By Ekaterina Antsygina
On 18 July 2026, the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (Chamber) delivered its Order on the requests for the prescription of provisional measures in Nauru Ocean Resources Inc. v International Seabed Authority (Case No. 34) and Tonga Offshore Mining Ltd. v International Seabed Authority (Case No. 35). These are the first contentious cases submitted to the Seabed Disputes Chamber under Part XI of the United Nations Convention on the Law of the Sea (UNCLOS). The disputes concern the observance of due process by the International Seabed Authority (ISA) in its inquiry into NORI’s and TOML’s possible non-compliance with their contractual obligations, specifically, possible non-compliance arising out of parallel mining pursued outside the ISA framework. The Order’s significance lies less in the provisional measures granted than in what the Chamber said about its own jurisdiction, the enforceability of contractors’ procedural rights, and about the ISA’s discretion and judicial oversight.
The Dispute Background
NORI and TOML (the Applicants) are wholly owned subsidiaries of The Metals Company (TMC), a company incorporated in Canada; NORI is incorporated in Nauru and TOML in Tonga, each holding an ISA exploration contract for polymetallic nodules in the Clarion-Clipperton Zone. Another wholly owned TMC subsidiary, The Metals Company USA, LLC (incorporated in the United States), is applying to the US National Oceanic and Atmospheric Administration (NOAA) for licences to conduct seabed mining in the Area outside the ISA framework, under the 1980 Deep Seabed Hard Mineral Resources Act (DSHMRA). The application areas of The Metals Company USA, LLC under DSHMRA overlap substantially with the ISA exploration contract areas held by NORI and TOML. No mining under DSHMRA has yet commenced.
It is against that backdrop that the ISA identified NORI and TOML as allegedly requiring “specific attention” in respect of possible non-compliance and requested them to submit answers to questions concerning their possible involvement, whether direct or indirect, in deep-sea mining activities outside the ISA framework. NORI and TOML asserted that the ISA’s decision to identify them in this way was made without prior notice or an opportunity to be heard, and without any disclosure of the legal and factual bases on which the ISA relied. According to them, this decision is “procedurally defective, lacking due process, transparency, and fairness” (p.5). Both companies instituted procedures against the ISA and sought provisional measures under Article 290(1) of UNCLOS.
What the Order on Provisional Measures Did and Did Not Decide
The Order is not a decision on the merits of the dispute between the Parties; it is only a decision on provisional measures under Article 290(1) of UNCLOS. Provisional measures in this context aim to preserve the respective rights of the Parties pending the final decision. The Order therefore does not represent a final outcome, but certain results have nonetheless been achieved at this stage.
The Chamber did not grant all of the Applicants’ requests, in particular, it declined to suspend the non-compliance inquiry, to freeze any findings or recommendations, or to bar any adverse effect on the extension application. What it granted instead were narrower measures. It ordered the ISA to act in accordance with the applicable legal framework, including the rules of due process, in conducting the inquiry in respect to the Applicants. It also ordered the ISA to clarify or provide to the Applicants the information concerning their identification as requiring “specific attention” for possible non-compliance and concerning the questions posed to them, so as to enable them to respond meaningfully and within a reasonable period. The Chamber also directed Parties to cooperate and to refrain from aggravating the dispute and required them to report on compliance by 31 August 2026. The heavier burden here falls on the ISA, which must produce a document clarifying, or providing to the Applicants the relevant information on the potential non-compliance procedures.
The ISA, for its part, may continue its inquiry into the Applicants’ possible non-compliance. But its own requests were not granted either: the Chamber established its prima facie jurisdiction for the provisional-measures stage (para. 97), found that a dispute exists between the Parties and that the Applicants hold plausible rights warranting provisional measures, and did not completely reject NORI’s and TOML’s requests. The Authority’s request that NORI and TOML bear, in equal share, its costs of responding to the requests and attending the hearings in Hamburg was likewise not granted and each Party bears its own costs.
The Interpretation of Article 189
The most consequential holding is jurisdictional. The ISA argued that article 189 establishes limitations on the jurisdiction of the Chamber (paras. 70, 71). In particular, that it excludes the Chamber from having the “jurisdiction to opine on the ISA’s exercise of its discretionary powers,” and that ISA’s actions towards the Applicants were an exercise of such discretionary power (para. 123). The Chamber recalled that its jurisdiction does indeed face limitations under Article 189 but held that the prescription of provisional measures is without prejudice to its final determination on jurisdiction, admissibility, or the merits (para. 59) and concluded that it has prima facie jurisdiction over the dispute (para. 97). Thus, the definitive jurisdictional analysis therefore awaits the merits phase, where the Chamber could in principle reach a different conclusion, though that seems unlikely.
As for the provisional measures stage, the Chamber reasoned that the observance of due process is “extraneous to the exercise by the Authority of its discretionary powers” (para. 132). That establishes that the ISA is subject to meaningful judicial review, a durable structural gain for every contractor, not only NORI and TOML.
For contractor–Authority power dynamics, this means the balance shifts modestly toward contractors, who now have a demonstrated route to external review, and the Chamber signalled those procedural rights “must be exercised timely” and cannot be cured ex post facto (para. 197). But the Chamber was equally careful to preserve the Authority’s discretion: it stated expressly that it will not “act as a substitute for the Authority” in evaluating compliance or assessing an extension (para. 131).
