Attracting foreign investment to explore for and exploit minerals and natural resources has long been a keystone for economic development, especially in economically developing nations. The number of mining projects has increased with every passing year.However, mining projects require significant up-front investments during scoping, pre-feasibility, feasibility and development phases to reach the production stage, and most often several years of continued production are needed before they yield a positive return. During this period, mining projects are subject to risks such as volatile markets, cost variability (e.g., increased OPEX or higher costs for EPCM contracts), geological risks (e.g., ore grade variability), legal and regulatory changes (e.g., to the royalty regime, mining concessions and leases), and social and environmental challenges.
With the increase in the number of mining projects (prompted by bullish commodities’ markets and low financing costs) and the resurgence of resource nationalism and geopolitical instability worldwide, the number of disputes involving mining projects has also been on the rise, particularly between foreign investors and host states. Since 1992 (when the first mining case under a treaty protecting foreign investment began), 95 cases involving investments in mining projects have been filed before institutions such as the International Centre for the Settlement of Investment Disputes (ICSID).Of these cases, 29 involve mining projects in Latin America.
This chapter will discuss how two developments affecting the mining industry worldwide have impacted the protection of mining projects and companies in Latin America: (1) more stringent environmental protection, and (2) increased awareness of the need to protect local communities affected by mining projects.
For decades, these two developments have shaped international and domestic policies in the mining sector. In Latin America, key mining countries such as Peru,Chile, Bolivia, Colombia and Venezuela have adopted legislative, executive and judicial measures increasing the protection of the environment and the rights of local communities, especially indigenous peoples. For example, they have regulated the right of prior consultation of indigenous communities, in line with international standards such as the International Labour Organization’s Indigenous and Tribal Peoples Convention No. 169, or the United Nations’ Declaration on the Rights of Indigenous Peoples. In the case of Ecuador, for example, the 2008 Constitution grants indigenous communities the right to mandatory prior consultation on any plans and projects that could have an environmental or cultural impact on their land, the right to partake in the benefits of said projects, as well as the right to obtain reparation for any social, cultural or environmental harm that may be caused by extractive projects.
Internationally, the number of guidelines and guiding principles promoting corporate social responsibility, especially for transnational or multinational companies, have been in constant development. The Organisation for Economic Co-operation and Development (OECD) developed Guidelines for Multinational Enterprises in 2005, addressing corporate environmental performance and suggesting tools and approaches to implement better policies in companies.In 2014, the United Nations established a working group to draft a treaty on the protection of human rights by transnational enterprises. Currently, the working group has held four sessions, the latest of which focused on the discussion of the first draft of the treaty. Interstate discussions on this matter are ongoing. Private organisations have also adopted guidelines, such as the 2013 Equator Principles, which provide a benchmark to aid in the assessment of environmental and social risks (and measures to mitigate such risks). The Equator Principles have been adopted by 37 financial institutions worldwide, covering most of the international project finance debt within emerging markets.
Conflicts over social and environmental issues related to mining projects have been a recurring theme in the case law arising out of mining disputes in Latin America. These issues may range from a straightforward permit denial to situations of acute social conflict compromising public order and safety. Often, less than harmonious relationships between the investors and the local communities have been at the root of the conflicts that arbitral tribunals have been called to decide upon. Recent developments confirm a new trend in which social and environmental issues play an important role in arbitral decisions, a trend that is likely to affect the outcome of arbitral proceedings in the future.
Sixteen arbitration awards involving mining investments in Latin America have been issued since 2004.Out of these, eight awards addressed the merits (the remainder were either dismissed on jurisdictional or other grounds, settled or discontinued). In seven of these cases, the investors were awarded monetary compensation; the eighth award rejected all of the investor’s claims. Among these eight awards, environmental and social issues were relevant in five. This section considers these awards, which show the increasing impact of social and environmental issues on mining investment disputes.
As exemplified by some of the older cases, social and environmental issues were not always considered relevant by international tribunals.
The first award that touched upon these issues in the region was Gold Reserve v. the Bolivarian Republic of Venezuela of September 2014. After the government revoked a construction permit on grounds related to the project’s impact on the environment and indigenous communities, the investor’s concessions were not renewed. The tribunal ultimately decided that Venezuela had breached the fair and equitable treatment (FET) standard under the Canada–Venezuela bilateral investment treaty (BIT) of 1996, notwithstanding its finding that the investor had breached its obligation to start exploiting the concessions within the three years after they had been granted.
Social and environmental issues were not decisive in this case, although they were argued by the parties. Venezuela stated that it had grave concerns regarding the project from its inception, because it was located in ‘an ecologically and culturally sensitive area’.It raised issues concerning water resources management, socio-economic impacts (including the protection of indigenous people’s rights) and the company’s environmental management plan. For one of the concessions, the state claimed that the investor’s environmental and sociocultural impact studies were deficient in critical aspects.
The tribunal did not dwell on the topic, holding that the environmental and ecological protection studies presented by the investor were sufficient to comply with its concession-related obligations. Ultimately, the tribunal concluded that Venezuela’s responsibility for the protection of the environment and the local communities did not release it from its commitment to international investors.Further, the tribunal awarded compensation for loss of profits using a discounted cash flow (DCF) valuation to calculate the fair market value of the investment (both parties had used a DCF as their primary case and the project was a development property). Of the US$1.7 billion claimed, the tribunal awarded US$713 million.
Similarly, the Quiborax et al v. the Plurinational State of Bolivia award of September 2015 established that Bolivia had unlawfully expropriated mining concessions, violated the FET standard and adopted arbitrary and discriminatory measures against the foreign investor.The concessions were located in the Salar de Uyuni, the world’s largest dry salt lake, an area where concessions could only be granted through special procedures since the region had become protected as a ‘fiscal reserve area’ in the 1960s. After a 1998 law reduced the size of the reserve, concessions were granted in plots that used to be part of the protected area. The claimant eventually acquired 11 of those concessions.
In June 2004, the granting of an environmental licence to one of the investor’s concessions triggered a wave of protests from civic organisations, which included hunger strikes and the blockades of railways and roads in the region. These protests caused the suspension of all activities in the concessions. Subsequently, the investor’s environmental licence was cancelled and its concessions revoked by virtue of a 2003 law that gave the executive branch the power to annul the mining concessions initially allowed by the 1998 bill. At the time of revocation, the project had already been at the production phase for almost two years.
