ISSUE 1 RESPONDENT (MANFRED 2022)

The respondent submits that they acted in accordance with the International Law by attempting to

obtain the possession of Valerian 806 and is not liable to Candidia for any damages:

Issue 1.1

Xenovia did not violate any International Law

Protocol To the Convention on International Interests in Mobile Equipment on Matters Specific to

Space Assets define Insolvency-related event 1as the declared intention to suspend or actual

suspension of payments by the debtor where the creditor’s right to institute insolvency proceedings

against the debtor or to exercise remedies under the Convention is prevented or suspended by law or

State action.

Paragraph 16 2of the moot proposition states makes it clear that Selada had declared its intention to

suspend the payment of debts to Alendularia. In addition, it also a fact that the banking laws of

Candidia further provide creditors only limited power of attorney to execute documents on behalf of

debtors in furtherance of their contracts.3 Given that both the conditions are being fulfilled, it can be

concluded that the present case falls under the category of Insolvency-related event.

Article VIII of the Cape Town Convention 4draft clearly states that In the event of default as provided

in Article 115, the chargee may, to the extent that the chargor has at any time so agreed and subject

to any declaration that may be made by a Contracting State under Article 54 6, exercise any one or

more of the following remedies:

(a) take possession or control of any object charged to it;

1
Protocol To the Convention on International Interests in Mobile Equipment on Matters Specific to Space Assets.
2
Moot Compromise, ¶16.
3
Moot Record.
4
Article 8, Cape Town Convention.
5
Article 11, Cape Town Convention.
6
Article 54, Cape Town Convention.
Hence, Alandularia being the charge 7state had all the rights to take possession of Valerian 806.

Alandularia fixed Selada. Inc as guarantor (“guarantor” 8means a person who, for the purpose of

assuring performance of any obligations in favour of a creditor secured by a security agreement or

under an agreement, gives or issues a suretyship or demand guarantee or standby letter of credit or

other form of credit insurance;) Selada failed to comply with the set timeline 9and hence, Alandularia

were in their rights to take hold of Valerian 806.

Moreover, Articles 1810, 1911, 20(1)12 – (4), 25(1)13, (2) and (4) and 3014 of the Convention apply in

relation to a record made in accordance with the preceding paragraph as if:

(a) references to an international interest were references to a rights assignment;

(b) references to registration were references to the recording of the rights

assignment; and

(c) references to the debtor were references to the obligor. Hence, the provisions of the convention

allows Alandularia to contact Xenovia15 to allow Fenix-3 which is registered under Xenovia’s

Registry 16to take control of Valerian 806.

Valerian Satellites are controlled by Pacem and in turn Pacem is under the control of Selada. Now

considering Article XXI of the Space Asset Treaty which states that Upon the occurrence of an
17

insolvency-related event, the insolvency administrator or the debtor, as applicable, shall, give

possession of or control over the space asset to the creditor.

Protocol on Matters Specific to Space Assets further elucidates that:

7
Moot Record.
8
Space Assets Treaty, Definitions.
9
Moot Record.
10
Article 18, Cape Town Convention.
11
Article 19, Cape Town Convention.
12
Article 20 (1), Cape Town Convention.
13
Article 25(1), Cape Town Convention.
14
Article 30, Cape Town Convention.
15
Moot Record.
16
Moot Record.
17
Article 21, Space Assets Treaty.
Article XXI – Remedies on insolvency

1. – This Article applies only where a Contracting State that is the primary insolvency jurisdiction has

made a declaration pursuant to Article XLI(4) of this Protocol.

Alternative A

2. – Upon the occurrence of an insolvency-related event, the insolvency administrator or the debtor,

as applicable, shall, subject to paragraph 8 and to Article XXVI(2) of this Protocol, give possession of

or control over the space asset to the creditor no later than the earlier of:

(a) the end of the waiting period; and

(b) the date on which the creditor would be entitled to possession of or control over the space asset if

this Article did not apply.

