Interview: Pamela L. Meredith

July 23, 2008 at 10:00 am | Posted in Interview | 1 Comment

Pamela L. Meredith advises clients on commercial space project planning and implementation, risk management, contract negotiation, and dispute resolution at Zuckert, Scoutt & Rasenberger, L.L.P. She has written numerous articles and a textbook on these topics and is a frequent speaker at satellite communications and space law conferences in the U.S. and internationally.

Ms. Meredith is also an Adjunct Professor of Satellite Communications and Space Law at American University’s law school in Washington, D.C. – a course she started in 1989.

Interview with Pamela Meredith

Res Communis: How would you describe your practice?

Meredith: It is very broad based, but at the same time it has only one focus and that is space. All my clients are either doing something in space, or building something that goes into space, or insuring something that goes into space. My practice ranges from regulatory law, to contracts and commercial transactions, to dispute resolution and arbitration.

Res Communis: Do you consider yourself a space lawyer?

Meredith: I consider myself a space lawyer. Absolutely.

Res Communis: How did you find your way into space law?

Meredith: I started early on with an interest in space law. I went to McGill University’s Air and Space Law Institute in Montreal to pursue that interest. In 1981, I came down to Washington, D.C., which was the Mecca for space law, if ever there was one.

Res Communis: That was an early start.

Meredith: Yes, and at that time there really wasn’t that much space law around. I was lucky enough to get to work at a small law firm with an exclusive focus on space law; probably the only one at the time. We mostly did Federal Communications Commission (FCC) regulatory law relating to licensing of communications satellite operations. We assisted companies in obtaining licenses to operate communications satellites for a variety of uses. Some of these were novel, which in addition required lengthy FCC rulemakings. These uses included, for example, navigation satellite service and international fixed satellite service in competition with Intelsat. At the time this was very controversial because Intelsat was then a public international treaty organization with a monopoly on international satellite communications.

Res Communis: Now you are in a firm and you oversee a practice group within the firm that is dedicated to space?

Meredith: Our space law practice group consists of a number of attorneys with law practices that range from regulatory to transactional to tax to legislative to arbitration/litigation. Two of the attorneys in our group, my associate, Marshall Lammers, and I, work full time on space law matters. Depending on the particular projects we work on, other attorneys in the group contribute their expertise. Our space clients include financial institutions, including space insurance companies; launch companies, both expendable launch vehicle (ELV) and reusable launch vehicle (RLV) providers; satellite operators; and satellite and launch vehicle subsystems manufacturers.

Res Communis: Can you give us an idea of some current things you are working on?

Meredith: We work on a range of issues. Over the past months, we have worked on satellite manufacturing and launch contracts; a space asset acquisition; space insurance issues; launch licensing issues; the Cape Town Convention Space Protocol (registration of security interests in satellites); U.S. export control issues; analyzing space-related legislation and preparing white papers for submission to the U.S. government; and commercial space contract dispute resolution and arbitrations.

Res Communis: Is that litigation, arbitration, mediation?

Meredith: It depends. Most space contract disputes resolve amicably and they never go to arbitration or litigation. That is generally the goal and what the client wants. Disputes may also be settled during arbitration, and settlement negotiations may be initiated at various stages throughout the arbitration by one or the other party. Mediation is typically offered to both parties before the arbitration formally gets underway. Most space contract disputes do not go to litigation because the parties include arbitration clauses in their contracts requiring them to arbitrate rather than litigate if they can’t come to agreement. Arbitration has several advantages over litigation, including speed and confidentiality. With a panel of former judges, attorneys or other professional arbitrators, arbitration is generally a very efficient way to resolve a space-related dispute.

Res Communis: How much of your practice is dispute resolution, 50%, 25%?

Meredith: It varies. Some days or even weeks, it may be 80-100%, and other days or weeks it may be 10-20%. Other projects can be very time consuming, as well, for example, space asset acquisitions. If we represent the buyer, we need to do due diligence to determine the condition of the asset from a legal perspective. We look at title, permits/licenses, patents, liens and encumbrances, contracts, pending litigation, and more. Sometimes additional government permits are required, and we need to get them. And then there is the preparation, review, and negotiation of the transactional documents.

Res Communis: It sounds as if your practice is a mix of transactional work and litigation work.

Meredith: Yes, I would say it is basically a mix of transactions, dispute resolution/arbitration, regulatory and licensing work, and space insurance. On the regulatory side, which we haven’t really talked about, we have assisted launch company clients in obtaining FAA launch licenses for ELVs and operating permits for RLVs. We also advise ELV and RLV clients in FAA regulatory proceedings. The people in the FAA launch licensing office are very helpful and have a keen understanding of the industry they regulate, which makes the work very interesting. Also on the regulatory side, we get involved with International Traffic in Arms Regulations (ITAR). We can hardly do anything in the space business if a foreign company is involved without some sort of ITAR issue. Just to give you an example, when a European client wants to send us satellite documents with “technical data” – even though the documents originated here in the U.S. – we need to get a “retransfer” approval for the client from the State Department! For substantive technical discussions to take place between U.S. and foreign companies, a Technical Assistance Agreement (TAA) must be in place. But the TAA is often only the beginning, since the State Department may require prior review by the Defense Technology Security Administration (DTSA) of every document that is exported to the foreign company pursuant to the TAA.