Although none of the concessions had environmental licences at the time of the revocation, the tribunal did not consider this sufficient to justify the state’s actions. In addition, the social issues and the local communities’ fierce opposition to the project were not considered by the tribunal when it assessed the future profitability of the project. Thus, resting on the fact that the mining project was a going concern with a proven track record of profitability, the tribunal rejected the respondent’s request that the fair market value of the concessions be established by reference to the net amount invested and applied the DCF method to award compensation to the foreign investor.Of the US$151 million claimed, the tribunal awarded US$48.6 million.
The Copper Mesa v. the Republic of Ecuador award of March 2016 is the first mining case in Latin America confirming the emergence of a trend in which social and environmental issues are at the core of the debate. The investor alleged several breaches of the Canada–Ecuador BIT of 1996, including the expropriation of its main mining concessions (the Junín concessions),which faced social resistance from the moment the investment was announced.
The first cases of violence and confrontation associated with the Junín concessions began only a few months laterand eventually escalated to violent episodes. The investor’s retaliatory violence worsened the relationship with the local populations to a point where it became very difficult for the investor to engage in any sort of consultative process with the affected communities about the planned mine development. This consultation was to be part of the Environmental Impact Study (EIS) required under Ecuadorian law as a condition precedent to the project’s development. The Ministry of Mines would later reject the mining company’s EIS because it found no evidence that some of the communities – those who most fiercely opposed the project − had been consulted. The Junín concessions were terminated in November 2008, without compensation to the mining company. At the time of the termination, the project was still at an early exploratory stage.
In its decision, the tribunal found that the state had unlawfully expropriated the Junín concessions and breached the FET obligation in the BIT.However, as explained below, the tribunal found that the mining company’s behaviour towards the local communities had exacerbated the conflict. This weighed heavily in the tribunal’s reasoning: it found that the investor was partly liable for its own loss and significantly reduced the compensation amount it awarded. Further, the tribunal relied on the early development stage of the project, the company’s failure to complete the EIS and the social opposition to the project to support its decision rejecting an income-based valuation of the Junín concessions. Ultimately, the tribunal only awarded compensation for sunk investments (i.e, a cost-based method) in the amount of US$19.4 million, representing approximately one-third of the US$69.7 million the investor claimed for the expropriated concessions.
The more recent Bear Creek v. Peru award, dated November 2017, followed a similar trend. The investor’s claims related to the revocation of an executive decree that expressly enabled the claimant to own and exploit the Santa Ana mining concessions, located near the border with Bolivia. Because foreigners were not allowed to own mining rights in areas within 50 kilometres from the border without the executive decree, it was impossible for the claimant to continue operating the mine.
The executive decree’s revocation was prompted by severe social conflicts between the investor and the local Aymara indigenous communities, which vehemently opposed the Santa Ana project and mining activities in general, amid concerns about the project’s potential impact on the region’s drinking water sources and lands. Protests against mining activities by Bear Creek began in May 2008, and escalated to high levels of violence and disruption to the social order in the region. By May 2011, more than 15,000 people were actively taking part in protests, leading to food shortages and injuries. Road blocks, looting and burning of government building and shops were soon followed by violent clashes between protestors and the Peruvian police, which resulted in the deaths of at least six demonstrators. In an effort to quell the social conflict and re-establish public order in the region, the Peruvian government decided to revoke the executive decree that had permitted the Santa Ana mining project. At the time of the revocation, the project was still at a pre-feasibility stage, and it lacked many of the permits and environmental licences needed to proceed with the operation.
As in Copper Mesa, the debate before the tribunal emphasised that the relationship with the local communities was crucial to the project’s development. Bear Creek needed to secure several agreements with the communities to complete the Environmental and Social Impact Assessment required under Peruvian law.Notably, the tribunal asked the parties to address specifically ‘[w]hat is the standard by which the Tribunal is to determine whether Claimant sufficiently reached out to the relevant communities to obtain a Social License?’ and ‘what actions were legally required of Claimant in seeking to obtain a Social License, and did the claimant take these actions?’
In its award, the tribunal found that the revocation of the executive decree was not justified by the social conflict, since the government was aware of the claimant’s social outreach activities and had expressly endorsed them. However, the magnitude of the social conflict was of such extent, that the tribunal was unable to conclude that the project was a viable venture, at least in the short term.As we explain below, even though the claimant was not considered to be at fault in its approach to the local communities, its failure to secure community support for the project had a significant impact on its economic claim. Indeed, the tribunal’s decision to limit compensation to sunk investments and to reject all claims based on the alleged future profitability of the project heavily relied on the fact that the investor ‘had not received many of the government approvals and environmental permits it needed to proceed’ and ‘on the basis of the evidence before it, the Tribunal concludes that there was little prospect for the Project to obtain the necessary social license to allow it to proceed to operation, even assuming it had received all necessary environmental and other permits.’ Of the US$522.2 million claimed, the tribunal awarded US$18.2 million to the investor.
Finally, the recent South American Silver v. the Plurinational State of Bolivia award of November 2018 emphasised the importance of social and environmental issues to decisions by international tribunals. In this case, the local Aymara and Quechua communities opposed further mining activities, alleging, in essence, that the mining company had been involved in a series of abuses and that the development of the mine risked causing severe environmental impacts (including to sacred lakes). The indigenous communities complained about violations of their collective rights. They essentially accused the claimant of deliberately dividing and sparking violent conflict between communities in an attempt to pursue the project.These tensions soon escalated, leading to ‘the existence of a serious social conflict that grew until it resulted in grave acts of violence, divisiveness at the community level, marches, and attacks against life and personal integrity’. Faced with kidnappings, rioting, looting, road blocks and violent clashes that resulted in the death of a person and injuries to many, the Bolivian government entered into an agreement with the local communities to ‘pacify the area’. This agreement included a commitment to cancel the claimant’s mining concessions in the region. At the time, the project was still at the exploration stage.
