Case Concerning an Inquiry by the International Seabed Authority: Less a Defence of Due Process than an Attempt to Short-circuit It?

On 30 May 2026, two deep seabed mining exploration contractors—NORI and TOML (“the contractors”), both subsidiaries of Canada-based The Metals Company (TMC)—lodged an application and a request for provisional measures with the Seabed Disputes Chamber (SDC). The claims allege that the International Seabed Authority (ISA) violated international obligations relating to due process, transparency, and non-discrimination in the conduct of an ongoing compliance inquiry. The inquiry was requested by the ISA’s Council in a decision of July 2025. The ISA’s Secretary-General and its Legal Technical Commission (LTC) engaged with all 21 ISA exploration contractors, and the LTC reported to the Council in March 2026 that it had identified two contractors requiring ‘specific attention’ for follow-up questions. Neither contractor has been explicitly named by the ISA, the inquiry is still ongoing, and has not resulted in any decision.

The inquiry was initiated in the context of attempts, including by TMC, to bypass the UNCLOS-based permission system in favour of deep-seabed mining rights granted unilaterally by the USA (see here). The contractors complain that the inquiry has identified them for ‘specific attention’ without due process. Further they ‘expect’ that such identification will prejudice the LTC and the Council’s upcoming consideration of their application for a 5-year extension to their existing exploration contracts, which will otherwise expire. The remedies sought by claimants are striking: an immediate order preventing the ISA from continuing its inquiry and from relying on information gained therefrom, unless the alleged procedural defects have been cured (see here, at para 73). We argue that NORI’s and TOML’s claims are unlikely to succeed: they challenge an ongoing inquiry rather than an adverse decision, are based on a misconstruction of the ISA’s decision-making process, and seek remedies beyond the SDC’s remit.

The contractors’ argument in a nutshell

The contractors’ claims appear to be twofold. First, that deferral of NORI’s contract extension application is a discrimination prohibited by Article 152 UNCLOS. Secondly, that the ISA breached “international due process” in conducting the inquiry in two ways: i) by not supplying to the contractors information about the legal, factual, and evidential basis of the inquiry and the initial identification of them for “specific attention”; ii) by not having given the contractors a right to reply before identifying them as requiring “specific attention”. To support its contentions, the contractors refer to a procedure contained in 2024 LTC guidelines ISBA/29/LTC/5 (Criteria for identifying contractors that have responded insufficiently or incompletely, or failed to respond, to the calls from the Council to address issues identified by the Legal and Technical Commission in relation to their contractual obligations). Although the ISA has not in this case explicitly named the two contractors under inquiry, the claimants argue that, under the guidelines, “the identification of a contractor as potentially non-compliant must follow a structured process involving prior engagement with the contractor, the LTC’s application of defined criteria, and an opportunity for the contractor to respond” (see here, at para 22).

ISA’s decision-making, non-discrimination, and international due process

Arguably, the claim is based on a misconstruction of the ISA’s decision-making mechanism and on an excessively expansive reading of international due process. The LTC is a subsidiary advisory organ which cannot take decisions concerning non-compliance penalties, or the renewal, suspension, termination or other measures concerning ISA contracts (Article 165 UNCLOS). The Council is the body which ordered and mandated the inquiry (instructing the LTC to apply due process) and the one that will ultimately decide on the required action. While all ISA bodies are called to implement the common heritage of humankind’s different aspects (environmental protection, the protection of contractors’ rights, equitable distribution of benefits, etc) only the Council has the power to strike the balance between these different interests through a binding decision (see Article 162(2)(l) UNCLOS). Yet the contractors complain to the SDC about LTC communications during an active, unfinished inquiry as if they were executive decisions of the ISA. The claimants notably did not take their concerns to the Council before escalating them to the SDC. This failure to afford the Council an opportunity to correct alleged procedural flaws may undermine the claim’s admissibility or impact a decision on the claim’s merits. Indeed, it is even questionable, given that the inquiry is still ongoing, whether the contractors’ complaints qualify at this stage as a “dispute” between parties to an ISA contract, which is a prerequisite for the SDC to exercise jurisdiction under Article 187 UNCLOS.

