The mining sector continues to be an important industry to Latin America. Mining plays a major role in the region’s GDP and contributes significantly to its exports. Peru, for instance, is the world’s second largest producer of copper, silver and zinc, as well as Latin America’s largest producer of gold. Peru’s mining sector is responsible for 10 per cent of Peru’s GDP and 60 per cent of its exports. Chile is the world’s top copper producer and the world’s second largest producer of lithium, and the mining industry accounts for 11 per cent of its GDP and over 50 per cent of its total exports. Production is expected to remain important to Latin America in the years to come.
The region’s mineral-rich resources and exploration potential make it an attractive forum for foreign investment. The interactions between investors and the host state, surrounding communities and other actors (such as service providers and business partners) all have potential to give rise to disputes. This chapter provides an overview of mining disputes in the region.
We first explore certain human rights and environmental issues, which are becoming increasingly relevant to investor-state disputes in the mining industry. We also discuss certain issues that are unique to the extractive sector in relation to the quantification of damages. We then provide an overview of the common types of commercial disputes in the sector, such as disputes involving joint venture arrangements, offtake and streaming agreements and construction contracts.
The increasing relevance of human rights and environmental issues in investor-state disputes in the mining sector
When it comes to human rights, participants in the mining sector (as well as the business community as a whole) have been informed by the UN Guiding Principles, previously ‘soft’ norms with no binding legal effect. On 31 August 2021, however, the Inter-American Court of Human Rights approved the settlement of a case brought on behalf of lobster divers in the Miskito region in Central America, ruling that every Member State of the American Convention on Human Rights (ACHR) is obliged to comply with the principles set forth in the UN Guiding Principles. As a result, the 24 Latin American and Caribbean nations that are party to the ACHR are now obliged to require their companies to carry out ‘corporate responsibility to respect human rights’, as set forth in the Guiding Principles.
The Miskito Divers case, and the hardening of previously soft norms, is but one example of recent developments reflecting a trend that international human rights issues are becoming increasingly relevant to the extractive industry in Latin America. These trends will undoubtedly impact the nature and extent of ways in which the mining sector interacts with the surrounding communities and environment. The following sections explore the different ways that human rights and environmental issues have arisen, and the efforts taken by actors to address those issues. We first discuss the increased prevalence of states raising counter-claims for alleged harm to the environment or violations of human rights. We then explore the legal framework and mechanisms for community consultation and social licence to operate, as well as a handful of recent illustrative cases.
States asserting environmental or human rights counterclaims
Known instances of states bringing counterclaims in investor-state disputes remain relatively rare. Stories of success are even fewer. Recently, however, there has been an increase in state practice of raising human rights or environmental claims to demand claimants compensate for alleged harm to the surrounding environment or peoples. This section provides a discussion of the different ways in which these issues have arisen in investor-state disputes involving the extractive sector in Latin America.
Much debate has centered on the issue of whether a mechanism exists for states to raise counterclaims in investment treaty arbitration. Commentators have observed that investment treaties are inherently one-sided, because they exist to guarantee the rights of foreign investors against mistreatment by host states. This asymmetry suggests that the dispute mechanisms contained in investment treaties will similarly be one-sided.
Accordingly, known instances of states bringing counterclaims remain relatively rare. Tribunals have only awarded monetary damages for counterclaims in two known cases (Burlington v. Ecuador and Perenco v. Ecuador), both of which involved environmental counterclaims. The claimants in these cases, parties to a consortium for oil exploitation in the Ecuadorian Amazon region, brought treaty claims against Ecuador after it terminated production-sharing contracts following its enactment of a 99 per cent windfall profits levy on oil production. Ecuador brought counterclaims in each case, arguing that the claimants breached domestic law and must pay compensation for the environmental damage they caused. In Burlington, the claimant and Ecuador entered into a compromise in which the claimant agreed not to contest the tribunal’s jurisdiction over Ecuador’s counterclaim. The Burlington tribunal ultimately found that Ecuador had breached its obligations under the bilateral investment treaties (BITs) applicable to the claimant, and awarded the claimant damages in the amount of roughly US$379 million. The Burlington tribunal also found for Ecuador on the counterclaims, and ordered the claimant to pay roughly US$41 million to Ecuador, US$39 million of which was for damage to the environment. The Perenco tribunal similarly found that Ecuador had breached the BIT and ordered Ecuador to pay roughly US$449 million to the claimant, less US$54 million, which it awarded to Ecuador on its environmental counterclaims.
Only a handful of counterclaims have proceeded to the merits outside of Burlington and Perenco. These other tribunals, however, stopped short of finding in favour of the respondent states or awarding monetary damages on the counterclaims.