In its decision, the tribunal found that the claimant had significantly contributed to aggravating the social conflict sparked by its mining activities, sowing further discord among the opposing indigenous factions. This proved to be the Achilles’ heel of the claimant’s case, since the tribunal determined that, in view of all circumstances, the state was justified in declaring the reversion of the mining concessions, which amounted to a lawful expropriation that satisfied a public purpose and entailed a social benefit. Along the same lines, the tribunal held that the FET standard had not been breached, since the social conflict was a supervening situation against which the state was compelled to take action. Ultimately, the only breach of the Bolivia–United Kingdom BIT of 1988 that the tribunal found was that Bolivia had failed to provide adequate compensation for the expropriation.However, in view of the ‘almost embryonic stage’ of the project, the tribunal limited damages to sunk investments, and refused to compensate for the future profitability of the project. Of the US$385.7 million claimed, the tribunal awarded US$18.7 million plus interest.
The impact of social and environmental issues on the outcome of mining investment arbitrations
Based on the above overview, certain general conclusions may be drawn as to how social and environmental risks may affect the international protection of investments in the mining sector.
While all of these awards reached the merits and quantum stages, social and environmental issues could affect an international tribunal’s jurisdiction. Depending on the wording of the underlying treaty’s ‘legality’ clause, the investment-hosting state could argue that the investment was made in breach of the states’ social or environmental laws and regulations, and that such illegality deprives the investment of the protections afforded by the treaty.
In Copper Mesa, the state presented a jurisdictional objection arguing that the conduct of the claimant amounted to ‘severe breaches of legal principles governing corporate social responsibility and [was] contrary to international public policy’, making express reference to the OECD’s Guidelines.The tribunal rejected this jurisdictional objection, pointing out, among other reasons, that ‘this is not a case where an essential part of the Claimant’s claim is necessarily founded upon its own illegal acts or omissions.’ Along the same lines, in South American Silver, the state argued that the mining company’s failure to comply with social and environmental regulations amounted to an illegality that deprived the tribunal of jurisdiction. Even though the tribunal rejected the argument, pointing out that the ‘violations [must] go to the essence of the investment such that it must be considered illegal’, it confirmed that jurisdiction would be lacking where ‘the conduct alleged to be a breach has the effect of depriving the Claimant of its rights as a shareholder or, in general, its right over its investment . . . or that the investment per se ceases to exist due to illegality’. So, while subjected to, arguably, a high standard of review, jurisdictional objections based on non-compliance with social or environmental laws and regulations could arise, for instance, where the investor is alleged to have committed serious irregularities in obtaining the social and environmental licences to operate.
Further, an investor’s failure to adequately and in a timely manner address social and environmental challenges may adversely affect its claims on the merits. For instance, in Copper Mesa, while the tribunal found that the state had unlawfully expropriated the investor’s concessions and had breached the FET standard,it reduced the investor’s compensation in light of its behaviour towards the local communities; ultimately, the tribunal determined that the damage had been caused both by the unlawful expropriation and the investor’s own ‘contributory negligent acts and omissions and unclean hands’. Moreover, the tribunal assessed the investor’s contribution to its own injury at 30 per cent, pointing out that ‘on the facts of this case, it could be no less’.
Similarly, in the South American Silver award, the claimant’s actions in sparking and aggravating the social conflict weighed heavily in the tribunal’s reasoning. The tribunal concluded that ‘the actions [the claimant] took upon seeing the first seeds of the conflict contributed to the divisiveness and more profound clashes among the Indigenous Communities’.Moreover, the tribunal was especially critical of the claimant’s blatant disregard for the indigenous population’s social norms and customs, holding that the way in which the mining company had sought to obtain majority support for the project had ‘not only threatened a decision-making structure [of the indigenous communities] that the Claimant was aware of or should have been aware of [i.e., that the ancestral decision-making structure required consensus, not majority imposition], but it also undermined the recommendations of their own [social] advisors and decisively contributed to aggravating the conflict’. As explained, this led the tribunal to conclude that the state was justified in declaring the reversion of the mining concessions, which amounted to a lawful expropriation. The tribunal noted that ‘[h]aving established the existence of the conflict, as well as its severity and consequences, the Tribunal is unable to conclude that the measure adopted by Bolivia was unnecessary or disproportionate and, much less, to speculate without any evidence on other measures that could have been implemented to resolve [it]’. By the same reasoning, the tribunal held that the social conflict to which the claimant had contributed was a supervening situation ‘against which the State had to take action to restore public order and thus protect the life and integrity of the population in the area and [the claimant’s] employees’, thus dismissing the breach of the FET standard.
This approach evidences a significant shift from older cases such as Quiborax, where the tribunal gave minimal attention to the social conflict and the environmental concerns that had led up to the revocation of the claimant’s concession, without attaching any significant weight to them in its award.This evolution suggests that arbitral tribunals may be more open to considering the interplay between social and environmental concerns and international investment protection, holding investors to a higher standard of behaviour when it comes to their handling of these issues.
Finally, turning to quantum, the above-mentioned cases demonstrate that the likelihood or lack thereof of a project obtaining all necessary social and environmental licences to operate are key in assessing the viability of a mining project that has not yet reached production and, hence, the certainty required by international tribunals to project and quantify future profits through income-based methodologies (such as DCFs).
Interestingly enough, whether the investor is free from fault and whether the state is likely to grant the required permits do not suffice. An international tribunal may choose to conduct its own objective assessment of the viability of a given mining project, as illustrated by Bear Creek. There, the tribunal determined that the claimant was not at fault in its relations with the local communities, since ‘all outreach activities [to the local communities] by Claimant were known to Respondent’s authorities and were conducted with their approval, support and endorsement’.Thus, the claimant ‘could take it for granted to have complied with all legal requirements with regard to its outreach to the local communities’. However, despite having complied with the applicable regulations, the fact that the claimant had failed to secure the support of the communities for the project had a significant impact on the tribunal’s assessment of the viability of the project and, hence, on the compensation awarded. In the tribunal’s own words, ‘[g]iven the extent of the opposition, and the reasons for it, the Tribunal doubts that the Project could, in the short term at least, be considered to be viable’ and ‘there was little prospect for the Project to obtain the necessary social license to allow it to proceed to operation, even assuming it had received all necessary environmental and other permits.’ It is on this basis that the tribunal denied compensation for loss of future profits, and instead limited damages to sunk costs.
