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The Middle Eastern and African Arbitration Review 2019

Mining Arbitrations in Africa

The settlement reached on 25 February 2019 in the long-running dispute between BSG Resources Limited (BSGR) and the Republic of Guinea ends a US$5 billion ICSID arbitration claim concerning one of the largest iron ore projects worldwide.[1] The dispute dates back to 2012, when Guinea accused BSGR of having improperly acquired its mining licences for the Simandou iron ore mining deposit and subsequently revoked these licences. While the settlement does not reinstate BSGR’s rights over the Simandou project, it provides that a new group of investors (including BSGR’s main shareholder) may now exploit another iron ore mining deposit, Zogota, under a significantly accelerated timetable.[2]

From a mining perspective, the African continent offers some of the richest mineral resources in the world, much of which remain to be exploited. From the perspective of many African countries, mineral exploration and production is of primordial economic importance, representing a substantial component of their economy. However, as BSGR and Guinea’s relationship exemplifies only too well, the rich abundance of resources in sub-Saharan countries is also a fertile ground for commercial and investment disputes involving mining projects.

The likelihood of these disputes is heightened owing to certain factors that – without being Africa-specific – are often prevalent in resource-rich African countries.

  • Mining investments and projects in Africa are often sensitive to political risk, which commonly manifests itself in the form of governmental and political interference due to a climate of political instability, lack of stable and consistent governance and political structure and limited infrastructure and public services.
  • Another corollary of Africa’s structural and political challenges consists of an increased exposure to security threats, ranging from trespass by artisanal miners to attacks by military or paramilitary groups.
  • Finally, an important feature of the modern mining sector in sub-Saharan Africa is the extensive role played by new investors today, which are often state-controlled entities (such as from China). It remains unclear whether this surge in Chinese investments will result in an increase in cases under Sino–African bilateral investment treaties (BITs).

While none of these distinguishing features is purely Africa-specific, they may be particularly relevant to parties and practitioners involved in mining disputes in Africa. This article aims at providing a concise overview of the risks and characteristics of mining disputes in Africa, rather than a definitive theoretical framework for approaching them.

Continuous sensitivity to political risk and resource nationalism

Political risk is one of the greatest challenges currently facing investors in the mining industry. This is particularly so in some African countries where political instability, the lack of governance and political structures, and more limited administration and public services, may adversely impact the development and operations of mining projects.

Mining investments often involve very long timeframes, during which the regulatory and administrative environment of a given project must remain stable. Political instability often means changes in applicable law. Similarly, policies and regulations enacted outside a transparent, democratic process are less likely to gain broad acceptance among the population and other relevant stakeholders. Laws perceived as illegitimate are more likely to be overturned, sometimes abruptly. A dearth of independent and appropriately mandated administrative officials will considerably complicate and delay the obtention of necessary permits and regulatory monitoring processes enabling mining projects to move forward. A lack of effective and stable administration also means that foreign mining investors will have no one to turn to to protect their rights and investments against adverse third-party actions. All these factors will increase a given mining project’s exposure to political risk, which may in turn diminish its value and, in some cases, threaten its viability.

Political risk also manifests itself in host governments’ measures aimed at increasing governmental control over the development of natural resources in their territory and capturing a larger share of the value of these resources – a situation often described as resource nationalism.[3]

Resource nationalism in sub-Saharan Africa is arguably closely connected to its history of colonisation and decolonisation. While Western powers wished to retain control of natural resources post-decolonisation, buoyed by their access to specialised workforces and their ownership of hydrocarbons and mining projects, the newly independent former African colonies wished to regain control of their own resources.[4] In 1962, the United Nations General Assembly adopted resolution 1803 (XVII) on the Permanent Sovereignty over Natural Resources (Resolution 1803).[5] Resolution 1803 consecrates many of the host government’s rights (including regarding nationalisation and expropriation of natural resources on their territory) while also providing guarantees and compensation for foreign investors owning natural resource projects who are affected by state measures. In this sense, some commentators consider Resolution 1803 to be a key predecessor to the system of investment protection based on international investment agreements in force today.[6]

The past five years have witnessed a significant increase in the adoption of resource-nationalist measures by African governments. This resurgence of resource nationalism resulted in part from a significant drop in metals and minerals prices from their peak in 2012. The price downturn put substantial pressure on both states and investors, especially since it followed a period of exceptionally high prices, which had resulted in a surge in investment.[7] It is perhaps unsurprising in this context that a number of African states implemented measures designed to maintain the economic contribution of mining projects to their overall budgets in a context of declining prices.

