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Abu Dhabi, UAEFriday 26 February 2021

See you in space court: why we need a legal jurisdiction in the stars

Commercial lawyers will soon have to start brushing up on space law. AFP
Commercial lawyers will soon have to start brushing up on space law. AFP

What do the number 143, the letters DIFCC and DFF and a wig have in common? A lot, as it turns out. But to see why, let’s review them one at a time.

The number 143 is, of course, the number of satellites lobbed into orbit by in a recent launch of the US company SpaceX’s Falcon 9 rocket. This is a staggering number of deployments. If you, like me, have grown up back in the days when Sean Connery or Roger Moore were playing the role of James Bond, then your image of a satellite is a heavy bus-sized machine weighing hundreds or thousands of pounds.

Recent generations of satellites can do more with less, something we have become accustomed to through Moore’s law, which predicts that our civilisation advances its computing power exponentially. That’s why technology seems to only get more compact. Just imagine: in the future thousands of chip-satellites weighing only a few grams will eventually live in space, collecting and sharing information. So, the materials carried by Falcon 9, will form part of that increasingly dense technological ecosystem orbiting the Earth and providing us with internet, exploration tools and more.

The letters DIFCC and DFF, of course, refer to the Dubai International Financial Centre Courts and Dubai Future Foundation, the two entities that in 2017 entered into a partnership to develop the Courts of the Future – a think tank that explores the future as it impacts the legal profession. Courts of the Future is a recognition that science and space exploration will throw all sorts of new challenges towards our legal systems, and that anticipating and preparing for them is preferable to reacting in hindsight.

Various major companies are engaged in a private sector space race. Reuters
Various major companies are engaged in a private sector space race. Reuters

Legal teams and judges will need to acquire skills to be able to hear cases that arise in space

This is where the wigs – as in those worn by barristers – come in. Conceived from DIFCC and DFF’s partnership is the idea – and now reality – of “space courts”.

It was an obvious next step. Space has been our final frontier since the 1950s, when the first rockets were fired into the sky. Lately, space exploration has developed dramatically with more and more private companies entering the field. The resulting direction of travel is clear: up, towards researching and settling on planets, building a growing number of space stations and lower-orbit spaceship assembly stations and starting asteroid mining operations to source key materials. All of this entails more launches, more people and more “stuff” in space – in our orbit and beyond. It’s Moore’s law writ large into the stars.

But with Moore’s Law also comes Murphy’s Law: what can go wrong, will go wrong. In space, there is a lot that can go wrong. To resolve issues, it will be possible for space companies, in their commercial contracts, to name the DIFCC Space Court as the court to adjudicate any disputes. It is common in contractual agreements to state the court and jurisdiction that prevails in case of a dispute. Going forward, the DIFCC is open for commercial disputes arising from incidents in space.

So, while the court will convene firmly on the ground at the DIFCC and not in space, the legal teams and judges will need to acquire the specialist skills to be able to hear a space case. Training and the development of guides and of best practices will be a key to ensuring that the space courts in Dubai become the courts of choice. This is a complex and tall order. But it’s well within Dubai’s reach as the UAE develops its own spacefaring ambitions and becomes one of very few countries on this planet to have reached Mars.

Dubai could become a key jurisdiction for settling legal disputes that arise in space. AFP
Dubai could become a key jurisdiction for settling legal disputes that arise in space. AFP

So, the obvious question is not what cases might be brought before the space courts. I feel as though this is where our science fiction-primed minds will need to take a back seat for a moment. It’s not about hyper-drive collisions, attacks from alien warships or the teletransporter failing to reassemble our bodies in the expected manner. It’s more likely to be about more mundane equipment failures or even failure to deliver components on time. It might include substandard materials or design faults. More dynamically, space court resolution might be required as satellites collide or impact a spacecraft. Space courts would be called upon to adjudicate on responsibility, damages and liabilities.

While space law is nothing new, an important next step will be for the space courts to develop and establish their worth as a commercial go-to court for these matters. Partnering with key private sector players and gaining their trust to become a specialised court for commercial agreements will be a big win. At the same time, scenarios will need to be developed to better understand the kinds of cases that might emerge in this relatively novel environment.

Exploring and operating in space is about attempting to understand a different context, under different assumptions and in an evolved landscape. Those challenges will extend downward to the space courts. Once there is an advanced understanding by leveraging partnerships and experts, it will be possible to train lawyers to be ready for anything that might happen in a place without gravity. Or on the surface of a satellite. Or in a planetary lander module. Or, eventually perhaps, if things go wrong with the plumbing in that desirable two-pod stationary lander your grandchildren have purchased on the fashionable side of Mars.

Dr Patrick Noack is the executive director of future, foresight and imagination at the Dubai Future Foundation

Updated: February 9, 2021 08:26 AM

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