Finally, failure to abide by applicable social and environmental norms may also affect the quantum of an award in the event that a tribunal finds that this failure amounts to contributory fault. This was evident in the Copper Mesa award, where, as explained, the tribunal assessed the claimant’s contribution to its own injury at 30 per cent of its damageand considered the company’s failure to complete the EIS and the social opposition to the project as warranting a further reduction in the compensation owed by the state. Certainly, the Copper Mesa tribunal’s reasoning was heavily influenced by the early stage of development of the project, but also by the social challenges affecting its advancement in relation to the Junín concessions, pointing out that ‘the [c]laimant’s concessions remained in an early exploratory stage with no actual mining activities, still less any track record as an actual mining business; and, particularly as regards the Junín concessions, that the [c]laimant’s chances of moving beyond an exploratory stage were, by December 2006, slender.’
As a final note, these issues will most certainly reappear in future mining investment arbitrations in Latin America. Indeed, several of the pending mining arbitrations in the region have brought up environmental and social issues that will have to be addressed by tribunals, such as the Kappes, Cassiday and Associates (KCA) and Daniel W Kappes v. Guatemala case, the Red Eagle Exploration Limited v. Republic of Colombia case or the Eco Oro Minerals Corp v. Republic of Colombia case. In view of the emerging trend we have described, environmental and social issues may well play a significant role in the outcome of these proceedings.
The approach of arbitral tribunals to social and environmental issues in investment mining arbitrations in Latin America has evolved in recent years. While issues of this type were raised by the parties in the cases brought by Gold Reserve and Quiborax, the respective arbitral tribunals did not dwell on those issues and, accordingly, they seemingly had no impact on the outcome of the awards.
Starting with the Copper Mesa award, however, arbitral tribunals appear to have placed greater emphasis on social and environmental issues, especially when the relevant mining projects have sparked significant opposition from the local communities or have resulted in social conflicts. As we have pointed out, these issues can have a decisive impact on all aspects of an arbitration dispute: jurisdiction, merits and quantum.
This trend has important consequences for all relevant actors in mining investment arbitration disputes.
For the investors, the growing importance of social and environmental concerns in arbitration is a call to attention, making it clear that a failure to adequately address these issues can not only undermine the viability of their projects but also seriously harm their cases in eventual arbitrations. While mining companies, especially junior, have a clear economic incentive to advance through the exploration and feasibility stages as quickly and cost-efficiently as possible, it is growing increasingly clear that cutting corners to reduce costs and delays with regard to social and environmental issues may eventually impair a claimant’s access to international investment protection. Moreover, the outcome of the recent holdings discussed above suggest that investors should devote significant efforts to their social outreach activities in order to obtain the support of the local communities for their projects, making genuine efforts to foster legitimacy, trust and consent among the communities that will be affected by the mining operations.Potential investors in mining projects in Latin America and their financiers should be aware of the implications of these recent holdings, factoring them into their risk assessments when structuring their investments.
With regard to the states, it is clear that they are increasingly expected by the public to promote social and environmental protection over the protection of international investments, having due consideration for the concerns of local communities over the potential impact of mining projects on the environment and their livelihoods. Further, to ensure that mining projects succeed and generate the expected social and economic benefits of foreign investment, states should take an active role in the social outreach activities of investors, cooperating closely with them to ensure that their projects are socially accepted by the communities. In this connection, states should strive to resolve any emerging conflicts in an efficient manner, mediating between the parties to foster dialogue and compromises over contentious issues. As the case law on mining investment arbitration in Latin America suggests, failing to address conflicts over social or environmental issues can seriously undermine the viability of mining projects and harm the interests of both states and investors in international arbitration.
Annex 1 – Global mining investment arbitration cases
Settlement or award ($mm)
|Settlement or award
|1992||ARB/92/1||ICSID||Vacuum Salt Products||Ghana||Dismissed: lack of jurisdiction||n/a|
|1997||ARB/97/1||ICSID||SIREXM||Burkina Faso||Dismissed: basis for claim||n/a||n/a|