For example, the tribunal in Urbaser v. Argentina found it had jurisdiction over the respondent’s counterclaim where the applicable investment agreement, the Spain–Argentina BIT, contains a dispute-resolution clause that was sufficiently broad to allow either party to bring a claim. Argentina alleged that by failing to make the investments that they undertook to make in a water concession, the claimants had failed to ‘guarantee . . . the basic human right to water and sanitation’ of the ‘health and the environment of thousands of persons, most of which lived in extreme poverty’, in violation of the ‘principles of good faith and pacta sunt servanda that are recognized both by Argentine law and by international law’. The tribunal noted its ‘reluctan[ce]’ to find that ‘guaranteeing the human right to water is a duty that may be born [sic] solely by the State, and never borne also by private companies like the Claimants’. The tribunal reasoned, however, that while the claimants had an obligation to ‘abstain’ or ‘not to engage in activity aimed at destroying’ basic human rights, this is distinct from the state’s ‘obligation to perform’ or ‘enforce the human right to water’. The tribunal ultimately found that the claimants did not breach any human rights obligations, and denied Argentina’s counterclaim.
In another example, the Aven v. Costa Rica tribunal found it had jurisdiction over the respondent’s counterclaim demanding that the claimants pay restitution for causing ‘considerable environmental damage’ throughout the course of their real estate development. The tribunal analysed the DR-CAFTA and found no ‘reason of principle to declare inadmissible a counterclaim in which the respondent state claims that the foreign investor has breached obligations’ under the relevant provisions of the DR-CAFTA and that it had ‘prima facie jurisdiction over the counterclaim filed by the Respondent’. The tribunal, however, dismissed Costa Rica’s counterclaim on the basis that it was procedurally deficient under the governing UNCITRAL Arbitration Rules.
While not mining cases, Urbaser and Aven are instructive to understanding the growing role that human rights and environmental issues may play in investor- state disputes in the region.
For instance, Urbaser and Aven were cited by the tribunal in the Lopez-Goyne Family Trust v. Nicaragua award, dated 1 March 2023. The claimants in this case held shares in a company incorporated in Nicaragua (Industria Oklahoma Nicaragua (ION)) that entered into a Concession Contract with the Nicaraguan government for the exploration and exploitation of hydrocarbons in Nicaragua’s onshore Pacific region. The claimants brought suit under the DR-CAFTA after Nicaragua terminated the Concession Contract, citing delays in exploration activities and failures on the part of claimants to follow certain environmental obligations. Nicaragua brought a counterclaim, alleging that ION breached environmental obligations under the Concession Contract and violated Nicaraguan law.
The Lopez-Goyne Family Trust tribunal rejected the claimants’ claims on the merits, finding Nicaragua’s termination of the Concession Contract did not breach the DR-CAFTA. The Tribunal also found it had no jurisdiction over Nicaragua’s environmental counterclaim. Citing Aven, the tribunal rejected Nicaragua’s assertion that the DR-CAFTA placed affirmative environmental obligations on the claimants and concluded that the Claimants’ breaches of environmental obligations did not arise from the Treaty.
Urbaser and Aven were also cited extensively by both parties in the pending Kappes et al. v. Guatemala case concerning a dispute over two mining projects for the exploitation and exploration of gold and silver, and will undoubtedly play a role in its outcome.
In the Kappes case, the United States claimants brought claims against Guatemala in 2018, alleging that it breached the DR-CAFTA when, in the midst of growing community opposition, the Guatemalan government suspended the claimants’ mining activities at the Progreso VII mining site and the claimants’ right to export minerals. The claimants alleged that, as a result of Guatemala’s breaches, they had been unable to enjoy the benefits of their investment in a separate mining site, the Santa Margarita project site, in light of their inability to obtain an exploitation licence, as well as the community protests that prevented them from accessing the site. Notably, the Guatemalan government justified its actions partially on the basis that the claimants had failed to engage in the increasingly prevalent issue of community consultation, which we explore further in the following section.
In its December 2020 Counter-Memorial, Guatemala raised a counterclaim for ‘Environmental Remediation’. Relying on Urbaser and Aven, Guatemala argued that the claimants had ‘failed to comply with Guatemalan law’ and that Guatemala ‘should not be left in the position of not only having to pay the costs of this arbitration proceeding, but also remedy the environmental damage caused by Claimants’. Guatemala requested that the tribunal order the claimants to pay US$2 million towards ‘the costs of remediation and restitution of the area affected by Claimants’ activities’. In reply, the claimants argued that the tribunal lacked jurisdiction over Guatemala’s counterclaims, which also must fail because Guatemala ‘has not even attempted to demonstrate that Claimants . . . have caused any environmental damage’ and ‘its counterclaim is premised on pure speculation that it may, in the future, suffer damages’. The case is pending so it remains to be seen whether Guatemala will prevail on its environmental counterclaims.
