Anglo American files lawsuit against Colombia

Minería Panamericana

Screen Shot 2021 06 21 at 15.25.59Anglo American mining company has filed a lawsuit against a ban preventing Colombian coal miner Cerrejón from developing its La Puente project.

The latest lawsuit comes after Cerrejón shareholders, BHP and Glencore filed separate lawsuits for the same reason on April 27 and June 1, respectively.

Cerrejón has not been able to work on the northern section of the La Puente pit since November 2017. Colombia's constitutional court suspended operations due to concerns about the impact of diverting a river on the local water supply.

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The Status of Investor-State Arbitration in Latin America in 2021


Screen Shot 2021 05 06 at 01.44.00With a total of 54 cases filed, 2020 was a record year for cases filed under the ICSID Convention, and with a total of 72 treaty-based cases, an important year in general for Investor-State Arbitration.

1. A Wave of Cases Against Latin American States
Last year saw a wave of cases against Latin American states, driven in particular, but not exclusively, by a large number of claims filed against Peru, Colombia and Mexico. Based on public notices of intent and speculations surrounding current political developments, this wave is likely to continue in 2021.

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Disputes against governments under investment treaties: a growing trend in the mining industry in 2020


Hogan Lovells

Screen Shot 2021 05 06 at 01.44.00A commitment of capital in a foreign state, particularly with long-term profit horizons, can be a risky undertaking. When a host state harms a foreign company's investment, the domestic legal system may not provide an adequate remedy. For example, an investor may not wish to settle disputes before a host state's domestic courts for reasons of (i) fear of bias; or (ii) unfamiliarity with the domestic legal system.

Foreign investors can reduce the risk of investing abroad by ensuring that their investments benefit from the protections contained in investment treaties. This is not new in the mining sector. Since the late 1990s, nearly 50 cases concerning mining concessions have been brought before the International Centre for the Settlement of Investment Disputes (ICSID), one of the main institutions facilitating disputes under investment treaties. However, the number of cases brought by mining companies, from micro-cap to the largest players in the global market, is on the increase. Of the approximately 50 cases brought before ICSID in 2020, more than 20% concern mining concessions. This is a significant increase on previous years (2019: 10%; 2018: 10%; 2017: 0%).

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2020 in Review: Latin America and Investment Arbitration

Kluewer Arbitration Blog

Screen Shot 2021 05 06 at 01.44.00In 2020, we witnessed a number of interesting developments in the field of investment arbitration in Latin America. From the entry into force of the United States – Mexico – Canada Agreement (USMCA) signed over a year ago, as well as numerous cases and actions still arising from the Odebrecht scandal that became public back in 2016, to the conclusion of treaties departing from the traditional approach to investor-State dispute settlement (ISDS). Our authors did a tremendous job covering and sharing their insights on the most important developments affecting our industry. In this post, we aim at giving you a quick look back to some of our most impactful publications in 2020.

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Mining Injustice Through International Arbitration

Luis Solano | Ellen Moore | Jen Moore -  IPS / Earthworks

estudio earthworks ipsDOWNLOAD THE STUDY HEREAcross the Global South, and especially in Latin America, international mining companies have used a combination of disturbing tactics to forcibly open mining operations in places where communities have resisted them.

First, they resort to repression. Then, if that fails, they sue governments in international tribunals — which can overrule or punish governments that fail to meet the demands of these corporations. Arbitration suits like this are made possible by international investment agreements, such as the Central America-Dominican Republic Free Trade Agreement (CAFTA-DR).

In Guatemala, the U.S. mining firm Kappes, Cassiday & Associates (KCA) relied on repression by private and state security forces to overcome years of local resistance to the El Tambor gold mine. When unwavering community resistance again forced a halt in operations, the company filed a claim in Guatemalan courts complaining the government had failed to protect its investments. The court threw it out.

But now, KCA is using the unjust, international arbitration system to strong-arm the Guatemalan government into green-lighting the unwanted mine — or compensate KCA for hundreds of millions of dollars in unearned profits.

In its $400 million claim, which is currently proceeding at a World Bank Group tribunal, the Nevada-based KCA argues that the Guatemalan government failed to provide adequate protection for KCA’s investment against local resistance. But KCA’s claim omits evidence of how violent police repression against peaceful protestors was used to open its mine.

This report exposes the misrepresentations and omissions in KCA’s claims to the International Center for Settlement of Investment Disputes (ICSID), while highlighting the inherent injustice in the supranational Investor State Dispute Settlement system (ISDS).

The report findings demonstrate that:

  1. Instead of respecting legitimate community opposition to its gold-mining project, KCA increased its efforts to build the mine.
  2. KCA never lived up to regulatory requirements in Guatemala.
  3. KCA’s mine became operational as a result of the violent repression of local communities by private and state armed forces under a corrupt government.
  4. KCA leadership has been subject to arrest warrants and criminal investigation in Guatemala.

More ISDS cases launched against Latin American states amid the COVID-19 pandemic


Screen Shot 2021 05 06 at 01.38.42A new report by the Netherlands-based Transnational Institute reveals a rush of international arbitration cases against Latin American states by international investors during the COVID-19 pandemic. Some cases relate to pandemic control measures, and others to ongoing cases.

In a recent bulletin, the law firm Garrigues pondered “the question that arises therefore is whether COVID-19 is a new break for investment arbitration due to the surge in claims that will arise from it or whether, conversely, it will be a final sweep of the sword by discouraging states from including this dispute resolution mechanism in their treaties”.

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Setting the Record Straight: Debunking Ten Common Defenses of Controversial Investor-State Corporate Privileges

Public Citizen

In order to counter the increased critiques of the investor-state dispute settlement (ISDS) system, the Office of the U.S. Trade Representative has declared that many of the claims are “myths” but these counter-claims rely on false and misleading information. This document describes 10 common defenses used by the USTR, and explains the reality for each of these arguments.

Case Studies: Investor-State Attacks on Public Interest Policies

Public Citizen

The investor-state dispute settlement (ISDS) system shifts the power between the government and corporations, prioritizing corporate rights. Foreign corporations have used ISDS to attack various policies, in cases ranging from tobacco to mining. This report discusses a selection of the many investor-state attacks on public policies that have occurred globally.

Best Practices Indirect Expropriation

By Suzy H. Nikiema, March 2012

This paper investigates indirect expropriation in international investment law. Indirect expropriation is when the State acts in a way that is detrimental to foreign private investment, even when it is not directly targeted at an investment. The definition of indirect expropriation is extremely important for international investment law, and it is crucial to have clear conditions in which the State may be considered as amounting to indirect appropriation. However, existing treaties do not provide an explicit definition of the concept, which requires investment tribunals to formulate their own criteria. This paper explains the concept of indirect expropriation, assesses the risks that an ambiguous definition of indirect expropriation poses to the host State of investment, and provides recommendations on the topic.