|1998||ARB/98/7||ICSID||Banro American Resources||DRC||Dismissed: lack of jurisdiction||n/a||n/a|
|2001||ARB/01/5||ICSID||Société d’Exploitation des Mines d’Or de Sadiola||Mali||Award: non-public||n/a||n/a|
|2003||ARB/03/11||ICSID||Joy Mining Machinery||Egypt||Dismissed: lack of jurisdiction||$5||n/a|
|2004||ARB(AF)/04/6||ICSID||Vannessa Ventures||Venezuela||Dismissed: basis for claim||$1,045||n/a|
|2007||ARB(AF)/07/1||ICSID||Piero Foresti||South Africa||Discontinued||$375||n/a|
|2007||ARB/07/3||ICSID||Government of the Province of East Kalimantan||PT Kaltim Prima Coal||Dismissed: lack of jurisdiction||$469||n/a|
|2009||ARB(AF)/09/1||ICSID||Gold Reserve||Venezuela||Award: public||$1,735||$713|
|2009||ARB/09/12||ICSID||Pac Rim Cayman||El Salvador||Dismissed: lack of jurisdiction||$314||n/a|
|2009||ARB/09/17||ICSID||Commerce Group & San Sebastian Gold Mines||El Salvador||Dismissed: lack of jurisdiction||$100||n/a|
|2011||ARB(AF)/11/1||ICSID||Nova Scotia Power||Venezuela||Dismissed: lack of jurisdiction||$180||n/a|
|2011||ARB/11/33||ICSID||Adel A Hamadi Al Tamini||Oman||Dismissed: basis for claim||$560||n/a|
|2012||2012-02||PCA||Copper Mesa Mining Corporation||Ecuador||Award: public||$70||$19|
|2012||2012-29||PCA||St Mary VCNA||Canada||Settlement: public||$275||n/a|
|2012||ARB/12/14 & /40||ICSID||Churchill Mining & Planet Mining||Indonesia||Dismissed: lack of jurisdiction||$1,315||n/a|
|2013||UNCT/13/1||ICSID||The Renco Group Inc||Peru||Dismissed: lack of jurisdiction||$800||n/a|
|2014||ARB/14/21||ICSID||Bear Creek Mining Corporation||Peru||Award: public||$522.2||$18.2|
|2016||ARB/16/15||ICSID||AngloGold Ashanti (Ghana) Limited||Ghana||Settlement: non-public||n/a||n/a|
|2013||ARB(AF)/13/1||ICSID||Consolidated Exploration Holdings Ltd||Kyrgyz Republic||Settlement: non-public||$500||n/a|
|2013||ARB/13/16||ICSID||Société des Mines de Loulo SA||Mali||Award: non-public||n/a||n/a|
|2013||ARB/13/33||ICSID||PNG Sustainable Development Ltd.||Papua New Guinea||Dismissed: lack of jurisdiction||n/a||n/a|
|2014||ARB(AF)/14/3||ICSID||Corona Materials||Dominican Republic||Dismissed: lack of jurisdiction||$100||n/a|
|2004||ARB/04/11||ICSID||Russell Resources International Limited and others||Democratic Republic of the Congo||Discontinued||n/a||n/a|
|2003||ARB/03/14||ICSID||Ilunga Jean Mukendi (US), John Dormer Tyson (US), Miminco LLC (US)||Democratic Republic of the Congo||Settlement: non-public||n/a||n/a|
|2010||ARB/10/21||ICSID||International Quantum Resources Limited, Frontier SPRL and Compagnie Minière de Sakania SPRL||Democratic Republic of the Congo||Settlement: non-public||n/a||n/a|
|1996||ARB/96/2||ICSID||Misima Mines Pty Ltd||Independent State of Papua New Guinea||Discontinued||n/a||n/a|
|2000||ARB/00/8||ICSID||Ridgepointe Overseas Developments, Ltd||Democratic Republic of the Congo and Générale des Carrières et des Mines||Discontinued||n/a||n/a|
|2015||ARB/15/46||ICSID||BSG Resources (Guinea) Limited and BSG Resources (Guinea) SÀRL||Republic of Guinea||Settlement: non-public||n/a||n/a|
|2006||ARB/06/20||ICSID||Newmont USA Limited||Uzbekistan||Settlement: non-public||n/a||n/a|
|2007||ARB/07/1||ICSID||Fondel Metal Participations||Azerbaijan||Settlement: non-public||n/a||n/a|
|2006||ARB/06/2||ICSID||Quiborax and Non-Metallic Minerals||Bolivia||Award: public||$66||$48.6|
|2014||ARB/14/23||ICSID||Tamagot Bumi SA||Mauritania||Dismissed: lack of jurisdiction||n/a||n/a|
|2007||ARB/07/7||ICSID||Global Gold Mining LLC||Armenia||Settlement: non-public||n/a||n/a|
|2011||ARB/11/14||ICSID||Diamond Fields Liberia Inc||Liberia||Settlement: non-public||n/a||n/a|
|2014||ARB/14/8||ICSID||CEAC Holdings Limited||Montenegro||Dismissed: lack of jurisdiction||$832||n/a|
|2010||ARB/10/3||ICSID||Metal-Tech Ltd||Uzbekistan||Dismissed: lack of jurisdiction||$174||n/a|
|2014||ARB/14/10||ICSID||Highbury and Ramstein
(see ARB/11/11 in ‘pending annulment proceedings’)
|Venezuela||Discontinued for lack of payment of required advances||$209.7||n/a|
|2013||2013-15||PCA||South American Silver||Bolivia||Award: public||$385||$18.7|
|2005||-||Ad hoc||Mytilineos||Serbia||Award: non-public||$31.3||n/a|
(Mytilineos v. Serbia II)
|2011||2011-09||PCA||Khan Resources Inc.||Mongolia||Award: public||$358||$80|
|2007||2007-01||PCA||Centerra Gold Inc.||Kyrgyz Republic||Settlement: non-public||n/a||n/a|
Set aside in its entirety
|2011||-||Ad hoc||Oxus Gold plc||Uzbekistan||Award: public||$1,250.5||$10.3|
|2006||-||LCIA||Oxus Gold plc.||Kyrgyz Republic||Settlement: non-public||$600||n/a|
|2008||-||Ad hoc||Traco||Poland||Award: non-public||$10.5|
|2003||-||Ad hoc||Glamis Gold Ltd||USA||Dismissed: basis for claim||$50||n/a|
|1998||ARB/98/6||ICSID||Compagnie Minière||Peru||Settlement: non-public||n/a||n/a|
|2013||-||MCCI||Stans Energy and Kutisay (I) (see PCA 2015-32 in ‘pending cases’)||Kyrgyz Republic||Award: public
Set aside in its entirety
|2014||ARB(AF)/14/1||ICSID||Anglo American PLC||Venezuela||Award: public
All claims rejected
Ongoing annulment proceedings or cases under review in domestic courts
|2014||ARB/14/14||ICSID||EuroGas and Belmont||Slovakia||Dismissed: Lack of jurisdiction||n/a|
|2011||ARB/11/11||ICSID||Highbury and Ramstein||Venezuela||Dismissed: Lack of jurisdiction||$633|
|2010||2010-20||PCA||Beijing Shougang and others||Mongolia||Dismissed: Lack of jurisdiction||n/a|
