Mining projects differ substantially in their stage of development, production prospects, and exposure to commodity prices and government action. These differences matter when assessing damages and when comparing outcomes across mining arbitrations.
Building on CRA’s 2023 study of disputes involving mineral assets, Tiago Duarte-Silva and Swati Kanoria examine over 150 investor-State mining arbitrations filed since 2000. Their analysis addresses questions that arise repeatedly in their work on mining disputes: where disputes are becoming more concentrated, which minerals are increasingly at issue, and how claimed damages compare with the amounts tribunals ultimately award.
The study examines trends in filings, minerals, geography, and outcomes, with new analysis of award-to-claim ratios by project stage and allocation of arbitration costs. It focuses on treaty arbitrations, whose public records allow comparisons across jurisdictions and cases.
The findings provide empirical context for understanding mining disputes and assessing their economic consequences, complemented by observations from experienced arbitration counsel and mining industry practitioners.
Below are some of the key findings:
- Mining arbitration filings have nearly doubled in recent years. The increase coincides with greater competition for strategically important critical resources such as copper, nickel, and uranium and more active government intervention in the mining sector.
- Latin America remains the leading dispute region, while Africa has grown fastest. Together, the two regions accounted for approximately three quarters of cases filed since 2016.
- Tribunals frequently award substantially less than claimants seek. The substantial difference between claims and awards highlights the importance of examining the economic assumptions and valuation methodologies underlying damages claims.
The report also examines the relationship between commodity prices and arbitration filings, using gold as a case study, and provides further analysis of the factors associated with dispute activity.
The findings reinforce the importance of looking beyond headline claim amounts and broad project characteristics. Historical outcomes provide useful benchmarks, but the assessment of an individual dispute ultimately depends on the economics of the mining asset, its stage of development, the risks remaining at the relevant date, and the counterfactual against which loss is measured.
Read the full report for the detailed analysis of mining arbitration trends and outcomes.