While the known instances where respondents have prevailed remain few, actors in the extractive industry should pay heed to the rising trend of respondents bringing counterclaims demanding that claimants pay for alleged harm to the environment or human rights. Private investors and stakeholders operating in this industry will benefit from consulting the relevant environmental standards and human rights guarantees in international law (and the laws of the host state) to ensure their operations are compliant and commit to complete transparency in connection with their efforts to comply with these norms. Actors will further benefit from engagement and coordination with local communities, which we explore in the following section.
Importance of community consultation and the ‘social licence’ to operate
In the extractive sector, mining companies face the challenge of striking the right balance between business priorities and societal expectations. The interaction between sustainability and economic objectives in connection with obtaining and maintaining a ‘social licence’ has gained crucial importance and sparked intense debate. At the other end of the scale, governments too must strike the right balance between attracting and sustaining foreign investment, including protecting the rights and security of the investors and their projects while, at the same time, ensuring that the legitimate interests of communities are respected and protected. In this section, we discuss the international legal framework surrounding the process of community consultation, which imposes obligations at the state level, and the elusive concept of the ‘social licence’ to operate, which may have a binding effect on private actors.
Legal framework for community consultation
The two major international instruments that lay a foundation for community consultation are the International Labour Organization’s Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO 169 or the Convention) and the United Nations Declaration on the Rights of Indigenous Peoples of 2007 (UNDRIP). The scope of each instrument, however, is limited. As their names reveal, each instrument centres only on the rights of indigenous peoples and only ILO 169 carries the binding force of an international treaty.
ILO 169 was enacted in 1989 and, since then, 22 countries, most of them Latin American, have ratified it. One of the salient features of ILO 169 is that it requires states to implement mechanisms and procedures that allow them to consult indigenous peoples before undertaking or authorising any project that could affect their interests. With respect to extractive activities, ILO 169 requires that states establish and maintain procedures to consult indigenous peoples ‘with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such [mineral or sub-surface resources] pertaining to their lands’. Under ILO 169, the obligation to ensure that indigenous peoples are consulted in the context of a project rests with the state and not with the private companies. Yet, not all ratifying countries have incorporated ILO 169 into their legal system, and those that have do not incorporate or implement it uniformly. This is particularly evident with certain principles that are set forth in the Convention, such as the principle of free prior and informed consent, often referred to as FPIC. FPIC can be defined as the right of indigenous peoples to be involved in the decision-making process of the development of projects affecting their lands and resources, though there currently exists no international consensus on the scope of FPIC.
ILO 169 outlines procedures that states are required to follow to engage in good faith consultations with ‘the objective of achieving . . . consent’. The Convention adopts principles guiding how community consultations should be undertaken but imposes no obligation of result, agreement or consent. Further, ILO 169 does not provide indigenous people with a veto right that can be exercised against a specific project.
Although most of the Member States to the Convention expressly recognise the indigenous peoples’ right to FPIC, historically, the lack of clear implementing regulations left its application in a state of ambiguity. In more recent years, however, both ILO 169 and UNDRIP have had an important influence in the development and implementation of state legislation. Some of the principal mining countries in Latin America have enacted legislation implementing and building upon the concept of FPIC.
Peru is a good example of this new dynamic. Peru’s Regulations on Citizen Participation in the Mining Subsector (Supreme Decree No. 028) and implementing Ministerial Resolution 304 incorporate Article 15 of ILO 169 into local legislation. These regulations provide for a formalised community consultation process prior to the project receiving exploitation permits. Supreme Decree No. 028 confers on Peru the responsibility of guaranteeing the right to citizen participation. At the same time, it makes clear that ‘[t]he consultation does not grant the populations the right to veto the mining activities of the authority’s decision’.
Clear legislation, like Supreme Decree No. 028, not only serves to protect communities’ rights, but also provides legal certainty to mining companies with respect to the scope of FPIC. As set forth in the summary of cases below, in asserting defences to treaty claims, states have claimed it is the mining companies themselves that must guarantee the right of consultation of the indigenous communities, while that duty is, in fact, that of the state. States often also justify measures affecting mining companies’ rights by alleging that outreach activities were not enough. Investment arbitration tribunals have rejected such arguments by analysing the investors’ and states’ respective conduct in light of ILO 169 local implementing regulations. In Bear Creek v. Peru, for example, the tribunal found that the relevant question was not whether the claimant could have gone further in conducting outreach activities as Peru alleged, but whether Peru could claim that such further outreach was legally required in Peru.
ILO 169 and UNDRIP address the role of governments, and not of the private sector, with respect to FPIC. While not rising to the level of international law, several international standards relevant to mining activities have articulated the expectation that companies obtain FPIC. Some of these standards include, for example, the IFC Social Performance Standards, the OECD Guidelines for Multinational Enterprises, and the UN Guiding Principles on Business and Human Rights, which (as noted above) has recently been given legal effect by the Inter-American Court of Human Rights judgment in the Miskito Divers case. Notably, in 2014, the UN Global Compact issued a ‘Good Practice Note’ recommending that companies adjust their policies and procedures to address the right to FPIC found in UNDRIP. Although these standards are not binding upon companies, ignoring them may impact a company’s ability, for example, to obtain funding from financial institutions to develop the relevant project or, as discussed in the following section, to secure the ‘social licence’ to operate.