|2009||ARB/09/19||ICSID||Carnegie Minerals Limited (Gambian)||Gambia||Award: not public||n/a|
|2015||2015-40||PCA||Indian Metals & Ferro Alloys Limited (India)||Indonesia||$559|
|2015||2015-32||PCA||Stans Energy Corp and Kutisay Mining LLC (II)||Kyrgyz Republic||n/a|
|2016||ARB/16/13||ICSID||Dominion Minerals Corp||Panama||$264|
|2015||ARB/15/29||ICSID||Cortec Mining Kenya Limited, Cortec (Pty) Limited and Stirling Capital Limited||Kenya||n/a|
|2016||ARB/16/12||ICSID||Alhambra Resources Ltd and Alhambra Coöperatief UA||Kazakhstan||n/a|
|2014||ARB/14/22||ICSID||BSG Resources (Guinea) Limited and BSG Resources (Guinea) SÀRL||Guinea||n/a|
|2016||ARB/16/6||ICSID||Glencore International AG and CI Prodeco SA||Colombia||n/a|
|2015||ARB/15/31||ICSID||Gabriel Resources Ltd and Gabriel Resources (Jersey)||Romania||n/a|
|2016||ARB/16/41||ICSID||Eco Oro Minerals Corp.||Colombia||n/a|
|2016||2016-21||PCA||Josias Van Zyl||Lesotho||n/a|
|2012||ARB/12/1||ICSID||Tethyan Copper Company Pty Limited||Islamic Republic of Pakistan||n/a|
|2014||ARB/14/5||ICSID||Infinito Gold Ltd||Costa Rica||n/a|
|2008||2009-04||PCA||Bilcon of Delaware||Canada||$101|
|2016||2016-39||PCA||Glencore Finance Ltd||Bolivia||n/a|
|2007||-||Ad hoc||Sergei Paushok CJSC Golden East Company and CJSCVostokneftegaz Company||Mongolia||$1,000|
|2013||-||Ad hoc||World Wide Minerals||Kazakhstan||n/a|
|2016||2016-23||PCA||Gold Pool LLP||Kazakhstan||n/a|
|2011||-||Ad hoc||Zamora Gold Corporation||Ecuador||n/a|
|2010||-||Ad hoc||RSM Production Corporation||Ecuador||n/a|
|2011||2012-07||PCA||Mohamed Abdel Raouf Bahgat||Egypt||$200|
|2015||-||Ad hoc||Sergei Viktorovich Pugachev||Russia||$12000|
|2015||-||Ad hoc||Lumina Copper||Poland||$100|
|2016||-||ICC||Pan African Minerals||Burkina Faso||n/a|
|2016||-||Ad hoc||Cosigo Resources||Colombia||$16511|
|2017||-||Ad hoc||Kingsgate Consolidated Ltd||Thailand||n/a|
|2017||2017-26||PCA||ICL Europe Coöperatief UA||Ethiopia||$200|
|2017||ARB/17/46||ICSID||Cunico Resources NV||Macedonia||n/a|
|2017||2018-04||PCA||Prenay Agarwal, Vinita Agarwal and Ritika Mehta||Uruguay||n/a|
|2018||ARB/18/13||ICSID||Galway Gold Inc||Colombia||$31.10|
|2018||ARB/18/12||ICSID||Red Eagle Exploration Limited||Colombia||n/a|
|2018||ARB/18/23||ICSID||Gran Colombia Gold Corp||Colombia||$700|
|2018||ARB/18/22||ICSID||Emerge Gaming Ltd and Tantalum International Ltd||Egypt||n/a|
|2018||ARB/18/21||ICSID||Bay View Group LLC and The Spalena Company LLC||Rwanda||n/a|
Annex 2 – Latin American mining investment arbitration cases
Overview of social and environmental issues
|Case No.||Venue||Claimant||Applicable IIA||Respondent||Outcome||Mention of social/environmental issues||Claimed
|Settlement or award ($mm)|
|ICSID||Vannessa Ventures||-||Venezuela||Dismissed: basis for claim||No||$1,045||n/a|
|ICSID||Gold Reserve (Canada)||Canada-Venezuela BIT (1996)||Venezuela||Award: public||Yes||$1,735||$713|
|ICSID||Pac Rim Cayman||-||El Salvador||Dismissed: basis for claim||No||$314||n/a|
|ICSID||Commerce Group & San Sebastian Gold Mines||-||El Salvador||Dismissed: lack of jurisdiction||No||$100||n/a|
|ICSID||Nova Scotia Power||-||Venezuela||Dismissed: lack of jurisdiction||Award not public||$180||n/a|
|ICSID||Crystallex (Canada)||Canada-Venezuela BIT (1996)||Venezuela||Award: public||No||$3,800||$1,202|
|2012-02||PCA||Copper Mesa Mining Corporation (Canada)||Canada-Ecuador BIT (1996)||Ecuador||Award: public||Yes||$69.7||$19.4|
|ICSID||The Renco Group Inc||-||Peru||Dismissed: lack of jurisdiction||No||$800||n/a|
|ICSID||Bear Creek Mining Corporation (Canada)||Canada-Peru FTA||Peru||Award: public||Yes||$522.2||$18.2|
|ICSID||Corona Materials||-||Dominican Republic||Dismissed: lack of jurisdiction||No||$100||n/a|
|ICSID||Quiborax and Non-Metallic Minerals (Chile)||Bolivia-Chile BIT (1994)||Bolivia||Award: public||Yes||$66||$48.6|
|ICSID||Highbury and Ramstein
See ARB/11/11 in ‘pending annulment proceedings’
|-||Venezuela||Discontinued for lack of payment of required advances||No||$209.7||n/a|
|2013-15||PCA||South American Silver (Bermuda)||Bolivia-United Kingdom BIT (1988)||Bolivia||Award: public||Yes||$385.7||$18.7|
|ICSID||Compagnie Minière||-||Peru||Settlement: non-public||Award not public||n/a||n/a|
|ICSID||Anglo American PLC||UK-Venezuela||Venezuela||Award: public (all claims rejected)||No||$235.4||0|
 Arif Ali, Érica Franzetti, José Manuel García Represa and Eduardo Silva Romero are partners at Dechert LLP.
 See International Organizing Committee for the World Mining Congresses and Federal Ministry of Sustainability and Tourism of Austria. World Mining Data 2018, 2018. pp. 15–18. United Nations Industrial Development Organization. World Statistics on Mining and Utilities, 2018.
 Vacuum Salt Products Ltd v. Republic of Ghana, ICSID Case No. ARB/92/1. See Annex 1.
 See Annex 2.
 See Peru. Ley No. 29785. ‘Ley del derecho a la consulta previa de los pueblos indígenas u originarios, reconocido en el Convenio 169 de la Organización Internacional del Trabajo (OIT)’.
 See Chile. Tribunal Constitucional, Decision Rol 309, of 4 August 2000.
 See Bolivia. Ley No. 535 of 28 May 2014. ‘Ley de Minería y Metalurgia’. Articles 19, 40, 297-213.
 See Colombia. ‘Constitución Política de Colombia’, Article 330; Corte Constitucional. Decision SU-123/18 of 15 November 2018.
