RESILIENSIS SPATIALIS Contractual solutions for resilient space infrastructures

maria.lucas-rhimbassen@ut-capitole.fr PhD Candidate @ Chaire SIRIUS

APPROACH

RESISTING RESILIATION VIA RESILIENCE

1. Why? 2. How? 3. What?

1. WHY?: GROWING RISK

Source Space Security Handbook by KU Schrogl ed

1. AND VULNERABILITY OF AN INTERCONNECTED INFRASTRUCTURE

Source ROSA/EURISC

WHICH MEANS CRITICAL INFRASTRUCTURES MIGHT BE AT RISK

And we need to ensure mission assurance

For service continuity

S I L O S S O S … for System of Systems

2. HOW?: RESILIENCE

CONTEXT OF: - A.I. - SINGULARITY - INTERCONNECTIVITY - INTERNET OF THINGS (IOT) - INTERNET OF SPACE (IOS) - FRAGMENTATION OF SPACE SYSTEMS - SERVICE ORIENTED SPACE ARCHITECTURE (SOA) - CISLUNAR ECONOMY - SAT CONSTELLATIONS - COMMERCIALIZATION OF SPACE

Source RAMSES H2020

COMBINED WITH SYSTEMS THINKING

LOOP

• IMPACT

• PUBLIC REACTION

• GOV’T RESPONSE

• PARTNERSHIP WITH INDUSTRY

• INCENTIVES/COST REDUCTION (PPP)

• INDUSTRY INVESTMENT

• INFRASTRUCTURE RESILIENCE

Source Homeland Security Review vol 7 no 1 Winter 2013 : Resilience Return On Investment, an Impossible Argument? By Agrawal and Church

TAKEAWAYS: 1. RETURN ON INVESTMENT (ROI) MUST BE THE 5TH R OF RESILIENCE (ROBUSTNESS, REDUNDANCY, RAPIDITY AND RESOURCEFULNESS). 2. RESILIENCE: FROM ECOLOGY, BIOLOGY AND PSYCHOLOGY TO MANAGEMENT AND ENGINEERING 3. WE HAVE 2 RAMIFICATIONS TO BE MERGED THROUGH LAW : PROGRESSIVE (ADAPT) AND CONSERVATIVE (RECOVER)

LESSONS LEARNED FROM

Successful business cases (Paradigm Secure Communications (now part of Airbus) in 2007, United Launch Services in 2003 and SES in 2017) We need to consult with the insurance industry and with operators to talk about MISSION ASSURANCE VS INSURANCE

3. WHAT?: CONCTRACTUAL CLAUSE Incorporating progressive and conservative resilience to soft

and hard options

PREAMBLE

INFRASTRUCTURE SERVICES: ground and space segment, signal and industry. CRITICAL : quality and major requirement of resilience COMPETITIVE ADVANTAGE So far, only +- 25 % of clauses evolve indirectly around resilience Process vs Outcome: too much emphasis on procedure FORCE MAJEURE = facilitating exit

DEFINITIONS

EXPLICIT INCENTIVES PENALTIES KPI SALES ARGUMENT PORTFOLIO OF CHOICES TO BE NEGOTIATED

CLAUSE

DESIGN, FABRICATION, SUPPLY, SUBCONTRACTING, OPERATIONS, MAINTENANCE, MONITORING, etc. SYSTEMS, SIGNAL, TRANSPONDER, PAYLOAD, LAUNCHER, BUS, etc. EVENT OR SERIES OF EVENTS INSTANT/SPONTANEOUS RECOVERY/ADAPTABILITY STABLE CONDITION OF OPERATIONS OBJECTIVE DEFINITION OF ACCEPTABLE CONDITION

INTERPRETATION AND IMPLEMENTATION

HARDWARE SOFTWARE FIRMWARE DEFINITION OF SPONTANEOUS/INSTANTANEOUS (seconds, minutes, hours, more?) Other negotiable terms between parties

Compilation of existing space clauses

- BEST EFFORTS, - CROSS-WAIVERS, - DUTY TO CORRECT, - BACK-UP SOLUTIONS…

- Is there a place for cas fortuit? - Quid force majeure?

- Contratcts:

- SELF-AWARENESS - SELF-HEAL - SELF-REGULATION =

incentivize more regulation? Where is the place of shadow hierarchy

and meta-governance?

LEGAL DISCUSSION, CONTINUED. • Example of defining “reasonable” and “best efforts”, etc. to set new legal standards

• British Columbia Supreme Court, Atmospheric Diving Systems Inc. v. International Hard Suits Inc. (1994), 89 B.C.L.R. (2d) 356 (S.C), in Understanding, “Best Efforts” And Its Variants (Including Drafting Recommendations), by Kenneth A. Adams: Due diligence of a cautious and reasonable professional while on duty… (manufacturing launchers, porviding launching services, during launching campaign)

• Good alternative to coercive police power in a risky business. Cross-waivers play the game.

• New legal definition of “resilient”? Anticipating the future? Seizing the opportunity?

• Importing “regulation” from biology. Defining a new concept in law or reframing a pre-existing mechanism?

• Similar clauses of flexible self-regulation in contracts (eg adaptive clauses for inflation, etc.)

• Flexibility of common law through equity. Common term with intergenerational equity in environmental law. Resilience stems from ecology. Space is another environment, the final frontier. Need to stress the adaptability of resilience (progressive approach, flexibility and Self-regulation = self-healing and self-awareness are common aspects of contracts, resilience and AI.

• Commercialisation of space = contracts

• Militarisation of space = subcontracting = contracts

RECOMMENDATIONS

• Pioneering topic: acknowledging challenges • Interdisciplinary research on the field to test the hypothesis • Built around design thinking and resilience-based design (RBD) • SIRIUS focus group • Submit results to UNIDROIT

maria.lucas-rhimbassen@ut-capitole.fr