The mining sector sits at the heart of the global economy, supplying the critical resources that power industries ranging from telecommunications to energy. During London Arbitration Week, in-house counsel, arbitrators, lawyers and experts gathered at our London office for a panel discussion on the intersection of the mining and extractive industries and international arbitration. 

The panel was introduced by Ruth Cowley, Global Co‑Head of International Arbitration, and Duncan Bagshaw, an international arbitration partner in London, chaired a lively discussion among a panel with a range of perspectives, comprising:

• Bianca Déprés, General Counsel at Resolute Mining with prior practice experience at major firms Canada and the UK;
• Christophe Asselineau, a partner in our Paris office specialising in M&A and projects with deep mining industry experience;
• Alexander Gunning KC of One Essex Court, an advocate and arbitrator, and recent past chair of the Commercial Bar Association;
• Amy Armitage, a dispute resolution partner in our London office focused on construction and engineering disputes in arbitration and litigation; and
• Christiane Deniger, a London‑based Director at Burford Capital and solicitor who moved into funding in 2016.

The panel explored how the terms of transactions, the issues that arise on the ground, and relationships with governments and other partners intersect with international disputes. Although the panel was conducted under the Chatham House Rule, several themes resonated. 

Navigating challenges

Speakers explored their real-life experience, from their differing perspectives, of the challenges being faced by miners on the ground and how they are navigated, including political change, security issues and increasing activism amongst community groups. 

Connected to these issues, the panel discussed the multi-faceted and complex nature of mining disputes, which often involve: 

• a regulatory angle, relating to licenses, approvals and environmental agreements;
• multiple contracts, for example due to a complex joint venture structure;
• parent liability considerations, which may give rise to jurisdictional issues;
• treaty considerations if a state is involved; and
• ESG aspects. 

Technical expertise

The speakers stressed the importance of intricate technical evidence in mining cases, which often involves numerous experts who must be coordinated and managed. Equally, finding truly independent experts can prove difficult in a niche technical field. 

A balancing act

From a commercial standpoint, companies often face a hard bargain. They must weigh up the pursuit of legal rights and the validation that can come with winning an arbitral award, versus the commercial realities of a project, particularly where parties mines are non-operational. The panel also discussed dispute resolution choices in suites of agreements, including a rise of clauses in Africa-related cases providing for SIAC arbitration seated in Singapore, which is emerging as a compromise choice of seat instead of the most popular seats of London and Paris.