Kazakhstan
Mining activities
Kazakhstan has attracted a significant amount of foreign investment in the oil and gas, mining, telecommunications and construction sectors.
The extractive sector alone has attracted over 75 per cent of Kazakhstan’s total inward foreign investment. While most of those investments were made in the hydrocarbon sector, investments in the mining and quarrying sectors still accounted for 19 per cent of the inward foreign investment.
As regards mining and quarrying activities, Kazakhstan is the world’s largest uranium producer with over 40 per cent of global uranium production, the second-largest producer of chromite (13 per cent), the fourth-largest producer of titanium sponge (6 per cent) and magnesium metal (3 per cent), as well as the fifth-largest producer of rhenium (5 per cent). Other significant minerals produced include aluminium, copper, iron, manganese, ore, precious metals, slag and ash, and zinc.
The main producers of non-fuel minerals in Kazakhstan includes the state-owned companies Tau-Ken Samruk (copper, gold, iron ore), Kazatomprom (uranium and rare metals) and the partly state-owned company Eurasian Resources Group (ferroalloys, iron ore, aluminium, copper, cobalt, coal). Other important producers include AcerlorMittal (iron ore, coal) and three Kazakh companies: Kazakhmys (copper), Kaz Minerals (copper) and Kazzinc (zinc and lead).
Mining legislation
The Code on subsoil and subsoil use (the SSU Code) was adopted on 27 December 2017 and came into force on 29 June 2018, replacing the Law on subsoil and subsoil use of 24 June 2010.
The SSU Code establishes a distinct legal regime for ‘solid minerals’, uranium and hydrocarbons. With regard to solid minerals, the new Code reflects Kazakhstan’s efforts towards aligning its mining policy framework with international models, and introduces a number of general changes designed to create a more streamlined and predictable legal environment for foreign investors. In that respect, as noted by the OECD, ‘[a] number of jurisdictions including Australia, Finland, Germany, and the UK, have acknowledged the improvements made to the new legal and regulatory framework of Kazakhstan’s mining sector.’
While mining rights under the 2010 subsoil law were granted under contracts following a competitive application process, mining rights (except for uranium) under the SSU Code are granted under licences, which are issued on a first come, first served basis.
The SSU Code contains provisions outlining the relevance of environmental and water quality assessments as part of the licensing process, as well as Kazakhstan’s commitment to transparency reporting in accordance with the international standards of the Extractive Industries Transparency Initiative.
The SSU Code generally refers to the principle of stability of subsoil use conditions.
Under the SSU Code, licences are governed by Kazakh law and disputes in connection with mining licences are submitted to Kazakh courts, notwithstanding the application of an international treaty (e.g., a bilateral investment treaty) ratified by Kazakhstan providing for the settlement of disputes before other forums, such as an international arbitral tribunal.
Taxation of mining activities remains handled separately as part of the Tax Code, which was substantially amended in January 2018. In particular, the Tax Code no longer requires subsoil users to pay excess profit tax, reimburse historical costs or pay a commercial discovery bonus.
Arbitration
Kazakhstan is a party to:
-the 1994 Energy Charter Treaty (ECT), as well as several multilateral investment agreements such as the 1997 Moscow Convention on the Protection of Investor Rights (the Moscow Convention), the 2008 Agreement on Promotion and Reciprocal Protection of Investments in the Member States of the Eurasian Economic Community (the Eurasian Investment Agreement), the 1981 Agreement on Promotion, Protection and Guarantee of Investments among the Member States of the Organization of the Islamic Conference (the OIC Investment Agreement), or the 2004 US–Central Asia TIFA;
-the 1966 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention); and
-the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).
Kazakhstan has also enacted an investment law containing protections similar to those available to foreign investors in modern investment protection treaties. Under the Kazakh investment law:
-Investments can only be nationalised or requisitioned in exceptional circumstances, in which case compensation must be paid in full.
-Investors’ rights and interests are fully protected.
-The stability of contracts concluded between investors and Kazakhstan is guaranteed.
-Foreign investors have an express right to compensation in case of losses resulting, inter alia, from the adoption of unlawful acts by Kazakh officials.