This establishes the fact that Alanduria were in their rights to take possession of Valerian 806 in

insolvency-related events.

Issue 1.2

Fenix LLC was an Obligor to Alandularia S.A

Article 1(f) 18of the Cape Town Convention defines “obligor” as a person from whom payment or

other performance of debtor’s rights is due or to become due; When Alendularia contacted Fenix LLC

to possess Valerian 806, Fenix went into a contractual obligation to perform a duty of interest.

Article 15 19of the Cape Town Convention states that “to the extent that the debtor's rights have been

assigned to the creditor under a rights assignment, the obligor is bound by the rights assignment and

has a duty to make payment or give other performance to the creditor”

18
Article 1 (f), Cape Town Convention.
19
Article 15, Cape Town Convention.
Clause 220 of the same article states that For the purposes of the preceding paragraph, a notice given

by the creditor after the debtor defaults in performance of any obligation secured by a rights

assignment is given with the authority of the debtor. Alendularia had already given requisite notices
21
and payment deadlines to Selada Inc and post the extinction of the 90 days deadline, it contacted

Fenix LLC to take possession of Valerian 806.

The Court in Pigot v Boeing decided that there was no negligence on the part of Boeing, which should

not be held liable as it was acting as a contractor in performing a lawfully authorized public function

Moreover, Report of the Third United Nations Conference on the Exploration and Peaceful Uses of

Outer Space 22elucidates that states should use the space applications to:

v) To improve the efficiency and security of transport, search and rescue, geodesy and other activities

by promoting the enhancement of, universal access to and compatibility of spacebased navigation and

positioning systems; Xenovia through Fenix 03 was in compliance with obligor’s duty23.

Moreover, UNISPACE +50 recommendation 24

as presented by the Space Generation Advisory

Council includes the following points:

 Develop25 space activities that provide a plethora of socioeconomic benefits

 Utilize space to generate tangible societal benefits, including through tech transfer and spin-

offs

Hence, Xenovia through Fenix LLC was further obliging the guidelines as presented through the

UNISPACE Conference.

Article XIV of the Space Protocol 26defines – Obligor’s duty to creditor

20
Article 15 (2), Cape Town Convention.
21
Moot Record.
22
The Space Millennium: Vienna Declaration on Space and Human Development.
23
https://cdizonblog.wordpress.com/2017/01/31/obligation-and-contracts-2/.
24
https://www.unoosa.org/documents/pdf/copuos/lsc/2017/tech-02.pdf.
25
https://www.unoosa.org/documents/pdf/copuos/stsc/2017/tech-39E.pdf.
26
Article XIV of the Space Protocol.
1. – To the extent that the debtor’s rights have been assigned to the creditor under a rights

assignment, the obligor is bound by the rights assignment, and has a duty to make payment or give

other performance to the creditor, if and only if:

(a) the obligor has been given notice of the rights assignment in writing by or with the authority of the

debtor; and

(b) the notice identifies the debtor’s rights.

2. – For the purposes of the preceding paragraph, a notice given by the creditor after the debtor

defaults in performance of any obligation secured by a rights assignment is deemed given with the

authority of the debtor.

Issue 1.3

Fault on part of Candidia exonerates Xenovia of all its liability.

Article 2 of the liability convention 27states that the launching state is absolutely liable for any damage

caused on the surface of the Earth. However, Article 6 of the convention states that exoneration from

absolute liability shall be granted to the extent that a launching State establishes that the damage has

resulted either wholly or partially from gross negligence or from an act or omission done with intent

to cause damage on the part of a claimant State or of natural or juridical persons it represents.