One significant method of achieving this has been through the enactment of legislation increasing the amounts payable to the state. For example, the Mining Law and Mining Tax Law enacted by Mozambique in August 2014 include provisions such as a 10 per cent tax on mining exploration and a 32 per cent capital gains tax on transfer of mining titles, as well as a provision enabling the government to revoke a mining title if the holder is indebted to the state.[8] Similarly, Zambia promulgated a new mining regime in January 2015, including provisions to increase underground mining royalty rates from 6 per cent to 8 per cent and open pit mining royalty rates from 6 per cent to 20 per cent.[9] Zimbabwe, Kenya and Namibia have also all announced new legislation increasing their entitlement to revenues in recent years. As recently as February 2019, Ghana’s President Nana Akufo-Addo made a speech before hundreds of mining investors and executives in Cape Town, stating that African nations should not be expected to give special financial incentives to secure investment that producers would not get in other parts of the world.[10] Zambia’s Mine Minister Richard Musukwa also stated that ‘the mismatch that exists between the huge resources that the country sits on and the poverty levels in the rest of the country cannot continue.’[11]

Hence, in this climate of increasing resource nationalism, the financial pressure felt by host states is also being felt by (or transferred to) investors, as an increasing number of new state measures affect the profitability and operability of mining projects. From an investor perspective, unforeseen restrictive measures imposed by governments may result in a desire to suspend projects, restrict production or find some other way to protect their investments. Further, given mining companies’ unprecedented reliance on debt financing in recent years, investors may increasingly be forced to take whatever measures they can to meet their repayment obligations.[12] In this context, impacted investors are likely to challenge state measures that they view as punitive and not reasonably expected. Challenges may be based on contracts providing for arbitration as the dispute mechanism, or on investor-state dispute settlement through international investment agreements, such as BITs, linking African host states with hundreds of countries.[13]

Tanzania’s mining reform of 2017 represents a prime example of potential arbitration disputes driven by resource nationalism. In 2017, the United Republic of Tanzania announced two new laws: The Natural Wealth and Resources Contracts (Review and Re-Negotiation of Unconscionable Terms) Act 2017 and the Natural Wealth and Resources (Permanent Sovereignty) Act 2017. These laws prohibit natural resource exploitation by private parties, as well as the export of raw resources. The laws also introduce a unilateral review and renegotiation of any existing contract containing an ‘unconscionable’ term, require the establishment of beneficiation facilities in Tanzania and purport to void any existing contract terms that submit the state to foreign court jurisdiction.[14] However, despite the new legislation’s attempt to avoid foreign jurisdiction, Tanzania’s commitment to numerous BITs leaves it potentially exposed to investor-state treaty claims (such as unlawful expropriation or fair and equitable treatment (FET) standard claims) challenging the provisions of the new laws.[15]

In July 2017, a subsidiary of Canadian mining major Barrick Gold commenced two arbitrations against Tanzania using the mechanism provided by mineral development agreements with the Tanzanian government. The arbitrations were followed by the state’s imposition of the new mining laws and its ban on that company’s mineral exports, amid allegations that it owed approximately US$40 billion in unpaid taxes and approximately US$150 billion in penalties and interest.[16] The dispute remains ongoing at the time of writing and may result in a BIT claim following additional measures adopted by Tanzania.[17]

In the same vein, the Democratic Republic of the Congo (DRC) enacted a mining code on 28 March 2018, which provides for increases in taxes and royalties and imposes more stringent requirements regarding the repatriation of export income. The new law also purports to disregard the stabilisation mechanism previously provided in the DRC’s 2002 mining code, which would have guaranteed investors the stability of certain provisions (including the tax, customs and exchange rate regimes) of the previous legal regime for a further 10 years from the promulgation of a new law, such as the 2018 mining code.[18] Certain key investors will be especially affected by the creation of a special royalty rate of 10 per cent (instead of the previous 2 per cent) applicable to ‘strategic substances’, which include cobalt, as well as the possible adoption of an entirely different regulatory regime for such substances, including the conditions for access, research, exploration and marketing thereof.[19] As the key metal in lithium-ion batteries, used in the production of mobile devices, laptops and electric vehicles, cobalt is increasingly in demand.

