India's space policy aims to boost the nation's space industry by allowing comprehensive end-to-end private sector participation. While this promises significant advancements in the country’s status as a space power, it also increases the likelihood of complex, multi-jurisdictional disputes. The article argues that the key to unlocking the policy's full potential lies in establishing specialized dispute-resolution mechanisms. Drawing from international best practices and investing in the technical training of legal professionals can provide the clarity and certainty needed to attract investment and innovation, positioning India as a reliable player in the global space industry.
Chandrayaan-3’s soft landing on the moon last week made India the fourth country to successfully land on the moon, signaling its arrival as a key player in space exploration The Indian Space Policy, approved by the Cabinet Committee on Security on April 06, 2023, seeks to further catapult India’s status as a space power by permitting end-to-end private sector participation in space exploration. A per the policy, private sector enterprises will be able to launch rockets, deploy satellites, and set up launch facilities on a commercial basis. Similar strides in space exploration privatization in the US and the UK have proven successful, with companies like SpaceX and Virgin Galactic becoming significant players in developing new space-related technologies and services. In fact, commercial space ventures accounted for over 77% of all spending on space-related activities in 2021-22.
Private sector participation will undoubtedly augment the nation’s capabilities to develop, deploy, and commercialise space technologies. However, instituting an effective dispute resolution mechanism could prove critical in realizing the Policy’s overarching objective of establishing India as a leading player in the global space industry, as the surge in private sector participation will inevitably lead to more space-related disputes.
Such disputes may be commercial, involving the cancellation of contracts, investment agreements, and licenses. The Antrix-Devas case, a 2011 dispute concerning the cancellation of a satellite and spectrum allocation deal between an Indian government entity (Antrix) and a private enterprise, exemplifies such disputes. The deal was canceled on the grounds that the S-band spectrum allotted to Devas was needed for national security purposes. The cancelation led to cases being filed by the shareholders of Devas before different arbitral tribunals globally, whereas the Indian Government sought the winding up of Devas before the National Company Law Appellate Tribunal.
Space-related disputes can also emerge in the context of the operation and management of space objects. For instance, liability due to damage caused by space debris to satellites could become a prominent issue given the rising rate of new satellite launches. Intellectual property rights disputes, particularly over patents and trade secrets, will likely increase due to their critical role in space sector innovation and development. Indeed, global space-related patent filings tripled between 2007 and 2017, primarily driven by private sector participation.
Addressing space-related cases effectively will require specialized dispute-resolution mechanisms and frameworks. Such disputes involve complex, technical issues that may exceed the expertise of adjudicators and mediators. Lack of technical and legal expertise can lead to unpredictable outcomes, impacting the clarity and certainty entrepreneurs and investors require to participate in a high-risk, capital-intensive sector like space exploration. Space-related disputes also tend to involve parties from multiple countries, leading to uncertainty over which courts and tribunals can exercise effective jurisdiction over such cases. Furthermore, the slow and resource-intensive nature of traditional adjudication or mediation proceedings is unlikely to fit well with the industry’s evolving nature and may hamper innovation and research.
The ongoing Antrix Devas case, which has dragged on for over a decade without resolution, illustrates the pitfalls of ineffective space dispute resolution. The case resulted in nearly USD 1 billion in awards against Antrix, seizure of government properties abroad, and reputational damage that has affected foreign investor confidence in the Indian space sector.
In framing a dispute resolution mechanism for India’s space sector, the DoS could benefit from considering emerging best practices for space-related dispute resolution in creating such a mechanism. One example is the United Arab Emirates’ Courts of Space which seeks to establish a specialized tribunal for space disputes, create guidelines for handling such disputes, and develop a cadre of judges capable of effectively handling complex and technical cases. A working group comprising experts from national space agencies and private sector companies is currently drafting a Space Dispute Guide that will anchor the resolution of cases by the Courts of Space. The Dispute Guide outlines the procedure that the Courts of Space will follow, providing clarity to stakeholders wishing to expeditiously resolve space disputes.
Scientific and technical training of adjudicators and mediators is central to the welfare and progress of modern societies and markets. It equips adjudicators and mediators with the ability to adapt to the ever-changing technology landscape and deliver robust decisions. The US National Court and Sciences Institute’s certification courses for active judges exemplify such training, developing their scientific orientation and educating them on emergent technologies like data science, genetic engineering, and climate technologies. Similarly, UNESCO's Massive Open Online Course (MOOC) aids judges in understanding the intricacies of artificial intelligence and its intersection with law.
In conclusion, the success of India's new space policy hinges not just on technological advancements or private sector participation but also on the establishment of a robust and specialized dispute resolution mechanism. As the sector grows, so will the complexity and international scope of disputes, making it imperative for India to adopt the international best practices outlined above. Investing in the scientific and technical training of adjudicators and mediators will not only expedite the resolution of space-related disputes but also instill confidence among stakeholders. This, in turn, will make India an attractive destination for investment and innovation in space technology. By harmonizing law with technology, India can position itself as a reliable and consistent partner in the global space industry, fulfilling its ambition to become a leading player in this rapidly evolving field.