International Mining and Energy Disputes Monitor: 2025 Issue No. 1

Our objective with this publication is to provide useful information in an easily digestible form to senior executives of mining, energy, and infrastructure companies. It intends to be informative, brief, and readable by avoiding unnecessary legal jargon.

At the same time, we will continue to provide client updates and alerts on international dispute resolution matters, with the aim of providing timely and deeper analysis on decisions, final awards, and other important developments in the field of international arbitration.

We invite you to subscribe to both our publications here.

The first article of a total of four in this inaugural publication concerns alarming instances of imprisonment and detention of executives of foreign investors taking place in certain high-risk countries. In some cases, governments that have burgeoning debt levels with limited sources for raising revenues have accused foreign investors of tax fraud and forced them to pay disputed amounts as “unpaid taxes.” While each situation has to be assessed based on the relevant facts, it can be the case that these demands for taxes are entirely unlawful and not compliant with domestic taxation laws or applicable international double taxation treaties.

For example, Mali, which in seeking to collect additional revenues on the basis of allegations of unpaid taxes, has detained mining company executives of Resolute Mining and Barrick Mining. They have also taken other actions, including threatening cancellation of licenses and repudiation of mining agreements concluded by previous administrations.

The second article concerns the use of Red Notices to detain executives in a third county (even when travelling on holidays) who have deliberately planned to avoid travel to the country that is taking unlawful actions against their employer company. We provide some practical suggestions on how to pre-empt the issuance of contested Red Notices.

The third article will discuss obtaining provisional or emergency protection from an arbitration tribunal, or under some arbitration rules, even before the tribunal is constituted. Such provisional remedies can impose a legal obligation on the country seeking detention or jailing executives to withhold issuing arrest warrants and Red Notices. Time is of the essence when making such applications.

The final article turns to the “own acts” doctrine. It poses the question, “What claims by an investor can be advanced when a government is acting contrary to its prior stated position and actions, knowing of the reliance placed by the investor on the government’s conduct.” This article discusses the view taken by an academic at the University of Ghent, which may open up an avenue not yet often used based on the “own acts” doctrine applicable in Ecuador and likely other Latin American countries. The use of the “own acts” doctrine is limited to a contractual dispute with a sovereign state, but it mirrors a similar basis for challenging governments actions under investment treaties known as “fair and equitable treatment” and more specifically “legitimate expectations.”

Let us know of your comments on our inaugural publication or if you would like to obtain more information, by contacting any one of the contributors or Riyaz Dattu, Canada Legal Practice Leader.

Mali Government Is One Among Many Willing to Jail Mining Executives

Mali may be one of the most recent, but certainly not the only, country within the last few years to jail executives of mining companies and issue arrest warrants for those outside its borders.

These actions[1] generally have a single objective: to collect additional revenues (usually through taxation) by cancelling licenses or repudiating the terms of mining agreements concluded by previous administrations that the current administrations view as unfavorable to the government.

At the same time as demanding payment of taxes from foreign mining companies, the Malian government is also revising its mining code to increase state revenues and local and government ownership share in the mining industry from 20% to 35%.

Two prominent mining companies, one based in Australia and the other in Canada, have faced demands for tax payments by the Malian government backed by forcible detention of executives:

Resolute Mining: The Malian government detained three executives from this Australian company in November 2024, demanding payment of $160 million in taxes. The company was forced to pay the amount claimed, with an initial payment of $80 million, to obtain the executives’ release.

Barrick Gold: The government accused this Canadian company of owing $500 million in unpaid taxes and issued a warrant for arrest for its CEO in December 2024. The government by that time already had four senior executives of the company in jail in connection with the dispute on the taxes claimed as owing. Additionally, the government resorted to seizing gold from Barrick beginning with three tons (valued at $250 million) in mid-January 2025 and denying export licenses.

The extortionist tactics being used by Mali’s government are not isolated. This pattern of threatening and jailing executives, as well as seizing equipment and minerals such as gold, has unfortunately become common.

Our accompanying articles discuss avenues to prevent issuance of International Criminal Police Organization (INTERPOL) Red Notices that can result in the jailing of executives travelling through third countries, and the available means for seeking restraining orders, known as provisional measures, from international arbitration tribunals pending the final resolution of the dispute. Provisional measures can be obtained as soon as an international arbitration tribunal is constituted.[2] An application for provisional measures is required to be treated as urgent and is to be given priority over any other issues before the arbitration tribunal.

Contributor: Riyaz Dattu

How to Prevent the Issuance of a Red Notice

It is not uncommon for governments to take the position in a dispute that foreign resource-based companies have evaded their tax obligations or engaged in tax fraud. This tends to occur when governments are unable to generate sufficient revenues from taxing their own nationals and are running high fiscal deficits. Foreign interests, particularly those that have long term investments, become easy targets. Such allegations also make it untenable for the company to maintain a social license and can have dramatic impact on the loyalty expected from its local executives and work force.