The mining reform has had a significant adverse impact on investors’ interests and may thus give rise to significant international arbitration claims against the DRC, as has occurred in countries that have implemented similar reforms. Arbitration claims may occur under BITs that the DRC is a party to, under ad hoc mining conventions or pursuant to the 2002 and 2018 mining codes, which both provide for ICSID arbitration.

This trend of mining reforms shows no sign of slowing down. In September 2018, Sierra Leone’s Minister of Mines and Mineral Resources announced plans for ‘key reforms’ in the mining investment sector, including revising Sierra Leone’s minerals policies and laws.[20] Among other priorities, these reforms purport to generate jobs and additional income to Sierra Leoneans. The minister’s statement also acknowledged that ‘investors require sufficient guarantees of a business-friendly environment characterised by predictable laws, fiscal stability, transparency, security of tenure, etc.’[21] Investors in Sierra Leone may be watching the reforms closely to ensure that such rights are indeed preserved. Similarly, the government of Mali, Africa’s third-largest gold producer, has recently been negotiating with mining companies to draft a new mining code. Under the new proposed code, investors who are currently protected from changes to the fiscal regime for 30 years would see a reduced period of protection, only applicable during the lifespan of the mine. The government threatened to implement a new law unilaterally ‘like in DRC’ if no compromise was reached – a move that may force international mining companies to turn to arbitration.[22]

Security issues and their impact on mining disputes

Another significant corollary of the political and economic situation in parts of sub-Saharan Africa concerns the physical security of mining assets. While host states generally have a duty to protect the physical integrity and private property of their residents and investors, this may be difficult to achieve in remote or inhospitable areas.

One devastating episode was the suicide bomb attack carried out in 2013 on the then-largest uranium mine in Niger, located in Arlit and operated by French company Areva. A worker was killed and 14 others were injured in the attack. The plant also was forced to halt production because of the significant damage caused by the blast.[23] The attackers were affiliated with the jihadist terrorist movement MUJAO whose spokesperson said the operations targeted ‘France, and Niger because of its cooperation with France, in the war against Sharia’.[24] In a similar vein, a few months before the Niger attack, near In Amenas, Algeria, a terrorist commando invaded the Tiguentourine Gas Facility run by BP and Statoil, taking hundreds of workers hostage for four days.[25]

These targeted attacks against natural resources projects with foreign investment and ownership illustrate how investors may grapple with potential threats and hostility from certain people on the ground in the host state. Operators may be required to adopt costly and cumbersome security measures to protect their projects, which will have an adverse impact on the value and profitability of their investment.

Mining companies may rely on relevant provisions of their mining concessions or conventions to secure the unimpeded enjoyment of their mining rights. Foreign investors may also rely on the application of the FET and full protection and security standards of protection, which are present in most international investment agreements currently in force.[26] Full protection and security has been interpreted to mean that the state is obliged to take ‘active measures to protect the investment from adverse effects’ that ‘may stem from private parties’, including demonstrators and armed forces.[27] States have been held liable for failing to protect investors or their investments against private violence, for example, through the failure of police to protect an investor’s property from occupation and to respond adequately to violent incidents.[28] A series of arbitral awards confirm the application of ‘full protection and security’ to investments in Africa.[29]

Security issues may also stretch beyond highly visible attacks by paramilitary or terrorist groups. Large-scale mining companies increasingly encounter unauthorised artisanal and small-scale mining activities in areas where they hold exclusive mining or access rights. While artisanal mining can help create employment in rural, underdeveloped areas and finance development infrastructure in local communities, it is often associated with poor health and safety conditions and may entail very negative environmental and social consequences.[30] Artisanal mining may therefore create direct safety risks for local populations and for large-scale mining companies.