Malfunction of the payload may also cause damage to other satellites through interference, or worse,

collision.28 There is a risk to persons and property in the vicinity of the launch operations, whether

they are taking part into the launch operations, or are third parties and to the environment from the

toxic products used as propellants, or if the payload carries dangerous products such as nuclear power

sources. 29Another significant risk at all stages on orbit is space debris, which can cause significant

27
Article 2, Liability Convention.
28
Valerie Kayser, Launching Space Objects: Issues of Liability and Future Prospects, Kluwer Academic Publications
2001.
29
https://www.academia.edu/2955652/
USAGE_OF_NUCLEAR_POWER_AS_A_POWERFUL_SOURCE_FOR_SPACE_STATIONS_AND_FOR_SPACE_D
EVELOPMENT_MISSIONS.
damage to or total destruction of the launcher-payload package before separation or to the payload

itself thereafter. And, of course, one has to bear in mind the risks related to the design, manufacturing

and testing of payloads and launchers30. Like in any activity, human failure plays a role at all stages of

the process leading to the launch. 31Besides the classical mistakes, there are also failures due to the

complexity of the system, design and technology involved 32, and the consequences of the

psychological pressure which builds up in preparation for and during a launch campaign, where time

is of the essence.33

Guidance on Space Object Registration states that for the launch and operation of satellites, certain

requirements under international law exist. These include34:

1. Notification and recording of the radio frequencies used by a satellite at the International

Telecommunicons Union (ITU);

2. Consideration of space debris mitigation measures in the design and operation of a satellite;

3. Registration of a satellite with the Secretary-General of the United Nations.35

It is clear from the facts of the case that Candidia asked for registration of new satellites from the ITU,

which however was declined by the ITU 36. Going against the decision of ITU Candidia launched a

valerian satellite37, thus engaging in gross negligence.

Moreover, Limitation for remedies mentioned in Article 26 of the Space Assets Treaty 38 was duly

conveyed to Selada. Inc where it is stated that:

30
https://swfound.org/media/188605/small_satellite_program_guide_-_chapter_5_-
_legal_and_regulatory_considerations_by_chris_johnson.pdf
31
https://thehill.com/blogs/congress-blog/technology/268425-the-role-of-risk-and-the-potential-for-failure-in-space/.
32
https://appel.nasa.gov/wp-content/uploads/2013/05/NASA_APPEL_ASK_32i_success_failure_nasa_culture.pdf.
33
Chapter V - The Contributing Cause of the Accident, Chapter VII - The Silent Safety Programme and Chapter VIII -
Pressures on the System. Report to the President by the Presidential Commission on the Space Shuttle Challenger
Accident, June 6th, 1986, Washington D.C.
34
https://www.itu.int/hub/2022/02/itu-space-interference-free-satellite-orbits-leo/#:~:text=ITU%20does%20not
%20approve%20single%20satellites%20or%20constellations%2C,Every%20satellite%20includes%20at%20least%20one
%20radio-frequency%20component.
35
https://www.unoosa.org/pdf/limited/c2/AC105_C2_2015_CRP17E.pdf.
36
Moot Record.
37
Moot Record.
38
Article 26, Space Assets Treaty.
 1. – This Article applies only where a Contracting State has made a declaration pursuant to

Article XL(1) of this Protocol.

2. – A Contracting State, in accordance with its laws and regulations, may restrict or attach

conditions to the exercise of the remedies provided in Chapter III of the Convention and Chapter II

of this Protocol, including the placement of command codes and related data and materials

pursuant to Article XIX, where the exercise of such remedies would involve or require the transfer

of controlled goods, technology, data or services, or would involve the transfer or assignment of a

licence, or the grant of a new licence.

Furthermore, as per the record, Candidia contended that the followed 1976’s Registration Convention
39
to register their space assets, which was found out to be incomplete 40. Moreover, the registration

convention is outdated 41
in the time scheme of the events. General Assembly in 2007 adopted a

resolution42 that defined the registration necessities of a space asset as follows:

2. Also recommends, with regard to the harmonization of practices, that:

(a) Consideration should be given to achieving uniformity in the type of information to be provided to

the Secretary-General on the registration of space objects, and such information could include, inter

alia:

(i) The Committee on Space Research international designator, where appropriate;

(ii) Coordinated Universal Time as the time reference for the date of launch;

(iii) Kilometres, minutes and degrees as the standard units for basic orbital parameters;