One of the accompanying articles discusses several such recent instances, including the detention of mining executives in Mali. The other article sets out practical steps that should be taken immediately by executives of the targeted company to minimize or avoid an escalation of the dispute to the point that arrest warrants are issued or detentions are imposed.

This article deals with responding to the abusive use by governments of INTERPOL Red Notices to detain executives in a third country who have avoided travel into the territory of the government where they have a dispute. A Red Notice is a “request for law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action.” Red Notices have been relied upon to improperly detain mining executives in foreign jurisdictions. For example, in 2016, a Red Notice was issued against Leonard Anthony Homeniuk, the former president and CEO of Centerra Gold Inc., a Canadian mining company that was operating in Kyrgyzstan. Homeniuk was arrested in Bulgaria, while on holiday with his family, and detained for several months before a Bulgarian court determined that the government did not provide adequate evidence to justify his extradition to Kyrgyzstan. Homeniuk claimed that the charges were brought to pressure Centerra Gold Inc. to sign an amended revenue sharing agreement with Kyrgyzstan.

Once a notice is issued it is generally published on the INTERPOL website. Nullifying a Red Notice, after it has been issued, is very difficult and requires specialized legal advice and representation, including contacting the authorities of the country which issued the Red Notice and the country of citizenship of the executive.

As we discuss below, and in the accompanying article concerning provisional measures in an international arbitration, steps can be taken beforehand to preemptively avoid the effectiveness of a Red Notice.

Briefly, a company or an executive may, with the assistance of legal counsel with substantial experience in the procedures related to INTERPOL Red Notices, should at a minimum:

• Request access to the individual’s file from the Commission for the Control of Interpol’s Files (CFF). This is an important step as the Interpol Red Notice database only includes public Red Notices.
• Once it is established that a Red Notice request has not been processed by INTERPOL, a preventative submission should be made to the CFF. The preventative request should consist of a well-documented submission with detailed facts and legal arguments on why the individual being targeted should not be the subject of a Red Notice.

This procedure of blocking the processing of a Red Notice should be undertaken as soon as there is any indication that the dispute may escalate to the point of the government illegitimately using the Red Notice to extort or in any case create an unbalanced bargaining position in the potential resolution of a dispute.

Contributors: Riyaz Dattu and Maya Cohen

Provisional Measures for Stay of Red Notices and Arrest Warrants

Governments may resort to the use of Red Notices and arrest warrants against management personnel of investors and potential witnesses (i.e., expected to provide testimony favoring the investor’s claims) during an ongoing investor-state dispute. This is especially so when the dispute is high profile with political implications for the government that is in power.

We have discussed in the article above that in appropriate cases, it may be possible to deal with Red Notices by seeking to pre-emptively avoid its invocation by making submissions with INTERPOL. However, in many cases, this may not be enough as the government can continue with its local criminal proceedings by issuing arrest warrants.

Based on the goal of providing a level playing field for the adjudication of an international dispute by an independent and objective arbitration tribunal consisting of experts in international law, international arbitration rules in most cases provide arbitrators the authority to issue provisional relief measures.

This authority is based on the principle that once the parties have consented to arbitration before a neutral and independent tribunal, the arbitration process should be used exclusively to achieve a fair and objective award. Furthermore, such an award should be rendered without either party using tactics that may disrupt the arbitration process or result in unfairness. Disruptive tactics can include government attempts to exacerbate the dispute by imposing undue influence in the fair and effective progression of the arbitration, including by arresting the management personnel of the foreign investor or witnesses who will provide evidence supporting the foreign investor.

Tactics such as jailing management, intimidating witnesses, and issuing a Red Notice against management are often intended to achieve a resolution that is entirely or mostly favorable to the government. Arbitration tribunals, when provided sufficient evidence of these unfair tactics, are willing to provide interim relief until the arbitration results in the issuance of a final award.

For example, in 2019, the international arbitration tribunal in Ipek Investment Limited v. Republic of Turkey (ICSID Case No. ARB/18/18) granted the claimant’s request for provisional measures and ordered the respondent to suspend further pursuit of criminal proceedings against certain individuals, which included requests for Red Notices.

In the case of a Red Notice that has already been issued, a company can request its suspension before a final award is issued in an investor-state arbitration.

