Subsea cable transactions are multi-party and multi-jurisdictional. The three core agreements (the Construction and Maintenance Agreement (C&MA) governing the consortium, landing agreements securing the cable’s connection to onshore infrastructure, and Indefeasible Rights of Use (IRUs) through which capacity is sold) each involve specialist commercial terms that only work if drafted by people who understand how cable systems operate. Consortium governance, fibre-pair allocation, maintenance cost sharing, capacity pricing, backhaul integration and landing station access each turn on how cable systems are built and run. The regulatory framework adds further complexity: Code Powers under the electronic communications code in Schedule 3A to the Communications Act 2003, marine licensing under the Marine and Coastal Access Act 2009, Crown Estate seabed and foreshore rights, and the network and service security duties in sections 105A to 105K of the Communications Act 2003, inserted by the Telecommunications (Security) Act 2021. We advise on the commercial structuring, negotiation and documentation of subsea cable transactions, drawing on experience across cable systems in Europe, Africa and Asia.

Why subsea cables need specialist attention

The C&MA is the foundation agreement. It establishes the consortium, allocates construction costs, sets governance rules for maintenance and repair, determines fibre-pair allocations among consortium members and establishes the voting and decision-making structure for the life of the cable system (typically 25 years). The C&MA must address regulatory constraints from the outset: which consortium member holds Code Powers for the UK landing, who bears marine licensing and Crown Estate consent obligations, and which member carries the section 105A duty as the provider of the public electronic communications network.

Landing agreements secure the cable’s connection to onshore infrastructure. An operator can take a lease of the landing station site under ordinary property law, but only an operator to whom Ofcom has applied the code by a direction under section 106 of the Communications Act 2003 can acquire code rights, and only code rights carry statutory security of tenure for the apparatus and the power to compel an agreement where the landowner will not grant one. Landing agreements also address backhaul integration, connecting the submarine cable to the domestic terrestrial network.

IRU sales are the commercial layer. Capacity partners purchase indefeasible rights to use specific fibre pairs or wavelengths for a fixed term. IRU terms must reflect regulatory constraints: the network provider’s duty under section 105A of the Communications Act 2003 to take appropriate and proportionate measures reaches third party access to the network, and an acquisition of control over the operating entity may need clearance under the National Security and Investment Act 2021 before it can complete.

Common subsea cable failures

Parties often treat the C&MA, landing agreements and IRU sales as separate problems, with regulatory applications handled as an afterthought. This siloed approach creates four categories of failure.

First, C&MA governance does not reflect regulatory constraints. Consortium voting structures and fibre-pair allocation mechanisms are agreed without considering how the security measures the network provider must take under section 105A of the Communications Act 2003 affect third party access to capacity, or how marine licence conditions constrain maintenance and repair operations.

Second, landing rights are not properly secured. The operator may hold a site lease but no code rights. A contested code claim in England and Wales is brought in the First-tier Tribunal (Property Chamber) or the Upper Tribunal (Lands Chamber) under the Electronic Communications Code (Jurisdiction) Regulations 2017, and the tribunal may transfer it to the county court where that is the more appropriate forum. Backhaul arrangements between the landing station and the domestic network must also be in place before the cable is ready for service.

Third, IRU sales are drafted without reference to regulatory constraints. A provider of a public electronic communications network must take appropriate and proportionate measures under section 105A of the Communications Act 2003, and those measures constrain how it grants third parties access to its network. IRU terms that do not address that constraint create disputes when delivery is held up.

Fourth, marine licensing and seabed rights are treated as formalities. Depositing an object on or under the sea bed, and constructing works on or under it, are licensable marine activities under section 66 of the Marine and Coastal Access Act 2009, and the licence carries conditions on burial depth, environmental monitoring and notification that affect construction timelines and cost. The seabed owner’s consent is separate from the licence: The Crown Estate manages the territorial seabed out to 12 nautical miles and around half of the foreshore in England, Wales and Northern Ireland, and Crown Estate Scotland manages the equivalent rights in Scotland. Seabed rent runs for the life of the system and belongs in the project’s financial model.

Data protection adds a fifth layer. Cables carrying traffic to jurisdictions without adequacy decisions create international transfer issues. If the landing station operator processes personal data in transit, its UK GDPR role is fact-sensitive: whether it acts as processor or controller depends on who determines the purposes and essential means of the processing, not on its operational role alone. International transfer safeguards must be in place.