39
Moot Record.
40
Moot Record.
41
https://planet4589.org/space/papers/JJM2018/JJM_published.pdf.
42
A/RES/62/101, UNGA, 10th January 2008.
(iv) Any useful information relating to the function of the space object in addition to the general

function requested by the Registration Convention;

(b) Consideration should be given to the furnishing of additional appropriate information to the

Secretary-General on the following areas:

(i) The geostationary orbit location, where appropriate;

(ii) Any change of status in operations (inter alia, when a space object is no longer functional);

(iii) The approximate date of decay or re-entry, if States are capable ofcverifying that information;

(iv) The date and physical conditions of moving a space object to a disposal orbit;

(v) Web links to official information on space objects;

These guidelines were not followed by Candidia while registering their space asset (Valerian)
43

deeming it illegal for space exploration and for any activities that are to be conducted within it.

When submitting information about the launched space object, the State of registry is obliged to

communicate the marked designator or registration number of the space object 44 and Each State of

registry is further obliged to notify the UN Secretary-General about their already registered space

objects that are no longer in Earth orbit (i.e. decayed)45. None of these obligations were followed by

Candidia.

Cape Town convention itself suggested46 a creation of a new International Registry saying

“the introduction of an electronic international registry for the registration of international interests,

giving notice of the existence of such interests to third parties and enabling a creditor to preserve its

priority against subsequently registered interests and against unregistered interests and the debtor’s

insolvency administrator, thus providing the creditor with the enhanced degree of legal certainty

43
Moot Record.
44
Registration Convention, supra note 1, art V.
45
Registration Convention, supra note 1, art IV(3).
46
https://www.unoosa.org/pdf/pres/2010/SLW2010/01-05.pdf.
necessary to persuade it to grant asset-based financing facilities in respect of assets that it might

otherwise have difficulty in repossessing or taking control of: the lex rei sitae (the law 1 The writer

acknowledges his debt of gratitude to Mr D.A. Porras, Associate Officer, Unidroit, for the invaluable

research that went into the preparation of this paper. The text of the Cape Town Convention may be

accessed at www.unidroit.org. of the place where the asset is situated), the law generally recognised

as applicable to proprietary rights, is particularly ill-suited to assets that are regularly moving across

frontiers or, in the case of satellites and the like, are not on earth at all.47”

The Liability Convention concerns “liability for damage caused by space objects.” 48Article I49 of the

treaty states that “The term ‘space object’ includes component parts of a space object as well as its

launch vehicle and parts thereof.” The treaty’s definition of “space object” extends to large debris

such as an entire defunct satellite 50, but there is debate whether “component parts of a space object”

include other types of space debris. Some academics believe that the lack of a definition of

“component parts” makes the Liability Convention’s application to smaller space debris uncertain.
51
Others argue that “component parts of a space object” include all space debris. Commentators who

believe the Liability Convention has a broader application to space debris argue that it is reasonable to

believe that “component parts” include objects not connected to a satellite or space object 52. They

argue that small, unconnected pieces of debris such as explosion fragments or loose screws fall within

the meaning of “component parts.” The Liability Convention may not extend to debris as small as a

paint flake, but commentators largely agree that the treaty extends to at least some pieces of debris

smaller than an entire defunct satellite.53

47
https://www.unoosa.org/pdf/pres/2010/SLW2010/01-05.pdf.
48
Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389, 2391.
49
Convention on International Liability for Damage Caused by Space Objects, art.1, Mar. 29, 1972, 24 U.S.T. 2389, 2391.
50
See Burke, supra note 83, at 271–80 (describing the reentry of the Cosmos into Canada. The incident is the only
invocation of the Liability Convention to date. There was argument over what damages were covered by the treaty, and
the incident was resolved diplomatically. There was never, however, an argument that the entire satellite was not covered
by the Liability Convention).
51
Imburgia, supra note 7, at 616.
52
https://www.federalregister.gov/documents/2020/08/25/2020-13184/mitigation-of-orbital-debris-in-the-new-space-age
doc citation 85 FR 52455.

