Deep Trouble (Part 2): The ISA Responds to NORI and TOML’s Case and the Seabed Disputes Chambers Hears the Parties’ Submissions on Interim Relief

This insight tracks the latest developments in parallel proceedings brought by Nauru Ocean Resources Inc. (“NORI”) and its sister company Tonga Offshore Mining Ltd. (“TOML”) — both subsidiaries of Canada-based The Metals Company (“TMC”) — against the International Seabed Authority (“ISA”) before the Seabed Disputes Chamber (“SDC”) of the International Tribunal for the Law of the Sea (“ITLOS”). At the heart of the dispute are allegations that the ISA has violated international obligations of due process, transparency, and non-discrimination in conducting an ongoing compliance inquiry. Below, we review the ISA’s written response to NORI and TOML’s applications and take stock of the oral submissions on provisional measures.

The compliance inquiry originated in the ISA Council’s (“Council”) decision ISBA/30/C/19 of July 2025, which requested the Secretary-General to investigate contractors that may have acted inconsistently with the United Nations Convention on the Law of the Sea (“UNCLOS” or the “Convention”) regime. In January 2026, the Secretary-General’s Circular/2026/001 asked all 21 ISA exploration contractors to provide information on potential non-compliance with the standard clauses in their ISA exploration contracts. In March 2026, the ISA’s Legal and Technical Commission (“LTC”) reported it had identified contractors requiring “specific attention” for possible non-compliance — though without naming them publicly. It subsequently became apparent that NORI and TOML had been singled out for possible non-compliance arising from “direct or indirect actions related to activities in the Area”.

What triggered the inquiry? According to TMC, it was its decision to find an alternative to the ISA framework. Its U.S. subsidiary, TMC USA LLC, applied for exploration licences and a commercial recovery permit under the Deep Seabed Hard Mineral Resources Act of 1980 (“DSHMRA”) via National Oceanic and Atmospheric Administration (“NOAA”), citing the ISA’s failure to adopt exploitation regulations.

By way of a reminder, NORI’s and TOML’s applications before the SDC include requests for provisional measures pursuant to Article 290, paragraph 1 of UNCLOS. NORI and TOML ask that the SDC:

1. Suspend the LTC inquiry entirely;
2. Prevent the ISA from taking “further steps” in connection with the inquiry;
3. Ensure that no recommendations, findings, reports, or other results of the inquiry are adopted, published, communicated, or relied upon pending the final decision; and
4. Prevent the ISA from taking any inquiry-influenced step that would prejudge or adversely affect NORI’s pending contract extension application — a critical issue given that NORI’s exploration contract was set to expire on 22 July 2026. 

The ISA’s Written Response

The ISA submitted its written response to NORI’s and TOML’s requests for provisional measures on 25 June 2026.¹ The ISA argues that none of the four conditions for provisional measures under UNCLOS Article 290(1) were met:

1. No Prima Facie Jurisdiction. The ISA invokes Article 189 of UNCLOS, which bars the SDC from reviewing the ISA’s exercise of its discretionary powers. The information requests fall within the ISA’s supervisory and regulatory mandate and do not constitute actionable breaches of contract or the Convention. The claims are also premature as no dispute has crystallised: No adverse determination has been made against the applicants.
2. No Plausible Rights. The ISA contends that the applicants confuse the “Inadequate Performance Procedure” (a separate annual-report-based process) with the distinct process under paragraphs 9 and 10 of the 2025 Council Decision (ISBA/30/C/19). The Council expressly stated that “paying particular attention to potential non-compliance” is a preliminary step and does not constitute a finding of non-compliance. The applicants fail to identify any legal provision granting the rights they claim. 
3. No Real and Imminent Risk of Irreparable Harm. There is no prescribed timeline for the LTC to conclude its process, and the Council has directed the LTC to ensure due process, transparency, and fairness at every stage. Any harm the commercial applicants might suffer would be financial (revenue loss) and therefore reparable.
4. Adverse Consequences of Granting Measures. Granting the measures would impede the ISA’s exercise of its Convention-mandated supervisory functions, prejudicing the rights of all Member States and the interests of humanity as a whole. 

As to NORI’s allegation regarding the irregularity in the handling of its contract extension application (submitted January 2026, with the contract expiring on 22 July 2026), the ISA responds that the LTC was required to process eight extension requests in order of receipt and simply ran out of time during the first part of the 31st session; NORI’s request — received last — will be examined during the second part (29 June–31 July 2026), before its contract expires.

The SDC hears NORI, TOML and the ISA on the applicants’ request for provisional measures

On 2 and 3 July 2026, the SDC heard the parties’ oral submissions on NORI and TOML’s request for provisional measures. The parties were represented by legal heavyweights: Mr Wordsworth KC and Ms Sander KC of Essex Court Chambers appeared on behalf of the applicants, while Professor Philippe Sands was instructed on behalf of the ISA.

NORI and TOML’s submissions focused squarely on the need to protect the applicants’ due process rights pending the SDC’s final decision on the two substantive applications lodged before it. A central plank of their argument was that the ISA should not prejudge issues of alleged non-compliance unless and until the requirements of due process and transparency have been met. Without interim relief, counsel argued, the final relief sought is at real risk of being rendered illusory.

