The Artemis Accords Seek to Propel a New Industry William T

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PRATT’S GOVERNMENT CONTRACTING LAW REPORT

VOLUME 6 NUMBER 11 November 2020

Editor’s Note: False Claims Act and More! Victoria Prussen Spears 369

False Claims Act Enforcement During the COVID-19 Pandemic and Beyond George B. Breen and Alexis Boaz 371

Continued Uncertainty Clouds DOJ’s Dismissal Power Under False Claims Act Pablo J. Davis 381

Executive Order Regarding Domestic Production and Purchase of Essential Medicines: A Lot to Unpack and More Than Meets the Eye Merle M. DeLancey Jr. and John M. Clerici 388

Dear Magic 8-Ball—Should I Protest? Critical Protest Implications Following the Federal Circuit’s Expansion of Blue & Gold’s Waiver Rule in Inserso Ethan M. Brown 393

Government Reliance on Waiver Argument to Keep Price Adjustment Windfall Fails Scott Arnold 398

The Artemis Accords Seek to Propel a New Industry William T. Gordon, Vivasvat Dadwal, and Carson W. Bennett 401 0002 [ST: 1] [ED: m] [REL: 20-11GT] Composed: Tue Oct 20 16:40:33 EDT 2020 XPP 9.3.1.0 FM000150 nllp 4938 [PW=468pt PD=693pt TW=336pt TD=528pt] VER: [FM000150-Master:03 Oct 14 02:10][MX-SECNDARY: 11 Aug 20 13:11][TT-: 02 Jul 20 09:46 loc=usa unit=04938-fmvol006] 47

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Editor-in-Chief, Editor & Board of Editors

EDITOR-IN-CHIEF STEVEN A. MEYEROWITZ President, Meyerowitz Communications Inc.

EDITOR VICTORIA PRUSSEN SPEARS Senior Vice President, Meyerowitz Communications Inc.

BOARD OF EDITORS MARY BETH BOSCO Partner, Holland & Knight LLP

MERLE M. DELANCEY JR. Partner, Blank Rome LLP

DARWIN A. HINDMAN III Shareholder, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

J. ANDREW HOWARD Partner, Alston & Bird LLP

KYLE R. JEFCOAT Counsel, Latham & Watkins LLP

JOHN E. JENSEN Partner, Pillsbury Winthrop Shaw Pittman LLP

DISMAS LOCARIA Partner, Venable LLP

MARCIA G. MADSEN Partner, Mayer Brown LLP

KEVIN P. MULLEN Partner, Morrison & Foerster LLP

VINCENT J. NAPOLEON Partner, Nixon Peabody LLP

STUART W. TURNER Counsel, Arnold & Porter

ERIC WHYTSELL Partner, Stinson Leonard Street LLP

WALTER A.I. WILSON Partner Of Counsel, Dinsmore & Shohl LLP

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iv GOVERNMENT CONTRACTING LAW REPORT The Artemis Accords Seek to Propel a New Industry

By William T. Gordon, Vivasvat Dadwal, and Carson W. Bennett* The U.S. National Aeronautics and Space Administration revealed the blueprint for the Artemis Accords, which are to form the basis of NASA’s international partnerships with other international space agencies. The authors of this article provide ﬁve takeaways for private actors operating in this emerging industry.** The U.S. National Aeronautics and Space Administration (“NASA”) revealed the blueprint for the Artemis Accords (“Accords”),1 which are to form the basis of NASA’s international partnerships with other international space agencies. Although the speciﬁc language of the Accords is not yet public, the Accords are envisioned as a set of “bilateral Artemis Accords agreements” that will promote international cooperation by establishing a “common set of principles to govern the civil exploration and use of outer space,” including the principle that “space resource extraction and utilization can and will be conducted under the auspices of the Outer Space Treaty.” This effort comes at the heels of President Donald J. Trump’s April 6, 2020 Executive Order seeking to “encourage international support for the public and private recovery and use of resources in outer space, consistent with applicable law” (“Executive Order”).2 Other countries have previously pursued non-binding memorandums of understanding (“MOU”), including for the exploration and use of space resources. For example, in 2017, Luxembourg and the United Arab Emirates