The ambiguous concept of ‘social licence’ to operate
Social licence, or social licence to operate (SLO), is a multifaceted and often unwieldy concept that plays an important role in the context of social disputes in connection with extractive activities. Unlike the FPIC, SLO focuses on the actions that firms in the private sector should perform to meet the expectations of local communities and other stakeholders. While certain best practices may exist, neither international instruments nor local laws impose a clear-cut obligation on mining companies to obtain SLO. Rather, SLO is a behavioural standard that “‘emerged as an industry response to opposition and a mechanism to ensure the viability of the sector’”. The licence is obtained by gaining acceptance and trust to proceed with the project in question from the concerned stakeholders.
In this context, the term has been incorporated into mainstream discussion during the past couple of decades and deemed as decisive for enhancing business reputation within the mining industry. Definitions abound and vary, denoting a difficulty to capture a universal meaning or a practical form of measurement. Despite conceptual and terminological difficulty, however, few would disagree in considering it as a source of legitimacy for envisioning, undertaking and concluding a mining project.
The undefined scope of SLO complicates the certainty desired by private actors who operate natural resource projects in foreign jurisdictions. By most measures, gaining SLO depends on voluntary action taken by private companies, which sometimes goes beyond simply meeting legal requirements or complying with the norms of a certain legal system. Multiple recent mining projects have been frustrated by extra-legal impacts, either because companies remain uncertain on how to develop a successful SLO approach or because governments, instead of supporting and protecting the right of investors, choose to support actors who object to a given project.
The process to gain SLO grows in complexity when a project impacts different communities that claim to have a stake in the project. In these situations, it is difficult to deploy actions that satisfy the demands of myriad individuals, which usually overlap or exclude one another. Companies have opted to carry out what is often referred to as ‘best practices’, which basically consist of strict standards that consider most factors involved in a mining project, usually in the form of a ‘community relations’ programme or a strategy for substantial engagement. Nevertheless, observance of a best practices strategy cannot guarantee that a given mining project will not face social opposition.
With almost no legal footing, communities question how SLO can protect their rights to seek modifications in or even achieve cancellation of investment projects. The intangibility and lack of clear parameters of the SLO may also result in uncertainty for investors. The success of a mining project may be left to the mercy of community members or other individuals who have personal or political interests that drive them to object to a particular project, beyond the legitimate interests of the true stakeholders.
Relevant investor-state arbitration cases
Bear Creek Mining v. Peru
In 2007, Peruvian authorities issued a public necessity decree authorising Bear Creek to acquire the rights to different mining concessions that formed the Santa Ana mining project in a remote part of the Puno region, near the Bolivian border. The government revoked the public necessity decree in June 2011 in response to the social unrest that was taking place in the Puno region. Bear Creek was not notified in advance, nor was it given an opportunity to be heard.
In the arbitration, Peru blamed Bear Creek for the social unrest, alleging that its outreach activities were insufficient. In analysing Peru’s argument, the tribunal acknowledged that ‘even though the concept of “social licence” is not clearly defined in international law, all relevant international instruments are clear that consultations with indigenous communities are to be made with the purpose of obtaining consent from all the relevant communities’. However, the tribunal observed that the relevant question was not whether the claimant could have gone further in conducting outreach activities, but whether Peru could claim that such further outreach was legally required and whether its absence caused or contributed to the social unrest.
In responding to this question, the tribunal found that Peru could not allege that the investor’s conduct contributed to the social opposition engulfing the project, because the Peruvian authorities were aware of, approved and endorsed the claimant’s multiple outreach activities, including its comprehensive citizen-participation plan. Evidence showed the state was largely absent from this remote region. The tribunal further held that: ‘Respondent, after its continuous approval and support of Claimant’s conduct, cannot in hindsight claim that this conduct was contrary to the ILO Convention 169 or was insufficient, and caused or contributed to the social unrest in the region.’ The tribunal observed, in response to Professor Philippe Sands’ dissent, that the ILO Convention imposes conduct and not result obligations only on states, so even if the social licence was not achieved, the legal issue was whether the investor employed its best efforts in good faith to reach an agreement with the communities. Absent any valid reasons to justify the presidential decree that revoked the investor’s rights, the tribunal determined that an indirect expropriation had occurred.
Copper Mesa v. Ecuador
In this case, the investor brought a claim against Ecuador because of Ecuador’s termination of the company’s title to several concessions, including that of the massive Junín project. Ecuador argued that the Junín concession was revoked as part of a legitimate reform of its mining regime adopted for the purposes of protecting public health and the environment, where the requirement to consult the local population on the basis of an environmental impact study (EIS) was specifically intended to protect the residents and local communities and to reduce the environmental impacts of mining activities. Ecuador claimed that the investor failed to secure the approval of local communities required for the EIS approval, and instead its senior personnel directed violent acts committed on its behalf.
