007) 37 Arms Control Today 19.
See supra Section 3.3.
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standard. Arbitral practice seems instead to agree that the FPS standard is
not absolute, but rather one of due diligence, and does not imply strict liability
of the host State. International investment law and international space law
therefore seem to ofer the same standard of protection, given that Article III
of the Liability Convention provides for fault-based liability for damages caused
to space objects while in space. However, due to the shortcomings of interna-
tional space law’s dispute resolution mechanism for private satellite operators
(only through diplomatic protection, Art. IX of the Liability Convention), the
application of an investment treaty along with access to investment arbitra-
tion represents a signicant advantage for investors.
The crucial question is what could reasonably be expected from the host
State in terms of protective measures. With regard to space activities of States,
it makes sense to take into account the circumstances of the individual case
together with the development and stability of the respective host State. Space
activities are inherently dangerous, and it is not easy to prevent harm in outer
space, e.g. from space debris, even by a State disposing of all necessary techno-
logical and economical means to do so. Therefore, the host State can be con-
sidered to be failing to meet the due diligence standard in the context of FPS
only if it arbitrarily remains inactive.
4.3.2 Liability for Satellites Subject to Transfer-On-Orbit Transactions
One of the major legal issues during the on-orbit-phase is the liability for dam-
ages caused by satellites which were subject to a so-called transfer-on-orbit.
Since it is not only States that can operate satellites, the leasing and sale of sat-
ellites by private entities is common industry practice: an investor puts capital
into the manufacturing and launch of a satellite, then sells or rents it out.
From an international space law perspective, when a satellite causes damag-
es to third parties, it is only possible to claim compensation from the launching
State through diplomatic protection (according to Art. VIII OST and Arts. II,
III, IX of the Liability Convention). If a private satellite operator is de facto
American Manufacturing & Trading Inc v Republic of Zaire, ICSID ARB/93/1, Award
(21 February 1997) para 6.05 (‘obligation of guarantee for the protection and security of
the investments’).
Asian Agricultural Products Ltd v Republic of Sri Lanka, ICSID Case No ARB/87/3,
Award (27 June 1990) paras 53, 48; Saluka v Czech Republic (n 75) para 484; Técnicas
Medioambientales Tecmed SA v The United Mexican States, ICSID Case No ARB(AF)/00/2,
Award (29 May 2003) paras 171, 177; Noble Ventures Inc v Romania, ICSID Case No
ARB/01/11, Award (12 October 2005) paras 164–166; Wena Hotels Ltd v Arab Republic of
Egypt, ICSID Case No ARB/98/4, Award (8 December 2000) para 84; Pezold v Zimbabwe
(n 60) para 596; Joseph Houben v Republic of Burundi, ICSID Case No ARB/13/7, Award
(12 January 2016) para 161.
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responsible for the damage caused by one of its satellites, the international-
ly responsible launching State will afterwards initiate recourse proceedings
under national space law against the private operator.
A practical problem is, however, caused by the fact that the transfer of own-
ership of the satellite – regardless of being valid under national law – does not
modify the responsibility regime under international space law. According to
Article VIII OST, the efective control and jurisdiction over space objects re-
main with the launching State, which leaves the issue of transfer of rights over
a satellite unresolved as Article VIII, second sentence OST reads, ‘Ownership
of objects launched into outer space … is not afected by their presence in
outer space or on a celestial body or by their return to the Earth’. International
space law does therefore not foresee any change in the status of the launch-
ing State (‘once a launching State, always a launching State’). Consequently, in
spite of not having any efective control over the satellite and no possibilities to
manoeuvre it for avoiding collisions, the launching State remains liable under
international space law. The original satellite owner also remains the address-
ee of potential recourse proceedings. Accordingly, the person or company who
sufered damages cannot bring a claim against the new satellite owner.
To illustrate this point, a private company may sell a satellite launched from
the territory of State A through an on-orbit-transfer to another private com-
pany from State B. After the sale and the transfer of control have been com-
pleted, the satellite collides with another satellite registered with State C and
owned by a private investor from State D. The collision was caused by a fault
of the new owner. Under international space law, investor D who lost its own
satellite is only able to bring a claim against State A in its capacity as launching
State through diplomatic protection. But since State A had no control over the
satellite gone of track, a claim for damages based on fault under the Liability
Convention is unlikely to be successful.
International investment law does not seem to be able to provide a practi-
cal solution to this problem since an investment claim based on the violation
of the FPS standard against State D in its capacity as State of registry would
also require a fault committed by the host State (in the sense of lacking due
diligence).
