unifoto-build06-bn

 

 

 

Introduction

The Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Space Assets (hereinafter referred to as the Space Protocol), as adopted by a diplomatic Conference, held in Berlin,, at the kind invitation of the Government of the Federal Republic of Germany, from 27 February to 9 March 2012, represents the co-ordinated efforts of both Governments and the commercial space sector to render asset-based financing more accessible to an industry that is presently searching for innovative ways to obtain start-up capital for space-based services. Such ventures are full of risk and uncertainty and, consequently, their financing is currently still prohibitively expensive. By introducing a uniform regimen to govern the creation, perfection and enforcement of international interests in space assets, notably satellites, it is envisaged that the cost of financing will be reduced as a result of the increased level of transparency and predictability for financiers, thereby making financing more widely available to a greater number of players in the commercial space sector. Such an instrument will, in particular, help bring much-needed financial resources to the NewSpace community, namely those small start-up companies that have emerged as a result of the booming commercial space sector.

The Space Protocol seeks to accomplish these ends by extending the benefits of the Convention on International Interests in Mobile Equipment, opened to signature in Cape Town on 16 November 2001 (hereinafter referred to as the Cape Town Convention), to outer space assets (in the same way as the Protocol to that Convention on Matters specific to Aircraft Equipment extends it to aircraft objects and the Protocol on Matters specific to Railway Rolling Stock extends it to railway rolling stock). Such an endeavour has not been without its difficulties, essentially given the pioneering nature of the endeavour. Those experts that have contributed to the preparation of the Space Protocol have worked together tirelessly to find novel ways to achieve an instrument that meets the needs of both Government and industry. These efforts were upheld at the recent diplomatic Conference where the overwhelming majority of negotiating States expressed their support for the Space Protocol and its objectives. 25 negotiating States signed the Final Act of the diplomatic Conference, with three such States - Burkina Faso, Saudi Arabia and Zimbabwe - signing the Space Protocol itself.

Preparation of the Space Protocol by a UNIDROIT Committee of governmental experts

The transmission to Governments of a preliminary draft Protocol, prepared, at the invitation of UNIDROIT, by a working group the core membership of which was provided by manufacturers, financiers and users/operators of space property as well as the United Nations Office for Outer Space Affairs, the European Space Agency/European Centre for Space Law and the International Bar Association, was approved by the Governing Council of UNIDROIT at its 80th session, held in Rome from 17 to 19 September 2001, subject to revision by a Steering and Revisions Committee of that body to take account of the changes made to the Convention and the Aircraft Protocol at the subsequent Cape Town diplomatic Conference.

Following the meeting of the Steering and Revisions Committee held in Rome on 1 February 2002, the first session of the UNIDROIT Committee of governmental experts for the preparation of a draft Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Space Assets (hereinafter referred to as the Committee of governmental experts) was convened in Rome from 15 to 19 December 2003 (Report: UNIDROIT 2004 - C.G.E. Space Pr./1/Report rev. ).

The second session of the Committee of governmental experts was convened in Rome from 26 to 28 October 2004 (Report: UNIDROIT 2004 - C.G.E. Space Pr./2/Report ). At the conclusion of that session, the Committee gave out a number of intersessional assignments which were the subject of two Government/industry meetings, the first held in London, under the auspices of the Royal Bank of Scotland, on 24 April 2006 and the second in New York, under the auspices of Milbank Tweed Hadley & McCloy L.L.P., on 19 and 20 June 2007. On the basis of the provisional conclusions reached at the New York meeting, the UNIDROIT General Assembly at its 61st session, held in Rome on 29 November 2007, endorsed the UNIDROIT Secretariat's proposal for the establishment of a Steering Committee, open to those representatives of Government and the commercial space sector having participated in the Government/industry meetings, to build further consensus around such provisional conclusions such as to permit the reconvening of the Committee of governmental experts and timeous completion of the preliminary draft Space Protocol as it had emerged from the first two sessions of the Committee of governmental experts.

Following the holding of two meetings of the Steering Committee, the first held in Berlin, at the invitation of the Government of Germany, from 7 to 9 May 2008 (Report: UNIDROIT 2008 – Study LXXII J – Doc. 14 ) and the second in Paris, at the invitation of the European Centre for Space Law, on 14 and 15 May 2009 (Report: UNIDROIT 2009 – Study LXXII J – Doc. 17 ), the UNIDROIT Secretariat, following consultation with the Chairman of the Committee of governmental experts, Mr S. Marchisio (Italy), convened a third session of the Committee of governmental experts.

The third session was held in Rome from 7 to 11 December 2009 (Report: UNIDROIT 2009 - C.G.E. Space Pr./3/Report rev. ). Apart from the text of the preliminary draft Protocol that had emerged from the first session of the Committee of governmental experts, at its third session that Committee had before it for discussion the results of the intersessional work, in the shape of:

  • first, an alternative version of the preliminary draft Protocol drawn up by the co-Chairmen of the Drafting Committee of the Committee of governmental experts (Canada and the United Kingdom) (UNIDROIT 2009 - C.G.E. Space Pr./3/W.P. 5 rev. ) reflecting the Steering Committee’s prescriptions for those policy issues which had been referred to intersessional work;
  • secondly, another alternative text of the preliminary draft Protocol, again drawn up by the co-Chairmen of the Drafting Committee (UNIDROIT 2009 - C.G.E. Space Pr./3/W.P. 8 rev. ), this time proposing certain technical amendments - which, however, neither concerned the issues referred to intersessional work nor reflected the deliberations of the Steering Committee - and,
  • thirdly, the results of the work carried out by the Sub-committee of the Committee of governmental experts that had examined certain aspects of the future international registration system for space assets in Rome on 26 and 27 October 2009 (Report: UNIDROIT 2009 - C.G.E. Space Pr./3/W.P. 7 rev. ).

