Forum Shopping Within the Context of Deep Sea Mining: Towards Sponsoring States of Convenience?

Hi, good afternoon everyone. My name is Klaus Wellaert and I work as a postdoctoral researcher at Ghent University in Belgium. My research revolves around the legal aspects of deep sea mining and on this occasion I would like to talk about a potential development which may undermine the international legal framework. Indeed, just like flags of convenience in shipping, a similar phenomenon appears to lurk around the corner in the realm of deep sea mining. Therefore, I will take this opportunity to discuss the options for foreign shopping within this context and I will try to suggest suitable solutions. First, I will go through the contents of my presentation. I begin with a sketch of the legal regime and I follow that up with an assessment of the possibilities of foreign shopping. In order to make this analysis clear and appealing, I apply the technique of a classic criminal investigation. By examining if both means and opportunity, as well as motive, are present. To test the assumption of possible foreign shopping in a concrete case then, this general assessment is followed by a comparative analysis between the national legislation of two sponsoring states, Belgium and the Cook Islands. Finally, this presentation is rounded off by a brief conclusion, summarizing the main findings of my research and offering some suggestions. So first, a short introduction regarding the deep seabed regime. Beyond the boundaries of national jurisdiction, which extend to the outer limits of the continental shelf, the seabed and the subsoil comprise what is called the area. The area and its mineral resources are designated as common heritage of mankind and are governed by a complex international regime, which determines by whom and under what conditions these natural resources can be exploited. The guiding principles of the deep seabed regime are set out in the 1982 Law of the Sea Convention and the 1994 Implementation Agreement. And these rules are further developed in detailed regulations issued by the International Seabed Authority, which has already produced rules regarding prospection and exploration in the area, but has yet to adopt exploitation regulations. So a very short summary of the international rules. States or commercial entities wishing to pursue activities in the area may apply to the ISA, which is tasked to manage the deep seabed and its natural resources. And when a plan of work is approved by the ISA, this takes the form of a However, not only international law is relevant in the context of deep sea mining, as it should be noted that deep sea mining companies must be sponsored by a state. Indeed, without a certificate of sponsorship, a company cannot apply for a contract to the ISA. So national legislation also plays an important role. Okay, so now some words on the sponsoring state and its responsibilities. Well, the sponsoring state ultimately decides whether or not to issue a certificate of sponsorship to a certain company. And if it does, it is tasked with ensuring that this company acts in accordance with the terms of its contract and its obligations under international law. One of the principal ways for a sponsoring state to fulfill this duty is the enactment of deep sea mining legislation, stipulating the conditions to obtain and maintain a certificate of sponsorship. It is obvious that a sponsoring state may not impose any conditions which are inconsistent with the international legal framework. But more stringent provisions can always be adopted. Given the fact that there is no international template for national legislation on deep sea mining, and every country may decide how they would like to implement the international legal framework, it comes as no surprise, however, that there is a huge variety of national laws. And this obviously entails the possibility of mismatches and opportunities. Indeed, depending on the characteristics of national legislation and how strictly it is enforced, deep sea mining enterprises may strategically choose or change their sponsoring state. Therefore, the phenomenon of flags of convenience in shipping, which is detrimental to the enforcement of international rules and standards, does not seem far off in this context. After this short introduction regarding the deep sea bet regime, it is now time to assess the plausibility of forum shopping within the context of deep sea mining. First of all, we should look into the means and opportunity. In other words, is there a legal and practical possibility to purposefully choose a sponsoring state? Well, we should stress that flagging out a ship is much easier due to the frequent lack of a nationality or residency requirement, and the inadequacy of a genuine link concept. But there certainly are possibilities for forum shopping within the context of deep sea mining, namely by registering a company in the desired sponsoring state. Indeed, the law of the sea convention states that companies must be sponsored by either the state of which they are nationals, or the state by which they are effectively controlled, directly or indirectly through nationals of the state concerned. However, the amount of leeway companies enjoy mainly depends on the interpretation of the concept of effective control. Discussions seem to suggest that effective control can mean either regulatory control, economic control, or both. When interpreted in the limited sense of regulatory control, which appears to be the current vision of the ISA, control is simply determined by the incorporation or the conferring of nationality. Adopting an economic control approach, on the other hand, is less straightforward and can be deducted from a number of factors, including ownership of a majority of shares or capital, possession of a majority of voting rights, the right to elect a majority of the board of directors, sufficient influence to determine the company's decisions, or any combination of these elements. The current approach of the ISA based on regulatory control is questionable, as it basically conflates the concepts of nationality and effective control, and seems to defy treaty language, which clearly treats it as two distinct concepts, so the nationality concept and the effective control concept. Moreover, this vision of the ISA disregards the economic reality of controlling influences and corporate structures, whereby the establishment of subsidiaries in other countries can provide an easy solution. So in summary, foreign shopping within the context of deep sea mining is characterized by additional hassle and constraints compared to shipping, as there must always be a national link. But it is certainly possible, especially given the current interpretation of