Mining

Our work has included advising on a variety of legal issues that arise from operating mines throughout all phases, from exploration to production, regulatory compliance, mergers and acquisitions, financing, and safeguarding reputation.

Some of the major legal issues we advise on include:

• Regulatory and taxation stabilization: Mining regulations are often subject to frequent changes, depending on the political and economic situation of each country. This can create uncertainty and risk for mining investors, who may face higher costs, delays, fines, or even cancellation of their projects. It is not uncommon for countries to introduce new mining regimes, including increased taxation on mining companies. We have experience in assisting our clients anticipate these issues by implementing contractual provisions, to negotiate a mediated solution. And, if necessary, we can advise on avenues of dispute resolution, when faced with unexpected and material changes, whether implemented through domestic laws or amendment of the state’s constitution.
• Human Rights and the Environment: Mining activities can have significant impacts on the human rights and the environment of the host communities, especially in areas with indigenous populations, biodiversity, or water scarcity. Mining companies are expected to comply with international standards and best practices, such as the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises, as well as the local laws and regulations. However, these standards and laws are not always clear, consistent, or enforced, and mining companies may face complaints or lawsuits from various stakeholders, such as the state, local communities, NGOs, or international organizations. Furthermore, it is increasingly common for indigenous and other affected groups to bring claims against concessions granted by the government without their prior consultation and consent. We are able to advise mining companies in ensuring that they comply with international best practices in the area of corporate social responsibility that their concessions and contracts are respected by the courts and international tribunals, and, if necessary, assist in defending against such claims and complaints.
• Anti-Corruption, Financial Crimes and Investigations: Companies in mining and other extractive industries may operate in countries in which there are significant compliance risks. Our team often advises companies on transactions, investments, and compliance measures to mitigate these risks. We further help international companies implement and enhance their compliance policies, procedures, and training to meet regulatory expectations and facilitate M&A transactions. Our experience includes independent compliance monitorships, including for mining companies. In addition, members of our firm have conducted multi-jurisdictional investigations throughout the world, assisting mining and other extractive industry companies in assessing allegations of bribery, accounting violations, improper procurement practices, hiring practices and various other business practices. We have also assisted clients in responding to regulatory inquiries, provided crisis management advice, provided evaluation, counseling, and legal advice on potential risks with respect to transactions or initiatives in specific countries for consideration by the board of directors, and represented mining companies before both the US and Canadian enforcement authorities. Our experience when conducting investigations extends to recommending and following through on the implementation of remediation measures.
• Claims resolution before International Tribunals: Members of our firm regularly provide advice on investment treaty protections contained within free trade agreements such as the CPTPP, USMCA and previous to that NAFTA, the Energy Charter as well as the more than 3000 bilateral investment treaties (BITs) worldwide. We have provided advice and represented several mining and energy companies with respect to claims in North America, Latin America, the Caribbean, Eastern Europe, Central Asia, Southeast Asia, and Africa.
• Expertise in Quantifying Damages: The quantification of damages in mining and energy disputes can be a complex and contentious issue. This is because mining projects involve long-term investments, uncertain future cash flows, and multiple variables that can affect the valuation of the project, such as the price of the minerals, the production costs, the exchange rates, the discount rates, the taxes, and the regulatory changes. Moreover, mining projects can also have non-economic impacts, such as environmental or social damages, which are difficult to measure and monetize. Therefore, mining disputes often require the use of expert witnesses, sophisticated methodologies, and extensive evidence to support the claims of the parties. We have assisted mining and energy clients in retaining the most experienced experts and in developing strategies at the outset, even before submitting a claim.

The foregoing are some of the major legal issues that are faced by mining companies operating internationally with respect to which we provide legal advice and representation in disputes. Each mining project usually has different challenges and risks depending on the specific circumstances. We are able to assist mining companies when facing these challenges and, based on our experience, can advise on the adoption of preventive measures to mitigate the foregoing and other legal risks that may arise.