Mining is growing rapidly – so are investor-state disputes – by Frik Els ( – August 9, 2023)

A recent study by Charles River Associates (CRA) outlines some worrying trends for global mining as the industry continues to expand and push into new markets. The Toronto-based consultants, specialising in economic litigation found disputes between governments and investors involving mineral assets are growing rapidly – with 60% of all arbitrations over the last fifty years filed in the last decade.

Between 2013 and 2022 the number of treaty arbitrations almost doubled from the prior period to 68 cases, with South America and Africa responsible for a growing number of disputes. Since 2016 nearly 80% of all cases filed originated in these two regions and the number of cases in Africa and Latin America are up 167% and 57% since 2016.

The analysis covered 118 investor-state arbitrations, 80% of which were administered by the International Centre for Settlement of Investment Disputes, a World Bank organisation. 78% led to an award while 22% were settled by the parties. A third of these are still pending, and of the concluded cases 18% were discontinued. Overall, gold and copper assets are involved in half of all cases followed by coal at 8%.

The ‘S’ in ESG

CRA also conducted a survey of professionals engaged in mining arbitrations including in and outside counsel and mining company management and found more than 80% of respondents expect greater government intervention and regulation over the next 12 months.

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