We sometimes get involved in international treaty matters, such as the Space Protocol, which I mentioned already. The Space Protocol is now in the final drafting stages, and we are assisting clients in the determining the potential implications for their businesses and whether they need to request changes. Usually treaty issues arise with respect to treaties that are already in force and that may impact the client’s project. For example, we have been asked about the scope of the non-appropriation provision in Article 2 of the Outer Space Treaty of 1967. In the 1990s, we analyzed the Strategic Arms Reduction Treaty (START) for a client that wanted to convert ballistic missiles to launch vehicles. The treaty actually provided for this conversion. We have also analyzed the International Telecommunication Union (ITU) Radio Regulations for clients trying to obtain international protection of their national satellite frequency assignments. Back in the days when Intelsat, Eutelsat, and Inmarsat were international treaty organizations, we dealt with treaty issues more frequently.

Res Communis: Do you use conflict of law clauses a lot?

Meredith: Yes. They come up in virtually all the space contracts we draft or review, ranging from satellite procurement contracts to space insurance policies to alliance or teaming agreements to non-disclosure agreements (NDA). They get especially tricky when one of the parties is a foreign company. When we have non-U.S. parties and U.S. parties then the question is always what law should govern. Usually the buyer is in the stronger position, so the buyer will often try to force the law of its country. If the seller has sufficient bargaining power to resist, which is often the case when it is supplying, for example, a spacecraft or launch vehicle subsystems that the buyer wants, the parties may pick a compromise jurisdiction. For example, we represented a continental European company client recently in a contract negotiation with a U.S. company (the buyer). Our client was very adverse to the Uniform Commercial Code, which would apply as a result of choosing U.S. law. The client insisted that we not use U.S. law and the parties compromised on English law. We had another situation where our client here in the U.S. was negotiating with a company in Asia, in a non-common law jurisdiction. In that case, we compromised on the law of Singapore, which is a common law jurisdiction. If both parties are U.S. parties, then in the space world, there are two jurisdictions that come up very often: New York and California. New York is very often used because it is a well recognized business jurisdiction and there is a large body of law in New York to draw from. California is popular because it is home to many space companies.

Res Communis: What International jurisdictions have you seen the most or is that varied?

Meredith: Our space practice is very international, and most of our clients are non-American companies. These clients engage us to advise them in connection with their contractual or business relationships with U.S. counterparts. They may need us to review or negotiate contracts with U.S. companies, interface with the U.S. government on their behalf, obtain a U.S. regulatory permit, or represent them in a dispute resolution matter or in arbitration here in the U.S. We have also been retained by foreign governments to advise them in connection with bilateral space treaties and agreements with the U.S. government. Also, several European clients over the years have engaged us also to identify and assess potential U.S. business or alliance partners or target companies for acquisition.

Res Communis: What is the most rewarding part of your practice? What keeps you coming to the office everyday?

Meredith: Every part of it! I just feel so privileged to have this practice. I think it is the variety. Just the variety of issues that come up and of course the focus on space makes it inherently interesting. It is the variety coupled with the space focus.

Res Communis: It is fair to say that you are one of the space law pioneers. You are financially successful at it and sustaining a practice. You are obviously established. Are there going to be more practitioners? Is there is enough work starting to evolve to where space law may go beyond being a specialty?

Meredith: I think it will continue to be a specialty for a long time; but there is a lot of work in this area for someone who is broad-based and can handle a range of space-related regulatory and contracts issues. There is much more work now than ever before and the field is definitely growing. Satellite communications has grown to become a mature business with plenty of opportunities for legal work. It is driving associated businesses such as launch services. Satellite imagery is still largely government supported, but this will change. A whole new space industry involving human space flight – often referred to as “new space” – is only just emerging and should offer plenty of opportunities for space lawyers in the future. If you set your mind to it, you can make space law a full time occupation with some background and interest in the field. But you have to really work at it to make it happen. I don’t think we are at the stage yet where a space law career will just land in your lap. That I don’t see just yet.

Res Communis: What do you think are some of the most important issues in the field of space law today?

Meredith: That is a tough question to answer. I get so wrapped up in every-day practice issues that are important to my clients, I don’t get a chance to sit back and reflect on the larger issues. But there is one such issue that I have thought about quite a bit: There is no general regulation of orbital ventures today. There is a jurisdictional gap as far as U.S. regulation is concerned. There are specific regulatory regimes for satellite communications, satellite remote sensing, and space transportation, but there is nothing to cover activities that fall outside the boundaries of these specific regulatory regimes. The question is whether we need additional regulation, as a practical matter and/or given U.S. responsibilities under Article 6 of the Outer Space Treaty.