The presence of unauthorised (and often, inadequately equipped) artisanal miners on a large-scale mining site creates a substantial risk of injury for the trespassers. Moreover, the activity of artisanal miners may interfere with ongoing exploration and production works, in part by creating hazardous excavations or using inefficient processes that prevent the future recovery of valuable minerals left behind. In addition, artisanal miners often use toxic substances or processes to extract or treat minerals without taking adequate measures of protection. The resulting environmental contamination may endanger local populations, impair large-scale mining operations and result in substantial liability for the large-scale mining company holding mineral rights over the area.

Finally, artisanal mining activity results in the production of non-renewable mineral resources by a third party who is not the rightful permit holder, thus depriving the latter of its economic rights over these resources. This competition over the same resources – and the large-scale miners’ efforts to keep artisanal miners from trespassing – may result in conflicts between the large-scale and artisanal miners. This risk is particularly high in areas where government presence and economic opportunities are limited.

Large-scale mining companies that have acquired exclusive rights to explore or exploit a mineral resource from the host state, and that may have invested significant amounts to develop a mining project, may legitimately expect that the host state will guarantee and protect such rights, including by ensuring that they are not infringed upon by artisanal mining workers.

Previous investor-state cases provide relevant examples. In Quadrant Pacific v Costa Rica, the claimant alleged that the Costa Rican state failed to take reasonable steps to address the continuing illegal trespass on the claimant’s citrus farm holdings located in Costa Rica and that Costa Rica’s failure to enforce its own laws for the protection of private property caused damages to their farm landholdings in violation of a Canada–Costa Rica 1998 BIT.[31] The claim was based on the state’s alleged breach of the FET and full protection and security standards the BIT had granted over the claimant’s investments. The respondent state argued that it had acted reasonably under the circumstances considering the limited resources available in such rural territory and that the claimant’s own actions and inactions were responsible for any damage suffered.[32] The case was discontinued following the claimant’s failure to pay its share of the advance on costs.

More recently, in Gran Colombia v Colombia, the claimant alleged that the Colombian government breached its obligation to provide full protection and security by failing to address civil strikes and other disruptions to the claimant’s mining projects, caused by illegal artisanal miners and a guerrilla group.[33] The case is currently pending and its outcome should be of interest to mining investors in developing and emerging countries, including certain African countries.

Impact of Chinese investments in Africa on African mining disputes

Another key driver of mining arbitrations in Africa is a surge of Chinese investments in African mining projects over the past decade. Around half of China’s outbound investments between 2005 and 2016 were in foreign energy and mining projects, a third of which was invested in sub-Saharan countries such as the DRC, Zambia, Zimbabwe and South Africa.[34] In 2015, China’s president Xi Jinping pledged to invest US$60 billion into African projects over the following three years, and made another matching US$60 billion pledge in 2018.[35] China’s 2018 US$60 billion pledge was said to include ‘US$15 billion of aid, interest-free loans and concessional loans, a credit line of US$20 billion, a US$10 billion special fund for China-Africa development and a US$5 billion special fund for imports from Africa’.[36] These investments have and will continue to strengthen China’s economic influence and control over vast reserves of metal and mineral resources on the African continent.

One particular characteristic of Sino-African mining contracts over the past decade has been the inclusion of commitments to develop or contribute to infrastructure development, as some agreements between African states and China or Chinese state-owned companies contemplate the provision of infrastructure as a means of payment for the resource.[-1]8 These arrangements increase the potential for disputes between foreign investors and host states as these disputes can arise not only from the development and operation of mining projects but also from the construction and operation of large-scale infrastructure projects. The interconnection between access to mineral resources and infrastructure investments could also result in situations where host governments decide to terminate mining rights as a result of an investor’s failure to deliver on its infrastructure commitments.