In the light of the Committee of governmental experts’ review of the text of the preliminary draft Protocol that had emerged from its first session and the alternative texts, in particular taking account of the proposals for amendment laid before the Committee - notably by representatives of leading insurers - the Drafting Committee began the task of revising the preliminary draft Protocol. In the light of the report submitted to the Committee of governmental experts by the Drafting Committee on the work it had accomplished during the session, the Committee of governmental experts decided that the Drafting Committee should complete the work which it had begun during the session by way of implementation of the decisions taken there. Moreover, the Committee of governmental experts agreed that all future work should be carried out on the basis of the alternative text proposing certain technical amendments. In addition, it was agreed that the Informal Working Group established by the Committee of governmental experts on default remedies in relation to components, which was not able to complete its work during the session, should continue to work informally with a view to agreeing on a proposal that might be laid before the Committee of governmental experts at its fourth session.
The fourth session of the Committee of governmental experts was held in Rome from 3 to 7 May 2010 (Report: UNIDROIT 2010 - C.G.E. Space Pr./4/Report ) The work accomplished by that Committee at its fourth session consisted essentially in, first, consideration of the specific outstanding issues identified at its previous session and, secondly, a provision-by-provision review of the entirety of the revised version. Two sets of provisions, though, were essentially left for further consideration within the two informal working groups set up by the Committee of governmental experts at its previous session, namely the provisions dealing with limitations on remedies (in the case of assets providing a public service) and the issue of default remedies in relation to components. The working groups in question reported to the Committee of governmental experts on the progress they had accomplished during the session, with it being agreed that the discussion proposal that emerged from the Informal Working Group on limitations on remedies should be incorporated in the revised version of the preliminary draft Protocol.

At its 89th session, held in Rome from 10 to 12 May 2010, the UNIDROIT Governing Council authorised the Secretariat to convene a fifth session of the Committee of governmental experts, which was held in Rome from 21 to 25 February 2011 (Report: UNIDROIT 2011 - C.G.E. Space Pr./5/Report ). In line with the statements made in the concluding part of the fourth session regarding future work, the Secretariat, moreover, organised meetings of both the Informal Working Group of the Committee of governmental experts on limitations on remedies (Report: UNIDROIT 2010 - C.G.E. Space Pr./5/W.P. 6 ) and the Informal Working Group of the Committee of governmental experts on default remedies in relation to components (Report: UNIDROIT 2010 - C.G.E. Space Pr./5/W.P. 5 ), as well as consultations with representatives of the commercial space sector (Report: UNIDROIT 2010 - C.G.E. Space Pr./5/W.P. 4 ), in Rome from 18 to 21 October 2010.

The fifth session of the Committee of governmental experts was held in Rome from 21 to 25 February 2011 (Report: UNIDROIT 2011 - C.G.E. Space Pr./5/Report ). The remarkable progress made by the Committee of governmental experts at that session, notably in reaching consensus on, first, the definition of the term “space asset”, secondly, limitations on remedies (public service) and, thirdly, the criteria to be employed for the registration of space assets was greatly facilitated by the three intersessional meetings. Even though it was not possible to reach consensus on the other outstanding issue, namely limitations on remedies in relation to components, the Committee of governmental experts was able to agree on the text of three alternative solutions to this issue for decision by the planned diplomatic Conference. At the end of the session, the Chairman of the Committee of governmental experts was, accordingly, able to recommend to the UNIDROIT Governing Council, on behalf of the Committee of governmental experts, that the text of the preliminary draft Space Protocol as established by that Committee was ripe for transmission to a diplomatic Conference for adoption.

The documentation for the five sessions of the Committee of governmental experts is accessible at this page.

Transmission of the draft Space Protocol to a diplomatic Conference for adoption

At its 90th session, held in Rome from 9 to 11 May 2011, acting on the recommendation of the Chairman of the Commitee of Governmental experts, the UNIDROIT Governing Council decided to authorise the transmission of the text of what thus became the draft Space Protocol to a diplomatic Conference for adoption.

Diplomatic Conference to adopt the draft Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Space Assets

The Government of the Federal Republic of Germany decided to convene a diplomatic Conference to adopt the draft Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Space Assets (hereinafter referred to as the Space Protocol), under the auspices of UNIDROIT, in Berlin from 27 February to 9 March 2012. The Space Protocol was duly adopted on 9 March 2012.

Following a decision taken by the Conference, the text of the Space Protocol is subject to verification by the Secretariat of the Conference under the Authority of the President of the Conference within a period of ninety days from the date of the Final Act (9 March 2012) as to the linguistic changes required to make the texts in the different languages consistent with one another. The final texts will, therefore, be available after this period.

CONFERENCE DOCUMENTS

 

 

news archive unidroit

 

 

We use cookies on this website. By using this site, You agree that we may store and access cookies on your device.