Res Communis: Do you have any thoughts on how that law should develop? There is launch law and the law for the return.

Meredith: Yes, we do have regulations for launches and re-entries, but not for what happens in between with respect to the vehicle and payload, except in the specific areas I mentioned. There is not, as many other countries have, a sort of an “umbrella” legislation for space. In the U.S. we regulate each specific activity. So the question is, do we need regulation to cover new activities that are coming online? For example, the Google Lunar X Prize. It calls for non-government, private activity on the Moon. There are also private orbital ventures in the planning.

Whatever we do, the key is not to over-regulate, because that could stifle a fledgling industry. The key is to facilitate activity that is safe and consistent with national security and treaty obligations. The risk of not having some sort of regulatory frame-work is that, at some point, a number of regulatory agencies may decide to assert jurisdiction and that could halt a project or delay it severely. This is what happened to the first commercial launch company, Space Services, back in the early 1980s, before DOT (later delegated to the FAA) was made the focal point for licensing of commercial launches. More than 10 U.S. government agencies claimed jurisdiction over some aspect of the launch.

These are things we need to think about. The space law community needs to give thought to this. [Editor’s note: The Third Eilene Galloway Symposium on Critical Issues in Space Law will address Article 6 issues. Keep on eye on the National Center for Remote Sensing, Air, and Space Law’s website.]

Res Communis: Do you have occasion to appear or practice in other countries?

Meredith: Not in the sense that I would represent a client before a foreign government body. We would hire foreign local counsel after consultation with the client.

Res Communis: Do you go there and work in the local legal systems?

Meredith: No, not in the sense that I practice their law. We typically work with local counsel. For example, we would engage UK local counsel to review a contract that is negotiated on behalf of our foreign client with a U.S. company but subject to English law. This arrangement would need to be approved by the client first, of course.

Res Communis: When a new client comes to you what kinds of questions do you ask yourself? Do you start by identifying the client as a launch provider, a satellite operator? Where do you begin so you can determine what kind of service you can provide?

Meredith: Typically a client comes with a specific problem or issue. Often clients will come to me when they have an urgent legal issue, for example, where a contract has been breached or if they have some other concern or dispute brewing, or if they need help with getting a U.S. government regulatory approval or arranging a meeting with the government. Clients also often ask us to review and draft space contracts. Occasionally, but not very often, we get a client who says “I’m starting up a business, and I want to have a lawyer involved. I know there are going to be a lot of legal issues and I want to get a lawyer on board from day one.” This situation gives us the opportunity to plan ahead, which may prevent legal issues and problems later on.

Res Communis: You raise the preventative aspect of using law. What would you advise a new space company if they were going to bring you in at the beginning rather than wait until there is a crisis?

Meredith: Just briefly, we would look at the space business plan and categorize the space business. For example, is it communications satellite business, satellite imagery business, space transportation business, or something else? We would determine whether the proposed business can be implemented under current law or whether legislation or agency rulemaking is required. We would determine what kinds of government approvals/licenses are required. We would assess the corporate structure of the venture, its intellectual property, and their financing needs. If there is foreign participation, that raises a whole set of export issues. We would consider potential phase-in opportunities for the business, e.g., placing a payload on someone else’s “host” satellite or buying and adapting a spare satellite. We would look at the need for procurement of hardware and services and who those vendors and suppliers would be. We would consider risk and liability issues. We would examine insurance needs and the potential contractual relationships with customers. We would ask the founders of the business about exit strategies. With this information and more, we would lay out a time line for initiating and completing legal steps and prepare a legal risk management/mitigation plan.

Res Communis: What advice would you give to a student who wants to become a space lawyer?

Meredith: I get those questions all the time. I teach at American University and I have been doing it for 20 years. What I say is, you have to want it; you have to be persistent. The jobs are out there, and there is more and more of them. I would tell a student to look at all the various places to work. There are in-house counsel positions; there are international organizations; there are government agencies like NASA, the FAA’s space office, DOD, State Department, and the Federal Communications Commission. These are all places to look for this kind of work. As for private practice, look for firms whose attorneys list space as a practice area. Find space law articles and see who they are written by and contact the author.

Res Communis: What kinds of subjects would you recommend that a student study?

Meredith: There are so many avenues into space law. Communications law is good because you can get into satellite communications and work for a communications law firm doing satellite work. Contract law is always good, but commercial and government contracts. Intellectual property law is another avenue. For the type of work that I do, one has to be interested in contracts. Take all kinds of contract and international transactions courses.

Res Communis: Is there anything you would like to add or anything you would like to raise?

Meredith: No. I think you were very thorough in your questioning. I can’t think of anything else.

Res Communis: Thank you.

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