Due Process and Transparency
The Order requires the ISA to clarify or provide to the Applicants the relevant information concerning the procedures on potential non-compliance and the questions posed to them. That is the Chamber’s response to the transparency allegations raised by the Applicants. Transparency has been a recurring difficulty for the ISA this year: it arose not only in these proceedings but also in the deliberations over next year’s budget (Draft decision of the Council, paras. 17, 23), which point to concerns about communication between the Secretariat and the Finance Committee and about transparency and clarity in the budget proposals.
The Authority’s position regarding parallel mining is a difficult one: because the United States is not a party to UNCLOS, the ISA’s options are limited to influencing the situation through its member States and contractors. Even though the Secretariat’s aim has been to push back against unilateralism that, in its view, may violate international law, it must observe the rule of law and be transparent with contractors about the procedures and what is expected of them.
However, this does not mean that the ISA should shy away from confronting non-compliance. The due-process framing is only a temporary shield for contractors that may engage, directly or indirectly, in activities that could contribute to “the appropriation of any part of the Area or its resources outside the multilateral legal framework of UNCLOS” (para. 52). The ISA will continue to investigate potential non-compliance and can later suspend or terminate a contract in the event of serious persistent and wilful violations of the fundamental terms of contract, Part XI, the 1994 Agreement and the rules, regulations and procedures of the Authority (see section 21).
The Contract Extension: a Win Secured, but For How Long?
Shortly after the Order was issued, NORI’s application for the extension of its exploration contract was approved by the ISA Council, on the recommendation of the Legal and Technical Commission (LTC), a five-year extension effective from 22 July 2026 (ISBA/31/C/L.9). TOML’s exploration contract is due to expire on 11 January 2027, and its extension has therefore not yet been considered.
NORI’s objective of securing an extension was achieved. The Chamber’s decision indirectly assisted that outcome: it required the application to be assessed with due process and kept separate from the compliance inquiry, and, because that inquiry has so far produced no finding of non-compliance, the Council was able to approve the extension on the LTC’s recommendation.
From the outcome, NORI and TOML appear to be the winners, at least NORI’s pre-emptive action to avoid losing its contract succeeded. Even so, an extended contract can later be suspended or terminated in the event of a serious violations of contract, Part XI, the 1994 Agreement and the rules, regulations and procedures of the Authority; the question of jurisdiction under Article 189 will be examined in depth at the merits stage, where the Chamber could in principle reach a different conclusion; and the central question — whether the Authority in fact acted ultra vires or erred procedurally in its decisions or acts towards NORI and TOML — remains pending. It is therefore too early to conclude that the ISA has lost. The first round goes to the Applicants, but the game continues.
A “Distraction Tactic”?
Louisa Casson ofGreenpeace has suggested that this litigation is essentially a “distraction tactic” to divert attention from TMC’s US plans under DSHMRA. I would resist that characterisation as a complete account, while acknowledging that it is not baseless.
The strongest evidence against the “pure distraction” reading is the outcome. The Applicants secured a unanimous, precedent-setting holding from the Seabed Disputes Chamber confirming both that the Authority is subject to limited judicial review and that contractors’ due-process rights are judicially enforceable. This decision benefits the entire contractor community. The unanimity of the Chamber and the substance of the jurisdictional holding on Article 189 make the frivolous or purely “tactical” reading difficult to sustain.
That said, the distraction critique is not without force, and honesty requires acknowledging it. The litigation undoubtedly serves strategic purposes beyond the immediate remedy sought. It reinforces a narrative of unfair treatment that may lend legitimacy to the parallel U.S. licensing route, while also consuming the ISA’s institutional attention and resources at a particularly sensitive moment. The two accounts are therefore not mutually exclusive. In my view, the proceedings are both a genuine effort to protect contractors’ rights and a strategically timed instrument of leverage and narrative-building.
The Merits Stage Ahead
The most interesting issues have yet to be addressed. The substantive questions the ISA put to NORI and TOML in March 2026 – whether they have, directly or indirectly, acted to appropriate the Area or its resources outside UNCLOS framework, or shared contract data outside the ISA framework – map directly onto TMC’s US parallel mining, so the inquiry’s real target is fairly transparent.
The ISA now has to give the Applicants the relevant criteria and a genuine opportunity to respond before it reaches any findings. Whether it ultimately lands on non-compliance depends on what NORI and TOML actually did via the US route, and whether that breaches their exploration contracts.
One issue to address here is the link between NORI and TOML and the US subsidiary of TMC. While the ISA is not asking this question directly, it might be important for the outcome of the litigation. “The Salomon Principle” provides that a subsidiary is a distinct legal entity from its parent. The separateness is more pronounced between sister subsidiaries, whose only formal link runs through the common parent. This does not mean, however, that this link is impossible to establish and thereby to connect the parallel mining pursued by the US TMC subsidiary with the Applicants. As Judge Kittichaisaree noted in his Declaration, it is at the merits phase that the Chamber may determine whether Applicant’s conduct constitute “an evasion of treaty obligations or a misuse of the doctrine of separate legal personality which undermines the common heritage of mankind.” The merits phase will thus determine whether the multilateral framework can discipline a contractor that hedges its position outside that framework.
Conclusion
The Order decides little on the substance and much about the architecture. It confirms that the Seabed Disputes Chamber may review the ISA’s observance of due process without displacing its discretion. For contractors, that is a real and durable gain; for the ISA, it is a reminder that regulatory rigour and procedural fairness are not alternatives but conditions of legitimacy. The harder questions on whether a contractor may retain its place within the regime while directly or indirectly pursuing activities the regime prohibits remain open.