In order to request a provisional measure,[3] a party must specify the rights they intend to preserve. The rights must be related to the specific dispute of the arbitration at the time of the request and cannot be hypothetical. The burden of proof is generally imposed on the party requesting the relief. This includes establishing sufficient likelihood of meeting this extraordinary remedy’s requirements. At a minimum, the following conditions must exist:

• On a prima facie basis, the claim has merit.
• Urgency (Irreparable harm is actual and imminent).
• Necessity (Serious or substantial harm).
• Balance of interests favors the issuance of provisional measures.
• Proportionality of the provisional relief measures.

Even though foreign investors bringing an application for provisional measures must meet a high threshold to obtain provisional relief, usually the success will be well worth the effort. Provisional measures can be used to level the playing field and avoid unfairness of abusive arrests in foreign countries based on Red Notices, and to avoid unwarranted criminal proceedings and incarceration of management personnel and witnesses.

Contributors: Riyaz Dattu and Jodi Tai

Using the “Own Acts” Doctrine in Investment Disputes

The resolution of foreign investment disputes based on bilateral investment treaties is a relatively recent phenomenon when compared to international disputes arising out of “internationalized” contracts containing arbitration clauses based on application of international rules.

In our previous client update, we traced the activity at the International Centre for Settlement of Investment Disputes (ICSID) which was established in 1966, as part of the World Bank Group, specializing in the conciliation and arbitration of investment disputes. It had a slow beginning, registering its first case six years later in 1972, and remained relatively inactive until the 1990s. However, consistent with the growth of ratification of investment treaties over the last three decades, ICSID has experienced a steep growth in its caseload reaching 1000 cases on August 8, 2024.

The growth of these cases at ICSID, as well as the use of other arbitration procedures such as the United Nations Commission on International Trade Law’s (UNCITRAL) Arbitration Rules, has resulted in an evolution of international law in the realm of investment disputes. Keeping abreast of new cases and results is paramount for international arbitration investment practitioners as they develop new arguments for their clients.

Recently, we came across an article written by Gustavo Prieto of Ghent University about an award issued by an arbitration tribunal concerning a dispute between an oil consortium and Ecuador arising from a contract (as distinct from the application of an investment treaty).[4] In this case, the “own acts” doctrine played an important part. This doctrine, also known as “teoria de los actos propios” or “venire contra factum proprium,” broadly states that a party cannot act in contradiction to its own prior acts.[5] Prieto analyzed both the doctrine and the case, and stated as follows:

The EcuadorTLC II award merits closer examination for several reasons. First, it represents a noteworthy application of the ‘own acts’ doctrine in contract-based investment disputes as a distinct concept, departing from conventional interpretations of international investment law that often rely on the common law estoppel. Second, this case suggests the emergence of a new space for investment adjudication in Latin America, particularly following Ecuador’s withdrawal from the international public law investment regime. This emerging space is characterized by the development of a distinct legal community that operates within private law frameworks in Latin American disputes.

In EcuadorTLC v. Ecuador (II) (PCA, 2024), conducted under the UNCITRAL Arbitration Rules, the majority of the Tribunal relied on the “own acts” doctrine to determine that Ecuador was bound to an agreement in the context of contract-based claims.

According to Prieto, the majority of the Tribunal, by treating the “own acts” doctrine as an independent concept, apart from the common law view of estoppel, had engaged in making viable the application of this principle in a contractual dispute with governments within Latin America. In EcuadorTLC (II), the Tribunal explained that Ecuador’s acts should be analyzed under three parts: (1) whether the conduct was legally relevant, (2) whether the conduct created legitimate expectations in the other party, and (3) whether the initial conduct was followed by a contrary act.

The Tribunal did not compare the own acts doctrine to estoppel. Further, it explained that the binding conduct must occur within the same “circle of interests” or legal situation, and the subsequent conduct must not only be different, but contradictory. The EcuadorTLC (II)’s Tribunal’s reliance on domestic law principles highlights the possibility of advancing contract-based investment dispute claims in Latin America. In the absence of a treaty-based remedy, investors making investments in Ecuador have to negotiate investment contracts and arbitration mechanisms within these contracts. The use of the “own acts” doctrine may in some cases therefore provide for the opportunity to make arguments that would in a treaty dispute context be akin to the legitimate expectations principle contained within the “fair and equitable” treatment standard in investment treaties.

In summary, the most relevant factors to the application of the “own acts” doctrine state that the conduct at issue must be binding, within the same circle of interests, legally relevant, and contradictory when compared to prior conduct. Furthermore, the counterparty must be aware of the conduct and aware that the other party relied on its prior conduct (legitimate expectations). Besides other circumstantial elements, the success in raising such doctrine in investment disputes arenas will depend on the contractual documentation and other supporting evidence proving all factors necessary for the application of the “own acts” doctrine.

Contributors: Riyaz Dattu and Denny Peixoto