miner sculpture

International arbitration report

Global Publication November 2020

Welcome to issue 15 of Norton Rose Fulbright’s International Arbitration Report.

In this issue we continue our industry series to focus on the mining and metals sector. 

We review global arbitration trends in the mining and metals sector, both commercial and investor-state disputes, in a world where ‘volatility is the new normal’. Our authors also offer articles that delve into key mining sector trends – from novel financing arrangements such as streaming contracts, to developments in good faith obligations in joint ventures, to disruptive technologies in the mining sector – and for each we look at associated disputes risk and techniques for mitigating such risk. 

In our ‘Q&A with’ feature in this issue, we speak to Eleonora Coelho, President of the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (CAM-CCBC), about trends and developments in arbitration in Brazil and Latin America. In other regional analyses, we cover mining arbitration in Africa, as well as the rise of China and the impacts on dispute resolution in the mining sector. 

With investor-state relations being particularly important in the mining sector, we look at investor-state dispute settlement (ISDS) in the mining sector, and the implications for foreign investors of the changes to investment protection under ‘the New NAFTA ’.  In addition, we review the growing trend of allegations of corruption in mining arbitration and examine how tribunals deal with these issues, in particular the evolving standards of proof. 

In our latest case law updates, we look at the recent UK Supreme Court judgment in Enka v Chubb which provides important guidance on interpreting arbitration agreements as well as anti-suit injunctions. We also review an important Canadian Supreme Court judgment in Uber Technologies Inc. v David Heller in which the competence-competence principle came under scrutiny by the court. 

We also analyze recent developments in arbitral rules and arbitration legislation, including the modernisation of the LCIA Rules 2020, and amendments to the Indian Arbitration and Conciliation Act, 1996. 

 

Contents

Q&A with Eleonora Coelho
President of CAM-CCBC

Global overview of disputes trends in the mining and metals sector (Part 1)
Volatility as the new normal 

Global overview of disputes avoidance and mitigation for the mining and commodities sector (Part 2)
Volatility as the new normal 

Mining arbitration in Africa
An overview of recent disputes trends

The rise of China
Impacts for mining arbitration

Foreign investment in Papua New Guinea
Positive developments

Streaming finance agreements
A dispute resolution perspective

Disruptive technology in the mining industry
Opportunities, risks, and avoiding and resolving disputes

Recent trends in joint venture disputes in the mining sector
Staying faithful

Proving corruption allegations in international arbitration
A return to the balance of probabilities standard?

Reflecting on ‘the New NAFTA’ 
Implications of USMCA on the rights and protection of foreign investors

The competence-competence principle under scrutiny in Canada 
A case study

Enka v Chubb
UK Supreme Court clarifies how to determine which law governs an arbitration agreement in absence of an express or implied term 

Modernisation of the LCIA Rules 
Key changes

Amendments to the Indian Arbitration and Conciliation Act, 1996

 

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