Unsurprisingly, a sizeable network of Sino–African BITs has emerged in parallel with this considerable surge in Chinese investments in Africa. By May 2018, the UNCTAD’s database had registered 35 BITs signed between China and African states, of which 22 had already entered into force.[-1]9 However, even though they may have been signed and entered into force, these BITs are not necessarily published or easily accessible.[-1]0

The content of Chinese BITs with African countries varies according to the year they were signed and the counterparty involved.[-1]1 These BITs are divided in roughly four generations[-1]2 and the standards of protection they offer vary quite significantly from one generation to another.[-1]3 However, a common characteristic of these treaties is that they tend to offer limited guarantees in terms of transparency, environmental and social protections, and investment facilitation.[-1]4 In keeping with China’s socialist market economy policies, Sino–African BITs also present some notable specificities that make them more deferential to national regulation.[-1]5 Some commentators have criticised Sino–African BITs for lacking a clearly articulated policy backbone,[-1]6 while others have praised China’s flexibility and willingness to give African states an opportunity to set agendas and negotiate effectively.[-1]7

Another salient issue regarding Sino–African BITs concerns the definition of a ‘Chinese’ investor and, in particular, whether individuals or companies from ‘special administrative regions’ of China, Hong Kong and Macau are included in this definition. The wording of Chinese investment treaties typically protects Chinese nationals or companies, without elaborating on the criteria for establishing such nationality.[-1]8 Two recent awards suggest that investors from Hong Kong and Macao are protected by Chinese BITs. In Tza Yap Shum v Peru, an ICSID tribunal held that a Chinese citizen from Hong Kong was entitled to claim damages under the China–Peru BIT.[-1]9 Similarly, in Sanum v Laos, an UNCITRAL tribunal held in 2013 that a Macau corporation could take advantage of the China–Laos BIT.[-1]0

Although no notable Sino–African BIT arbitration claims are reported to have arisen yet, the arbitration of China–Africa disputes may become increasingly prevalent in light of the substantial Chinese investment in Africa. One example may be seen in the reaction to the promulgation of the 2018 DRC mining code discussed above. Two Chinese mining companies have reportedly invoked an investment treaty between China and Congo in an effort to initiate talks with the government, failing which the companies may initiate ICSID arbitration, under the China–DRC BIT.[-1]1

In the context of an increasing potential for Sino–African arbitrations, the African continent is also seeing the increasing development of arbitration centres. For example, in 2016 the China Africa Joint Arbitration Centre (CAJAC) was created in a joint effort by Chinese and African stakeholders to resolve commercial disputes between Chinese and African parties, given the rapid development of trade and investment between China and Africa. The CAJAC is based in South Africa and China and is a joint initiative between the Arbitration Foundation of South Africa, the Association of Arbitrators and the Shanghai International Trade Arbitration Centre, supported by the China Law Society. The CEO of CAJAC stated that although CAJAC is not an arbitration authority standing by itself, it is ‘an integral part of the support structure specially crafted to foster trade and investment between China and Africa’.[-1]2 Hence, it may be that the industry will see an increasing number of China–Africa disputes being resolved in these forums.

Relevance of business human rights principles to mining disputes in Africa

Human rights risk management is a key element of responsible business practice for all businesses, regardless of their size, sector, geographic location or reach. This is particularly the case in the context of mining investments in Africa, in part because of the specific risks and characteristics outlined in this article. Stakeholders increasingly demand effective actions and heightened levels of transparency in relation to compliance and human rights issues. Mining investors need to be ready to demonstrate their efforts to comply with local laws and regulations, socio-environmental standards and business human rights principles.[-1]3 This is particularly true in the context of investor-state disputes concerning natural resources projects located in emerging jurisdictions, where respondent states and sometimes third parties, through amicus submissions will increasingly question claimants’ compliance with their legal obligations.

The authors thank Minty Hamer, trainee solicitor at Clifford Chance, for her contribution in preparing this article.


Notes

[1] Business Wire, ‘Settlement of the Dispute between the Republic of Guinea and BSG Resources’, 25 February 2019.

[2] Business Wire, ‘Settlement of the Dispute between the Republic of Guinea and BSG Resources’, 25 February 2019.

[3] Resource nationalism can be described as a ‘regulatory rebalancing of interests, relating to natural resources projects, to the benefit of society and government at the expense of investors.’ James Otto, ‘Resource Nationalism and Regulatory Reform’ (The Rocky Mountain Mineral Law Foundation, 2014) 1. See also, Patrick Garver, ‘Resource Nationalism and Expropriation and Nationalization’ (The Rocky Mountain Mineral Law Foundation 2014) 1; Henry G Burnett and Louis-Alexis Bret, Arbitration of International Mining Disputes (Oxford 2017), para 5.06, p 31; Sam Luttrell, ‘Resource Nationalism: Old Problems, New Solutions’, in Arbitration and Dispute Resolution in the Resources Sector: A Comparative Perspective (Springer 2014); Henry G Burnett, Caline Mouawad and Louis-Alexis Bret, ‘Resource Nationalism and Mining Reforms Could Mean More International Disputes’ The Northern Miner (2 December 2013) 3.

