The Earth’s orbit is increasingly crowded with satellites. This gives rise to questions concerning how to navigate the inevitable territorial disputes between satellite operators. For example, if one operator believes that another operator’s satellites are encroaching on its own satellites’ space, does it have a legal remedy?

This issue recently came before the U.S. Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit”) in Viasat, Inc. v. Federal Communications Commission, 47 F.4th 769 (D.C. Cir. 2022). In that case, the Federal Communications Commission (the “FCC”) granted Space Exploration Holdings, LLC (which goes by “SpaceX”) approval to deploy thousands of communication satellites at a lower altitude to reduce transmission latency. The FCC’s decision was then challenged by two of SpaceX’s competitors as well as an environmental research and advocacy organisation on various grounds in the D.C. Circuit. The appeals were ultimately unsuccessful.

While Viasat is a U.S. case, it is not difficult to envisage a comparable set of facts arising in the U.K. in the context of the new domestic space regime. To propose a thought experiment: say Company A (akin to SpaceX in Viasat) operates satellites from the U.K. at a certain altitude above Earth and wishes to move them to a lower altitude. However, Company B is concerned that this will negatively affect its own satellites operated from the U.K. and wishes to prevent Company A from doing so. Does Company B have a legal remedy?

Please click here to read the blog post in which Michael Bowsher KC and Jenn Lawrence consider possible legal avenues available to Company B.

“This is the second in a series of articles which considers recent cases in relation to injunctions and other pre-emptive relief in the English Courts, and which highlight key practical considerations.

A majority of the Court of Appeal rejected an appeal against a finding of contempt after a party had intervened in Italian proceedings in order to further its position in existing English Court and London arbitration proceedings in breach of an English anti-suit injunction granted to uphold the parties’ arbitration agreements.

This decision is important because (1) it shows that it is essential for parties to act in a straightforward and prudent manner when faced with an injunction, and to deal with any issues arising from it, including uncertainty as to its meaning, through timely application to the Courts in advance of taking any steps in response to it; (2) it shows that the English Courts take a robust approach to upholding the parties’ agreements on jurisdiction, and ensuring that the purpose of such orders is not defeated, and (3) provides guidance on the Courts’ approach to the interpretation of orders, including injunctions.”

This edition is co-authored with Steven Gee KC.

To read full article please click here.

Public Law analysis: The claimants judicially reviewed the alleged failure of the Secretary of State for Work and Pensions (SSWP) to consult lawfully, by way of its UK Disability Survey (the ‘Survey’), before publishing a National Disability Strategy (the ‘Strategy’). The Court of Appeal unanimously reversed the decision of Mr Justice Griffiths in R (Binder and others) v SSWP , in finding that the Survey was not, at a common law, a ‘consultation’. This was because the SSWP was not seeking views on a specific proposal likely to have a direct impact on a person or on a defined group of people. The Court of Appeal therefore held that Griffiths J was wrong to decide that the Survey was subject to the Gunning requirements, wrong to hold that the SSWP had acted unlawfully and wrong to quash the Strategy. Written by Jonathan Lewis, barrister at Monckton Chambers.

To read full article please click here.

This article was first published by LexisNexis on 13 July 2023.

