Monday, December 19, 2011

PCA Rules on Arbitration of Disputes relating to Outer Space

Earlier this month, the Permanent Court of Arbitration's ("PCA") Administrative Council adopted new rules of arbitration, called the PCA Optional Rules for Arbitration of Disputes Relating to Outer Space Activities ("Outer Space Arbitration Rules"). These Rules were formulated by the International Bureau of the PCA along with an Advisory Group of leading experts in air and space law, to address the need for specialised dispute resolution mechanisms in the field of outer space law, which is rapidly evolving. 

The Advisory Group, among other distinguished scholars, includes Indian Dr. V. S. Mani.  

Brief overview of the Rules:
The Outer Space Arbitration Rules are loosely based on the 2010 UNCITRAL Arbitration Rules, 
- with emphasis on the public international law element that pertains to disputes that may involve States and the use of outer space, and international practice appropriate to such disputes; 
- indicate the role of the Secretary-General and the International Bureau of the PCA; 
- provide for establishment of a specialized list of arbitrators and a list of scientific and technical experts; 
- aim to ensure confidentiality;
- emphasise flexibility and party autonomy.

The Rules are open to States, international organisations and private parties. 

The Rules provide for submission of a document agreed to by the parties, to the arbitral tribunal, summarizing and providing background to any scientific or technical issues that the parties may wish to raise in their memorials or at oral hearings. 

Standard clauses regarding statements of claim and defence and amendments thereto are present in these Rules, and the rule of Competence-Competence is spelt out in Article 23.

The tribunal is empowered to grant interim measures under Article 26. 

There are specific rules for appointing 1, 3 or 5 arbitrators to form a tribunal. Other standard provisions such as challenge to, or replacement of, an arbitrator are also present. A key time-saving provision in Article 15 is the non-repetition of hearings in case of replacement of an arbitrator. It is, however, questionable whether this is an entirely useful provision from the perspective of getting a holistic view of arguments put forth by parties. 

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