As of today, this deciency of the liability regime under space law is coun-
tered by contractual arrangements between the concerned parties and the
Given that the transfer of ownership usually takes place after the satellite has been
brought to orbit fault-based liability of the launching State pursuant to Article III of the
Liability Convention will be applicable.
() –
establishment of a mandatory insurance for all licensed satellite operators
through national legislation.
4.3.3 Investment Protection of Frequency Use and Orbital Positions
In addition to the satellite itself, the right to use specic frequencies and or-
bital positions is vital for the space venture’s economic success. In the context
of international investment law a distinction can be made between the physi-
cal protection of the satellite as a space object and the rights obtained by the
investor for its operation, namely the frequency rights and orbital slots.
Frequency rights are governed by the rules on frequency allocation of the
ITU. The ITU ofers all its 193 Member States an international coordination
regime for the allocation of frequency bands (section of the electromagnetic
frequency spectrum used for technical communication) for certain frequency
services. This regime is codied in the Radio Regulations, which regulate
the registration of satellite networks. Such services are, for example, radio
communications, aeronautical radio, wireless-DSL, mobile communications,
Bluetooth, wireless telecommunications and diverse satellite services (satellite
telephony, satellite navigation, remote sensing services).
Frequency services are allocated in a frequency plan within diferent fre-
quency bands of the wave spectrum. The frequency allocation takes place in
favour of States and not directly in favour of private operators. In order for a
State to obtain frequency usage rights, it must be examined whether interfer-
ences are to be expected through a specic use. Primarily, this applies to radio
frequencies, as two services might interfere whenever they use the same fre-
quency in the same range. If no interference is to be expected, the frequency
usage is granted. However, frequency use is granted for a specic type of use and
the ITU both provides the frequency and allocates an orbital position directly
For a list of ITU Member States see <www.itu.int/online/mm/scripts/gensel8> accessed
1 June 2018.
For an overview of the regulatory framework for frequency and orbital uses, see von Kries,
Schmidt-Tedd and Schrogl (n 36) 62; Ram Jakhu, ‘Regulatory Process for Communications
Satellite Frequency Allocations’ in Joseph N Pelton, Scott Madry and Sergio Camacho-
Lara (eds), Handbook of Satellite Applications (Springer 2017) 359–381.
Radio Regulations as adopted by the World Radiocommunication Conference (Geneva,
1995) (WRC-95), subsequently revised and approved by the World Radiocommunication
Conference (Geneva, 1997) (WRC-97), the World Radiocommunication Conference
(Istanbul, 2000) (WRC-2000), the World Radiocommunication Conference (Geneva,
2003) (WRC-03), the World Radiocommunication Conference (Geneva, 2007) (WRC-
07), the World Radiocommunication Conference (Geneva, 2012) (WRC-12) and the World
Radiocommunication Conference (Geneva, 2015) (WRC-15).
() –
to the States acting through their national space agencies. Once frequency
and accompanying orbital position are granted, the State may rent them out to
private companies or individuals active in the telecommunications industry.
The fact that the ITU considers the use of Geostationary Satellite Orbits
(GSO) a limited natural resource indicates how important and valuable al-
locations of frequency and orbital position in the satellite telecommunications
sector are. Taking into account the meaning of ‘investment’ under most BITs
and the ICSID Convention as laid out above, contractual rights to use a speci-
ed frequency along with the accompanying orbital position granted by a State
to a foreign investor by a lease agreement qualify as an investment. Avoiding
harmful interferences by third parties is absolutely vital for the functionality of
the satellite and the availability of its services. International investment pro-
tection for frequency rights would therefore constitute an important advan-
tage for private investors.
With regard to the question of identifying the responsible State under
international investment law, it has been shown that the State of registry is
the host State in terms of protecting the satellite as an investment in outer
space. However, this conclusion does not necessarily apply to the protection
of frequency rights and orbital slots allocations since they may be leased out
by States diferent from the State of registry. Thus, the State leasing out the
frequency rights to the investor should be qualied as the responsible host
State in this regard. In view of arbitral practice on nancial instruments, the
territorial nexus may in this case be satised by the fact that the host State
directly benets from the lease agreement through the investor’s payments of
the leasing fees.
