Pre-Exploitation Litigation: Cases No. 34 and 35 and the Timing of Deep-Sea Mining Governance

On 5 June 2026, the International Tribunal for the Law of the Sea (ITLOS) announced two new proceedings before its Seabed Disputes Chamber (SDC). Nauru Ocean Resources Inc. (NORI) and Tonga Offshore Mining Ltd. (TOML) each instituted proceedings against the International Seabed Authority (ISA) and requested provisional measures. The cases have been entered as Case No. 34 and Case No. 35, respectively. Both applicants contend that ISA identified them as contractors requiring “specific attention” for possible non-compliance without a lawful procedural basis, and in breach of due process, transparency, fairness, and ISA’s obligation under the relevant exploration contracts to exercise its powers and functions in good faith.

The cases formally concern exploration contracts, compliance inquiries, and provisional measures. Their broader significance, however, lies in timing. The Exploitation Regulations which would govern deep seabed exploitation remain under development, and the path toward financial terms and benefit-sharing arrangements remain uncertain. In this setting, an exploration contract is more than a permit to explore; it is a legal position that may preserve access to future exploitation opportunities. Whether a contractor can maintain that position, avoid being marked as a compliance risk, and obtain predictable treatment within ISA procedures may shape its ability to move into the exploitation phase.

This concern is visible in the factual background to the dispute. The Metals Company’s US subsidiary, TMC USA, has applied for a commercial exploitation pathway under the US Deep Seabed Hard Mineral Resources Act, while Greenpeace has alleged that TMC USA, NORI, and TOML are legally distinct but operate under the coordinated strategy of the same parent company where corporate links and data generated under NORI and TOML’s ISA exploration contracts supported that route. This background helps explain why the dispute is not only about existing exploration obligations. It also concerns whether contractors can preserve their position within the ISA system while other possible routes to exploitation are being pursued. NORI’s application likewise makes this connection explicit: its extension request relied on the continued absence of exploitation regulations and the legal and financial uncertainty that follows (NORI Application, paras 43-44). The dispute is therefore about the procedural conditions under which an exploration contractor remains positioned to claim, defend, or redirect future access to commercial exploitation.

Similar cases, different pathways

The cases of NORI and TOML should be read together. Both challenge ISA’s compliance inquiry, argue that they were identified as requiring “specific attention” without prior notice, disclosure of reasons, or an opportunity to be heard, and seek provisional measures from the SDC (NORI Application and TOML Application, paras 9-13). However, the two cases connect the present exploration-contract disputes to future exploitation  in different ways.

NORI’s case turns on extension of its exploration contract, which is due to expire on 22 July 2026 (NORI App., para 5). On 19 January 2026, NORI applied to extend the contract until 21 July 2031 (NORI App., para 6), but that application remains under review by the Legal and Technical Commission (LTC). NORI emphasizes that the LTC is responsible both for assessing its extension application and for pursuing the inquiry into alleged possible non-compliance (NORI App., paras 9-11, 15). That overlap matters: views formed during the inquiry could influence the extension process, creating a risk of procedural contamination.

TOML’s case foregrounds a different concern: compliance record and regulatory standing. TOML’s contract is due to expire on 11 January 2027 (TOML App., para 5), but its application focuses less on an immediate extension decision and more on the harm that the inquiry itself may cause. For TOML, being identified as a contractor requiring “specific attention” may affect its place within the ISA system (TOML App., paras 19-20) even before any formal exploitation application or contract-extension decision arises.

The distinction shows two ways in which exploitation-related disputes can emerge before exploitation itself. One pathway runs through contract extension: whether an exploration contractor can preserve the legal position that may allow it to move toward commercial exploitation (NORI App., paras 41, 44). The other runs through compliance status (TOML App., para 23): whether an exploration contractor may be marked as a regulatory risk before the exploitation stage begins. Together, the cases show how administrative judgments made in the pre-exploitation phase may shape opportunities in the exploitation phase.

Why the Seabed Disputes Chamber matters

The forum is central to the argument. Cases No. 34 and 35 were not brought before the full Tribunal as ordinary contentious cases, but before the Seabed Disputes Chamber, the specialized judicial body within the UNCLOS Part XI system for disputes concerning activities in the Area. The applicants rely on Article 187(c) of UNCLOS to establish the Chamber’s jurisdiction over disputes between parties to a contract concerning activities in the Area and directly affecting legitimate interests, and on Article 290(1) to request provisional measures.

This setting gives the cases their institutional force. If the SDC addresses ISA’s authority to identify contractors and inquire into possible non-compliance, the LTC’s identification process, the Secretary-General’s circular, or contractors’ procedural rights, it will do more than review ISA from the outside: it will clarify how ISA’s internal regulatory processes operate within the UNCLOS Part XI system.

