Deep Trouble (Part 3): Mining the Middle Ground? The Seabed Disputes Chamber’s Order on Provisional Measures

This insight is the third in our series tracking the developments in the 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”).¹ On Saturday, 18 July 2026, the SDC issued its order on NORI and TOML’s request for provisional measures.² The order is significant because these are the SDC’s first contentious cases under Part XI of UNCLOS and the SDC’s first exercise of contentious jurisdiction over activities in the Area. The central point is procedural: The SDC did not decide whether NORI and TOML were compliant with their exploration contracts, and it did not restrain the ISA from carrying out its regulatory functions. Instead, it held unanimously that, pending the merits, the ISA must act in accordance with the relevant legal framework, including rules of due process, in both the compliance inquiry and the extension procedure for NORI’s exploration contract. The order may give contractors the appearance of a significant interim win on procedural fairness, but it is a far cry from the standstill of the ISA’s inquiry that NORI and TOML sought. 

Main Takeaways from the SDC’s Order

First, the SDC found that it had prima facie jurisdiction. It held that NORI and TOML had access to the SDC, as they qualified as juridical persons within the meaning of article 153, paragraph 2(b) of UNCLOS as “compan[ies] duly incorporated under the laws of the Republic of [Nauru/Tonga]” and being parties to a contract for exploration with the ISA.³ It further held that, when the proceedings were instituted, a dispute prima facie existed between the parties over whether the ISA had observed due process in its inquiry into NORI’s possible non-compliance with contractual obligations.⁴ Another question before the SDC was whether the dispute related to activities in the Area, and in particular the interpretation and application of the Exploration Contract. NORI and TOML had argued that the obligation of due process arose from section 13.4 of the Exploration Contract, and that the dispute concerned the performance of its contractual obligations as a contractor engaged in exploration activities for polymetallic nodules in the Area.⁵ On the other hand, the ISA had argued that the dispute related to its exercise of its compliance powers, including its discretionary powers, and not the interpretation of the Exploration Contract.⁶

Second, the SDC rejected the ISA’s argument that article 189 barred jurisdiction at the provisional-measures stage.⁷ The SDC accepted that article 189 prevents it from substituting its discretion for that of the ISA or reviewing the validity of the ISA’s rules, regulations and procedures.⁸ However, it held that the present proceedings concerned observance of due process, which the SDC treated as extraneous to the ISA’s exercise of its discretionary powers.⁹ This is an important jurisdictional marker: The SDC drew a line between reviewing the merits of the ISA’s regulatory judgment, which it will not do, and reviewing whether the ISA has complied with procedural safeguards, which it may do.

Third, the SDC elevated due process into the central organising principle of the provisional-measures phase. It relied on the 2026 Council Decision¹⁰, which required ISA’s Legal and Technical Committee (“LTC”) to ensure due process, transparency and fairness at every stage of the inquiry, including by providing contractors and sponsoring States with the right to respond. The SDC also identified further due-process content in the ISA’s own materials, including neutral and objective procedures, transparency subject to confidentiality, accommodation of time constraints, clarity on documentation requirements and timelines, and notice of unsatisfactory responsiveness with reasons for preliminary adverse findings and opportunities for corrective action. The SDC therefore treated due process not as an abstract standard, but as a set of procedural guarantees grounded in the ISA’s own legal and institutional framework.  

Fourth, the SDC accepted that due-process prejudice can be irreparable. This is likely to be the order’s most practically important finding. The ISA had argued that there was no real and imminent risk and that any prejudice would be revenue-based and compensable. The SDC disagreed, holding that the ISA’s general assurances did not fully address NORI’s procedural concerns because NORI’s requests for clarification had not been answered, some deadlines remained unchanged, and the inquiry continued to be affected by alleged procedural deficiencies.¹¹ The SDC then held that failure to afford due process may not always be reversible or adequately compensable. The SDC emphasised that for the right to due process to be effective, it must be exercised in a timely manner in the decision-making process.¹²

The Relief Granted by the SDC

NORI and TOML’s requested relief was framed as a broad standstill of the LTC’s inquiry. It asked the SDC to order the ISA to suspend the LTC’s inquiry into alleged possible non-compliance, refrain from taking further steps in connection with that inquiry, and prevent recommendations, findings, reports or other outputs from the LTC inquiry from being adopted, issued, published, communicated or relied upon pending the final decision.¹³ The SDC did not grant the relief in those expansive terms. Instead, it allowed the LTC’s inquiry to continue but required the ISA to act in accordance with the relevant legal framework, including rules of due process.¹⁴

The SDC converted NORI and TOML’s requested suspension into a narrower procedural remedy. Rather than freezing the inquiry or barring institutional outputs altogether, the SDC required the ISA to clarify or provide the relevant information concerning the procedures for implementing paragraphs 9 and 10 of the 2025 Council Decision¹⁵ and the questions posed to NORI and TOML, so that NORI and TOML can respond meaningfully within a reasonable period of time. That makes any further inquiry step or output vulnerable if produced without the required procedural safeguards, but it does not prevent the ISA from continuing its work.

