Jason A Fry and Louis-Alexis Bret, Clifford Chance Europe LLP
This is an extract from the first edition of GAR’s The Guide to Mining Arbitrations. The whole publication is available here.
With this Guide, the editors aimed to combine an overview of some of the most significant issues facing the mining industry today with practical guidance on the arbitration of mining disputes. The preceding chapters illustrate the breadth and diversity of mining disputes and how they are resolved by arbitration. Nevertheless, there are commonalities in how counsel and arbitral tribunals approach the arbitration of international disputes. A main trend in this regard concerns the emergence of a body of substantive principles applicable to mining arbitration. Another characteristic of mining arbitration today concerns the increasing specialisation of counsel and arbitrators handling mining disputes.
Towards a lex mineralia
Almost 40 years ago, in the seminal Aminoil case, the government of Kuwait argued that royalty disputes arising under petroleum concession agreements had ‘generated a customary rule valid for the oil industry – a lex petrolea that was in some sort a particular branch of a general universal lex mercatoria’. Although the Aminoil tribunal rejected that contention on the specific facts of the case, this argument has progressively gained widespread acceptance. A seminal article on the subject posited that, in a wider context, the published arbitral awards concerning energy disputes had led to the emergence of a lex petrolea that was instructive for the petroleum industry and relevant to international energy disputes.
Over the past two decades, an increasing number of arbitral awards relating to international mining disputes has been published, especially in the context of disputes between states or state entities and international mining companies. As is the case with the petroleum industry, these public awards provide the source material from which customary international law may be drawn. These awards and a growing body of international instruments, industry standards and legal commentary suggest the emergence of transnational rules that supplement or, in some cases, supplant domestic rules applicable to certain categories of mining disputes – a developing lex mineralia.
The development of this lex mineralia is still at an early stage but is expected to grow considerably over the next decade, as the number of mining arbitration cases continues to grow and as the current push towards increased transparency makes them more readily accessible. The publication of arbitral awards has allowed counsel and arbitrators in later cases to build upon previously constructed legal foundations and show increased sophistication and clarity in their approach to recurring issues. A growing trend in favour of the publication of not only awards but also parties’ submissions in investor–state arbitrations is likely to strengthen this trend even further.
This progress has led to the emergence of new legal rules relating to certain issues and the evolution of existing ones. This is not to say that arbitral practice and awards in mining cases have created a mature set of principles or regulations. A fortiori, arbitral awards involving mining issues are not yet so numerous and indicative of such a unity of opinion as to create anything resembling binding precedents or ‘black letter law’. Nevertheless, considerable progress has been made on that front. As awards in mining cases become more numerous and public, one can hope and expect that this lex mineralia will mature and develop into a recognised subset of international economic law.
The emergence of a mining arbitration bar
The increasingly complex nature of the mining industry and, by extension, of mining disputes has required practitioners who are regularly involved in mining cases to develop a thorough understanding of the business, technical and legal challenges facing the mining industry. As some counsel, arbitrators, and quantum and industry experts become particularly adept at understanding and navigating these specific challenges, they find themselves increasingly in demand for international mining arbitration matters. This has been described as the emergence of a specialised ‘mining arbitration bar’, akin to the communities of arbitration practitioners specialising in construction or energy disputes.
The number of arbitration practitioners possessing subject matter expertise is smaller than in the energy or construction industry, but it is also growing. Selecting the right counsel to handle an international mining arbitration is, of course, crucial, and parties will often prefer lawyers with significant mining arbitration experience to represent them in high-stakes disputes. The playing field can be quite limited, especially when considering the regional or linguistic specificities of given cases, or the tendency of counsel to predominantly represent one side (investors or states) in treaty arbitration.
The relative paucity of arbitration practitioners with sufficient mining expertise can be problematic for parties selecting an arbitrator (whether it be a sole arbitrator or a tribunal of three). In addition to the conflicts of interest that may arise when a small number of individuals serve as counsel or arbitrators in quite a concentrated industry, certain parties (or their counsel) will sometimes tend to appoint the same arbitrators repeatedly in different disputes or will appoint arbitrators who have previously issued decisions they perceive as ‘favourable’ on issues relevant to their case. The growing trend towards the publication of arbitral awards may exacerbate this approach, as is the case in investment arbitration.
While it is perfectly legitimate for parties to retain experienced counsel and appoint arbitrators with sufficient mining expertise, it is not desirable for decision-making to be concentrated in the hands of a few individuals in a broad proportion of mining cases. As seen in the chapters above, mining disputes may involve significant social, environmental, political or institutional issues. In these circumstances, it is imperative that major mining cases be decided as transparently as possible by a broad and diverse pool of arbitrators free from any perceived conflicts or bias. This is necessary to ensure that international arbitration presents the requisite guarantees of fairness and legitimacy to continue being the dispute resolution mechanism of choice for international mining disputes.
The editors hope that this Guide will contribute to introducing more arbitration practitioners to the key issues facing the mining industry today, and consequently help expand the pool of suitable counsel and arbitrators for international mining arbitrations.
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