One of the claimants submits that the LTC’s deferral of consideration of their application for contractual extension was discriminatory pursuant to Article 152 UNCLOS, inferring “in the absence of a clear explanation” that the inquiry was the cause of their different treatment. But the facts cited are selective. A finding of discrimination requires a measure applied to two or more comparable cases in a manner which generates a detrimental impact on one group and which is not proportionate to an objective justification (see here at para 394). For instance, UNCLOS tribunals ruled that greater cooperation with state authorities during investigations justified later differences in the level of sanctions imposed to two vessels (see here, at para 277). As for the contractor’s case, the LTC Chair’s report to the Council in March 2026 explains why two applications are being processed more slowly: the LTC had received eight extension applications, managed to address six in the limited time available (reviewing them over eight of their ten working days of meetings) and needed to defer two due to time constraints and remaining workload—the selection for deferral was based on the two contracts with the latest expiry dates (here, at para 13). In other words, the LTC did not single out only the contractor under inquiry but also applied the deferral to another contractor not under inquiry, and in doing so gave an explanation, based on logical objective factors.

The claimants’ second issue concerns international due process. Here the claim relies upon ISBA/29/LTC/5 but fails to explain how and why the procedure therein applies to the present process, nor which part of those guidelines was not followed. Such procedure may not in fact be wholly applicable to the ongoing Council-mandated inquiry. ISBA/29/LTC/5 focuses on the specific scenarios of when the LTC should name contractors to the Council, for inadequate annual reporting and responses, and possible under-performance of its plan of work. It does not relate to an inquiry into possible contractor non-compliance (at para 6). In any case, the ISA Council has issued two decisions (here and here) which constitute stand-alone instructions for the present inquiry. In exercising its obligation to ensure compliance with Part XI of UNCLOS, the Council has wide powers to take measures and decisions as it deems fit, including to instruct its subsidiary bodies to provide it with relevant facts and recommendations.

Additionally, assuming those guidelines are applicable: no evidence is provided that they require a contractor to be consulted before the LTC may internally identify it as requiring specific attention for possible non-compliance.  On the contrary, the guidelines envisage that a contractor is invited to comment on specific concerns only once it has been identified as presenting a risk of non-compliance. This is the process the LTC has followed in the inquiry so far. Except in this inquiry all contractors were in fact invited to submit information prior to the identification. The guidelines also do not require full disclosure by the ISA to the contractor at this stage. In making their arguments about due process, the claimants appear to assume—without basis—a right to full disclosure and even rights to peruse and influence internal interim LTC reports before they are addressed to the ISA Council.

The requested remedies

A final hurdle concerns remedies sought by the contractors that would require the SDC to overstep its role under Part XI of UNCLOS. Under Articles 187-190 UNCLOS, the SDC can only determine whether the ISA has acted ultra vires or failed to comply with its contractual or treaty obligations. It has no jurisdiction over the ISA’s exercise of its discretionary powers (see here). According to Article 157 of UNCLOS, only the ISA (and not the SDC) has the power to organise and control activities in the Area.

The claimants’ requests to the SDC relate to the conduct of the inquiry and to the ISA’s decision-making about their contract extension. Both appear to target the exercise of the ISA’s discretionary powers:

• The LTC is conducting the inquiry under direction of the Council and in accordance with the latter’s supervisory mandate. UNCLOS does not prescribe how an inquiry must be run. It remains an exercise of discretionary authority.
• The 1994 Agreement sets a stipulation that “[contractual] extensions shall be approved [by the ISA] if the contractor has made efforts in good faith to comply with the requirements of the plan of work…”. An assessment whether the contractor has made such “good faith efforts” necessarily involves discretion as to what evidence and factors are relevant. The fact that their parent company, TMC, is presently attempting to bypass the ISA through another subsidiary, potentially using data and information collected by the ISA contractors, certainly requires the Council to ascertain such “good faith efforts”.

The remedies requested by the claimants are institutionally intrusive. They ask the SDC to micromanage the ISA’s discretionary exercise of internal regulatory functions: an overstep that seems to fall squarely outside the remit given to the SDC by UNCLOS.

Conclusion

The applications to the SDC attempt to pre‑empt regulatory scrutiny and insulate contract extension applications from the ordinary functioning of the ISA’s compliance mechanisms. Labelling is, however, no substitute for analysis (Azinian v. Mexico, at para 90). As explained above, the claims appear to be frivolous, premature, and unlikely to succeed. We foresee that that the obligation of the ISA and its Member States to ensure compliance of Part XI of UNCLOS will prevail over the complaints raised.