That is why the dispute reaches beyond the immediate inquiry. ISA is both a party to exploration contracts and the regulator of activities in the Area. The inquiry challenged by the applicants began with a decision of the ISA Council (NORI App., para 10; TOML App., para 9), was followed by the Secretary-General’s Circular/2026/001 (NORI App., paras 32-33; TOML App., paras 25-26), and was then carried forward through the LTC’s identification of contractors requiring “specific attention”. The cases therefore raise questions about ISA’s internal allocation of authority: who may trigger an inquiry, who may identify risk, what reasons must be disclosed, and what procedural safeguards contractors must receive.

Provisional measures and procedural compression

The requests for provisional measures sharpen the timing problem. Both applicants ask the Chamber to suspend the LTC inquiry, prevent ISA from taking “further steps in connection with” it, and ensure that “no recommendations, findings, reports”, or other results of the “inquiry are adopted, published, communicated, or relied upon pending the final decision” (NORI Request, para 42(a)-(c); TOML Request, para 42(a)-(c)). NORI’s request adds a contract-extension dimension: it also asks the Chamber to prevent ISA from taking any inquiry-influenced step that would prejudge or adversely affect its pending extension application (NORI Request, para 42(d)). The applicants were required to submit substantive responses to the inquiries by 31 May 2026, before the next LTC and Council meetings in late June and July. NORI’s contract is also due to expire on 22 July 2026. These dates matter because ISA’s internal processes may produce practical consequences before the SDC can decide the merits.

Provisional measures therefore operate as a mechanism of procedural compression. They bring forward questions of institutional authority, procedural fairness, and regulatory consequence that might otherwise unfold gradually within ISA. Even without deciding the merits, the Chamber may have to address the plausibility of rights, urgency, irreparable prejudice, non-aggravation of the dispute, and the preservation of the effectiveness of its eventual decisions.

That compression gives the cases their strategic force. It may push the SDC to articulate institutional boundaries earlier than expected, and it may also place pressure on ISA to clarify the rules and procedures that govern compliance review. At the same time, if the cases reinforce concerns about ISA’s efficiency, predictability, or internal governance, they may give more political space to alternative legal pathways and unilateral regulatory narratives, as recent developments in the US concerning deep seabed minerals already suggest.

Possible judicial trajectories

The SDC’s response could take several forms.

An applicant-friendly outcome would strengthen the procedural constraints on ISA’s regulatory conduct. ISA would retain regulatory authority, but when it identifies, investigates, or otherwise affects contractors, it may need to provide clearer notice, reasons, and evidentiary basis. That would make procedural regularity a condition of regulatory credibility and could influence how future exploitation-stage review is conducted.

An ISA-friendly outcome would also be consequential. If the Chamber confirms ISA’s authority to identify and inquire into possible non-compliance, it may still have to explain the legal basis, limits, and procedural conditions of that authority. Such reasoning would help future applicants understand how the SDC views ISA’s powers in deep-sea mining, what procedures are sufficient to satisfy due process, and when contractor-rights claims may succeed. Even an outcome favorable to ISA could become a map for future exploitation-stage disputes.

The Chamber may also take a narrower path. It may avoid the merits while still making observations on urgency, plausibility of rights, procedural fairness, non-aggravation, or the preservation of the effectiveness of its eventual decisions. Such reasoning would not settle the exploitation regime, but it may become early jurisprudential material for its governance.

The point is that the cases matter regardless of whether the applicants prevail. Their broader significance lies in how the Chamber describes the relationship between ISA’s regulatory authority, contractors’ procedural rights, and the legal order of the pre-exploitation phase.

Conclusion

Cases No. 34 and No. 35 may raise doubts about ISA’s efficiency and internal governance. But the applicants’ turn to the SDC also shows that the ISA system continues to have institutional value. Commercial exploitation depends on secure rights, lawful permits, financing predictability, and downstream market acceptance. An exploitation license granted through ISA can provide a form of international legitimacy that alternative routes will struggle to replicate.

The cases are therefore best understood as a stress test for the ISA system. They press ISA to clarify the foundations of its authority, the boundaries of its procedures, and the logic of its regulatory oversight. They also ask the SDC to respond earlier than expected to disputes that may shape the pre-exploitation legal order.

The exploitation has not yet formally opened, but its legal architecture is already being contested. How the Chamber handles Cases No. 34 and No. 35 will influence how ISA, contractors, and future applicants understand power, procedure, and time in the law of deep-sea mining.

Editorial note: see also this post by Hannah Lily, Alberto Pecoraro and Pradeep Singh for a discussion of these applications as an attempt to circumvent due process.