* William (Bill) T. Gordon is a partner at King & Spalding LLP advising boards and management teams through critical transformation initiatives, including, internal controls remediation, succession planning, M&A diligence, and major infrastructure and/or cultural changes. Vivasvat (Viva) Dadwal and Carson W. Bennett are associates in the ﬁrm’s International Arbitration practice. The authors may be contacted at [email protected], [email protected], and [email protected], respectively. ** On October 13, 2020, it was revealed that the Artemis Accords were signed by the heads of space agencies for eight states, namely Australia, Canada, Italy, Japan, Luxembourg, United Arab Emirates, United Kingdom, and the United States. As this article was submitted for publication before that date, it does not analyze the now available text of the Accords, available at https://www.nasa.gov/specials/artemis-accords/img/Artemis-Accords-signed-13Oct2020.pdf. 1 https://www.nasa.gov/specials/artemis-accords/index.html. 2 https://www.whitehouse.gov/presidential-actions/executive-order-encouraging-international- support-recovery-use-space-resources/.

401 GOVERNMENT CONTRACTING LAW REPORT signed a MOU3 focusing on the exploration and utilization of space resources. Like the U.S., which passed a similar law in 2015,4 Luxembourg established a domestic legal and regulatory framework for space exploration and use of space resources in 2017,5 and the United Arab Emirates reportedly followed suit earlier this year.6 Space-faring nations like China and Russia are reportedly7 negotiating similar cooperation agreements. FIVE TAKEAWAYS As NASA pursues the bilateral Accords with other interested space agencies, what are ﬁve takeaways for private actors operating in this emerging industry? 1) A CHANCE TO SHAPE SPECIFICS UNDER THE ACCORDS Since NASA plans on partnering with space agencies on an individual, bilateral basis, the framework is silent as to how they would apply directly to private companies. However, this does not mean private companies cannot play a role in developing the content of the Accords, the principles of which may indirectly apply to the private sector through government contracts of signatory countries. The U.S. government frequently engages with Congress, stakeholders, and the public when negotiating trade and investment policy and a key question for the Accords will be how best to incentivize the private sector to explore and develop minerals in outer space. One way NASA already seeks industry feedback is through its National Space Council Users Advisory Group8 and its various “federal advisory committees”9 which include leading industry representatives. As will be discussed below, the United States will be negotiating these agreements over the next several months. Interested parties will have to act quickly if they hope to be involved in the development of the text of these bilateral agreements.

3 https://space-agency.public.lu/dam-assets/press-release/2017/2017-10-10-press-release-mou- space.pdf. 4 https://www.congress.gov/bill/114th-congress/house-bill/2262/text. 5 https://space-agency.public.lu/en/agency/legal-framework/law_space_resources_english_ translation.html. 6 https://www.thenational.ae/uae/science/uae-s-national-space-law-comes-into-effect-1. 983817. 7 https://www.reuters.com/article/us-luxembourg-russia-space/russia-wants-to-join-luxembourg- in-space-mining-idUSKCN1QN1OQ#:~:text=The%20small%20Duchy%20of% 20Luxembourg,(mining)%20exploration%20in%20space. 8 https://www.nasa.gov/content/national-space-council-users-advisory-group. 9 https://www.nasa.gov/oiir/advisory-committee. 402 GOVERNMENT CONTRACTING LAW REPORT

2) SECURING REGULATORY APPROVAL FOR MOON MISSIONS IS STILL LARGELY UNCHARTED TERRITORY Any launch to extract outer space materials will require a license from the U.S. government (or other relevant government overseeing the enterprise). The exact approval process is unclear, but up until now the one private company that has received a license to land on the moon acquired it by applying to the Federal Aviation Administration10 (“FAA”) and its Ofﬁce of Commercial Space Transportation.11 The application process also involved input from NASA and the U.S. State Department12 before the FAA ﬁnally granted the launch license.13 Importantly, a launch licensure is different from traditional mining rights on Earth. Unlike traditional mineral extraction where the sovereign government owns the natural resources in question, a nation state has no sovereignty over celestial bodies. Thus, by licensing, the U.S. government is vetting non- government actors pursuant to Article VI of the Outer Space Treaty,14 under which it has an obligation to perform “authorization and continuing supervi- sion” of commercial mission launches by its citizens/nationals. 3) RECOGNIZE THAT FINANCIAL BACKERS WILL BE WARY The space industry is inherently risky. Early space mining entrants like Planetary Resources,15 Moon Express,16 Asteroid Mining Corp.,17 and Brad- ford Space, Inc.18 (formerly Deep Space Industries) largely failed to gain traction. By 2019, most of these space mining enterprises had stalled or been taken over19 by other companies that were more interested in acquiring their discreet technologies (like water-based propulsion) rather than maintaining the overall goal of exploiting outer-space resources.

