Space Data as ‘Investment’ in International Investment Law

Outer space is now a dynamic, commercialized arena, prompting economic and legal systems to reassess how value is defined beyond Earth. The rise of private actors has driven new value models, especially around a key 21st-century asset: data. Space-based data, in particular, is collected by satellites and transmitted through a vast infrastructure of ground stations and cloud systems. Its use is so widespread that we tend to take it for granted: telecommunications, navigation, weather forecasts, geospatial positioning all use or depend on space-based data. From climate change monitoring to national defense, infrastructure development to logistics, and energy production to counter-trafficking efforts, its utility is matched only by its pervasiveness.

As commercial significance of space-based data grows, questions arise about its legal and economic classification under international legal frameworks. Can this data, or the business models built around it, be understood as an investment under international investment agreements (IIAs)? This blog post explores this pressing question by drawing on recent developments in space activities, digital governance and commerce, as well as investment law.

A New Space Economy, a New Legal Challenge: The Definition of “Investment” under IIAs

Nowadays, space activities go beyond launch activities and hardware manufacturing. The NewSpace economy includes everything from mega-constellations like StarLink to future services like orbital debris removal. A key growth area is Space Data-as-a-Service (SDaaS), where companies monetize information from in-orbit assets through processed, subscription-based, or API-accessed products embedded in software ecosystems. As space tech increasingly integrates into Earth-based markets, specialized data-driven businesses are multiplying. This global trend is set to grow, bringing novel cross-border investment opportunities and raising legal questions. As states ‘modernize’ their IIAs, the classification of intangible assets such as space-based data becomes a key legal issue.

At the heart of the debate is the term “investment” itself. Most IIAs adopt a broad asset-based definition of investment, often including a non-exhaustive list: “every kind of asset” including movable and immovable property, shares, claims to money or performance, intellectual property rights; licenses, authorizations, permits, and similar rights conferred pursuant to domestic law, and “other tangible or intangible property.” Many IIAs (e.g., the 2012 US Model BIT, CETA, the 2021 Canada Model FIPA) reflect similar language.

But this breadth raises interpretative ambiguity. Can space-based data constitute an “asset”? Which conditions qualify it as an “investment” under an IIA? The Salini v. Morocco award is a common starting point to broadly ascertain what falls under this definition. The Salini Tribunal emphasized the need for certain criteria to be present for a protected “investment”: a contribution of capital, a certain duration, an element of risk, and a contribution to the host state’s development. While the Salini test is not universally accepted, it highlights the importance of distinguishing between a contractual service and an investment relationship.

Space data straddles several of the enumerated categories of protected investment. First of all, when processed, it can qualify as intangible property, especially if national laws recognize the commercial entity’s role in interpreting raw data. It may also be protected as a “claim to performance” through contracts to supply data or analytics. Furthermore, a company established in a host state that processes, distributes, or analyzes space data may qualify as a protected investment in itself, with the data being a critical asset supporting the enterprise’s value. Given the reliance of outer space activities on licensing regimes (e.g. Luxembourg and Finland), space-based data activities may involve rights granted by law or contract to carry out commercial operations. However, simply possessing or accessing data is unlikely to qualify per se. It is the infrastructure and business model supporting the generation, refinement, and distribution of that data that form the core of any potential investment claim.

Precedents and Analogies

While there is no clear precedent involving space data in investment arbitration, analogies from telecommunications and trademark cases, as well as some existing rules or contexts on cross-border data governance could offer useful guidance.

Arbitral tribunals have accepted that data networks and intangible assets such as registered trademarks can constitute protected investments. In CC/Devas v. India, for example, “shares, debentures and any other form of participation” in telecommunications infrastructure—including frequency band allocation contracts and relevant spectrum licenses—were treated as covered investments. (Award on Jurisdiction and Merits, par. 196 et seq) In Bridgestone v. Panama, trademarks registered in Panama were considered as covered investments. (Decision on Expedited Objections, par. 177)

Other than investment arbitration cases, international trade law is increasingly recognizing the importance of data flows in global commerce, which is highly relevant for businesses built on space-based data. Agreements like the CPTPP (Article 14.11) and USMCA (Article 19.11) protect cross-border data transfers and limit localization, reflecting the economic value of data. While they do not explicitly cover space-based data, future trade rules could address specific types of data. Including space-based data would help align trade frameworks with emerging technologies and ensure these agreements remain relevant as space enterprises grow in impact and scale.

