Seabed Council Reviews Draft Regulations

The Secretariat presented a review of outstanding issues concerning the draft regulations on prospecting and exploration for polymetallic sulphides in the Area (ISBA/15/C/WP.2). This 25-paragraph working paper, with three annexes, covers additional background on the outstanding issues with respect to the draft, which the Council had agreed to consider at this session. A revised text of the entire draft regulations (ISBA/15/C/WP.1), harmonized in all official languages, and incorporating the revisions, was also presented to Council.

There are five outstanding issues for which the Secretariat provided additional information. These issues include revisions to regulation 23 (overlapping claims), annex 4, section 17.5 on termination in the event of force majeure, and annex 4, section 25.2 pertaining to enforcement of decisions by competent courts or tribunals. Also included is information on the proposed amount of fees for exploration and a formulation that would prevent multiple applications by affiliated applicants in excess of the overall size limitations.

On fees, the paper sets out, in Annex 1, elements to be considered in the cost of processing a plan of work for exploration. The paper listed 13 components involved in processing from receipt, custody and acknowledgement of an application, to preparing and updating the contract information in the Authority’s database.

The Secretariat’s review document suggested possible revisions to relevant provisions of the draft regulations concerning overlapping claims. Specifically, it recommended a fifth paragraph in regulation 12 to address the total area covered by the applicant, and regulation 23 with seven paragraphs dealing with overlapping claims as a basis for continued discussion by the Council.

According to the revised formulation set out in the document, an overlapping application submitted within a period of 60 days of an earlier application would have the effect of suspending further action on both (or all) applications until such time as any conflicts between applications could be resolved. It also provided options for achieving finality to the process of overlapping claims. Such options include binding arbitration in accordance with the United Nations Commission on International Trade Law (UNCITRAL), or the Optional Rules for Arbitration of Disputes Relating to Natural Resources and /or of the Environment.

The document presented by the Secretariat also addressed the relevant provisions of section 17 of annex 4 on the standard clauses for exploration contract to include a provision whereby a contract may be considered terminated should an event of force majeure persist for an indefinite period. It noted that since section 21 of annex 4 gives the Council powers to suspend or terminate contracts in certain circumstances, and also sets out procedural safeguards for contractors on the receipt of notices of termination or suspension, force majeure would most appropriately be covered in section 21 rather than section 17.