Watson Farley & Williams (“WFW”) secured historic decisions for Nauru Ocean Resources Inc. (“NORI”) and Tonga Offshore Mining Ltd. (“TOML”) after the Seabed Disputes Chamber (“SDC” or the “Chamber”) of the International Tribunal for the Law of the Sea (“ITLOS”) unanimously granted provisional measures in their favour.
WFW is representing NORI and TOML in Nauru Ocean Resources Inc. v. International Seabed Authority and Tonga Offshore Mining Ltd. v. International Seabed Authority concerning inquiries conducted by the International Seabed Authority’s (“ISA”) Legal and Technical Commission.
The Orders are the first contentious decisions ever issued by the Seabed Disputes Chamber under Part XI of the United Nations Convention on the Law of the Sea (“UNCLOS”), marking a milestone in the development of the law under Part XI of UNCLOS.
In unanimous decisions, the Chamber confirmed its jurisdiction over the disputes, held that NORI and TOML have plausible rights to due process and fair treatment and found a real and imminent risk of irreparable prejudice to those rights absent judicial protection. The Chamber recognised the importance of due process protections in ISA decision-making and ordered provisional measures requiring the ISA to comply with applicable due process requirements and provide greater procedural clarity pending determination of the merits.
Whilst the Chamber declined to suspend the ISA inquiries in their entirety, it accepted the central premise of NORI and TOML’s claims: that contractors are entitled to due process protections throughout ISA decision-making processes. The Orders impose binding obligations on the ISA and establish important procedural safeguards for contractors operating within Part XI of UNCLOS.
The WFW Dispute Resolution team that advised NORI and TOML was led by Sydney Partner Nathan Eastwood, Global Lead of Public International Law, supported by Counsel Haeran Chung, Senior Associate Iuliia Samsonova, London Partner Alexis Martinez and New York Partner Susan Maples.
Nathan commented: “This is a landmark result for our clients and a momentous development for the law of the sea. These were the first contentious cases ever heard by the Seabed Disputes Chamber and the Chamber unanimously confirmed both its jurisdiction and the existence of enforceable due process rights for ISA contractors. Of particular significance is the Chamber’s confirmation that compliance with due process obligations remains subject to judicial scrutiny, even where the ISA is exercising discretionary powers. The decisions will be studied closely by governments, contractors and international lawyers for years to come”.
