Latin America: Report details impacts of international arbitrations filed by mining companies

New report details the impacts of international arbitration filed by mining companies in countries across Latin America.  The report analyses 38 cases filed by global mining corporations against Latin American governments using the investor-state dispute settlement (ISDS) system. The purpose of this report is to document the magnitude of the problem in the context of mining conflicts in Latin America and the troubling implications that these suits pose for the already difficult struggles of Indigenous Peoples and mining-affected communities to exercise their self-determination and to defend lands, water and ways of life from the destructive impacts of industrial mining.  Response by Anglo American provided.  

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Company response
23 May 2019

Response by Glencore

…The dispute between Glencore’s Prodeco coal asset and the Colombian Government stems from a 2010 amendment to the Mining Contract for the Calenturitas mine. In 2008, we proposed to expand the Calenturitas mine to increase coal production and extend the life of the mine. The expansion plan involved Glencore making substantial investments. The original royalty regime applicable to the Calenturitas mine would have become punitive in respect of the expansion to increase production. After 20 months of discussion, and in order to enable a significant expansion of the Calenturitas mine, the government and Prodeco/Glencore agreed an amendment to the royalty regime through an amendment to the Calenturitas Mining Contract, executed in January 2010. Regrettably, after the amendment was signed by both parties, and significant investments had been made to expand the mine on the basis of the amendment, the government sought to revoke and nullify the amendment that Colombia had signed.  The Swiss-Colombia Treaty requires that Colombia abide by the commitments it makes to investors like Glencore and Prodeco, and it requires that Colombia treat Glencore and Prodeco’s investments fairly and equitably. Glencore initiated a consultation process with the Columbian government in order to settle the dispute amicably…

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Company response
20 May 2019

Reponse by Anglo American

Author: Anglo American

Anglo American plc confirms that, on 18 January 2019, an award was issued in its arbitration against Venezuela brought under the UK-Venezuela Bilateral Investment Treaty (“the Treaty”) (ICSID Case No. ARB(AF)/14/1). The case related to Anglo American’s investment in Minera Loma de Níquel, C.A. (“Loma”), its nickel mining subsidiary in Venezuela. The dispute concerned certain ferronickel processing assets and related inventory at the mine site at the end of Loma’s concession in November 2012, and certain changes in practices concerning VAT credits. Venezuela objected to the jurisdiction of the tribunal to adjudicate the dispute and submitted a counterclaim in respect of the alleged failure of Loma to pay certain taxes. The Tribunal unanimously dismissed Venezuela’s jurisdictional objections and its counterclaims. On the merits of Anglo American’s claims, by a majority of 2 to 1, the Tribunal held: As a matter of Venezuelan law, the ferronickel processing assets and related inventory reverted to Venezuela on expiry of the mining concessions. As a result, there was no breach of the Treaty for the taking of those assets; and The change in practice of Venezuela’s tax authorities regarding VAT credits was not a breach of the Treaty…

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Company response
20 May 2019

Response by Newmont

Author: Newmont

…The report referenced above contains an inaccurate statement on page 27 which indicates “the Guatemalan government agreed to suspend operations pending the outcomes of an administrative process, but never followed through.” This is not accurate as there was an extensive, multi-agency process conducted by the Guatemalan government resulting in an official resolution from the Ministry of Energy and Mines (MEM) related to the claim. The final determination by the MEM, upon completion of the process, is documented in Resolution Number 0104 dated July 8, 2011 whereby the MEM determined that there was no cause to suspend the Marlin Mine operations…The Inter-American Commission on Human Rights (IACHR) requested the suspension of the Marlin Mine in May 2010 as a precautionary measure until an assessment could be made regarding environmental, public health, and housing concerns that had been raised. The IACHR requested a response from Guatemala within two months. A response was provided within the allotted time by the Guatemalan Presidential Commission on Human Rights (COPREDEH), requesting additional review time.   The Ministry of Energy and Mines (MEM) in Guatemala is the competent authority to resolve matters related to the Mining Law, including any administrative process to suspend mining operations…

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Item
7 April 2019

Extraction Casino: Mining companies gambling Latin American lives and sovereignty supranational arbitration

Author: Jen Moore and Manuel Perez Rocha: Mining Watch, Institute for Policy Studies y CIEL

…During the last couple of decades…mining companies have filed dozens of claims against Latin American countries before international arbitration panels, demanding compensation for court decisions, public policies and other government measures that they claim reduce the value of their investments. In a majority of these cases, the communities most affected by the mining projects have been actively organizing to defend their territories and natural resources. For local residents, these projects are a threat to their land, health, environment, self-determination and ways of life…For the global mining companies, international arbitration is merely another opportunity to strike it rich through reckless, casino-style gambling, given how the recourse they have to bring expensive lawsuits to international tribunals takes place within a system in which the deck is heavily stacked in their favor. This paper analyses 38 cases filed by global mining corporations against Latin American governments using the investor-state dispute settlement…system. Reflective of the disproportionate participation of Canadian financing in the global mining sector, the majority of these cases were brought or threatened by Canadian-domiciled firms, although U.S., U.K., South African, Swiss, French, Dutch, Chilean, Australian and East Indian companies have also taken part…

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Company response
22 September 2018

Response by Bear Creek

Author: Bear Creek

…Thank you for contacting Bear Creek Mining and offering the opportunity to respond. Bear Creek Mining considers its corporate social responsibility a top priority and conducts its business to the highest ethical standards and in complete respect of all laws and regulations applicable to us.  Our community partnerships and programs have helped to improve health and living conditions, offered greater educational opportunities and provided direct and indirect employment to hundreds of people in the Puno Region. We expect that our social responsibility programs will continue to be well received by our neighbors.

As Bear Creek Mining is not a party to the matters discussed in the articles you cite, we are unable to provide any comment.

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Company response
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Author: El Espectador (Colombia)

Seis días después de que Benigno Perilla, un miembro de la comunidad indígena de Taraira (Vaupés), aceptara ante tres magistrados de la Corte Constitucional que había recibido la asesoría de abogados de la minera Cosigo Resources para interponer una tutela y pedir la revocatoria del Parque Nacional Yaigojé-Apaporis, el representante legal de esta compañía canadiense negó cualquier acción de la compañía en ese sentido. En entrevista con W Radio, Diego Ramírez de Cosigo Resourcers, aseguró que la empresa “no paga para que una comunidad indígena presente una tutela. Nosotros tenemos principios de responsabilidad para colaborar con las comunidades donde desarrollamos proyectos”. La versión de Diego Ramírez es contraria a la que expresaron los propios indígenas así como organizaciones e instituciones que trabajan en la zona…

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