NORI also sought protection for its exploration-contract extension application. It asked the SDC to prohibit the ISA from taking any step or adopting any position that would prejudge, refuse or otherwise adversely affect that application insofar as the step was based on or influenced by the ongoing inquiry.¹⁶ The SDC did not bar action on the extension application. Instead, it required the ISA to observe due process in both the inquiry and the extension procedure, reflecting its concern that the two processes needed to be kept procedurally fair and sufficiently distinct.¹⁷

NORI and TOML’s request for non-aggravation relief was the aspect most closely reflected in the operative order, although the SDC recast it in reciprocal terms. NORI had asked the SDC to prohibit the ISA from taking action that might aggravate or extend the dispute or prejudice the execution of any decision the SDC might render.¹⁸ The SDC ordered both parties to cooperate and refrain from any action that might lead to aggravating the dispute.¹⁹

What to Expect from the Merits Phase?

Judge Kriangsak Kittichaisaree’s declaration provides a flavour of the issues likely to shape the merits phase. His declaration strongly reinforces the systemic dimension of the order. He framed Part XI and the 1994 Agreement as a treaty-bound architecture built on the common heritage regime, in which the ISA must act as a fair, transparent and impartial regulator while contractors and sponsoring States must remain faithful to the multilateral legal framework. In his view, protecting NORI and TOML’s procedural rights is not a victory for private commercial interests over the global commons, but a way to restore and reinforce the institutional balance of the Part XI regime.²⁰

In particular, Judge Kittichaisaree flags a potentially important merits issue. He notes the ISA’s allegation that NORI and TOML are wholly owned subsidiaries of The Metals Company, and that another wholly owned subsidiary, The Metals Company USA, LLC, is pursuing a licence under the domestic US framework (DSHMRA) for seabed mining exploration activities in the Area outside the multilateral legal framework. He expressly states that it is not for the SDC at the provisional-measures stage to determine whether such actions constitute an evasion of treaty obligations or a misuse of separate legal personality undermining the common heritage of mankind.²¹ The implication for the merits phase is that the SDC is likely to press arguments about corporate structure, sponsoring State control, and fidelity to the UNCLOS/1994 Agreement regime, while NORI will have the opportunity to answer those points with evidence and legal argument. 

The merits phase is likely to be shaped by three issues. First, the SDC will need to determine the content and consequences of the obligation to afford due process in the ISA’s compliance inquiry. The provisional-measures order already identifies the minimum procedural themes that matter, including transparency, notice, meaningful opportunity to respond, procedural clarity, reasonable timeframes, and separation between compliance assessment and contract-extension decision-making.   

Second, the SDC will likely have to maintain the distinction it drew between reviewing due process and reviewing the merits of the ISA’s regulatory discretion. The ISA can be expected to rely on article 189 to resist any merits review that would substitute the SDC’s judgment for that of the ISA. NORI and TOML can be expected to argue that their claim is not about the merits of compliance, but about whether the ISA applied mandatory procedural safeguards when exercising its compliance powers. 

Overall, the order is best read as a calibrated procedural intervention. The SDC declined to halt the ISA’s inquiry, declined to decide the substance of NORI’s compliance position, and declined to prejudge its own merits jurisdiction. But it unanimously confirmed that due process is a real and enforceable constraint on the ISA’s exercise of regulatory powers in the Area, and that loss of a meaningful procedural opportunity can itself justify provisional measures.

¹Read parts 1 and 2 of our series here: 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 – velaw.com and Deep Trouble: How NORI and TOML Are Testing the Limits of Seabed Governance – velaw.com.

²Order of the Seabed Disputes Chamber on Cases No 34 and 35 dated 18 July 2026 (the “Order”). C34_Order_18.07.2026_orig.pdf.

³Order, paragraphs 81 and 82.

⁴Order, paragraph 84.

⁵Order, paragraphs 85 to 90.

⁶Order, paragraphs 93 and 94.

⁷Order, paragraph 133.

⁸Order, paragraph 131.

⁹Order, paragraph 132.

¹⁰Doc. ISBA/31/C/18.

¹¹Order, paragraph 196.

¹²Order, paragraph 197.

¹³Order, paragraph 40.

¹⁴Order, paragraph 216.

¹⁵Doc. ISBA/30/C/19.

¹⁶Order, paragraph 40(d).

¹⁷Order, paragraph 212.

¹⁸Order, paragraph 45.

¹⁹Order, paragraph 216(c).

²⁰Declaration of Kittichaisaree.

²¹Declaration of Kittichaisaree, paragraph 5.

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.