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How to protect your mining investment?Some views on stabilisation clausesBertrand MontembaultAvocat au barreau de Paris, Herbert Smith LLPPDAC MineAfrica 2010, Toronto, 9 March 2010
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Protecting investment through the stabilisation of the legal environment
– Risks faced by the mining industry: geological, financial, environmental and political / legal
– It is necessary to mitigate these risks in order to attract investors (mining companies, financiers, etc.)
– At the core of political/legal risks: sovereignty of State vs. sanctity of contract
– A key element to mitigate political/legal risks: stabilisation of the legal environment
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Protecting investment through the stabilisation of the legal environment
– Mechanisms available to stabilise the legal environment:
Treaties (BITs) Statutes (mining laws, investment laws, etc.) Legal doctrine (e.g. French administrative law: act of state
(fait du prince, State's liability arising from enactment of laws) Contract with the state: stabilisation clauses
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Stabilisation clauses: back to basics
– Clauses stabilising the non-legal environment: general contract law
Force majeure clause Hardship clause Renegotiation clause Adjustment clause (revision clause)
– Purpose of stabilisation clauses: neutralisation of the State's legislative power
Stabilisation clauses vs. "intangibility clause" Stabilisation clauses vs. non-expropriation clause Need to neutralise the State's jurisdictional power (arbitration
clause) Need to establish contractual relationship with the State
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Protecting investment through the stabilisation of the legal environment
– Validity
International arbitration cases (Texaco, Calasiatic, Aminoil, Agip, Saphire, etc.)
Applicable law clauses: internationalisation of contract
– Typology
Legal nature: freezing (stabilisation "stricto sensu" or stability) / economic equilibrium / hybrid clauses
Scope: general / limited Unilateral / bilateral Implementation: automatic / conditional
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Freezing clauses (stabilisation "stricto sensu" / stability): a criticised tool
– Perception
Developed countries / emerging countries (36% in Sub-Saharan Africa)
Industry sectors (50% extractive industries)
– Would limit State's capacity to legislate in human rights matters (HSE): appointment of John Ruggie as Special Representative to the UN Secretary General
– Limited legal efficiency: no specific performance / award of damages
– Similar protection may be achieved by other means, less harmful to the State's sovereignty:
BITs Economic equilibrium clauses
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Freezing clauses (stabilisation "stricto sensu" / stability clauses): a useful tool in the context of
the resurgence of resource nationalism– Efficiency of freezing clauses established through:
Characterisation of State's breach of contract Principle of higher indemnification seems to be admitted ("damnum
emergens" + "lucrum cessans") but the solutions are not yet clearly established : "legitimate expectations" (Aminoil 1982), "fair market value" (CMS Gas Transmission 2005/SD Meyers)
– Uncertainties arising from:
Notion and implementation of economic equilibrium clause (no arbitration case known)
Creeping expropriation
– A useful reference to bear in mind: domestic (administrative) law