-Investment disputes can be resolved through negotiations or in accordance with the dispute resolution mechanisms agreed upon between the parties. If disputes cannot be resolved through those means, they shall be resolved in accordance with international treaties and laws of the Republic of Kazakhstan by Kazakh courts or by an international arbitral tribunal.
Kazakhstan has faced an increasing number of investment arbitration claims in the past two decades. There are currently three pending investment arbitrations against Kazakhstan involving mining companies.
This arbitration arose out of claims based on rights held by the claimants’ local subsidiary, Joint Venture Saga Creek Gold Company LLP, under two mining licences related to the Uzoby gold belt in Northern Kazakhstan. On 5 April 2016, the claimants initiated an ICSID arbitration against Kazakhstan based on the Netherlands–Kazakhstan BIT, alleging that various actions of the government, including the assessment of taxes and the refusal to grant mining and financing approvals have resulted in the bankruptcy of their wholly owned subsidiary Saga Creek in 2015. A hearing on the merits was held in February 2019. The proceedings remain pending.
World Wide Minerals Ltd (WWM), a Canadian company, entered into several agreements with the government of Kazakhstan for the reconstruction and management of the Kazakh uranium facilities in 1996 and 1997. In 2013, WWM initiated an UNCITRAL arbitration against Kazakhstan based on the 1989 Canadian–USSR BIT, concluded two years before Kazakhstan became independent. The Canadian company alleges that the government has failed to observe its obligations under a contract for the operation of one of Kazakhstan’s largest uranium-processing facilities. It also claims that the government’s alleged failure to grant an export licence to market Kazakh uranium internationally would have led it to suspend its operations at its Kazakh facility and resulted in the bankruptcy, confiscation and forced sale of its local assets. In October 2015, in an unpublished decision on jurisdiction, the tribunal upheld its jurisdiction over the company’s claims, holding that Kazakhstan was bound by the 1989 Canada–USSR BIT. This case is known to be the first one in which a state other than Russia has been held to be a legal successor to the international investment treaty obligations of the USSR. The proceedings remain pending and no further public information has been released to date.
Gold Pool, a Canadian junior mining company, initiated a UNCITRAL arbitration against Kazakhstan also pursuant to the 1989 Canadian-USSR BIT. The company alleged that its rights under a management contract to operate gold mines in Kazakhstan were wrongfully terminated after it had given notice of its intention to exercise purchase rights to the mines. The proceedings remain pending.
Uzbekistan
Mining activities
Uzbekistan is among the world’s largest producers of gold and uranium, ranked as the eleventh- and seventh-largest producer respectively. Uzbekistan also produces copper, silver, coal, phosphate, molybdenum, potassium, tungsten, lead, zinc and other minerals.
Most of the subsoil deposits are being developed by two major state-owned mining companies, Navoi Mining Metallurgical Combine (NMMC) and Almalyk Mining Metallurgical Combine (AMMC), or by joint ventures with these companies.
Mining legislation
The Uzbek mining industry is mainly governed by Law No. 444-II on Subsoil (new version) dated 13 December 2002, which provides the fundamental legal framework for the exploration and development of all subsoil resources, including minerals and oil and gas.
Under the Uzbek subsoil law, subsoil-use rights are granted on the basis of subsoil-use licences awarded to subsoil users through tenders or direct negotiations. The law also provides that mining rights may be suspended, restricted or prematurely terminated in specific circumstances specified by the subsoil law (e.g., failure to commence use of subsoil plot within one year from the date of subsoil plot allotment, repetitive failure to make subsoil use payments, breach of main terms and conditions of a licence or threats to the environment).
On 24 May 2017, the President of the Republic of Uzbekistan adopted the Resolution on Measures for Expediting Attraction of Foreign Investments for Geological Studies and Development of Strategically Important Types of Hard Minerals No. PP-3000 (Regulation PP-3000). Regulation PP-3000 provides investors with simplified procedures for discussing potential projects with the State Committee on Geology and accessing geological data, subsoil deposits and prospective areas.
More recently, in April 2018, the government announced the adoption of a new state policy aiming at simplifying licensing procedures and administrative approvals.
With respect to royalty and taxes, Uzbekistan’s Tax Code sets forth a special tax regime applicable to subsoil users, including mining companies, which imposes a sub-soil use tax as well as subscription and commercial discovery bonuses. The mining industry is further subject to a number of other laws and regulations, including the Land Code, the Labour Code and the Environment Protection Law.
Arbitration
Uzbekistan is a party to 49 BITs, out of which 45 are currently in force. Uzbekistan is also a party to the ECT, the OIC Investment Agreement, the US-Central Asia TIFA, the ICSID Convention and the New York Convention.
Additionally, Uzbekistan’s Law on Guarantees and Measures for Protection of Foreign Investors’ Rights dated 30 April 1998 (the Uzbek Foreign Investment Law) contains provisions similar to those contained in modern investment protection treaties. Under the Uzbek Foreign Investment Law:
-foreign investments cannot be subject to nationalisation, nor can they be subject to requisition except in the event of natural disasters, accidents, epidemics or epizootics, in which case compensation shall be paid;
-foreign investments are protected from any subsequent changes in the Uzbek laws that may worsen investment conditions, for a period of 10 years from the date of the investment;
-foreign investors have an express right to compensation for losses resulting from the adoption of adversarial normative acts or other unlawful interferences in their activities in Uzbekistan; and
-disputes arising out of foreign investment are subject to negotiation, failing which they may be settled either by an economic court of the Republic of Uzbekistan or by arbitration ‘in accordance with the rules and procedures of international agreements (conventions) on settlement of investment disputes, to which the Republic of Uzbekistan has been joined’.
Uzbekistan has faced a number of investor–state arbitration cases, three of which arose out from mining activities, including one based on the Uzbek Foreign Investment Law.
In 2002, US-based Newmont and its subsidiary Newmont Uzbekistan entered into a joint venture agreement with the State Committee for Geology of Uzbekistan, with a view to processing low-grade gold ore at the Murantau deposit. In 2006, the Uzbek government repealed tax terms guaranteed under the joint venture agreement, and requested that Newmont pay US$48 million in unpaid taxes. Newmont initiated an ICSID arbitration against Uzbekistan in April 2007 under the Uzbek Foreign Investment Law. The parties settled the dispute in June 2007 and the ICSID proceedings were discontinued at their request on 25 July 2007. It was reported that as part of the settlement, Newmont was to receive US$80 million and further agreed to drop a concurrent SCC arbitration.
In 2006, as a reaction to the position adopted by foreign investors, including Newmont, the Uzbek Cabinet of Ministers asked the Constitutional Court to proceed with an official interpretation of Article 10 of the Foreign Investment Law, on the basis of which foreign investors claimed that Uzbekistan had consented to settle its disputes with foreign investors under the ICSID Convention. The Court ruled that Article 10 does not purport to mean that either party has given its written consent for resolving disputes under the ICSID Convention.
Metal-Tech initiated an ICSID arbitration against Uzbekistan under the Israel–Uzbekistan BIT for the alleged expropriation of 50 per cent of its shares in a joint metal venture.
In 2000, Israeli Metal-Tech entered into a joint venture agreement with two Uzbek state-owned companies, UzKTJM and AGMK, for the creation of Uzmetal Technology, with a view to processing low-grade molybdenum concentrate, supplied by AGMK. Uzmetal’s facilities opened in October 2002, and by 2005, the venture was turning a profit. In 2008, Uzmetal was declared bankrupt by Uzbek courts after a series of actions were taken by Uzbek authorities, including the initiation of criminal proceedings against Uzmetal’s management for alleged abuse of authority and the suspension of Uzmetal’s exclusive right to purchase raw materials. In January 2010, Metal-Tech initiated the ICSID arbitration.
In an award dated 4 October 2013, the tribunal unanimously rejected Metal-Tech’s claim. The tribunal found that Metal-Tech’s investment was procured by means of illegal payments of approximately US$4 million to three Uzbek nationals, including the brother of the Uzbek Prime Minister. This case was the second case of an ICSID claim being dismissed on grounds of corruption, and the first one on jurisdiction.
The dispute arose out of UK company Oxus Gold’s mining operations in Uzbekistan, consisting of two projects: the Amantaytau Goldfields project in the Kyzylkum desert; and the Khandiza base metals project in the Surkhandarya region. Oxus Gold alleges that the Uzbek government prevented Oxus Gold’s subsidiary from completing the development of the Amantaytau site, including through the revocation of various tax exemptions, the refusal of licences as well as employee coercion; and refused administrative approval for Oxus Gold’s Khandiza project and illegally transferred Oxus Gold’s exploitation rights at Khandiza to a state-owned company.
In August 2011, Oxus Gold initiated an UNCITRAL arbitration against Uzbekistan, alleging contract breaches and violations of the expropriation, fair and equitable treatment and full protection and security provisions of the UK–Uzbekistan BIT, claiming damages of approximately US$400 million.
The tribunal upheld jurisdiction over Oxus Gold’s claims in early 2012. However, in an award dated 21 December 2015, the tribunal dismissed most of Oxus Gold’s claims on the merits, save for a finding that Uzbekistan’s modifications, in 2006 and 2009, of the applicable taxation regime constituted a violation of the fair and equitable standard under the UK–Uzbekistan BIT. The tribunal awarded Oxus Gold damages in excess of US$10 million plus interest. The tribunal further found that it lacked jurisdiction over Uzbekistan’s counterclaims.
Oxus Gold filed an application for the partial annulment of the award before the Paris Court of Appeal. A hearing is scheduled for March 2019.
It is worth noting that to pursue its claim, Oxus Gold had entered into a funding agreement with Guernsey-registered Gretton Limited, an affiliate of third-party funder Calunius Capital. In 2012, Gretton was assigned all of the proceeds of the Oxus Gold arbitration, including the right to enforce the award and to collect from Uzbekistan all amounts owed thereunder. On 27 July 2018, Gretton applied to a US court to enforce the award against Uzbekistan in its capacity as Oxus Gold’s assignee. On 7 February 2009, the US court decided to stay the enforcement proceedings in the US pending the outcome of the annulment proceedings before French courts.
Kyrgyzstan
Mining activities
Since the end of the Soviet Union, the Kyrgyz oil and gas and mining sectors have attracted a significant amount of foreign investments.
Mining is a major contributor to the Kyrgyz economy. In 2014, the mining industry represented 8.4 per cent of Kyrgyz GDP and 53.9 per cent of its industrial output.
Mining in Kyrgyzstan is largely focused on coal and gold. There are also deposits of other mineral resources, such as silver, copper, iron, mercury, fluorite, tin, tungsten, bismuth, lead, zinc, stibium, arsenic, molybdenum and rare earth minerals.
The most important mining project is the Kumtor gold mine, managed by a subsidiary of the Canadian company Centerra Gold Inc. The state gold company, Kyrgyzaltyn JSC, holds around 33 per cent of Centerra’s shares.
This project is the biggest contributor to the Kyrgyz economy and currently accounts for a large part of the country’s GDP. In 2017, this project alone contributed to 9.7 per cent to GDP. However, the Kumtor gold mine is expected to stop production in 2026, after having provided a steady stream of revenue for the last 20 years.
In addition to the Kumtor gold mine, there are eight large- and medium-scale gold mines operating in Kyrgyzstan, involving foreign companies headquartered in Kazakhstan, China, Russia, Turkey and the British Virgin Islands.
Mining legislation
The Kyrgyz mining sector is currently governed by a variety of laws and rules. The most important legal instruments include the 2012 Law on Subsoil, the 1999 Environment and the Environmental Review laws, the 2008 Tax Code, and the 2001 Land Code.
The 2012 Law on Subsoil and its implementing regulations are the primary sources that regulate the licensing system for mining in Kyrgyzstan. Under these instruments, licences may be issued on the basis of a tender process (i.e., if the significance or size of deposits or licence areas is considered to be of national importance or through auctions and direct negotiations; and foreign companies are under the obligation to establish a local wholly owned subsidiary to which the licence is issued.
Since 2012, the government of Kyrgyzstan has undertaken significant reforms in mineral resource governance, mainly with regard to licensing, taxation and revenue sharing to capture greater benefits for the country and mining-affected communities. As part of this process, the law on subsoil is currently being revised and updated.
Arbitration
Kyrgyzstan is a party to 34 BITs (of which, 23 are in force), the ECT, the Moscow Convention, the Eurasian and OIC Investment Agreements, and the New York Convention.[71] While it has signed the ICSID Convention, Kyrgyzstan has never completed the formalities to ratify it.
Kyrgyzstan has enacted an investment law, which provides foreign investors protections similar to those available in modern investment treaties. Under this law:
-Foreign investments cannot be subject to expropriation, except if such expropriation is permitted by Kyrgyz law and done for a reason of public utility, on a non-discriminatory basis, in accordance with due process of law and accompanied by the payment of a compensation equivalent to the fair market value of the expropriated investment.
-Discrimination and public interference with investors’ activity, rights and legal interests are proscribed.
-Investment disputes shall be resolved in accordance with any applicable procedure agreed upon between the investor and the state. Otherwise, the dispute shall be resolved through consultation and by Kyrgyz courts, unless one of the parties ‘requests to consider the dispute in accordance with one of the following procedures: a. by applying to [ICSID]; or b. by applying to arbitrage or an international temporary arbitral tribunal [constituted in accordance with the UNCITRAL arbitration rules].’
The Kyrgyz Republic currently faces a number of investment claims amounting to an estimated amount of US$925 million, most of which arise out of the mining sector.
In this case, Kutisay Mining LLC, a Kyrgyz company indirectly owned by Canadian company Stans Energy Corp, held a licence for rare earth, bismuth, molybdenum and silver at the Kutisay II deposit. In 2015, the claimants initiated an UNCITRAL arbitration pursuant to the Moscow Convention, under the auspices of the Permanent Court of Arbitration, alleging that their investment had been indirectly expropriated through a series of measures that resulted in the impossibility of carrying out activities on the Kutisay II deposit. The proceedings remain pending.
Centerra Gold v. Kyrgyzstan I
Centerra brought a first UNCITRAL arbitration against Kyrgyzstan in 2006, under the auspices of the Permanent Court of Arbitration and pursuant to the Kyrgyz Law on Investments and an investment agreement concluded in 2003 between Kyrgyzstan, Centerra and Centerra’s subsidiaries. The dispute arose in relation to Centerra’s investment in the Kumtor gold mine, which Centerra owns and operates through two subsidiaries, Kumtor Gold Company (KGC) and Kumtor Operating Company (KOC). While there is little public information on this case, Centerra alleges in its financial reports that the dispute arose out of a domestic court decision ordering KGC to pay US$1.2 million of taxes on land and out of a proposed Kyrgyz law that would have challenged the legality of the investment agreement. In 2009, the parties reached a settlement agreement and concluded a new investment agreement.
Centerra Gold v. Kyrgyzstan II
In 2016, Centerra initiated an UNCITRAL arbitration against Kyrgyzstan pursuant to the 2009 investment agreement between Centerra and Kyrgyzstan to challenge several environmental claims brought by Kyrgyz state agencies against KOC before the Bishkek courts. In one of those cases, the Bishkek Inter-District Court had ruled against KOC, condemning it to pay over US$98 million. Centerra also alleged that Kyrgyzstan had withheld environmental and operating permits necessary for the mine’s operations. In 2017, the parties reached an agreement on part of Centerra’s claims. In mid-2018, it was reported that the parties were still trying to reach a global settlement of the dispute.
Oxus Gold v. Kyrgyzstan
In 2006, Oxus Gold initiated an UNCITRAL arbitration under the auspices of the LCIA, pursuant to the 1994 UK–Kyrgyzstan BIT. The dispute arose out of rights held by Oxus Gold, a UK company, under a mining license for the development of a gold deposit in Kyrgyzstan known as the Jerooy gold project. Oxus Gold claimed damages in excess of US$600 million, alleging that the government had cancelled the project’s mining licence and provided support to the occupation of the premises owned by Talas Gold Mining Company, Oxus Gold’s joint venture company at Jerooy. The proceedings were discontinued in 2008 following the conclusion of a settlement agreement between the parties.
In 2013, Consolidated Exploration, a company incorporated in the Seychelles, and Kazakh and Danish individuals initiated an arbitration against Kyrgyzstan under the ICSID additional facility rules pursuant to the Kazakhstan–Kyrgyz BIT, the Moscow Convention and the Kyrgyz investment law. The dispute arose out of claimants’ investment consisting of a majority shareholding (60 per cent) in Jerooyaltin, a Kyrgyz company that had entered into a joint venture with a state-owned company to develop the Jerooy gold deposit. The claimants claimed US$500 million in damages, alleging that Kyrgyzstan had hindered the joint venture by, inter alia, revoking Jeroolyaltyn’s licence to develop the gold deposit in 2010 and ultimately terminating the joint venture agreement altogether in 2011. The tribunal rendered a consent award on 1 September 2015, recording the parties’ settlement agreement.