[4] Louis-Alexis Bret and Henry G Burnett, ‘Arbitration of International Mining Disputes’, para 5.08, p 32; Peter Cameron, International Energy Investment Law: The Pursuit of Stability (Oxford University Press 2010); Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge University Press 2008).

[5] UN General Assembly Resolution 1803 (XVII) on the Permanent Sovereignty over Natural Resources adopted on 14 December 1962.

[6] Louis-Alexis Bret and Henry G Burnett, ‘Arbitration of International Mining Disputes’, para 5.11. p 34.

[7] Kathryn Khamsi and Louis-Alexis Bret, ‘Mining Arbitration in Africa’, Global Arbitration Review, 20 April 2016, available at https://globalarbitrationreview.com/chapter/1036972/mining-arbitration-in-africa

[8] Mining Tax Law No. 28/2014 of 23 September 2014. See also KPMG, Mozambique Fiscal Guide 2013/14 (2014), pp 2, 5; Mining Law No. 20/2014 of 18 August 2014.

[9] See Cecilia Jamasmie, ‘Zambia to slash royalties, reinstate mining tax’, Mining (24 June 2015).

[10] Thomas Biesheuvel, William Clowes and Felix Njini, ‘The Fight Between Miners and African Governments Is Just Getting Started’ Bloomberg, 14 February 2019, available at: https://www.bloomberg.com/news/articles/2019-02-14/the-fight-between-miners-and-african-governments-is-just-getting-started

[11] Thomas Biesheuvel, William Clowes and Felix Njini, ‘The Fight Between Miners and African Governments Is Just Getting Started’ Bloomberg, 14 February 2019, available at: https://www.bloomberg.com/news/articles/2019-02-14/the-fight-between-miners-and-african-governments-is-just-getting-started

[12] Kathryn Khamsi and Louis-Alexis Bret, ‘Mining Arbitration in Africa’, Global Arbitration Review, 20 April 2016, available at: https://globalarbitrationreview.com/chapter/1036972/mining-arbitration-in-africa

[13] The United Nations Conference on Trade and Development (UNCTAD) online database of investment agreements is available at: http://investmentpolicyhub.unctad.org/IIA.

[14] Dr Sam Luttrell, ‘Resource nationalism in Tanzania: an international perspective on the Natural Wealth and Resources Acts’, p 1, available at: https://aameg.org/wp-content/uploads/2018/07/Sam-Luttrell-An-international-perspective-on-the-Tanzanian-Natural-Wealth-and-Resources-Acts.pdf

[15] Dr Sam Luttrell, ‘Resource nationalism in Tanzania: an international perspective on the Natural Wealth and Resources Acts’, p 21–26, available at: https://aameg.org/wp-content/uploads/2018/07/Sam-Luttrell-An-international-perspective-on-the-Tanzanian-Natural-Wealth-and-Resources-Acts.pdf

[16] https://www.acaciamining.com/export-ban-facts.aspx

[17] Jack Ballantyne, ‘Mining company threatens treaty claim against Tanzania’, Global Arbitration Review, 22 October 2018, available at: https://globalarbitrationreview.com/article/1175894/mining-company-threatens-treaty-claim-against-tanzania

[18] Article 276 of the DRC 2002 Mining Code, Law No. 007/2002, 11 July 2002.

[19] Decree No. 18/042 of 24 November 2018, ‘Declaring Cobalt, Germanium and Columbo-Tantalite “Coltan”as Strategic Mineral Substances’, issued by the Prime Minister of the Democratic Republic of Congo; Mining Law No 18/001 of 9 March 2018 (the 2018 Mining Law), article 241.

