Lawyer Monthly - November 2022

law practice in real estate, arbitration, technology and corporate and commercial law, soon afterwards, I was also exposed to the aviation industry while assisting my clients with arbitration cases, and therefore to further cement it I pursued my LLM in Air and Space Law from Leiden University. While deep-diving into the subject and working on the practical aspects, I found a few interesting challenges that still need to be addressed. First among these is ascertaining fault liability. In the case of collisions in outer space by space objects belonging to two respective states, identifying fault is mostly approached by analysing “the most reasonable steps that could have been taken to avoid the collision but were not”. However, in the case of space debris, ascertaining the same to a state is cumbersome and sometimes near impossible, and thus fault is compromised. Despite several guidelines being issued regarding space debris mitigation, none are internationally binding and none address the effective resolution process under arbitration. With the advent of private players in outer space exploration or otherwise, arbitration as a means of dispute settlement is bound to arise. This is especially true since state parties themselves rarely take recourse to the international space treaties for dispute settlement. Second is the ownership of space resources. Outer space is the common heritage of mankind. While sound in principle, the age of space mining and space resource exploration is not far away. How commercialisation of these resources is to be governed and to what extent a state can exploit such resources still has yet to be addressed. To avoid a non-equitable distribution of such resources, arbitration will have to tackle an imbalance of bargaining powers between the states that exploit space resources and those that do not. Further, most cases involving air traffic controller (ATC) liability in aviation accidents require a well-defined body of literature that can be considered as a binding precedent. Much is left to common law interpretation, with each nation adopting a pro-airline, proATC, or pro-passenger stance. Given the wide spectrum of interpretation, arbitration is likely to grow in such cases. On the other hand, initiatives such as the establishment of The Hague Court of Arbitration for Aviation shows promise for a quick, equitable, flexible and conclusive form of binding dispute resolution. What factors typically constitute a strong final arbitration award? Arguments that are usually forwarded in these cases are the terms of the arbitration agreement, the grounds for EXPERT INSIGHT 59 I believe the finality of a strong arbitration award lies in the craftsmanship of the arbitrator.

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