Can International Trade and Investment Law Protect Foreign Investments in the Resources Sector?

This chapter provides a snapshot of how international trade and investment law can protect foreign investments in the resources sector. It first considers the applicability to the resources sector of international trade law, primarily found in the law of the World Trade Organization (‘WTO’) and various bilateral and plurilateral preferential trade agreements. These treaties contain important disciplines on non-discrimination and market access. The recent WTO dispute, China — Raw Materials, which involved export restrictions on bauxite, zinc, and other raw materials, demonstrates how such disciplines can apply to the resources sector. Although trade disputes are officially brought by States rather than by private actors, international investment treaties routinely provide investors with a direct mechanism to bring a claim against a State for breach of an investment treaty before an international tribunal. This chapter examines the typical protections contained in investments treaties, and how these can apply to the resources sector. For example, this chapter gives an assessment of whether increases in taxation affecting investments in the resources sector, or revocations of mining licences and permits, could constitute an unlawful or compensable ‘expropriation,’ and whether suspect administrative decisions or adverse changes in regulations could breach ‘fair and equitable treatment’ protections. The chapter also explores the extent to which breaches of contracts, agreements and understandings between investors in the resources sector and host States can be elevated to treaty breaches (and thus pursued before international tribunals). Finally, this chapter considers two examples of Australian investors in the resources sector pursuing international investment claims against India and Pakistan, noting some of the strategic considerations involved in making a claim, such as costs and parallel litigation