While the tribunal did find that the termination that stemmed from Ecuador’s mining reform amounted to an expropriation, it did not delve into whether the laws and regulations that were enacted as part of the reform were in Ecuador’s national interests. In this respect, the tribunal observed that it was not a regulator and deferred to Ecuador’s sovereign right to regulate. As for the Canada–Ecuador BIT’s fair and equitable treatment and full protection and security standards, the question for the tribunal was whether Ecuador should have provided more support to Copper Mesa against the protesters to facilitate the investor’s consultation and EIS obligations. The tribunal ultimately found that Ecuador breached the treaty because, rather than encouraging the anti-miner’s physical blockade of the Junín concessions, ‘the Respondent should have attempted something to assist the Claimant in completing its consultations and other requirements for the EIS’.
Notably, the evidence established that several of the claimant’s senior personnel in Quito were directing violent acts against anti-mining protesters (including firing guns and spraying mace at civilians), in violation of Ecuadorian criminal law, significantly fuelling the social tension. As a result, the tribunal found that the injury was not caused solely by respondent’s wrong and reduced the damages awarded by 30 per cent.
Lupaka Gold Corp v. Republic of Peru
The claimant in Lupaka v. Peru lodged a claim under the Canada–Peru BIT, alleging it lost access to the Invicta Project to mine gold, silver and copper in the Andes Mountains in Peru due to violent blockades by surrounding communities, which Peru failed to dissolve in contravention of its treaty obligations. In response, Peru argued it fulfilled its obligations under the Canada–Peru BIT and that the claimant’s loss of its investment was caused by, inter alia, the claimant’s ‘failure to obtain support for the Invicta Project from local rural communities’. Peru claims that the claimant had failed to engage with and draw support from the local rural and indigenous community, as required under Peruvian law, international law, and industry practice. In support of its defence, Peru asserted that the claimant: ignored the community’s expressed concerns over the environmental impact of the mining project; entered into project financing with a timeline that ‘forced it to rush negotiations’ with the surrounding community; made repeated demands for forceful intervention from the Peruvian government; and further aggravated community relations by deploying a private security company to use force and violence rather than peaceful dialogue. The case is pending, so it remains to be seen how the tribunal will analyse Peru’s defences.
Trends in calculating damages in mining disputes
Calculating damages in investment mining disputes is typically a complex exercise given the scale of mining projects and the extractive nature of the industry. Tribunals have grappled with how to choose among different valuation methodologies in mining disputes, which are aided by ‘real world’ valuation guidelines adopted by industry players such as CIMVAL.
The cost and risks of exploration and development of mining projects are ‘front-end loaded’, and resource development companies are particularly susceptible to expropriation after they have incurred the exploration risks and expended capital development costs. Adopting a purely sunk-costs-based approach may not sufficiently compensate claimants for the significant risks they have taken at the time of the respondent state’s breaching conduct, which would have the chilling effect of discouraging investors from investing in exploration activities, especially in emerging economies where Foreign Direct Investment (FDI) is most needed.
A discounted cash flow (DCF) valuation is often more appropriate to estimate expected future cash flows of the project to quantify damages in mining disputes. If there is enough information, future profitability from projects can be readily and reliably measured. The pre-production phase of extractive projects typically involves a great deal of information and data gathering. Miners in the developmental stage often engage experienced professionals with established techniques to conduct feasibility studies to establish proven or probable reserves. These types of studies typically lend themselves to serving as the bases for DCF analysis. Other bases for DCF analysis, such as projections of expenses and revenue, can also be forecast with reasonable certainty in mining projects. For instance, the established international market for mineral resources provides reasonable certainty for pricing and demand, and the usual players engaging in major mining projects are often companies with proven reserves and histories of profitable operations. In addition, market demand and prices are routinely forecast by industry analysts, and exist irrespective of any individual project. Indeed, DCF analysis aligns with international mining industry valuation standards and mining industry practice, and real-world counterparties in the mining sector use DCF analysis with great frequency in connection with buy-and-sell transactions.
The following tribunals have approved or adopted the DCF method to calculate damages in mining disputes.
Gold Reserve v. Venezuela
In Gold Reserve, the tribunal reasoned that ‘the DCF method is a preferred method of valuation where sufficient data is available’, and applied an income-based DCF methodology to assess damages in a dispute over a frustrated gold and copper mining project in Venezuela stemming from permit delays. In calculating damages, the tribunal reduced the claimant’s proposed DCF value for certain factors such as: lower projection of quantum of mineral deposits, a delay in obtaining relevant approvals, which reduces early revenues, and a higher country-risk premium.