[20] ‘Sierra Leone’s new direction: Minister of Mines and Mineral Resources, Dr Morie Manyeh, welcomes investors’, 20 September 2018, available at: https://www.mining-journal.com/partners/partner-content/1347073/sierra-leone%E2%80%99s-new-direction

[21] ‘Sierra Leone’s new direction: Minister of Mines and Mineral Resources, Dr Morie Manyeh, welcomes investors’, 20 September 2018, available at: https://www.mining-journal.com/partners/partner-content/1347073/sierra-leone%E2%80%99s-new-direction

[22] Tiemoko Diallo, Aaron Ross and Elaine Hardcastle, ‘Mali says negotiating mining code revision but could act unilaterally’, Reuters, 16 March 2018, available at: https://www.reuters.com/article/us-mali-mining/mali-says-negotiating-mining-code-revision-but-could-act-unilaterally-idUSKCN1GS2O6

[23] John Irish, Yves Clarisse and James Regan, ‘Niger says Areva plant halts production after attack’, Reuters, 23 May 2013, available at: https://www.reuters.com/article/us-niger-attacks-areva-plant/niger-says-areva-plant-halts-production-after-attack-idUSBRE94M0JY20130523

[24] Thomas Fessy, ‘Niger suicide bombers target Areva mine and barracks’, BBC News, 24 May 2013, available at: https://www.bbc.com/news/world-africa-22637084

[25] ‘Algeria hostage crisis: What we know’, BBC News, 21 January 2013, available at: https://www.bbc.com/news/world-africa-21087732#slideshow-ns

[26] See, for example NAFTA article 1105(1).

[27] Christoph Schreuer, ‘Full Protection and Security’ in (2010) 1(2) Journal of International Dispute Settlement 353.

[28] See, for example, Bernhard von Pezold and others v. Republic of Zimbabwe, ICSID Case No. ARB/10/15, Award, 28 July 2015, paras 597–99.

[29] See, for example, American Manufacturing and Trading, Inc v Zaire, ICSID Case No. ARB/93/1, Award, 21 February 1997; Antoine Goetz and others v Republic of Burundi II, ICSID Case No. ARB/01/2, Award, 21 June 2012; Bernhard von Pezold and others v Republic of Zimbabwe, ICSID Case No. ARB/10/15, Award, 28 July 2015; Biwater Gauff (Tanzania) Limited v United Republic of Tanzania, ICSID Case No. ARB/05/22, Award, 24 July 2008.

[30] Emilie Filou, ‘A million artisanal gold miners in Madagascar wait to come out of the shadows’, The Guardian, 15 November 2016, available at: https://www.theguardian.com/sustainable-business/2016/nov/15/gold-rush-madagascars-artisanal-miners-could-benefit-from-global-downturn

[31] Quadrant Pacific Growth Fund LP and Canasco Holdings Inc v Republic of Costa Rica (ICSID Case No. ARB(AF)/08/1), para 5, Order taking note of the discontinuance of the proceeding issued by the Tribunal dated 27 October 2010, pursuant to ICSID Administrative and Financial Regulation 14(3)(d), para 5, available at: https://www.italaw.com/sites/default/files/case-documents/ita0696.pdf

[32] Quadrant Pacific Growth Fund LP and Canasco Holdings Inc v Republic of Costa Rica (ICSID Case No. ARB(AF)/08/1), Order taking note of the discontinuance of the proceeding issued by the Tribunal dated 27 October 2010, pursuant to ICSID Administrative and Financial Regulation 14(3)(d), para 7, available at: https://www.italaw.com/sites/default/files/case-documents/ita0696.pdf

[33] Gran Colombia Gold Corp v Republic of Colombia (ICSID Case No. ARB/18/23), https://investmentpolicyhub.unctad.org/ISDS/Details/866

[34] Heidi Vella, ‘ Blessing and curse: understanding the social impact of Chinese mining in Africa’, Mining Technology, 18 January 2018, available at: https://www.mining-technology.com/features/blessing-curse-understanding-social-impact-chinese-mining-africa/

[35] Christian Shepherd and Ben Blanchard, ‘China’s Xi offers another $60 billion to Africa, but says no to “vanity” projects’, Reuters, 3 September 2018, available at: https://www.reuters.com/article/us-china-africa/chinas-xi-offers-another-60-billion-to-africa-but-says-no-to-vanity-projects-idUSKCN1LJ0C4

