Arbitrating natural resource disputes: Current and future trends

Abstract

Owing to the precipitous slump in world commodity prices, particularly fossil fuel, investors and other stakeholders have been trying to re-arrange, re-organize and re-position their investments and interests. The question that arises is: who bears the costs or burden of losses in the investments and the re-positioning? This allocation or rebalancing of costs and losses is predicted to generate disputes which would result in arbitration. Proposed mergers that may fall through, blocks and wells that may be abandoned, joint-venture partners that may not meet their obligations, insurance cover that may not be honored, etc., are likely to be sources of disputes. These will be in addition to “normal” resource disputes that revolve around resource nationalism, rights transfers, financing, development, operating, regulatory, corruption, environmental and social disputes, which occur in the natural resource business. This paper will explore the existing as well as the emerging or expected disputes in resource investment. It will argue that arbitration remains one of the most effective ways of resolving these disputes. However, there will be challenges. These challenges will challenge the very legitimacy of arbitration as the most appropriate forum or means of resolving the disputes. This is because issues of bankruptcy, intellectual property or data ownership, public regulatory violations and negligence do not lend themselves easily to arbitration. Furthermore, some of the defenses such as force majeure, impossibility of performance, necessity and sovereign immunity to be raised in such disputes may prove problematic for arbitration.