53
https://www.academia.edu/es/5400084/
_Overview_of_the_implementation_status_of_the_five_United_Nations_treaties_on_Outer_Space_in_African_countries_
in_P_Solomon_Vinay_Kumar_Ed_Space_Law_Legal_Contours_Amicus_Books_and_Institute_of_Chartered_Financial_
Moreover, NASA has voiced "substantial concerns" 54
about a planned constellation of broadband

satellites, saying the commercial spacecraft would increase the risk of collisions in an important slice

of Earth orbit and asked for such constellation to choose a different orbital frame. Candida did not

follow the recommendation of NASA 55to decide on a different orbital frame for constellation-based

satellites. Placing Valerian 806 in LEO56 does not only increase the risk of space accidents and debris

collision and forced changes in manoeuvring of different spacecrafts against these constellations but

also poses a threat to other space station and astronauts deployed in these stations.57

The Liability Convention treats damage that occurs in space differently than damage on Earth. 58 It

states in Article III that [i]n the event of damage being caused elsewhere than on the surface of the

earth to a space object of one launching State or to persons or property on board such a space object

by a space object of another launching State, the latter shall be liable only if the damage is due to its

fault or the fault of persons for whom it is responsible59.The treaty therefore applies to both damage to

a space object as well as damage to the people or property on board the space object. 60Furthermore,

Article III has a “fault” standard of liability rather than one that is “absolute”.61

Statutory negligence 62occurs when the violation of a safety statute causes 63an accident that the statute

both contemplated and intended to prevent.64 In Martin v. Herzog, Justice Cardozo explained that

when a driver on a highway at night did not turn on the headlights, when there was a statute stating

that drivers must turn on their headlights at night, when the statute was meant to protect the safety of

Analysts_of_India_Icfai_University_Press_Hyderabad_2009_pp_106_127
54
https://arstechnica.com/science/2020/11/nasa-objects-to-new-megaconstellation-citing-risk-of-catastrophic-collison/.
55
Moot Record.
56
Moot Record.
57
https://arstechnica.com/science/2020/11/nasa-objects-to-new-megaconstellation-citing-risk-of-catastrophic-collison/.
58
https://www.mcgill.ca/iasl/centre/research/space-law/liability-convention.
59
Liability Convention, supra note 136, 24 U.S.T. at 2392.
60
International Space Law M. Lits, S. Stepanov, A. Tikhomirova.
61
Liability Convention, Art.2.
62
https://ehlinelaw.com/blog/negligence-per-se.
63
https://www.law.berkeley.edu/files/article-2011-10-40.10009-1.pdf.
64
Martin v. Herzog, 126 N.E. 814, 815 (N.Y. 1920). “Justice Cardozo’s approach to the violation of safety statutes in the
Martin case is clearly the majority position in [the United States].” JAMES A. HENDERSON, JR. ET AL., THE TORTS
PROCESS 185 (7th ed. 2007).
people on highways, and when somebody was injured because the driver did not turn on the

headlights, a court will find negligence per se.

Justice Manfred Lachs in an ICJ Judgment has observed that 65“No difficulties arise whenever a state

launches its own object……however, in cases of joint launching, agreement between the parties is

required as to which of them is deemed the ‘State of Registry’.

HRBA (UN-Human Rights Based Approa66ch) is outlined within the 2003 UN Development group’s

Common Understanding document 67

– providing a consistent approach to common programming

processes at the global, regional, and national level. This mandates that:

 All programs concerning development cooperation and technical assistance should prioritize

the realization of human rights;

 That human rights instruments should guide development cooperation and programming;

 That development cooperation should contribute to duty bearer’s capacity to meet obligations

of rights-holders.