Crystallex v. Venezuela
The tribunal in Crystallex v. Venezuela favoured an income- or market-based forward-looking approach where the claimant, a gold miner, had established future profitability with a ‘significant degree of certainty’. The Crystallex tribunal was assessing damages suffered by the claimant in an indirect expropriation of a gold mining contract that started with a permit-denial and ended with rescission of the contract. Although Crystallex lacked a track record of profitability (‘because it never started operating the mine’), the tribunal found the claimant had met its burden of proving profitability because it had completed exploration activities and feasibility studies and managed to confirm proven and probable reserves. The tribunal noted that gold was an asset for which costs and future profits can be estimated with greater certainty than other consumer products or commodities.
Tethyan Copper v. Pakistan
The tribunal in Tethyan Copper applied a ‘modern’ DCF valuation analysis to a pre-operational mining project in a dispute involving a denied mining licence and lease for undeveloped copper and gold deposits. The tribunal held that the claimant only had to show a ‘reasonable and sufficient basis’ for its valuation, and rejected Pakistan’s ‘absolute certainty’ standard of proof for damages. The tribunal concluded that no ‘fundamental uncertainties’ precluded its reliance on the DCF method, pointing to an intensive feasibility study and the commitment of the project’s two owners who had substantial and ‘impressive’ experience in operating copper and gold mines globally.
If a project is in too early a stage, some tribunals have declined to apply a DCF analysis, opting instead for a costs-based approach. For instance, the sharply divided tribunal in South American Silver v. Bolivia rejected the DCF approach in favour of a costs-based approach after finding that the mining project at issue was in an early stage of development where the miner had not conducted a feasibility study, lacked certainty that metals could be economically extracted, and had mostly inferred resources, not mineral reserves. The tribunal in Copper Mesa v. Ecuador also rejected the DCF approach, observing that the mining project was at an early exploratory stage with no track record as an actual mining business and that the miner’s chances of moving beyond the exploratory stage were ‘slender’.
Although not a Latin America case, the tribunal in Mohammad Ammar Al-Bahloul v. Tajikistan is instructive and further demonstrates how DCF analysis is well-tailored to serve the idiosyncrasies of calculating damages in the extractive industry. The Al-Bahloul tribunal reasoned that DCF analysis is appropriate to quantify damages in the pre-operational phase of hydrocarbon projects due to the fact that hydrocarbon reserves around the world provide the requisite data that lay the foundation for future cash flow projections. Ultimately, however, the Al-Bahloul tribunal rejected the DCF approach after finding that no hydrocarbons had been detected in the reserves at issue.
The Bear Creek v. Peru tribunal similarly acknowledged that the DCF method was appropriate for valuing pre-operational projects, but ultimately rejected its application. A critical issue for the tribunal was the unlikeliness of obtaining the necessary social licence from local indigenous communities who strongly opposed the mine, which led to widespread, protracted – and sometimes violent – social unrest. Given these circumstances, the tribunal concluded that a willing buyer was unlikely to pay a price calculated by the DCF method.
It is the authors’ opinion that investor-state tribunals whose task is to measure ‘fair market value’ should be far more open to using DCF in mining disputes. It is the methodology that real-world market participants invariably use as the preferred method, irrespective of the life-stage of the project. Indeed, even early-stage projects typically contain sufficient data to reliably predict future income streams given the plethora of market data available to estimate the costs to bring, and the revenue that will be obtained from, a producing mine. In contrast, a sunk-costs approach bears no relation to fair market value and will often generate a windfall to the expropriating state at the expense of the foreign investor.
Trends in commercial disputes in the mining sector
Aside from the potential disputes that may arise from investors’ interactions with the host state and surrounding communities, actors may also encounter problems arising from business arrangements, which in the mining sector can take many different forms. Parties with extractive rights may wish to seek financing or to hedge against project failure in an industry that is inherently high-risk. Parties may also enter into commercial relationships to sell the extracted minerals, contracts for construction of the mine, or service contracts to develop and operate the mine. In this section, we discuss common commercial relationships in the mining industry and the disputes that typically arise from them.
Joint venture arrangements are common in the mining industry. A joint venture can be defined generally as a joint undertaking in which two or more parties share risk, profits, and control. Parties may enter into joint venture agreements for a variety of reasons, including to secure access to capital, technology, or expertise, to share or spread risk, or to satisfy legal requirements. In particular, smaller miners or state-owned entities holding mining rights may wish to seek capital from larger miners that are interested in exploration but do not wish to assume all the risk.
Disputes between joint venture partners may arise in a variety of ways. For example, disputes may arise when the partners disagree about the operations and management of the joint venture. Disputes may also arise with respect to the buy-out or valuation of minority interests or transferability of participating interests, which may trigger certain rights to the remaining parties to the venture, such as the right of first refusal (ROFR) or right of first offer (ROFO). The dispute between Barrick Gold, Xstrata Copper, Goldcorp Inc, and New Gold Inc. in connection with the El Morro copper and gold mining project in Chile, provides an illustrative example of issues arising from ROFR.