Public Law analysis: The claimant had sought permission to appeal against a First-tier Tribunal (FTT) decision refusing her claim for leave to remain in the UK. She maintained that the FTT had wrongly recorded her oral evidence. Both the FTT and Upper Tribunal (UT) refused her permission to appeal after having checked the recording of her evidence. She was granted permission to claim judicial review of the UT’s refusal on the basis that the claim raised important points of practice. However, the parties and the court had overlooked section 11A of the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007). TCEA 2007, s 11A had been inserted by section 2 of the Judicial Review and Courts Act 2022. It came into force on 14 July 2022. TCEA 2007, s 11A ousts the supervisory jurisdiction of the High Court in judicial review proceedings, subject to a number of specific exceptions. It provides that a decision of the UT to refuse permission to appeal further is, subject to exceptions, final and not liable to be questioned or set aside in any other court. It thereby reversed the Supreme Court’s decision in Cart v Upper Tribunal. Rather than proceed to a full substantive hearing, a preliminary issue trial was conducted to determine whether the court had jurisdiction to determine the claim. Mr Justice Saini rejected the claimant’s attempts to argue that the TCEA 2007, s 11A ouster was somehow ineffective. He also carefully construed the ‘jurisdictional gateways’ in TCEA 2007, s 11A(4), being four circumstances in which such a claim for judicial review could proceed, finding that the claimant had not established the ‘a fundamental breach of the principles of natural justice’ gateway. Written by Jonathan Lewis, counsel at Monckton Chambers.

The full article, written by Jonathan Lewis, was first published by Lexis®PSL on 20 April 2023 and can be read here.

News that the Italian authorities are assessing Meta for VAT on the supply of Facebook has thrown into the spotlight the issue of whether VAT is due on the supply of ‘free’ digital services. It is arguable that there is the requisite link between such supplies and non-monetary consideration in the form of user data. There are undoubtedly difficulties in determining the taxable amount but cases on ‘free’ banking services and a parallel claim against Meta in the Competition Appeal Tribunal indicate that methodologies are available. Although a legal pathway is possible, this will ultimately be determined by a policy choice on how to address the value of harvesting data.

Please click here to read the article.

 

There is no doubt that the current UK government has achieved real changes to the Protocol that will reduce a number of the tax and customs issues, as George Peretz KC explains.

Please click here to read the article.

This material was first published by Thomson Reuters in the British Tax Review as “R. (on the application of Cobalt Data Centre 2 LLP) v HMRC: a Cobalt white Elephant” [2023] B.T.R. 24 and is reproduced by agreement with the publishers.

“Summary

Section 298(1) of the Capital Allowances Act 2001 (CAA 2001) offered taxpayers Enterprise Zone allowances (EZAs) as an inducement to taking on the financial risks of newbuild industrial developments in disadvantaged areas, without a tenant. It extended their availability for a further 10 years after expiry of the 10-year life of an enterprise zone (EZ), provided that the qualifying “expenditure is incurred under a contract entered into within” the first 10 years (“the proviso”). According to the Court of Appeal1 changes made to a development, resulted in two building contracts with the claimed expenditure incurred under the second, being a “separate” contract
made too late to qualify for EZAs. The three judgments are not consistent with each other, and decided by different routes that the changes by their nature and extent were so different from the initial plan that they resulted in no EZAs. Taxpayers, having built what parliament wanted, are left to take the losses without the safety net of the statutory inducement. If the offer made to taxpayers was to be restricted, this should as a matter of certainty and fairness have appeared clearly in the statutory words. The decision may affect many other developments by taxpayers who ran financially unviable risks. Investors include those who have died leaving dependants, are in retirement, and on pensions…”

To read full case note please click here.

“Presented by Fried Frank’s Disputes team, the Distilling Disputes series uses data and graphics to draw out the strategic issues which clients face when litigating disputes in the English Courts and in international commercial and investment arbitration. The seventh edition provides an overview and insights into the pre-emptive remedies available in the English Courts. These are of particular relevance in the context of the pursuit of fraud claims, and this article highlights the toolbox of remedies available to potential claimants, including Freezing Orders, Disclosure Orders and Search and Imaging Orders, and other ancillary powers available to the English Courts.”

This edition is co-authored with Steven Gee KC.

To read full article please click here.

Research Handbook on Legal Aspects of Brexit provides a comprehensive and coherent analysis of not only the Brexit process within the UK but also what it means for both the UK and the EU within the framework of their future relationship. Anneli Howard KC contributed on subsidies and competition law. Professor Panos Koutrakos contributed on trade agreements.