[36] Christian Shepherd and Ben Blanchard, ‘China’s Xi offers another US$60 billion to Africa, but says no to “vanity” projects’, Reuters, 3 September 2018, available at: https://www.reuters.com/article/us-china-africa/chinas-xi-offers-another-60-billion-to-africa-but-says-no-to-vanity-projects-idUSKCN1LJ0C4

[37] Kathryn Khamsi and Louis-Alexis Bret, ‘Mining Arbitration in Africa’, Global Arbitration Review, 20 April 2016, available at: https://globalarbitrationreview.com/chapter/1036972/mining-arbitration-in-africa. See, for example, Tanneke Heersche, ‘Asian Investment in Africa: A Snapshot’, The Rocky Mountain Mineral Law Foundation, 2013.

[38] See Investment Policy Hub’s International Investment Agreements Navigator: China, available at: http://investmentpolicyhub.unctad.org/IIA/CountryBits/42

[39] This is the case of the 2011 PRC–DRC BIT, for instance.

[40] Julie Bedard et al, ‘In Chinese Investment Treaties, Questions Arise on who Qualifies for Protection’, Skaden’s 2017 Insights, 30 January 2017, available at: https://www.skadden.com/insights/publications/2017/01/in-chinese-investment-treaties-questions-arise-on

[41] Won Kidane, ‘China’s Bilateral Investment Treaties with African States in Comparative Context’, 49 Cornell International Law Journal, 141 (2016), available at: https://www.lawschool.cornell.edu/research/ILJ/upload/Kidane-final.pdf

[42] Won Kidane, ‘China’s Bilateral Investment Treaties with African States in Comparative Context’, 49 Cornell International Law Journal, 141, 175 (2016), available at: https://www.lawschool.cornell.edu/research/ILJ/upload/Kidane-final.pdf, Lorenzo Cotula et al, ‘China-Africa investment treaties: do they work?’ (IIED 2016), p 8, available at: http://pubs.iied.org/pdfs/17588IIED.pdf

[43] Lorenzo Cotula et al, ‘China-Africa investment treaties: do they work?’ (IIED 2016), p 8, available at: http://pubs.iied.org/pdfs/17588IIED.pdf

[44] Lorenzo Cotula et al, ‘China-Africa investment treaties: do they work?’ (IIED 2016), p 8, available at: http://pubs.iied.org/pdfs/17588IIED.pdf.

[45] Won Kidane, ‘China’s Bilateral Investment Treaties with African States in Comparative Context’, 49 Cornell International Law Journal, 141, 174 (2016), available at: https://www.lawschool.cornell.edu/research/ILJ/upload/Kidane-final.pdf.

[46] Lorenzo Cotula et al, ‘China–Africa investment treaties: do they work?’ (IIED 2016), p 10, available at: http://pubs.iied.org/pdfs/17588IIED.pdf

[47] Julie Bedard et al, ‘In Chinese Investment Treaties, Questions Arise on who Qualifies for Protection’, Skaden’s 2017 Insights, 30 January 2017, available at: https://www.skadden.com/insights/publications/2017/01/in-chinese-investment-treaties-questions-arise-on

[48] Tza Yap Shum v The Republic of Peru, ICSID Case No. ARB/07/6, Decision on Jurisdiction dated 19 June 2009, available at: https://www.italaw.com/sites/default/files/case-documents/ita0880.pdf

[49] Sanum Investments Limited v Lao People’s Democratic Republic, UNCITRAL, PCA Case No. 2013-13, Award on Jurisdiction dated 13 December 2013.

[50] ‘Congo miners seek concessions in new code as arbitration on hold’, Mining, 12 October 2018, available at: www.mining.com/web/congo-miners-seek-concessions-new-code-arbitration-hold/

[51] Sadaff Habib, ‘Interview with Deline Beukes, CEO of the China Africa Joint Arbitration Centre Johannesburg’, 26 November 2018, Kluwer Arbitration Blog, available at: http://arbitrationblog.kluwerarbitration.com/2018/11/26/interview-deline-beukes-ceo-china-africa-joint-arbitration-centre-johannesburg/

[52] See, in this regard, the United Nations Guiding Principles on Business and Human Rights endorsed by the UN Human Rights Counsel on 16 June 2011, available at: https://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf.