Mining companies face the reality of a rising number of projects and contracts being subject to a forced renegotiation or prematurely ended by the host state in the wake of increased resource nationalism.Getty Images
Global demand for minerals is surging, driven by technology innovation and the energy transition. The race to develop high-value resource projects presents enormous opportunity as well as rising geopolitical and contractual risk.
Mining and exploration companies are increasingly drawn into disputes as governments and commercial counterparties seek to increase greater control over critical resources, says Jeffery Commission, director at Burford Capital, who specializes in investor-state and international commercial arbitration.
“In recent months, a growing number of mining projects and contracts have been forcibly renegotiated or terminated by host states amid rising resource nationalism, particularly in rare earths and other critical minerals,” he explains. “In these scenarios, companies may be protected through bilateral and multilateral investment treaties, under a national investment law or a concession contract or licence.”
Disputes are not limited to states. Commercial disputes may also arise “with joint-venture partners, contractors or service providers, typically governed by arbitration clauses in underlying agreements,” Mr. Commission says. “As a result, mining companies are among the most frequent users of arbitration, under both investment treaties and commercial contracts.”
The data underscores the trend. “Historically, 24 per cent of cases registered under the ICSID Convention and Additional Facility Rules have involved oil, gas and mining [OGM] disputes, the highest share of any economic sector,” he notes. “That figure has surged to 38 per cent in 2024 and 45 per cent in 2025.”
In its latest statistical report, released February 17, 2026, ICSID for the first time broke out mining cases within the OGM sector, “reporting that 24 per cent of new cases in 2025 involved the mining sector, the highest percentage of mining cases ever reported by ICSID,” adds Mr. Commission.
Other institutions report similar patterns. The Permanent Court of Arbitration reported 23 mining and quarrying cases in 2024. Energy and construction disputes (including mining) accounted for 44 per cent of the 841 cases registered with the ICC in 2024.
“Given the scale of overseas mining projects, the damages claimed in these arbitrations are often substantial,” Mr. Commission says. “Several mining disputes have resulted in some of the largest awards ever rendered.”
Jeffery Commission"Given the scale of overseas mining projects, the damages claimed in these arbitrations are often substantial. Several mining disputes have resulted in some of the largest awards ever rendered.
Director, Burford Capital
These include Tethyan Copper v. Pakistan ($5.8-billion, gold), Vale v. BSGR Resources ($2-billion, iron ore), Crystallex v. Venezuela ($1.2-billion, gold) and Rusoro Mining v. Venezuela ($967-million, gold).
But pursuing these claims is costly. “Investor-state arbitrations last at least 4.28 years on average and incur fees of approximately US$7.49-million,” he cautions. “Commercial arbitrations are shorter, but counsel, expert and tribunal costs are often comparable.”
Arbitration finance as a strategic tool
Faced with these economics, Canadian mining companies have increasingly turned to arbitration finance in claims against states such as Burkina Faso (Sarama Resources), Ecuador (Copper Mesa Mining), the Kyrgyz Republic (Stans Energy), Mexico (Almaden Minerals; Silver Bull Resources), Panama (Petaquilla Minerals), Peru (Bear Creek Mining; Lupaka Gold), Tanzania (Winshear Gold; Montero Mining), and Venezuela (Crystallex; Gold Reserve; Rusoro Mining).
“Although there is less transparency in commercial arbitrations in the mining sector, arbitration finance is just as common in those disputes as well,” he says. “And even in cases where claimants may not have sought arbitration finance to fund a treaty or commercial arbitration at the outset, if successful, they invariably consider the prospect of award monetization.”
Juniors and major mining companies alike are “turning to arbitration finance in increasing numbers,” and Mr. Commission says funding can cover counsel and expert fees, support portfolios of cases, monetize awards and even provide working capital. In addition, he notes, it can also support asset tracing and enforcement efforts against sovereigns and commercial counterparties, often alongside adverse costs insurance.
“By using arbitration finance to cover fees and expenses for single high-value disputes or portfolios comprising multiple matters, mining companies have been able to recover the value locked up in pending claims. In so doing, companies defray the often-significant upfront costs or downside risk of pursuing the matters,” he says.
“Simply put, arbitration finance is now a mainstream tool for mining companies – both juniors and majors – whether to fund claims at the outset or monetize awards once obtained.”
Jeffery Commission is director at Burford Capital and co-author of the forthcoming book Third Party Funding in International Arbitration: Law & Practice (Oxford University Press, 2026).
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