Watch this space: Technology, mining innovation and emerging legal risks

With the commercial sector accounting for approximately 78% of the global space economy in 2024, and the global space economy being projected to grow from approximately US$630 billion in 2023 to around US$1.8 trillion by 2035 according to McKinsey, interest in space continues to expand beyond an industry that was once characterised by state-led exploration. 

Its implications now extend well beyond the aerospace industry, influencing sectors such as telecommunications, logistics, data analytics, climate resilience, and other critical infrastructure technologies. 

Mining is one of the sectors being most profoundly transformed by the global space economy. Space technologies (spanning from satellite connectivity, Earth observation, AI-driven data analysis, and satellite navigation) are now embedded across the full lifecycle of mining operations, from initial exploration through to site closure and restoration. 

Arbitration is often seen as the natural answer to disputes arising from space-enabled mining operations. Most of these contractual relationships are inherently international in character, disputes may concern commercially sensitive satellite data and technology (particularly where the data affects the parties’ competitive positions in the market), and resolution may require a decision-maker to understand highly technical evidence in any dispute. Arbitration benefits from procedural flexibility, neutrality, confidentiality and international enforceability. Interim measures are usually available quickly, which might be critical for mines relying on satellite connectivity to operate safely while the dispute is still ongoing. The possibility of multi-party and state-adjacent disputes can be effectively managed by consolidation provisions and, where appropriate, investment treaty arbitration frameworks.

From an institutional standpoint, most disputes between mining operators and satellite connectivity, navigation or data service providers are likely to be capable of resolution under conventional commercial arbitration rules, such as those of the ICC, LCIA, SIAC or HKIAC. These frameworks are already widely used to resolve complex, cross-border technology and infrastructure disputes and are generally well suited to disputes involving satellite-enabled mining operations.

Nevertheless, the Permanent Court of Arbitration has published Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, providing a framework specifically tailored to disputes involving state and non-state actors in the space sector and addressing aspects of particular relevance, such as confidentiality, and the possibility of an agreed submission to the tribunal summarising and providing background to any scientific or technical issues that the parties may wish to raise in their memorials or at oral hearings. These rules appear to remain little-used, but they signal the arbitral community's growing awareness that space-related activity – whether involving States or private parties – may be assisted by specific procedural tools. 

A glimpse into the future

Looking further ahead, a far more ambitious frontier is beginning to emerge. It has been nearly three years since NASA’s OSIRIS Rex spacecraft returned with rock and dust samples from near-Earth asteroid Bennu, after a 7-year scientific mission. Notwithstanding the time and cost attached to these efforts, commercial interest in the extraction and exploitation of extraterrestrial resources continues to grow. AstroForge, a California-based company, has already taken preliminary steps towards near-Earth asteroid mining, launching its first US$3.5 million unmanned spacecraft in February 2025 to capture images from a metallic asteroid. Undeterred by challenges with the project, AstroForge continues its plans to develop ways to mine near-Earth asteroids, to extract the metals they contain. 

For most mining companies and those who invest in the sector, these developments are a consideration for the longer-term. However, they are relevant because they raise many of the same legal and commercial issues that terrestrial mining projects have grappled with for decades: who owns the resource, which laws govern its extraction, how are competing rights prioritised, what regulatory approvals are required and how liabilities are allocated among project participants – although of course, against a far more complex legal background.

In particular, the transformative potential of space mining is accompanied by significant legal uncertainty around national sovereignty. Article II of the Outer Space Treaty contains a non-appropriation principle which prohibits states from claiming sovereignty over celestial bodies. Importantly, however, much of the current debate concerns not ownership of celestial bodies themselves, but ownership of the resources extracted from them. This distinction is particularly relevant in the context of asteroid mining, where commercial operators are not seeking sovereignty over an asteroid but rather the ability to recover, own and sell the minerals obtained from it.

The international legal position remains unsettled. While the Outer Space Treaty prohibits national appropriation, a number of jurisdictions have enacted legislation intended to give commercial participants greater certainty regarding resource extraction activities. For example, in the US, Section 403 of the Commercial Space Launch Competitiveness Act grants US citizens the right to own and sell resources derived from celestial bodies for private profit. Luxembourg has adopted a similar approach through legislation recognising that space resources may be capable of private ownership, positioning itself as a leading jurisdiction for companies seeking to participate in the emerging space resources sector. However, the extent to which such rights granted by domestic legislation may be recognised outside those jurisdictions remains highly uncertain.

As investment and technological capabilities continue to advance, questions will inevitably arise regarding the interaction between these domestic legislative regimes and the broader principles of international space law. Competing claims over extracted resources, licensing and regulatory requirements, financing and security interests over space assets, and disputes between operators, investors and sponsoring states may all emerge as significant areas of legal uncertainty.

In that context, arbitration's flexibility, technical sophistication and global enforceability may position it as a cornerstone of dispute resolution both on Earth and beyond. Just as arbitration has become the preferred mechanism for resolving complex, cross-border disputes in the mining, energy and infrastructure sectors, it is well placed to address future disputes arising from space-resource projects, particularly where parties require neutral forums, specialist technical expertise and internationally enforceable outcomes.