10 https://www.faa.gov/. 11 https://www.faa.gov/about/office_org/headquarters_offices/ast/. 12 https://www.theverge.com/2016/8/3/12361256/moon-express-private-mission-spaceflight- us-government-approved. 13 https://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=20595. 14 https://www.unoosa.org/pdf/gares/ARES_21_2222E.pdf. 15 http://www.moonexpress.com/. 16 http://www.moonexpress.com/. 17 https://asteroidminingcorporation.co.uk/. 18 https://www.bradford-space.com/. 19 https://www.technologyreview.com/2019/06/26/134510/asteroid-mining-bubble-burst- history/.

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At the same time, interest in commercial opportunities of space has increased, especially for space start-ups. Bryce Technology has reported20 that start-up space ventures attracted $5.7 billion in financing of all types during 2019, breaking the $3.5 billion record set the previous year. The new Accords provide additional opportunity for increased stability, especially regarding the rapidly evolving legal and regulatory landscape in the U.S. and abroad. It remains to be seen which companies will be first movers in the Artemis Program, and whether they will be able to obtain the financial support of the private sector and governments.21 4) HOPE FOR THE BEST, BUT STILL PREPARE FOR DISPUTES The framework for the Accords focuses on common sets of principles meant to govern space exploration and use of outer space. However, should disputes eventually arise within contracts, licenses and concessions concerning space resource activities, companies operating in this sphere must also consider access to meaningful and binding dispute resolution methods. One such avenue is arbitration under the 2011 Permanent Court of Arbitration Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (“PCA Outer Space Rules”).22 Arbitration has several advantages over domestic courts (e.g., increased confidentiality, technical expertise of decision- makers, party autonomy), and the PCA Outer Space Rules specifically provide for complex disputes that may involve states, international organizations, and private entities. The Annex to the PCA Outer Space Rules provides model clauses that contracting parties may consider inserting in contractual agreements to provide for arbitration of future disputes. 5) MONITOR U.S. EFFORTS NASA received approval to negotiate the Accords in May 2020. Although U.S. allies, and other countries like Luxembourg and the United Arab Emirates, are expected to join the Artemis Program, to date, no country has publicly acknowledged signing the Accords. On July 10, 2020, NASA and the Government of Japan signed a declaration of intent23 in support of the Artemis program.

20 https://brycetech.com/reports/report-documents/Bryce_Start_Up_Space_2020.pdf. 21 https://www.nasa.gov/directorates/spacetech/NASA_Increases_Investment_in_US_Small_ Businesses_to_Mature_Lunar_Capabilities_for_Artemis. 22 https://docs.pca-cpa.org/2016/01/Permanent-Court-of-Arbitration-Optional-Rules-for- Arbitration-of-Disputes-Relating-to-Outer-Space-Activities.pdf. 23 https://www.nasa.gov/feature/nasa-administrator-signs-declaration-of-intent-with-japan-on- artemis-space-station. 404 GOVERNMENT CONTRACTING LAW REPORT

The U.S. Secretary of State will update the president on activities carried out under the Executive Order—including presumably the Accords—by October 3, 2020 (i.e., 180 days after the date of issuance of the Executive Order). Such a progress report, if made public, will provide a litmus test on the success of the Accords, including whether there exists international support for the principle that space resource extraction and utilization must occur under the auspices of the Outer Space Treaty. The outcome of such efforts will determine what challenges and opportunities this emerging industry faces ahead.

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