In that dispute, Xstrata originally owned 70 per cent of El Morro and New Gold owned the remaining 30 per cent. The shareholders’ agreement between Xstrata and New Gold provided that each party had an ROFR over the other’s shares, triggered when one party received a third-party offer for its shares. Barrick entered into a sale agreement for Xstrata’s 70 per cent interest in El Morro in 2009, conditional upon New Gold waiving or not exercising its ROFR. Subsequently, New Gold and Goldcorp entered into an agreement whereby Goldcorp agreed to lend New Gold’s subsidiary the funds needed to exercise the ROFR (in the amount that Barrick offered to Xstrata) so that New Gold’s subsidiary could purchase Xstrata’s 70 per cent interest, which would then allow Goldcorp to acquire the shares of that New Gold subsidiary with an additional sum. Barrick challenged this transaction in an Ontario Court, but ultimately failed.
Another example of a mining-related joint venture relationship going sour is the Jindal Steel & Power v. Empresa Siderúrgica del Mutún dispute. The India-based claimant entered into a joint venture agreement with the respondent, a Bolivian state entity, in order to develop the El Mutún iron ore project in Santa Cruz, Bolivia. In 2001, the claimant initiated an International Chamber of Commerce arbitration, alleging that the respondent did not fulfil its obligations under the joint venture contract when it failed to obtain access to the land for the project. The claimant also alleged that the respondent cashed bank guarantees in contravention of the joint venture agreement. In a 2014 award, the tribunal found in favour of the claimant and ordered the respondent to pay US$22.5 million in damages, including repaying US$18 million for the bank guarantees that the respondent illegally cashed.
Offtake and streaming agreements are two examples of the most common alternative arrangements for parties seeking financing outside joint ventures or equity sales. An offtake agreement can be defined as a contract between a producer and an offtaker to sell and purchase all or part of the producer’s future production, typically from a specified mining project, at a set price. Offtake agreements are similar to ‘spot’ sales agreements, except they concern future production. Streaming arrangements provide the right to purchase all or a portion of the precious metals produced from a base mine at a pre-determined price for the life of the transaction.
Disputes regarding offtake agreements take the same general forms as disputes arising from mineral sales contracts. Metals and minerals sales disputes typically involve quantity of delivery, quality of metals or minerals, delivery conditions, or payment/pricing. Disputes related to streaming agreements may arise when either the producer or the streamer attempts to unilaterally terminate the contract. For example, if production cost is higher than the purchase price in the streaming agreement, then the mining company is forced to sell at a loss. On the other hand, if production cost is lower than the purchase price, the mining company will profit to the detriment of the streaming company. The parties may also disagree about the allocation of operational, financial and political risks, which may also lead to disputes.
In the mining sector, owners holding mining rights often contract with other parties to develop and construct a mining project. Mine development and construction often involve an engineering component, including a detailed feasibility study, detailed engineering and procurement planning, and a construction component, including construction of the mine itself as well as supporting infrastructure. The main types of construction contracts that parties use for international mining projects are engineering, procurement and construction (EPC) contracts and engineering, procurement and construction management (EPCM) contracts. EPC contracts involve a single contractor handling all design, procurement and construction components, and are typically lump sum. EPCM contracts feature one contractor responsible for designing the contract and managing contractors and subcontractors to perform the actual construction, and tend to be cost-reimbursable or ‘cost plus’.
Disputes in construction often arise with respect to changes in the scope of work (or ‘change orders’), which are virtually inevitable in any large construction contract. Disputes resulting from change orders typically arise from EPC contracts due to their usual lump-sum nature. Other types of mining construction disputes may involve disagreements regarding invoicing, risk allocation, indemnification and insurance mechanisms between the parties.
The ongoing dispute between Barrick Gold Corporation and Fluor Daniel touches on certain of these common issues in construction mining disputes. The dispute arose after Barrick retained Fluor and an Argentine company, Techint (Fluor/Techint), to perform EPCM services in connection with the construction of a gold mine and ore processing facility straddling the border of Chile and Argentina. Barrick terminated the contracts for convenience in 2013 and in 2016 filed a notice of arbitration against Fluor/Techint ‘demanding damages and/or a refund of contract proceeds paid of not less than $250 million under various claims relating to Fluor/TECHINT’s alleged performance’. Few details about this case are publicly available, but we understand that this dispute remains pending.
Storm clouds on the horizon
Recent political developments in Latin America gave rise to various regulatory changes that impact the mining sector and the stakeholders that operate within it. This section discusses a selection of these regulatory shifts and how they may give rise to future mining disputes.