Common issue	Better approach
C&MA governance silent on the section 105A security duty	Governance allocating the security duty and its cost from inception
Landing site leases secured without Code Powers	Code Powers application filed before construction commitment
Marine licensing treated as a formality	Licensing strategy integrated into project timeline from the outset
IRU terms silent on network security constraints	IRU capacity allocation reflecting the provider’s security duties
International transfer issues unaddressed for non-adequacy routes	UK GDPR transfer mechanisms built into cable consortium agreements

The Joint Committee on the National Security Strategy published Subsea telecommunications cables: resilience and crisis preparedness on 19 September 2025 (HC 723, HL Paper 179), and the Government replied in December 2025. The National Protective Security Authority, which replaced the Centre for the Protection of National Infrastructure in March 2023, is the national technical authority for physical and personnel protective security, and an operator landing a cable in the UK should expect scrutiny of ownership, route planning and physical security. The National Security and Investment Act 2021 requires an acquirer taking control of a qualifying entity in the communications sector to notify and obtain approval before completing, whether the acquirer is British or foreign.

Securing landing rights for a cable landing station involves separate regulatory and property law workstreams that must run in parallel. The regulatory workstream requires designation as an operator under section 106 of the Communications Act 2003 to obtain Code Powers, which are needed to install and maintain infrastructure on land. The property law workstream requires negotiating wayleave agreements or exercising Code Powers under Schedule 3A to the Communications Act 2003 with coastal landowners. Marine licensing under the Marine and Coastal Access Act 2009 covers the seabed works. The Marine Management Organisation aims to determine a standard marine licence application within 13 weeks of the applicant accepting its fee estimate, excluding any period the application is on hold, so elapsed time is longer. An application needing an environmental impact assessment takes longer again. Co-ordinating all three workstreams from the outset avoids critical path delays.

Repair and maintenance of subsea cables raises distinct legal issues. Article 113 of the United Nations Convention on the Law of the Sea requires every state to make it a punishable offence for a ship flying its flag, or a person subject to its jurisdiction, to break or injure a submarine cable beneath the high seas wilfully or through culpable negligence. Article 112 entitles all states to lay submarine cables on the bed of the high seas and applies Article 79(5) to them. Within UK territorial waters and the exclusive economic zone, repair operations require co-ordination with the Maritime and Coastguard Agency, compliance with marine licensing conditions, and notification to other cable owners where repair routes cross existing infrastructure. The International Cable Protection Committee publishes recommendations on cable proximity agreements and cable crossings, which the industry treats as good practice. Operators should build repair and maintenance obligations, including response times and insurance requirements, into their commercial agreements from the outset.

A well-structured cable transaction

A well-structured subsea cable transaction integrates the regulatory framework into all three core agreements from the outset. The C&MA allocates the section 105A security duty, and reflects the measures it requires, in its governance and fibre allocation provisions. Landing agreements secure Code Powers and backhaul arrangements before construction begins. IRU terms address regulatory constraints on capacity allocation.

Bratby Law advises on the full transaction structure: C&MA negotiation and governance, landing agreements including Code Powers applications, IRU frameworks reflecting regulatory constraints, marine licensing strategy, Crown Estate seabed and foreshore negotiations, and Ofcom engagement on the section 105A and 105K duties. We advise on the international legal framework including the UNCLOS provisions on submarine cables, International Cable Protection Committee recommendations and bilateral cable agreements.

How Bratby Law helps

We advise cable operators, landing station operators, consortium members, capacity partners and infrastructure funders on the full lifecycle of subsea cable transactions. Our core work is commercial: C&MA negotiation and consortium governance, landing agreements, IRU frameworks, capacity pricing and backhaul integration. We bring industry context from decades of work on international cable systems. Where the transaction engages regulatory requirements, being Code Powers, marine licensing, Crown Estate consent and the network security duties in sections 105A to 105K of the Communications Act 2003, we advise on those too, integrating them into the commercial structure rather than treating them as a separate workstream.

Frequently asked questions

Do we need Code Powers for a landing station?

Not to occupy the site. An ordinary lease does that. Code Powers are conferred by Ofcom, by a direction under section 106 of the Communications Act 2003, and they let the operator acquire code rights over the landing station site under Schedule 3A, either by agreement with the landowner or, where the landowner will not agree, by an order of the First-tier Tribunal (Property Chamber) or the Upper Tribunal (Lands Chamber). Only code rights carry statutory security of tenure for the apparatus.

