1. CONTRACTS AND (HARMFUL) INTERFERENCE PROFESSOR LESLEY JANE SMITH, LEUPHANA UNIVERSITY OF LÜNEBURG/ WEBER-STEINHAUS & SMITH BREMEN
3rd Luxembourg Workshop on Space and Satellite Communications Law
Luxembourg, 5-7 June 2014

2. Overview 1. Scope and Definition, Interference 2. Cause and Effect
3. Legal Considerations
4. Contractual Solutions
5. Conclusions

3. 1. Scope of Contracts (1) – Which Service? What Level? Which User?
Perspectives and Risk allocated accordingly
Future: Real-time, satellite-based, integrated universal services
Performance linked to delivery requirements from particular service component (‚satisfactory‘)
Space segment / Control segment
Ground component /distribution component
Distinguish Customer/ User/ ‚Final‘ End Users
Distinguish integrated real-time services from space- data-based, derivative services and products

4. 1. Contracts (2) regulate connectivity, and interference beyond harmful
Defined by Art ITU RR: „Harmful interference: Interference which endangers the functioning of a radionavigation service or of other safety services or seriously degrades, obstructs, or repeatedly interrupts a radiocommunications service operating in accordance with Radio Regulations“

5. Frequency interference
2. Causes of ‚External‘ Interference (1)- Satellite Services and Loss of Signals in Space (SiS) 5
Space weather
Solar storms, coronal flares, solar mass ejections
Space debris
Frequency interference
Jamming
Hacking
Black outs

6. 2. Loss of SiS – Impact (1) on Economy and Finance
Developing markets in commercial satellite-based products and services
PNT(Positioning, Navigation and Timing [GNSS])
Errors in data collection
Growth of markets for all types of EO data
Impact on growth markets in downstream sector 6

7. 2. Impact - Loss of SiS (2) on Space and Ground-based Infrastructure7
Loss of signals
Loss of transport services eg. tracking
Damage to aircraft in flight etc.
Navigation
Loss of telecommunication
Loss of telemedicine services
Loss of life
Communication
Loss of EO availability
Loss of disaster management services
Damage to society
Remote sensing

8. 2. Impact of Loss of SiS on Society (3)- Dependency
Malfunction of satellites
Power grids collapse
Critical services fail
Threat to national/global security 8

9. 3. No Flowdown of Space Treaties + ITU, at commercial level - indirect remedies9
No definition of loss of SiS
Parties to the treaties
Commercial activities only covered under state to state ‘umbrella’
Intern. Intergovernmental organisations (Art XXII LIAB)
Scope of space treaties
Unsuited for space activities
Impact and victim-orientated character of the LIAB

10. 4. Contractual Solutions (1) focus on ‚Capacity‘/ Service Level Agreements
Details of hosting communication levels required; operational characteristics; essentials
Levels generally defined by specifying % capacity required
Use of Key Performance Indicators – KPIs- to manage service requirements
Maximum and minimum levels below which service not to fall
Linked to penalties = reduction in service charges payable

11. 4. Contractual Solutions (2)= ‚Satisfactory‘ Penalties v. Liability
Consequences of underperformance expressed as penalties
Penalties – in contrast to liquidated damages - can be challenged if disproportionatemay lead to invalidity
Maintain link between penalties and actual loss
Measure of financial loss must not be in terrorem
Legal reasoning: liability goes beyond SLA which regulates charges for services
Liability = breach, or failure to perform contract
Force majeure

12. Current situation: Outlook
4. Contractual Solutions (3): New: Derivative sat-based navigation/communication ‚apps‘
Current situation:
free of charge
disclaimer of liability, no penalty clauses, force majeure
Outlook
- Telemedicine
- Health
- Logistic
- (unmanned) transportation
Who is liable for harmful interference of these critical services?

13. 4. Cf: Current contracts approach (4) + delivery of future derivative products?
EO based services
´product`
data protected by IPR (licencing) or under GMES/ Copernicus rules
Telecomnmunication/navigation services
Pure `services´ = not protected by IPR
If free of charge = you pay with your personal data and information!
secure Telecom/Navi systems are expensive
govnernment/ commercial sector cannot/will not take over contractual risks ()
A new end-user basesd insurance regime may be established

14. Conclusions 14
Direct (integrated satellite-based) services/and real-time satellite-based services
Key clauses
Availability
Force majeure
Loss mitigation
Justified and unjustified interruption
Derivative indirect satallite-based services
No warranty
No disclaimer 14

15. Prof. Dr. Lesley Jane Smith
Further Information
Contacts:
Prof. Dr. Lesley Jane Smith