UNIDROIT CONSULTATION
Reflections
on the
Legal Framework for TPL for GNSS
Rome, 22 October 2010
Prof. Dr. Lesley Jane Smith, LL.M.
Leuphana Universität Lüneburg
Weber-Steinhaus & Smith, Bremen
Open Issues
• Clarification – possible gains and costs of a TPL
system for GNSS (Galileo)
• Regulatory imperatives
• Trade-offs - existing TPL Liability regimes
• Current debate on appropriate forum
– National/ EU-ESA/ International?
– Responsibility, liability and legal certainty
– Avoiding diversity thru’ access to multiple jurisdictions
• Guidance from space law blueprints on liability
• Perspectives
Prof. Dr. Lesley Jane
t
Smith, LL.M.
2
Legal Framework for Provision of
Satellite Navigations Services
CONTRACT- BASED
SATELLITE
SERVICES
• SoL= user charge
• CS = (fee)
• Guarantee
• Operable via EGNOS
by 2010
___________________
• PRS: = encrypted
services to MS
_________________
• SAR = COSPAS
SARSAT/ no liability
FREE SERVICES
Contract
GNSS
duties towards users
Tort
OS
EGNOS
Public providers
Public users
Commercial users
Private users/
beneficiaries
___________________
GPS
US, military, no liability
as provider abroad (Art
28 Chicago), waiver to
sovereign immunity for
US citizens,
Interoperable/ GNSS
In terms of service providers spec/ contract
Clarification (1)
•
•
•
•
In whose interest?
Operators, providers and users
Concept of damage from signal ‘service’
Legal relations between parties
– Predominantly contract, but also tort
• TPL regime presupposes that other contractual
rules accommodate liabilities
– But general space contract practices+ laws contain
waivers and hold-harmless clauses
– Signal liability excluded
– Contract chain may lead to ‘manufacturer’
Prof. Dr. Lesley Jane
t
Smith, LL.M.
4
Clarification (2)
• Dimension of ‘inherently dangerous’ (public)
activities not fully assessed
• EU as owner of GNSS system
– Delegation of responsibilities to Operator delivering
services
– Duty to ensure maintenance of service
• How is system to be provided at national level?
• Commercial/ public interface:
– Business model for 5 services –
– Guarantee etc
– OS; CS; PRS, SOL; SAR
Prof. Dr. Lesley Jane
t
Smith, LL.M.
5
Clarification (3)
• Following issues important in absence of TPL
regime:
• Organisational liability (agency, consortium)
– Owner liability
– Manufacturer’s liability
– Product liability
• Or should loss lie where it falls?
– Much depends on organisation of final provision of
services
– Issue of inter-operability underlines advantages of
strict regime
– Possibly speaks for independent regime
Prof. Dr. Lesley Jane
t
Smith, LL.M.
6
Clarification (4)
• EU ownership of Galileo, EGNOS
– Art 8 Reg 683/2008; EGNOS agreement 2009
• Extent of EU liability for Galileo system
–
–
–
–
As expanded per Reg.1321/2004
Art 17(1) contractual liability
Art 17(2) tort liability
According to common general principles
• GNSS standardisation
– Safety, integrity, accreditation,
– Compliance with standards no defence in civil law
Prof. Dr. Lesley Jane
t
Smith, LL.M.
7
Clarification (5)
• Rationale behind operator liability
– Limitation of liability
– Channelling of liability
– Insurance-backed system
• Focus of international space law (OST/LIAB)
is unlimited liability
– Based on ‘liquidity’ of space-faring states
– Inherently dangerous activities
– GNSS – safety tool
• Presumption that radio signals excluded from
scope of UN Treaties may not hold
Prof. Dr. Lesley Jane
t
Smith, LL.M.
8
Providers and Users of
Navigation Signals
ICAO, IMSO, ICG
etc.
Standardisation
SARPS+
Certification
Authorities
NAVIGATION
COMMUNITIES
Air
Maritime
Road + Rail
Transport
innocent
beneficiaries/
innocent
bystanders
Satellite
Owner/
Operator
Manufacturers /
providers of
receivers/ navigation
equipment
Ground station
operator(s)
- thereafter
added value
providers
Satellite image courtesy of ESA
Clarification (6)
• Victim orientated systems =
– Strict liability imperative
– Proof of causation and damage, not fault
• Systems with limited liability
– ‘Trade-off’ limiting liability against channelling liability
to operator
– Exclusivity?
– Access to national courts weakens effect of special
regime
• Protection of innocent bystander/ TPL
– GNSS as tool to assist timing, positioning, navigation
– Inherently dangerous activities?
Prof. Dr. Lesley Jane
t
Smith, LL.M.
10
Responsibility within GNSS
‘Governance’
• Immunity at state level for (commercial)
services
– = acta iure gestionis
• Applicability of international space law to EU?
• Immunity from suit for EU?
– EU now has legal personality, Art 47 TEU
• EU liability regime important
– in keeping with its own obligations
– ‘State’ and/or private rights of recourse against
operator at national or EU level?
11
Liability matrix of satellite
manufacturers or service providers
Public
bodies/
services
Commercial
Public/private
Other users
contracted
Primes/
manufacturers
contracts
Tort law
O.S.
no contract
innocent
beneficiaries
bystanders
Product
liability
Subs or
equipment
manufacturer
Service
provider
Services as defined per contract
or public statement
Otherwise
Tort / product liability law
Software defect
SIGNAL DEFECT
-Product?
Comparison: Third party liability/
French Law 2008
• Efficient liability mechanism for
commercial sector
• Operator liable only within time limit (1 yr)
• State liability kicks in for operator after
expiry of 1 year
• Signals excluded from ambit
• Launches from France or EU territory
– French law: two phases – launch and in orbit
– France guarantees liability above ceiling, limit
only for damage on earth
13
Avoid competing claims and
divergent outcomes
Third party liability
– Opening for victims otherwise excluded
• Definition of manufacturer
– Includes part-manufacturers
• Special product liability regimes (co-exist
alongside general tort law)
– Generally strict
– No contracting out (unless industry agreement
to share burden at same level, no end-users)
– Includes suppliers, especially in absence of
available manufacturer
14
Exploitation system –method of
distribution
• Strict liability
– No contracting out (unless industry agreement
to share burden at same level, no end-users)
– Suppliers are liable, especially in absence of
available manufacturer
• Users and End-Users
– Statutory exceptions to exclusion of liability
towards non-commercial users
– Subject to legal control
15
Avoid competing claims and
divergent outcomes
• Litigation in non-EU jurisdictions attractive
•
•
– Keeping pace with liability scenario
Foreign jurisdiction over claims– lex loci
commissi
– Not to be excluded
No unitary EU law of conflicts
– Applicable law harmonised
– Rome I and Rome II (foreign law can apply)
• Leave each region to settle its own claims
– Could be response to multiple GNSS systems
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TBD /Perspectives
• Current state of dialogue
• Open issues - aligning regulation of liability
– for EU GNSS system
– International level / Cf. UNIDROIT discussions
• Contractual structures for provision of GNSS
services in EU and beyond, tbd
• Interoperability: a system-related issue
– Cost possibly easier to manage at regional level
– EU solution open to bilateral agreements
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