Mining Companies Gambling with Latin American Lives
and Sovereignty Through International Arbitration
Manuel Perez Rocha | Jen Moore
This report exposes 38 cases of mining companies that have been filing dozens of multi-million dollar claims against Latin American countries before supranational arbitration panels, demanding compensation for court decisions, public policies and other government measures that they claim reduce the value of their investments. In most of these cases, communities have been actively organizing to resist mining activities and defend their land, health, environment, self-determination and ways of life.
For them, these suits represent a further assault against their self-determination and the already limited protections they have. Meanwhile, for transnational mining companies, supranational arbitration is yet another opportunity to strike it rich through reckless, casino-style gambling, given the recourse they have to bring suits within a system in which the deck is heavily stacked in their favor.
- Colombia currently faces over US$18 billion dollars in threatened or pending suits, especially related to protecting Indigenous territory and fragile páramo ecosystems, which provide water to over a million people.
- Mexico and Uruguay face over US$3 billion each in suits for measures that have put ecologically sensitive areas off-limits to industrial mining.
- Guatemala and Ecuador have been threatened with tens or hundreds of millions of dollars in suits related to gold and silver projects that communities have spent many years fighting, facing criminalization and threats to defend their water, health, and livelihoods.
- Transnational corporations have access to the supranational arbitration system as a result of investor-state dispute settlement (ISDS) clauses in Free Trade Agreements and other investment protection pacts laws. These allow companies to bypass domestic courts and sue governments before private tribunals of highly paid corporate lawyers who have no obligation to local communities.
- The extractive sector takes greatest advantage of ISDS with oil, gas and mining companies having brought 24% of known claims.
- The geographic distribution of cases is concentrated in Latin America, where Central and South American governments face 29% of known claims.
- The majority of companies discussed in this paper were brought by Canadian-domiciled firms. This is reflective of the disproportionate role of Canadian financing in the global mining sector and that some 55% of Canadian mining assets abroad are concentrated in Latin America.
The report probes the justifications used by mining companies to pursue supranational arbitration against Latin American governments and comes to the following conclusions:
- One-third of the cases examined dispute government measures related to Indigenous Rights and community consent. Nine of these were brought by companies without any operating mine at the time of arbitration.
- Over half of cases dispute government measures concerning the enforcement of environmental and health protections. Fifteen of these were brought by companies without any operating mine at the time of arbitration.
- Over one-third of cases dispute government measures related to resource management (including nationalization or taxation). Five of these were brought by companies without any operating mine at the time of arbitration.
This report analyzes the Investor Protection Rules that mining companies most frequently invoke as alleged violations in such cases:
- Indirect Expropriation was invoked in over half of the cases. This is especially egregious since it relates to so-called expropriation of anticipated future lost profits, rather than the physical seizure of property or investments.
- Fair and Equitable Treatment/Minimum Standard of Treatment was invoked in over half of the cases. This concept is highly vague and subjective, and arbitrators have interpreted it in wildly different ways without regard for diverse histories, cultures, and value systems.
- Full Protection and Security was invoked in about one third of the cases. This concept imposes a duty on governments to do everything in their power to protect foreign investments from harm whether from state or non-state actors, and despite harm to people or the environment from such investments.The extractive sector takes greatest advantage of ISDS with oil, gas, and mining companies having brought 24% of known claims. The geographic distribution of cases is concentrated in Latin America, with Central and South American governments facing 29% of known claims.
This report forcefully demonstrates that ISDS poses a threat to diverse peoples and the environment, as well as to state sovereignty.
In the context of such powerful provisions to protect the interests of foreign investors, many mining-affected communities and Indigenous Peoples in Latin America are already learning from experience that they cannot wait for investment to take place on mining concessions before getting informed about the impacts of mining. As a result, communities and organizations that accompany them are studying where mining concessions have been granted and are getting organized at an early stage, even before there is much presence of a company or an investor.
At the policy level, in light of the threat that mining and other extractive industry companies pose to people and the environment, and in the interest of recuperating national sovereignty over policy making to protect the wellbeing of Indigenous Peoples and affected communities, current International Investment Treaties urgently need to be audited and, only after meaningful public participation, either be cancelled or rewritten on terms that put people’s rights and the environment first. Clauses enabling the use of ISDS should be eliminated. Privileges for foreign investors, such as the concept of “Indirect Expropriation” should as well.
The report concludes with lessons learned from a campaign against the ISDS suit that Pacific Rim Mining brought against El Salvador. Pacific Rim Cayman in 2009 for not having granted it a permit to put a gold mine into operation—and for which it had never met regulatory requirements. The local, national and international campaign provides valuable lessons for building solidarity with struggles in defence of land and water, while bringing critical attention on the ISDS system that poses great danger to these same life and death battles.