New Year’s Resolutions for Miners – 2025

With the emergence of coup-belt countries that ignore the Western-led international order and cozy up to Russian and Chinese interests, the risks facing foreign mining companies in Africa remain high. Meanwhile, the national resources project initiated by Andrés Manuel López Obrador in Mexico shows no signs of abating under his successor, Claudia Sheinbaum.

I hope my misplaced optimism for 2024 will lead to some lessons for 2025, so I present to you New Year’s Resolutions for Mining Companies, 2025 edition:

It was decided to send lawyers

When African countries request in-person meetings with corporate representatives to discuss allegedly overdue tax payments or other unsubstantiated penalties or fines, they do not send company executives to those meetings. Local executives and lawyers will suffice. There is an unwritten rule that states should not imprison lawyers. I seem to test this suggestion routinely, but so far it has proven to be true.

Determination to maintain licenses in good standing

No matter how good your attorney is, if you fail to meet the good faith legal requirements to keep your permit in good standing, they will not be able to obtain significant damages from the state that lawfully terminated your permit.

Determination to recognize that resource nationalism will not disappear  

Whether it is Mexico or Burkina Faso, sovereigns continue to misleadingly state that their national companies are better equipped to extract national resource wealth than pesky foreigners who have spent years identifying, exploring and developing the assets. You may have heard them say that this time is different, that you are special, but it is not different and you are not special. From juniors to majors, all companies face the scourge of resource nationalism.

So what do you do? Well, I advise every year to regulate your investments in risky countries to ensure recourse to international arbitration in the event of a dispute with the country. But what I also want to tell you is to keep your “receipts”.

Take a contemporaneous minute of each meeting with government officials, even if they don’t agree on the final version. Record conversations if legal (depending on jurisdictional laws). Catalog of all correspondence and emails. It’s all over.

By all means, do not say anything in a letter or email that you do not want the jury to see later.

Determine to hire lawyers who can win

You would not hire a consulting firm to produce an NI43-101 that has not done so before, so do not hire attorneys to negotiate with or bring an arbitration case against a sovereign who has never won a case before.

Arbitration lawyers love to talk about arbitration, but that is a far cry from taking the case to a hearing, getting a favorable decision and monetizing that decision. The sovereigns know which lawyers to fear, so stick with the winners.

Timothy Foden is a partner and co-chair of the arbitration group at Boies Schiller Flexner, representing mining companies in Conflicts with sovereign states. In 2023 he was awarded the title of A “Global Elite Thought Leader” In Future Leaders of Arbitration.