1.4 Candidia disobeyed the guidelines of Space Debris Mitigation

Guideline 3 and 469 of Space Debris Mitigation speaks to “Limit the probability of Accidental
68

Collision” and to “Avoid Intentional Destruction and other Harmful Activities”

Guideline 3: Limit the probability of accidental collision in orbit

In developing the design and mission profile of spacecraft and launch vehicle stages, the probability

of accidental collision with known objects during the system’s launch phase and orbital lifetime

should be estimated and limited. If available orbital data indicate a potential collision, adjustment of
65
Manfred Lachs, The Law of Outer Space, An experience in Contemporary Law Making (1972).
66
https://unsdg.un.org/2030-agenda/universal-values.
67
https://unsdg.un.org/sites/default/files/
The_Human_Rights_Based_Approach_to_Development_Cooperation_Towards_a_Common_Understanding_among_UN.
pdf.
68
Guideline 3, Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space.
69
Guideline 4, Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space.
the launch time or an on-orbit avoidance manoeuvre should be considered. Some accidental

collisions have already been identified. Numerous studies indicate that, as the number and mass of

space debris increase, the primary source of new space debris is likely to be from collisions 70.

Collision avoidance procedures have already been adopted by some member States and international

organizations.

Guideline 4: Avoid intentional destruction and other harmful activities

Recognizing that an increased risk of collision could pose a threat to space operations, the

intentional destruction of any on-orbit spacecraft and launch vehicle orbital stages or other harmful

activities that generate long-lived debris should be avoided. When intentional break-ups are

necessary, they should be conducted at sufficiently low altitudes to limit the orbital lifetime of

resulting fragments.

With placing a constellation satellite at an lower altitude of the Space Orbit, 71 Candidia increased the

risk of space collisions and intentionally invited the occurrence of destruction for future space

missions. 72

Orbital debris can cause damage to satellites and spacecrafts 73, endanger astronauts74, cause damage

on Earth75, and prevent future space activities76. Debris can travel up to 30,000 kilometers per hour so

that even tiny pieces can cause serious damage to functioning satellites 77. Debris smaller than 0.01 cm

in diameter can cause erosion and surface pitting to satellites and other spacecraft 78. This type of small

70
https://dev2u.net/2021/12/01/appendix-7-un-copuos-space-debris-mitigation-guidelines-space-safety-regulations-and-
standards/.
71
Moot Compromise, ¶4.
72
https://academic.oup.com/ejil/article/29/1/281/4993226.
73
INTERAGENCY REPORT, supra note 5, at 3.
74
Matson, supra note 4, at 18.
75
See Michael Listner, Revisiting the Liability Convention: Reflections on ROSAT, Orbital Space Debris, and the Future
of Space Law, THE SPACE REV. (Oct. 17, 2011), http://thespacereview.com/article/1948/1 (describing 2011 re-entry of
a NASA satellite).
76
Broad, supra note.6.
77
Kathy Jones, Krista Fuentes & David Wright, A Minefield in Earth Orbit: How Space Debris Is Spinning Out of
Control [Interactive], SCI. AM. (Feb. 1, 2012), http://www.scientificamerican.com/ article.cfm?id=how-space-debris-
spinning-out-of-control (click on the tab “Debris in Orbit”); INTERAGENCY REPORT, supra note 5, at 8 (describing the
energy in a 1.3 mm piece of debris traveling at 10 kilometers per second as the same as that of a 22 caliber long rifle
bullet).
78
INTERAGENCY REPORT, supra note 5, at 8.
debris is abundant, and over time, can significantly damage spacecraft surfaces, such as windows.

Orbital debris has repeatedly damaged the solar panels 79on the Hubble telescope80, and twenty-seven

International Space Station windows over eighteen flights have been replaced as a result of damage

caused by small paint flakes. Small debris can also seriously damage sensitive instruments 81on the

outside of satellites and spacecrafts.82

Article 12 of ARISWA 83states that There is a breach of an international obligation by a State when

an act of that State is not inconformity with what is required of it by that obligation, regardless of its

origin or character. Seeing that Candidia did not comply with these guidelines and the other

mentioned provisions, they have breached the International Law as well.