A useful comparison exists between space-based data and data transmitted via submarine cables. Both types of data depend on critical infrastructure located beyond national jurisdictions and are governed by specific international legal frameworks. Submarine cables, which carry most global internet traffic, are regulated under instruments like the UN Convention on the Law of the Sea (UNCLOS), which protects the integrity and operation of these systems. While cable operators own the infrastructure, they typically do not own the data transmitted through it, which remains with the sender or recipient. In contrast, space-based data is often generated by the orbital asset itself, giving operators a more direct connection to the data’s creation and potentially stronger ownership claims. This distinction underscores different legal relationships between infrastructure and data in undersea and outer space contexts. In both cases, tangible infrastructure (e.g. cables or satellites) may be owned by private or state actors, but the legal status and ownership of the data they carry or generate remain complex. Furthermore, the shared extraterritorial character raises similar legal and governance challenges around control, processing, access, and protection of data.

Regulating Space-Based Data

Space data, just like space activities in general, exists at the intersection of innovation and security. This so-called ‘dual-use’ of space data places it in the regulatory crosshairs of states. It raises concerns on surveillance, cybersecurity, privacy, and sovereign rights. Therefore, governments may see the need to intervene in what appear to be private commercial activities to safeguard sensitive national interests. This regulatory impulse is not hypothetical. Numerous states maintain legal frameworks allowing for the revocation of licenses, export controls, or operational restrictions on satellite operators. Also, it is possible that refusals, revocations, or restrictive modifications to the licensing framework might invoke foreign investor claims. This tension raises difficult, but familiar, questions: To what extent can a state’s police powers capture these regulatory or administrative measures? How far can a state go in the name of national security before it breaches its investment obligations?

In addition to regulatory carve-outs under various expropriation provisions or ‘right to regulate’ provisions, many IIAs contain ‘essential security interests’ (ESI) modeled on Article XXI of the GATT. These clauses typically allow states to take measures necessary to protect essential security interests, including those related to arms traffic, nuclear materials, or national emergencies. A modern IIA covering the space sector, or any agreement that purports to regulate data-driven services, must extend these exceptions to cover cybersecurity, dual-use technology, and sensitive remote sensing operations.

More broadly, it is important to note that space-based data activities will have to be conducted in accordance with international space law. Unlike so-called ‘earth based’ data activities, all space activities are subject to specifically prescribed international law rules. For instance, Article VIII of the Outer Space Treaty (OST) grants launching states jurisdiction and control over their space objects, including onboard instruments. The OST also affirms the principle of free use and exploration of outer space (Article I) and requires the sharing of information about space activities “to the greatest extent feasible and practicable” (Article XI). Additionally, Article VI holds states internationally responsible for national activities in space, whether conducted by governmental or non-governmental entities; while Article VII establishes liability for damage caused by space objects. In principle, space operations involving data generation and processing would fall under these provisions. This framework introduces a distinct regulatory context for commercial data operators in space, which may influence how their activities are assessed under IIAs. It could also shape the legal arguments and jurisdictional considerations in potential arbitral claims involving space-based data assets and operations.

Toward a Lex Mercatoria Digitalis Spatialis?

This post argued that, in principle, space data can constitute an investment. An enterprise with a sustained contribution of capital, technological infrastructure, and commercial risk in the generation and processing of space data may qualify under the broad language of many IIAs. However, not all uses of data, especially when decontextualized from a commercial or jurisdictional footprint, merit protection under investment law.

This post also highlighted the unique characteristics of space data, and distinct regulatory and policy considerations attached to it. Going forward, clearer treaty language will be essential. Adjudicatory bodies settling international investment disputes will increasingly deal with foreign investors operating with digital and intangible ‘raw materials’. Definitions of “investment” must grapple explicitly with the realities of the digital space economy, including the ambiguous nature of data ownership, the transnational (and extraterrestrial) character of space activities, and the imperative of protecting states’ regulatory autonomy.