If the State from which the investor leased the frequency rights decides to
amend or withdraw the licence, the question must be asked whether inter-
ferences or non-usability of a frequency bandwidth constitutes a breach of
substantive investment protection standards. For once, the revocation of the
licence without an adequate compensation could constitute an expropriation
given that the investor formally loses the right to use a specic frequency.
von Kries, Schmidt-Tedd and Schrogl (n 36) 63; Jakhu (n 103) 360.
Article 44.2. of the ITU Constitution (n 35) reads: ‘In using frequency bands for radio ser-
vices, Member States shall bear in mind that radio frequencies and any associated orbits,
including the geostationary-satellite orbit, are limited natural resources….’
See supra Section 2.4.
Even though rights conferred by contract may constitute an asset capable of expropria-
tion it is important to emphasize that the protection from expropriation in relation to
rights conferred under contract still requires identication of a property interest or asset
() –
The same could apply to the amendment or restriction of the type of use speci-
ed in the original licence agreement. For example, a measure to restrict retro-
actively a frequency licence to a practically worthless type of use (e.g. the right
to transmit radio programmes for a weather satellite) would constitute the re-
moval of the ability to make use of the owner’s economic rights and constitute
an indirect expropriation under international investment law as understood
in arbitral practice.
Moreover, signicant modications of the national legal framework regu-
lating the issuance, renewal, or revocation of frequency leases may result in
the frustration of legitimate expectations protected under the FET standard in
case specic contractual commitments are not being met. The FPS standard
could be breached if the host State fails to act with due diligence in respect
of protecting the frequency usability from physical or technical interference
by its own organs or third parties. Such interferences may be caused by the
broadcast of a stronger signal from the ground or another satellite preventing
the receipt of the signal sent by the targeted satellite. An example of an in-
terference from 2007 concerns the interruption of a TV satellite in Israel and
Lebanon by unidentied actors allegedly connected to a military intelligence
service. The interruption made thousands of viewers to cancel their TV con-
tracts and caused signicant losses to the concerned company.
This example illustrates that an interference with frequency rights may be
connected to military intelligence operations and a State’s national securi-
ty. From an international investment law perspective this is relevant since a
held by the claimant. See Emmis International Holding BV, Emmis Radio Operating BV,
MEM Magyar Electronic Media Kereskedelmi és Szolgáltató Kft v The Republic of Hungary,
ICSID Case No ARB/12/2, Award (16 April 2014) paras 164–65; Zachary Douglas, ‘Property
Rights as the Object of an Expropriation’ in Meg Kinnear and others (eds), Building
International Investment Law: The First 50 Years of ICSID (Kluwer Law International 2015)
345.
El Paso Energy International Company v. The Argentine Republic, ICSID Case No ARB/03/15,
Award (31 October 2011) para 245; SD Myers Inc v Government of Canada, UNCITRAL,
First Partial Award (13 November 2000) para 282; Antoine Goetz & Others and SA Anage
des Metaux v Republic of Burundi, ICSID Case No ARB/01/2, Award (21 June 2012) para
194; AES Summit Generation Limited and AES-Tisza Erömü Kft v The Republic of Hungary,
ICSID Case No ARB /07/22, Award (23 September 2010) para 14.3; Mamidoil Jetoil Greek
Petroleum Products Societe SA v Republic of Albania, ICSID Case No ARB/11/24, Award
(30 March 2015) para 566.
Ram Jakhu and Karan Singh, ‘Space Security and Competition for Radio Frequencies
and Geostationary Slots’ in Ajey Lele and Gunjan Singh (eds), Space Security and Global
Cooperation (Academic Foundation 2009) 131.
ibid 132.
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host State might rely on the protection of its national security in the context
of a balancing test carried out to interpret the concept of indirect expropri-
ation or the FET standard. In addition, national security may play a deci-
sive role in the application of a non-precluded measures clause contained in
several BITs referring to ‘national security’, ‘public order’, or ‘essential security
interests’. The geostrategic relevance of space activities could therefore be
raised as a defensive argument by host States in investment arbitration.
4.4 End-Of-Lifetime Phase
At the end of their operational life, satellites are typically moved into orbits
away from common operational orbits (so-called graveyard orbits) in order to
reduce the probability of colliding with operational spacecraft and of gener-
ating space debris. This practice is, however, not always applied. Satellites
which are not being relocated turn into potentially dangerous space debris
after their operational lifetime. By increasing collision probabilities, such satel-
lites pose considerable risks for functional objects on orbit. As a consequence,
the question arises whether private satellite operators are eciently protected
against the risk emanating from space debris.