1.5 Dispute Redressal in Insolvency Related Space Issues

There is a possible role for the UNCITRAL Model Law on Cross-Border Insolvency 84, at least in

terms of achieving greater procedural certainty and multi-state cooperation where an outer space

collision involves a corporate debtor and one or more third parties in other jurisdictions. Specifically,

Articles 2585 and 26 of the Model Law 86require courts to cooperate ‘to the maximum extent possible’

with their foreign counterparts in connection with the conduct of a recognised insolvency proceeding

and to investigate and pursue appropriate forms of communication. Possible forms of cooperation and

communication are identified in Article 2787, with the final choice of those mechanisms left to the

discretion of the relevant courts in each jurisdiction. Notably, Article 27(a) states that a possible form

of cooperation is ‘the appointment of a person or body to act at the discretion of the court’. This is apt

79
https://link.springer.com/article/10.1023/A:1015607813420.
80
Sundahl, supra note 10, at 130.
81
https://www.sciencedirect.com/science/article/abs/pii/S0273117707009416.
82
See Lawrence D. Roberts, Addressing the Problem of Orbital Space Debris: Combining International Regulatory and
Liability Regimes, 15 B.C. INT’L & COMP. L. REV. 51, 55–56 (1992) (describing the destruction that can be caused by
debris).
83
Article 12, ARISWA.
84
https://uncitral.un.org/en/texts/insolvency/modellaw/cross-border_insolvency.
85
Article 25, UNCILTRL Model Law.
86
Article 26, UNCILTRL Model Law.
87
https://www.nortonrosefulbright.com/en/knowledge/publications/b34b1f80/outer-space-the-new-frontier-for-
restructuring-and-insolvency.
to include an arbitrator or mediator to assist in the resolution of the dispute. The parties would then be

invited to make submissions on the manner in which the arbitration or med00iation would proceed.88

As cooperation increased between space faring nations, another regime of allocation of risk and

responsibility was elaborated through a network of inter-participant waivers of liability clauses(17)

applied in cooperation agreements, and in commercial agreements entered into by state entities

providing launch services. These risk allocation clauses became common practice and were taken

over by industry when the private launch market developed. They are often complemented by hold-

harmless clauses89. There is a large variety in these clauses for the allocation of liability through

contractual schemes involving cross-waivers, hold-harmless, but also sometimes through the

definition of the parties obligations under the contract concerned (obligations of the launch services

providers are always defined as ‘best efforts’ for example). In the recent years, schemes have

developed t90hat dramatically modified the balance of such allocation. They are the so-called turn-key

contracts for satellites which consist of the purchase of a satellite with a transfer of ownership from

the manufacturer to the customer only upon delivery on orbit of a functioning satellite. The risk is

then fully allocated to the satellite manufacturer who has in turn to reallocate this risk among the

various contractors involved in the constellation of contracts required for such an endeavor.91

States, or international organizations and space agencies, have also gradually extended the use of this

mechanism of risk allocation. 92For example, the Intergovernmental Agreement on the International

Space Station, concluded between the US, Europe, Russia, Canada and Japan has adopted the system

of cross-waivers of liability.93

88
https://www.nortonrosefulbright.com/-/media/files/nrf/nrfweb/knowledge-pdfs/au_36379_outer-space---the-new-
frontier.pdf?revision=a6e0925a-f853-4b63-a652-312a0634d5d4&revision=a6e0925a-f853-4b63-a652-312a0634d5d4.
89
H.C. Black, Black’s Law Dictionary, 6th Ed (St Paul, Minn: West, 1993), at 731.
90
https://www.sciencedirect.com/science/article/pii/S0273117719305411.
91
J. Chappez, “Le contrat de livraison en orbite” in P. Kahn ed., L’exploitation commerciale de l’espace, Droit positif,
Droit prospectif (Paris: Litec, 1992), at 183; L. Ravillon, Les télécommunications par satellite, Aspects Juridiques (Paris:
Litec, 1997), at 140.
92

93
Ibid at 24.