How long does marine licensing take?

The Marine Management Organisation aims to determine a standard application within 13 weeks of the applicant accepting its fee estimate, excluding any period the application is on hold, so elapsed time is longer. Marine licensing is devolved: section 113 of the Marine and Coastal Access Act 2009 makes the Welsh Ministers, the Scottish Ministers and the Northern Ireland department the appropriate licensing authority for their own areas, so a landing outside England goes elsewhere. An application needing an environmental impact assessment takes longer again.

What security duties apply to a cable operator?

The duties apply to every provider of a public electronic communications network or service, not only to the largest operators, and there is no classification or designation regime. Section 105A of the Communications Act 2003 requires the provider to take appropriate and proportionate measures to identify, reduce and prepare for security compromises; the Electronic Communications (Security Measures) Regulations 2022 specify those measures; and section 105K requires the provider to inform Ofcom of a security compromise that has a significant effect on the operation of the network or service. Ofcom must seek to ensure compliance under section 105M. There is no certification of compliance. The duties took effect on 1 October 2022.

What data protection issues arise from subsea cables?

Carrying traffic to a country without UK adequacy regulations can engage the restricted transfer rules in Chapter V of the UK GDPR. Mere conveyance does not by itself make an operator a controller or a processor, so the first question is what role the operator has. Where it is a controller or processor, it needs an Article 46 safeguard: the Information Commissioner’s international data transfer agreement, the UK addendum to the European Commission’s standard contractual clauses, or binding corporate rules. The Information Commissioner’s Office enforces against unlawful transfers.

Which regulator enforces the telecoms security duties?

Ofcom. The Secretary of State issues the Telecommunications Security Code of Practice under section 105E of the Communications Act 2003 and makes the security regulations, but section 105M requires Ofcom to seek to ensure that providers comply with the sections 105A to 105K duties, and Ofcom holds the enforcement powers. The code of practice sets expectations by tier, with tier 1 covering providers whose relevant turnover is 1 billion pounds or more, tier 2 those between 50 million and 1 billion pounds and tier 3 the rest. The tiers are guidance on what is appropriate and proportionate; they are not a designation and confer no status.

Does the National Security and Investment Act apply to subsea cable acquisitions?

It can. Communications is one of the seventeen mandatory notification sectors. Schedule 5 to the National Security and Investment Act 2021 (Notifiable Acquisition) (Specification of Qualifying Entities) Regulations 2021 reaches a provider of a public electronic communications network or service whose relevant turnover is at least 50 million pounds, a cable landing station as an associated facility, and a supplier of repair or maintenance services for a submarine cable system or a cable landing station. Where an acquisition of control crosses a threshold in section 8 of the Act, the acquirer must notify and obtain approval before completing, whether it is British or foreign. Notifications go to the Investment Security Unit in the Cabinet Office and the Secretary of State decides.

How do landing rights interact with Code Powers?

The two run in sequence. Ofcom applies the code to the operator by a direction under section 106 of the Communications Act 2003. The operator then acquires code rights over the landing station site under Schedule 3A, either by agreement with the landowner or by an order of the First-tier Tribunal (Property Chamber) or the Upper Tribunal (Lands Chamber). A lease alone gives possession but no code rights, and so no statutory security of tenure for the apparatus. Marine licensing under the Marine and Coastal Access Act 2009 is a separate requirement for the seabed works.

Related transactions pages

See also our other transactions pages:

• Mergers and Acquisitions (M&A)
• Private equity
• SaaS and Cloud Services
• MVNOs and MVNEs
• Interconnection, peering and access agreements
• Network sharing and co-location agreements
• Digital Infrastructure Projects
• Data Commercialisation and Licensing
• NSIA Clearances

Independent directory rankings

Our specialist expertise is recognised in major independent legal directories:

• Chambers & Partners: Rob Bratby is ranked as a Band 2 lawyer in the UK Guide 2026 in the “Telecommunications” category: Chambers
• The Legal 500: Rob Bratby is listed as a Leading Partner for Telecoms in London (TMT: IT and Telecoms). The Legal 500
• Lexology: Rob Bratby is recognised in the Lexology Index as a Global Elite Thought Leader for telecoms and media, and as a Thought Leader for data privacy and protection: Lexology