The prevention of and the protection from space debris granted under in-
ternational space law can be characterized as incomplete. Despite the fact that
Article IX OST requires that States shall avoid the harmful contamination of
outer space, the production of space debris is not prohibited under the treaties
on space law. The legal protection of satellite owners from damages caused by
space debris is also far from being satisfactory. In case of an accident caused
by space debris, recourse could be had against the launching State under the
Liability Convention. However, there is no legally binding denition of space
debris and it is not even clear whether pieces of space debris can be considered
See Benedict Kingsbury and Stephan W Schill, ‘Public Law Concepts to Balance
Investors’ Rights with State Regulatory Actions in the Public Interest – The Concept of
Proportionality’ in Stephan W Schill (ed), International Investment Law and Comparative
Public Law (OUP 2010) 75; Gebhard Bücheler, Proportionality in Investor-State Arbitration
(OUP 2015).
United Nations Conference on Trade and Development (UNCTAD), The Protection
of National Security in IIAs (United Nations 2009) 122. Article XI of the United States-
Argentina BIT for example states that ‘[t]his Treaty shall not preclude the application by
either Party of measures necessary for the maintenance of public order, the fulllment of
its obligations with respect to the maintenance or restoration of international peace or
security, or the protection of its own essential security interests.’
Darren S McKnight and Frank R Di Pentino, ‘New Insights on the Orbital Debris Collision
Hazard at GEO’ (2013) 85 Acta Astronautica 79.
() –
to be space objects, so as to fall under the scope of the Liability Convention.
In addition, it is extremely dicult to attribute space debris particles to a spe-
cic State. Nevertheless, as stated before, the OST confers to States the juris-
diction and control over space objects that appear on their national registry.
National laws and the national requirements for obtaining a license for space
activities might thus ofer a possible solution for the establishment of an in-
ternational responsibility for space debris since they create a legal nexus be-
tween the issuing State and the licensee. This nexus could implicate the State’s
responsibility and liability not only for space objects, but also for space debris.
Thus, in as far as space law (depending on attributability) ofers an answer
to the unsolved question of liability for damages caused by space debris, the
question arises whether also international investment protection can be of-
fered to private satellite operators in case of damages resulting from space de-
bris. Provided that a valid BIT exists it has been shown above that it would
fall under the responsibility of the State of registry in its capacity as host State
to provide for FPS of the satellite. But since providing efective protection
against space debris is extremely dicult even for sophisticated space powers,
it seems unlikely that the host State would be considered to be in breach of
the due diligence standard in case a satellite is damaged or destroyed by space
debris. It therefore appears that international investment law is not capable of
eciently compensating the lacunae of the liability regime under internation-
al space law in the context of space debris.
5 Main Findings
The above overview of the phases of satellite activities shows that internation-
al investment law is arguably applicable to all phases of telecommunications
activities, from the planning of a mission to the end of the satellite’s lifetime.
As a result of the preceding considerations on the application of investment
law and BITs for space activities in the satellite telecommunications sector, it
can be argued that:
– Both regimes of space law and international investment law aim at pro-
viding extensive legal protection.
– Although outer space itself is free from sovereignty, States exercise ju-
risdiction over space objects carried on their national registry. Thus, the
Lesley-Jane Smith and Armel Kerrest, ‘Article I Liability Convention’ in Stephan Hobe,
Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds), Cologne Commentary on Space Law
Vol. II (Carl Heymanns Verlag 2013) 115.
() –
legal nature of outer space does not contravene the typical scenario for
investment protection which presupposes the existence of a host State.
– Despite taking place to a large extent in outer space, investment protec-
tion is in principle applicable to all phases of space telecommunications
activities.
– The State of registry is the responsible host State for physical protection
of the satellite in outer space. The jurisdictional nexus created by the reg-
istration under international space law meets the territoriality require-
ment contained in most BITs.
– Contractual rights to use frequencies and orbital slots are protected in-
vestments under the BIT regime. Since the State who is leasing out such
rights to an investor directly benets from the leasing payments, the ter-
ritoriality requirement contained in most BITs is met.
– With respect to the physical protection of satellites from third party in-
terferences and space debris, international investment law and space law
both provide for a fault-based liability. In both cases, it might be dicult
for an investor to establish a fault of the State in question.
– BITs could facilitate the extension of investment protection mechanisms
to costly space related investments and provide exibility in regulating
the legal relations between the investor and the host State in telecommu-
nications contracts for all phases of these space activities.