Mining companies in Chile have been facing regulatory challenges following the 2021 election of left-wing president Gabriel Boric. For instance, the Boric administration sought to impose a mining royalty, which would increase the tax burden for copper companies from 38 per cent up to 60 per cent via (1) an ad valorem component-progressive rate based upon annual sales and copper price, and (2) a mining margin component, a progressive rate applicable over operating income. After the government introduced several amendments to the mining royalty bill, taking into account the mining companies’ complaints regarding its confiscatory nature, the Chilean Congress finally agreed on a maximum tax burden between 45.5 per cent and 46.5 per cent. Even though these tax rates – which will soon be formally enacted as law – are lower than the ones suggested in the original bill, every copper investor in Chile will experience a considerable increase in taxes for their investments, especially considering that the current tax stability regime will expire for most investors by the end of 2023.
Lithium is another hot topic in the Chilean mining industry. Chile has the largest lithium reserves in the world and is the second largest lithium producer. President Boric recently announced a new National Lithium Strategy to promote the mining industry in Chile. The National Lithium Strategy contemplates providing the Chilean State a more dominant position in future lithium production by granting more authority to existing state-owned companies CODELCO and ENAMI. The National Lithium Strategy also contemplates the creation of the National Lithium Company, and a State majority participation in future public-private collaborations. CODELCO recently requested the atate to recogniae exclusive rights to exploit lithium over the Maricunga salt flat (the second largest in the country), potentially affecting previous mining rights currently held by foreign companies over the same salt flat.
Gustavo Petro, Colombia’s newly elected leftist president, recently announced his intention to ban open-pit mining and mining in environmentally sensitive areas (such as high-altitude wetlands). The new administration aims to reduce the country’s dependence on raw material extraction by prohibiting fracking and not issuing new oil exploration contracts in Colombia. The administration’s goal is to gradually replace oil revenues with growth in other sectors, such as agriculture, manufactured goods, tourism and clean energy. Existing exploration and production contracts, however, will be honoured by Petros’s government.
Petro’s administration also implemented a tax reform that came into force on 1 January 2023, and significantly increases duties on the mining sector, by imposing new export taxes on coal and eliminating tax exemptions. Oil and coal companies will no longer be able to deduct royalty payments for the purposes of corporate tax, and they will have to pay an additional windfall levy when oil and coal exceed a certain price.
In 2021, Peru elected as president Pedro Castillo. Castillo’s campaign was premised partly on rewriting the Peruvian Constitution to grant the state more control over certain industries, including the mining sector, in order to ensure that local communities in mining regions would benefit from the distribution of profits from the copper-mining industry. Peru is the world’s second copper producer and mining is vital for the country’s economy, representing 60 per cent of all exports.
Following Castillo’s impeachment on 7 December 2022, for attempting to dissolve Congress, then-Vice President Dina Boluarte took over as President. Political protests erupted due to these developments, which in turn temporarily halted production from certain mining units. In late January 2023 protesters’ roadblocks and invasions of mines forced work stoppages, putting an estimated 30 percent of Peru’s copper production at risk. While mining activity has since rebounded, there currently exists no safeguard against future disruptions.
The Mexican government issued a Mining Reform on 8 May 2023, introducing major changes to the country’s Mining Law, National Waters Law, Ecological Balance and Environmental Protection Law, and the General Law for the Prevention and Integral Management of Waste, specifically concerning mining and water concessions. Among other things, the reform shortens concessions in the mining sector from 50 to 30 years, tightens water extraction permits, requires some mining profits to be returned to local communities, and punishes speculation by allowing authorities to cancel concessions if no work is done on them within two years.
Since President Andrés Manuel Lopez Obrador took office in 2018, the government has not granted any new mining concessions, on the grounds that too many permits were granted by previous governments to extract the country’s resources. Many foreign companies have expressed their concern that the new mining legislation could adversely affect their investments in the country.
Brazilian President Luiz Inácio Lula da Silva, who took office in January 2023, has pledged to reverse policies promoting mining in indigenous lands that were previously promoted by his far-right predecessor Jair Bolsonaro. On 28 April 2023, Lula decreed six new indigenous reserves, banning mining and restricting commercial farming in the region. The lands, including a vast area of Amazon rainforest, cover about 620,000 hectares (1.5 million acres).
Although Lula’s government is not expected to promote radical steps against mining or attempt to nationalise assets, actors in the mining industry in Brazil should still be mindful of heightened risks, such as potential tax increases to cover government social programmes and stricter procedures for environmental licences. For instance, during the covid-19 pandemic, the national Congress and certain state governors attempted to impose higher taxes on the mining sector driven by the industry’s record revenues due to high prices. While the pressures have eased due to revenues declining, the new administration may still seek to fund government spending promised during the election campaign.
We expect that the mining industry will continue to play an important role in the Latin American economy in the coming years. Investors looking to develop a project would benefit from understanding the types of disputes that may arise in this sector. Investors should look to human rights and environmental standards for guidance and engage with surrounding communities to avoid conflicts with both the host states and local communities. Investors should also be mindful of the common types of commercial disputes arising to better manage risks and issues.