LEGAL & REGULATORY MATTERS THREE THINGS YOU NEED TO KNOW ABOUT CABLE LANDING AGREEMENTS BY ANDRÉS FÍGOLI
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able landing agreements are critical to the deployment and operation of submarine communications cables when many parties are involved. Here are three things you need to know about them:
THE LEGAL FORM HAS EVOLVED
Traditionally, they have been considered ancillary to a Construction and Maintenance Agreement (C&MA) or Joint Build Agreement ( JBA) for a cable consortium, where a local member would own the portion of the infrastructure in jurisdictional waters and the cable station, and obtain all related local permits. It would then sell capacity and collocation space to the other members of the consortium. In this way, the consortium would prevent the creation of multiple local entities, not have to apply for local permits for multiple parties, and avoid any risk of
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permanent establishment if the other consortium members intended to provide services only up to the cable station and not in the hinterland. If a fishing trawler damaged such a local portion (domestic waters), who would pay the repair costs? These traditional landing agreements established that all parties owning that segment (country A to country B) would cooperate with their respective shares to afford such costs. It did not matter that the landing party owned 1% of the local portion of the affected segment, because the majority of that segment, the other 98% in international waters, was owned by other parties, and the remainder was owned by a different landing party in another country. This legal form has evolved in recent years into a contract per se or stand-alone contract, where the cable system owners basically need a local
entity in a landing country to provide local space in the landing station and an access connection to the new cable. This basic need can also lead to other possible, hybrid scenarios, assuming that the local entity is any or all of the following: • Holder of the local permits to install the cables or even to provide telecommunications services • Owner of the local portion (territorial waters) • Holder of the right to use the capacity of the new system The possibility of being the owner of the international portion of the new system would be excluded, as it would otherwise lead to the traditional cable landing agreements as described above. These new hybrid legal forms actually extend the old concepts of administrative law, where a licence to