 See Venezuela. ‘Constitución de la República Bolivariana de Venezuela’. Articles 119–126; ‘Ley Orgánica de Pueblos y Comunidades Indígenas’. Articles 10–18.
 International Labour Organization. Indigenous and Tribal Peoples Convention No. 169, 1989. 27 June 1989.
 United Nations. United Nations Declaration on the Rights of Indigenous Peoples. A/61/L.67. 13 September 2007.
 See Ecuador. ‘Constitución del Ecuador’, Article 57.
 United Nations. ‘Report on the fourth session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights’. A/HRC/40/48. 2 January 2019.
 See Annex 2.
 See Annex 2.
 Gold Reserve v. Venezuela, Quiborax and Non Metallic Minerals v. Bolivia, Copper Mesa v. Ecuador, Crystallex International v. Venezuela, Rusoro v. Venezuela, Bear Creek v. Peru, South American Silver v. Bolivia and Anglo American v. Venezuela (in which all claims were dismissed). See Annex 2.
 Gold Reserve v. Venezuela, Quiborax and Non Metallic Minerals v. Bolivia, Copper Mesa v. Ecuador, Bear Creek v. Peru, South American Silver v. Bolivia. See Annex 2. The Crystallex International Corporation v. Bolivarian Republic of Venezuela award of 4 April 2016 is not counted among these cases, but its exclusion merits an explanation. While the claims in this case arose from the governments’ refusal to issue an environmental licence invoking environmental concerns, the tribunal concluded that the real reasons for the denial of the licence were essentially political in nature, and involved the highest authorities of the Venezuelan government. Therefore, despite pointing out that ‘[t]here is no question that Venezuela had the right (and the responsibility) to raise concerns relating to global warming, environmental issues in respect of the Imataca Reserve, biodiversity and other related issues’ (Párr. 591), the tribunal concluded that the denial of the environmental licence ‘was not based on legal standards but based on reasons that are different from those put forwards by the decision-maker’ (Párr. 614).
 Gold Reserve Inc v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/09/1. Award of 22 September 2014, paras. 24–26, 403–404, 615.
 Gold Reserve Inc v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/09/1. Award of 22 September 2014, para. 333.
 Gold Reserve Inc v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/09/1. Award of 22 September 2014, paras. 333–334. The mining company argued that Venezuela had previously approved its studies regarding an open-pit exploration, only to later demand plans and studies for underground exploration. According to the state, the cumulative impact of the project, considering the context of other open-pit projects in the area, led to the requirement of a ‘Strategic Environment Evaluation’, with which the investor never complied. Gold Reserve Inc v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/09/1. Award of 22 September 2014, para. 321, 335, 338.
 Gold Reserve Inc v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/09/1. Award of 22 September 2014, para. 406, 595.
 It should be noted that Venezuela did not provide a calculation using another valuation method, limiting itself to critiquing and adjusting the DCF valuation presented by the investor. Gold Reserve Inc v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/09/1. Award of 22 September 2014, para. 690.
 See Annex 2.
 While some of the authors of this article acted as counsel in this case, only public information is reported herein.
 Quiborax SA and Non Metallic Minerals SA v. Plurinational State of Bolivia, ICSID Case No. ARB/06/2. Award of 16 September 2015, para. 7, 10–12, 17, 19.
 Quiborax SA and Non Metallic Minerals SA v. Plurinational State of Bolivia, ICSID Case No. ARB/06/2. Award of 16 September 2015, paras. 17, 19, 26–27, 332.
 Quiborax SA and Non Metallic Minerals SA v. Plurinational State of Bolivia, ICSID Case No. ARB/06/2. Award of 16 September 2015, paras. 220, 347.
 See Annex 2.
 The Copper Mesa Mining Corporation presented claims of expropriation and violations of the standards of fair and equitable treatment, full protection and security and national treatment (per the Canada–Ecuador BIT) related to the Junín, Chaucha and Telimbela concessions. The tribunal decided that there was an indirect expropriation of the Chaucha concession, rejecting the claim under the FET standard, and rejected all claims related to Telimbela, since the investor only held an option to acquire the concession. Copper Mesa Mining Corporation v. The Republic of Ecuador. PCA Case No. 2012-2. Award of 15 March 2016, paras. 6.123, 6.128-6.131.
 Copper Mesa Mining Corporation v. The Republic of Ecuador. PCA Case No. 2012-2. Award of 15 March 2016, para. 4.68.
 Copper Mesa Mining Corporation v. The Republic of Ecuador. PCA Case No. 2012-2. Award of 15 March 2016, paras. 4.73, 4.86, 4.119 (the precise description of this violent incident is redacted in the publicised award), 4.130, 4.162, 4.165.
 The investor employed (directly and through its contractors) armed men who fired shots, threw tear gas and mace at the population – most of these incidents took place in 2006. Copper Mesa Mining Corporation v. The Republic of Ecuador. PCA Case No. 2012-2. Award of 15 March 2016, para. 4.264.
 Copper Mesa Mining Corporation v. The Republic of Ecuador. PCA Case No. 2012-2. Award of 15 March 2016, paras. 1.92, 1.93, 4.258, 6.55, 7.24.
 Copper Mesa Mining Corporation v. The Republic of Ecuador. PCA Case No. 2012-2. Award of 15 March 2016, para. 6.85.
 Ecuador had originally argued the unclean hands doctrine as a jurisdictional objection. The tribunal rejected it as such but appreciated it in the merits, more precisely, in its findings regarding liability. Copper Mesa Mining Corporation v. The Republic of Ecuador. PCA Case No. 2012-2. Award of 15 March 2016, para. 6.97.
 The tribunal used the cost-based method to value both concessions that were found to be expropriated, on the basis that the concessions remained in an early exploratory stage with no actual mining activities, but it noted that ‘particularly as regards the Junín concessions, . . . the Claimant’s chances of moving beyond an exploratory stage were, by December 2006, slender.’ Copper Mesa Mining Corporation v. The Republic of Ecuador. PCA Case No. 2012-2. Award of 15 March 2016, paras. 7.24 and 7.27.
 See Annex 2.