effective control. However, it needs to be noted that in case the applicant has more than one nationality, or the state of effective control differs from the state of nationality, which is realistic when effective control would be interpreted as economic control. In that case, all states involved must act as sponsoring states. So now that we have assessed the means and opportunity, we need to examine the motive. In other words, will contractors consider foreign shopping an attractive option? And which reasons would they have to choose a specific sponsoring state over another? Given the kind of differences which can be identified between national laws on deep sea mining, we can immediately conclude that there is no lack of potential motives. More favorable fiscal regimes, lower fees, less demanding conditions and procedures, or less stringent supervision and enforcement are just some of the attractive opportunities which might trigger a deep sea mining company to purposefully choose to apply for a certificate of sponsorship in a given state. Moreover, obtaining sponsorship from a developing state might result in a different advantageous regime. So it is evident that the future emergence of sponsoring states of convenience would not be an unrealistic development. I'm not going to elaborate on this too much, but privileges of developing states and their sponsored companies include that plans of work can also be submitted with respect to reserved areas which are retained for developing countries. This drastic type of foreign shopping would entail that prospecting activities can be skipped, and no data and coordinates regarding the division of the proposed area into two parts of equal estimated commercial value must be submitted. So they are bypassing the rules which were initially conceived to promote equitable benefit sharing. To test the assumption of possible foreign shopping in a concrete case now, you can quickly go over the results of a comparative analysis I made between the national legislation of two sponsoring states, Belgium and the Cook Islands. First of all, it might be useful to explain why I chose Belgium and the Cook Islands of all places. Well, the choice of these two countries is motivated by the practical relevance this comparison could have, as Global Sea Mineral Resources, or GSR in short, a deep sea mining company which is sponsored by Belgium, maintains close ties with the Cook Islands. For example, the reserved area which GSR initially contributed is now being explored by a joint venture between the Cook Islands and GSR. And GSR is also cooperating with the Cook Islands on the exploration and future exploitation of the mineral resources in the Cook Islands' exclusive economic zone. Considering this close relationship, a possible change of sponsoring state triggered by legal opportunities and the prospect of a more favorable regime does not appear far-fetched. A close examination of the laws of both sponsoring states indicates that there are several differences regarding the applicable fees, application procedure, insurance obligations, tax rates, confidentiality rules, monitoring provisions, and sanctions. But it is doubtful whether these would be considered important enough to encourage forum shopping in this specific case. The comparison does not seem to expose clear mismatches which could be exploited, but this statement must of course be nuanced. First of all, this can change over time through the adoption of future amendments or the issuance of more detailed implementing provisions, which will likely be spurred by the drafting process and eventual adoption of the exploitation regulations by the ISA. Secondly, comparisons with national legislation of other sponsoring states might surely provide different results. We can only determine here that in this particular case and at this point in time, the Cook Islands Seabed Minerals Act, which is a very recent and adequate law, does not seem to present attractive opportunities for global sea mineral resources to be switching sponsoring states. Therefore, this case study does not force us to adjust our conclusion at the end of this presentation, but only adds an important caveat. So to conclude, it should be clear that strategically choosing a certain sponsoring state is possible and might provide contractors with considerable benefits, but it all depends on the situation and should be evaluated on a case-by-case basis. One could even claim that the phenomenon of forum shopping within the context of deep-sea mining is already ongoing, as the recent trend of partnerships can produce similar effects. We already mentioned the joint venture between Belgian company GSR and the Cook Islands, but Canadian-owned company Nautilus Minerals, for example, also partnered with Tonga. Since these collaborations often involve a developing country as the sponsoring state, the ISA should be careful to prevent a factual dominance of developed states in reserved areas, as this would drastically undermine the principle of the common heritage of mankind and the objective to realize benefits for mankind as a whole. On the other hand, however, one could assert that these partnerships are exactly the type of technical and scientific cooperation which is prescribed by the Law of the Sea Convention and the 1994 Implementation Agreement in the context of technology transfer. Nonetheless, this appears to be a risky development which should be closely observed and kept in check. To avoid the emergence of a general trend of forum shopping within the context of deep-sea mining, a logical option would be to increasingly harmonize the relevant national legislation of sponsoring states, but this does not appear to be a realistic or viable solution in practice. Therefore, the most effective correction would be to redefine the concept of effective control, which is currently applied in a way that is very accommodating to contractors and is oblivious to the economic reality of strategic corporate structures. Integrating economic and corporate control factors would admittedly not preclude every possible form of forum shopping, but it would certainly make it much harder and cumbersome for contractors to circumvent the rules. Moreover, a clear definition would be in the best interest of all stakeholders, as the concept of effective control is also crucial to identify which states bear responsibility for harm arising from deep-sea mining activities. Nonetheless, this will probably be opposed by several contractors, as such changes would require a review of the existing contracts and possibly additional sponsorships. So, that was it. Thank you very much for your attention and if there would be any questions, I'll be happy to answer them in the Q&A session or by email. Thank you.