Tajikistan
Tajikistan is a mineral-rich country with more than 600 deposits of over 70 minerals, many of which remain undeveloped to date. In particular, it has deposits of lead, zinc, mercury, antimony, rock salt and silver that are estimated to be the biggest of the Central Asian countries. It has one of the largest silver deposits in the world, the Bolshoi Konemansur deposit. In 2016, the mining sector’s share of Tajikistan’s GDP was 5.5 per cent. Between 2007 and 2015, more than US$700 million has been invested in the mining sector, with a Chinese mining company making the largest investment of over US$100 million to develop lead and zinc deposits. Chinese, French, Iranian, Russian, Swiss and UK companies are the main investors in the Tajik mining sector.
The exploration and production of minerals in Tajikistan are primarily regulated by the 1994 Subsoil Law. Such law sets the basic legal framework governing the exploration, development and production of subsoil resources, provides for state control, as well as for the granting and termination of mining rights. Under the 1994 Subsoil Law, mining rights can be granted under licences, which are awarded through a bidding process or direct negotiations. Mining activities may also be conducted under concession agreements or production-sharing agreements. In practice, mining rights are primarily granted under licences in Tajikistan. Finally, taxation of mining activities is mainly governed by the Tajik Tax Code and subsoil users are required to pay subscription and commercial discovery bonuses as well as royalties.
Tajikistan is a party to 36 BITs, out of which 23 are in force (including with China, France, Iran and Switzerland), the ECT, the Moscow Convention, the Eurasian and OIC Investment Agreements, the US-Central Asia TIFA and the New York Convention. It is not a party to the ICSID Convention. It has enacted a foreign investment law containing protections similar to those available to foreign investors in modern investment protection treaties. Based on publicly available information, Tajikistan has been a party to two investment arbitrations, which are unrelated to the mining sector.
Turkmenistan
While Turkmenistan is rich in sulphur, iodine, salt, potash and bromine, the Turkmen mining sector remains underdeveloped with limited foreign investments. The exploration and production of minerals in Turkmenistan is primarily regulated by the 2014 Subsoil Law.
Turkmenistan is a party to 27 BITs, of which, 19 are in force, the ECT, the OIC Investment Agreement, the US-Central Asia TIFA and the ICSID Convention. It is not a party to the New York Convention. It has enacted a foreign investment law containing protections similar to those available to foreign investors in modern investment protection treaties. Turkmenistan has been a party to 11 ICSID arbitrations, none of which related to the mining sector.
Conclusion
Central Asia is a mineral-rich region, with Kazakhstan being one of the world-leading producers of several mining commodities. The mining sector in the five Central Asian republics is principally governed by laws on subsoil, which were either recently revised or are currently being revised.
Kazakhstan, Uzbekistan and Kyrgyzstan have faced several investment arbitration claims arising out of the mining sector in recent years, a number of which were settled. Little information is available about them in English.
The majority of those disputes were initiated on the basis of BITs and the following were of particular interest:
-Metal-Tech v. Uzbekistan as the first ICSID case in which claims were dismissed for lack of jurisdiction on grounds of corruption;
-World Wide Minerals v. Kazakhstan as the first reported case in which a state other than Russia was held to be the legal successor to the international investment treaty obligations of the USSR;
-Newmont v. Uzbekistan, which gave rise to the interpretation by the Uzbek Constitutional Court that Article 10 of the Uzbek foreign investment law does not purport to mean that Uzbekistan has given its written consent for resolving disputes under the ICSID Convention; and
-Oxus Gold v. Uzbekistan, which resulted in a third-party funder seeking to enforce an UNCITRAL award over assets of Uzbekistan in the United States.
In light of the increasing number of mining foreign investments in Central Asia, it cannot be excluded that Central Asian republics will keep facing investment arbitrations related to the mining sector in the coming years. The significant reforms in mineral resource governance and regulations undertaken in the region should create a more streamlined and predictable legal environment for both foreign investors and state authorities and contribute to reduce the occurrence of mining disputes in the mid-term.
Source: lexology.com