Counsel for the applicants emphasised that NORI and TOML do not seek to dictate how the ISA carries out its mandate. Their position was framed as modest in scope: First, the applicants have a right to understand the legal and factual basis for their identification for possible non-compliance; and second, they have a right to respond meaningfully — an opportunity that must be afforded before any finding or recommendation is made by the LTC. The ISA, they argued, should explain its specific concerns and identify the procedural path forward to ensure meaningful engagement in good faith. This was not, counsel suggested, a big ask — and one might query why the SDC had to be troubled with it at all.

The applicants placed responsibility for the situation firmly at the ISA’s door, arguing that the need for interim relief was of the ISA’s own making — a consequence of its failure to provide clarification as to its grievances and its refusal to extend the deadline for responding. NORI and TOML, they submitted, had been “boxed in”. Despite the ongoing proceedings, counsel noted that the applicants continue to seek constructive solutions.

The ISA’s submissions struck a markedly different tone, emphasising the gravity of its mandate under UNCLOS and its responsibility to safeguard the common heritage of mankind. Professor Sands opened by underscoring what he called the “immense significance” of the SDC’s decision, urging the Chamber to consider the wider legal framework, and in particular the obligations under Part XI of UNCLOS, in which these applications have been brought.

Central to the ISA’s case was Article 137 of UNCLOS, described as the “beating heart” of Part XI. The ISA noted pointedly that the applicants had said nothing about it. Article 137’s combined effect with other Part XI provisions, the ISA argued, is that no entity other than the ISA is capable of organising or granting rights to the seabed in the Area. No one — whether State or contractor — can claim, acquire, appropriate, or exercise rights with respect to the Area except in accordance with Part XI, nor can they recognise such rights. Nauru, Tonga, and their sponsored contractors NORI and TOML are all bound by these obligations.

The ISA then turned to Article 189 of UNCLOS, which bars the SDC from reviewing the ISA’s exercise of its discretionary powers. These proceedings, the ISA submitted, amount to an attack on its mandate. The review of potential non-compliance falls under the exclusive purview of the LTC, and in the meantime all ongoing inquiries are just that, ongoing and preliminary.

On the substance, the ISA framed its actions as not merely justified but legally compelled. TMC USA LLC applied for exploration licences from NOAA in July 2025, raising serious questions about compatibility with UNCLOS. Could the ISA simply pass in silence in light of publicly available information? It could not, and it did not. With the full and consensual support of Member States, it initiated an inquiry to ascertain the facts and did no more than ask the contractors some questions. What, the ISA asked, is unreasonable about that? There is no issue of due process; the suggestion otherwise is, in the ISA’s words, “a complete artifice”.

More broadly, the ISA sought to reframe the narrative around the applicants’ own conduct. According to the ISA, NORI and TOML refused to answer the questions put to them, questions designed to allow an inquiry to begin, not conclude, and instead initiated what the ISA characterised as aggressive and strategic litigation intended to delay the process and deflect from the applicants’ own responsibilities. The SDC, the ISA submitted, was being asked to prevent the LTC from continuing its work — whilst a session is already underway — and to pause its review entirely. The ISA expressed apprehension at what it described as a growing appetite for unilateral action that endangers the common heritage of mankind, and urged the SDC to recognise the vital role it plays in navigating these “stormy waters” and shaping the integrity of the ISA’s mandate.

Where the battle lines are drawn

The oral submissions reveal a fundamental disagreement not merely about the merits, but about what this dispute is actually about. For NORI and TOML, the case is narrow and grounded in procedure: They say they are not challenging the ISA’s right to inquire, but its failure to afford them basic due process — the right to know the case against them and to respond before any adverse finding is made. Their ask, as they frame it, is modest and proportionate. The need for judicial intervention, they argue, arose only because the ISA refused to engage constructively.

For the ISA, the case is existential. It sees the proceedings as a direct challenge to its supervisory authority at a moment when the integrity of the Part XI regime is under threat from unilateral action outside UNCLOS. The ISA does not view its inquiry as an exercise of arbitrary power but a legal obligation, triggered by publicly known facts. The applicants’ refusal to answer questions (followed by immediate litigation) is, on the ISA’s account, a tactical manoeuvre designed to obstruct a legitimate process before it has even produced a result.

The tension between these positions will be familiar to practitioners of international institutional law: Where one party sees procedural safeguards as a precondition to legitimate action, the other sees procedural objections as a vehicle for obstruction. The SDC’s decision on provisional measures (expected shortly²) will not resolve the underlying dispute, but it will signal how the SDC views the balance between an international organisation’s regulatory autonomy and the procedural rights of those subject to its oversight. The stakes, as both sides acknowledge, extend well beyond the immediate parties.

¹Access the ISA’s response at: ISA_Response_25.06.2026__TR.pdf.

²The date for the reading of the Order is tentatively set to Saturday 18 July 2026, at 3 p.m. https://www.itlos.org/en/main/resources/calendar-of-events/#ar693.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.