Arif H. Ali, Erica Franzetti, José Manuel García Represa and Eduardo Silva Romero, Dechert

This is an extract from the first edition of GAR’s The Guide to Mining Arbitrations. The whole publication is available here

An overview

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 later and 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 damage and 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.

Conclusions

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

Concluded cases

Settlement or award ($mm)

1992 ARB/92/1 ICSID Vacuum Salt Products Ghana Dismissed: lack of jurisdiction n/a
1995 ARB/95/3 ICSID Goetz Burundi Settlement: public $175 $3
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/01/2 ICSID Goetz Burundi Award: public $3 $1
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
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(AF)/11/2 ICSID Crystallex Venezuela Award: public $3,160 $1,202
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(AF)/12/5 ICSID Rusoro Venezuela Award: public $2,319 $968
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 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
2013 2014-30 PCA Mytilineos Serbia Award: non-public $100 n/a
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
2012 2013-19 PCA Swissbourgh Lesotho Award: non-public n/a $0
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 $117.8 $117.8
2014 ARB(AF)/14/1 ICSID Anglo American PLC Venezuela Award: public $600 0

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

Ongoing cases

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
2015 - Ad hoc Lumina Copper Poland $100
2016 - ICC Pan African Minerals Burkina Faso n/a
2016 2017-07 PCA Oleg Deripaska Montenegro n/a
2016 - Ad hoc Cosigo Resources Colombia $16511
2016 2016-26 PCA Corcoesto SA Spain n/a
2017 - Ad hoc Kingsgate Consolidated Ltd Thailand n/a
2017 ARB/17/46 ICSID Cunico Resources NV Macedonia n/a
2018 ARB/18/12 ICSID Red Eagle Exploration Limited Colombia n/a
2018 n/a SCC Mohammed Munshi Mongolia $145
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

ARB(AF)/04/6 ICSID Vannessa Ventures - Venezuela Dismissed: basis for claim No $1,045 n/a
ARB(AF)/09/1 ICSID Gold Reserve (Canada) Canada-Venezuela BIT (1996) Venezuela Award: public Yes $1,735 $713
ARB/09/12 ICSID Pac Rim Cayman - El Salvador Dismissed: basis for claim No $314 n/a
ARB/09/17 ICSID Commerce Group & San Sebastian Gold Mines - El Salvador Dismissed: lack of jurisdiction No $100 n/a
ARB(AF)/11/1 ICSID Nova Scotia Power - Venezuela Dismissed: lack of jurisdiction Award not public $180 n/a
ARB(AF)/11/2 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
ARB(AF)/12/5 ICSID Rusoro - Venezuela Award: public No $2,319 $968
UNCT/13/1 ICSID The Renco Group Inc - Peru Dismissed: lack of jurisdiction No $800 n/a
ARB/14/21 ICSID Bear Creek Mining Corporation (Canada) Canada-Peru FTA Peru Award: public Yes $522.2 $18.2
ARB(AF)/14/3 ICSID Corona Materials - Dominican Republic Dismissed: lack of jurisdiction No $100 n/a
ARB/06/2 ICSID Quiborax and Non-Metallic Minerals (Chile) Bolivia-Chile BIT (1994) Bolivia Award: public Yes $66 $48.6
ARB/14/10 ICSID Highbury and Ramstein - 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
ARB/98/6 ICSID Compagnie Minière - Peru Settlement: non-public Award not public n/a n/a
ARB(AF)/14/1 ICSID Anglo American PLC UK-Venezuela Venezuela Award: public (all claims rejected) No $235.4 0

 

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