 Bear Creek Mining Corporation v. Republic of Perú, ICSID Case No. ARB/14/21. Award of 30 November 2017, para. 202.
 Bear Creek Mining Corporation v. Republic of Perú, ICSID Case No. ARB/14/21. Award of 30 November 2017, paras. 152–173, 188–197, 201–203, 600–602.
 Bear Creek Mining Corporation v. Republic of Perú, ICSID Case No. ARB/14/21. Award of 30 November 2017, paras. 201.
 Bear Creek Mining Corporation v. Republic of Perú, ICSID Case No. ARB/14/21. Award of 30 November 2017, para. 217.
 Bear Creek Mining Corporation v. Republic of Perú, ICSID Case No. ARB/14/21. Award of 30 November 2017, paras. 412, 599.
 Bear Creek Mining Corporation v. Republic of Perú, ICSID Case No. ARB/14/21. Award of 30 November 2017, paras. 600,604.
 See Annex 2.
 South American Silver Limited (Bermuda) v. Plurinational State of Bolivia, PCA Case No. 2013-15. Award of 22 November 2018, paras. 107, 115.
 South American Silver Limited (Bermuda) v. Plurinational State of Bolivia, PCA Case No. 2013-15. Award of 22 November 2018, para. 562.
 South American Silver Limited (Bermuda) v. Plurinational State of Bolivia, PCA Case No. 2013-15. Award of 22 November 2018, paras. 144, 160–161, 154, 162.
 South American Silver Limited (Bermuda) v. Plurinational State of Bolivia, PCA Case No. 2013-15. Award of 22 November 2018, para. 163.
 South American Silver Limited (Bermuda) v. Plurinational State of Bolivia, PCA Case No. 2013-15. Award of 22 November 2018, paras. 165, 857.
 South American Silver Limited (Bermuda) v. Plurinational State of Bolivia, PCA Case No. 2013-15. Award of 22 November 2018, paras. 491, 499, 656, 857.
 South American Silver Limited (Bermuda) v. Plurinational State of Bolivia, PCA Case No. 2013-15. Award of 22 November 2018, para. 857.
 See Annex 2.
 A parallel analysis may be found in the cases that have addressed ‘[i]nvestments that are forbidden, or dependent upon government approvals that were not in fact obtained, or which were effected by fraud or corruption’. HOCHTIEF Aktiengesellschaft v. Argentine Republic, ICSID Case No. ARB/07/31, Decision on Liability. Award of 29 December 2014, para. 199.
 Copper Mesa Mining Corporation v. The Republic of Ecuador. PCA Case No. 2012-2. Award of 15 March 2016, para. 5.29.
 Copper Mesa Mining Corporation v. The Republic of Ecuador. PCA Case No. 2012-2. Award of 15 March 2016, para. 5.66.
 South American Silver Limited (Bermuda) v. Plurinational State of Bolivia, PCA Case No. 2013-15. Award of 22 November 2018, para. 454.
 South American Silver Limited (Bermuda) v. Plurinational State of Bolivia, PCA Case No. 2013-15. Award of 22 November 2018, para. 470.
 South American Silver Limited (Bermuda) v. Plurinational State of Bolivia, PCA Case No. 2013-15. Award of 22 November 2018, para. 462.
 Copper Mesa Mining Corporation v. The Republic of Ecuador. PCA Case No. 2012-2. Award of 15 March 2016, para. 6.85.
 Copper Mesa Mining Corporation v. The Republic of Ecuador. PCA Case No. 2012-2. Award of 15 March 2016, para. 6.97.
 Copper Mesa Mining Corporation v. The Republic of Ecuador. PCA Case No. 2012-2. Award of 15 March 2016, para. 6.85.
 South American Silver Limited (Bermuda) v. Plurinational State of Bolivia, PCA Case No. 2013-15. Award of 22 November 2018, para. 491.
 South American Silver Limited (Bermuda) v. Plurinational State of Bolivia, PCA Case No. 2013-15. Award of 22 November 2018, para. 499.
 South American Silver Limited (Bermuda) v. Plurinational State of Bolivia, PCA Case No. 2013-15. Award of 22 November 2018, paras. 577–578, 586.
 South American Silver Limited (Bermuda) v. Plurinational State of Bolivia, PCA Case No. 2013-15. Award of 22 November 2018, para. 577.
 South American Silver Limited (Bermuda) v. Plurinational State of Bolivia, PCA Case No. 2013-15. Award of 22 November 2018, para. 656.
 While the tribunal pointed out that it accepted that Bolivia ‘may have had a legitimate interest in protecting the Gran Salar de Uyuni Fiscal Reserve’ the tribunal did not dwell on the issue, and – having decided that the revocation had not been carried out in accordance with Bolivian law ‘whether as a matter of substance or procedure’ – concluded that the expropriation was unlawful. Quiborax SA and Non Metallic Minerals SAv. Plurinational State of Bolivia, ICSID Case No. ARB/06/2. Award of 16 September 2015, para. 245.
 Bear Creek Mining Corporation v. Republic of Perú, ICSID Case No. ARB/14/21. Award of 30 November 2017, para. 412.
 Bear Creek Mining Corporation v. Republic of Perú, ICSID Case No. ARB/14/21. Award of 30 November 2017, para. 412.
 Bear Creek Mining Corporation v. Republic of Perú, ICSID Case No. ARB/14/21. Award of 30 November 2017, para. 599.
 Bear Creek Mining Corporation v. Republic of Perú, ICSID Case No. ARB/14/21. Award of 30 November 2017, para. 600.
 Bear Creek Mining Corporation v. Republic of Perú, ICSID Case No. ARB/14/21. Award of 30 November 2017, para. 604.
 Copper Mesa Mining Corporation v. The Republic of Ecuador. PCA Case No. 2012-2. Award of 15 March 2016, para. 6.102.
 Copper Mesa Mining Corporation v. The Republic of Ecuador. PCA Case No. 2012-2. Award of 15 March 2016, para. 7.24.
 See for instance John Morrison, The Social License: How to Keep your Organization Legitimate. Palgrave Macmillan, 2014.
 Does not incorporate legal or tribunal costs.
 East Kalimantan is an Indonesian province on the island of Borneo.
 Does not incorporate legal or tribunal costs.