Exploring the Unknown - NASA's History Office

EXPLORING THE UNKNOWN 115
U.S. positions and, with the summary record of the Committee’s discussion of the report,
was transmitted to Committee I for consideration. However, the matter was not discussed
in Committee I.
Com. II/9 (and 11) contains the report of this Working Group.
Working Group on Accession, Supersession and Buy-Out—
Entry Into Force—The U.S. position was that the definitive arrangements should
enter into force upon final adherence by two-thirds of the present members who hold, or
whose signatories to the Special Agreement hold, a substantial proportion (80% was suggested)
of the investment quota under the Special Agreement. This position was adopted
as the majority position by the Committee, but the exact percentage was left to be decided
by the Plenary. The major point of contention concerned the financial criterion. Some
delegates (Chile and Switzerland) strongly objected to a requirement which would enable
the largest “shareholder” to block the entry into force of the new agreements. Only a small
minority of delegations (Sweden, [12] France and Mexico) asserted that there must, as a
matter of international law, be unanimous adherence by all prior members. The remainder
appeared to accept adherence by a substantial majority as legally sufficient.
Transfer of Rights and Obligations—The Working Group produced two alternative
draft articles. The first of these would transfer the rights and obligations of signatories to
the interim Special Agreement to the signatories of the comparable part of the definitive
arrangements, including transfer of ownership in undivided shares. The second approach
transfers all rights and obligations of interim signatories to INTELSAT under the definitive
arrangements. The two approaches are contrasted as appropriate, respectively, for a
continued joint venture or the establishment of an organization with a legal personality.
Buy-Out—Committee II in its report formulated the following general legal principles
for the buy-out of non-continuing members, leaving the mechanics to Committee III: (1)
fair compensation with reasonable expedition; (2) for patents and data, either fair compensation
or continued enjoyment; and (3) the amount of compensation to be settled by
negotiation between the non-continuing member and INTELSAT. Failing an agreement,
the non-continuing member could challenge any determination by the governing body
before a neutral arbitral tribunal. Although there appeared to be no opposition to the
principle of equitable compensation for non-continuing members, Chile and Sweden
argued that a non-continuing member’s share cannot be bought out without its consent.
Com. II/10 contains this Group’s report.
Working Group on Other Matters—Com. II/15 and 16 are the reports of this Group.
Privileges and Immunities—This item was considered at some length in the full
Committee as well as in the Working Group. The report of Committee II on this subject
noted that a majority of the delegates favored including in the intergovernmental agreement
two general provisions: the first would commit the host [13] state to conclude a
headquarters agreement providing for appropriate privileges and immunities within the
jurisdiction where the headquarters were located; the second would authorize the board
of governors to negotiate with member states on an ad hoc basis those privileges and
immunities appropriate for the proper functioning of INTELSAT. It was generally recognized
that INTELSAT would obtain tax immunities where necessary, although provision
for such immunities should not be specifically made in the intergovernmental agreement.
Some delegates expressed the view that INTELSAT would have to have legal personality
in order to be granted privileges and immunities under their domestic laws.
Settlement of Disputes—There were three major points of controversy: the proper
parties to arbitration; the selection of the panel from which the third member (the president)
of an arbitral tribunal is chosen; and, the scope of arbitrable disputes. The U.S.
position was that the signatories to the operating agreement, the board of governors, and