The strategic importance of international investments in the field of mining and international law

AuthorCristina Elena Popa Tache
The strategic importance of international investments in the field of
mining and international law1
PhD. Cristina Elena POPA TACHE2
Minerals and metals are essen tial for
modern living. Access to and afford ability of
mineral raw materials are crucial for the sound
and sustainable functioning of the world
economy and modern societies 3.”
Worldwide, the entrance re strictions for foreign investment were eliminated or
restricted in a wide range of industries, especially mining (among other fields such a s
aviation, financial services, real estate). Foreign investors still remain reluctant to
placement of investments in developing countries, shall be required also to seek host
countries with a certain degree of stability in the existence of international treaties on
investment In conclusion, it is emphasized that the investment environment must
substantiate its order and hierarchy on a set of regulations with a mandatory character, as
the soft law regulations, such as conduct codes of the transnational companies, the project
of articles regarding the responsibility of states of the International Law Committee, the
arbitrage practices (that does not admit precedents) or o ther acts without mandatory force
have proven insufficient. An especially important role is played by the common effort of
experts to expose all the forceful p ositions, as well as the vulnerabilities of all the actors
involved in international in vestments, so that, through a full and objective analysis of these
aspects, firm regulatory solutions may be extracted.
Keywords: foreign investment, mining, international treaties, national security .
JEL Classification: K11, K23, K33
1 This paper is written during the sustainability stage of th e project entitled „Horizon 2020 - Doctoral
and Postdoctoral Studies: Promoting the National Interest through Excellence, Competitiveness and
Responsibility in the Field of Romanian Fundamental and Applied Scientific Research”, contract
number POSDRU/159/1.5/S/140106. This project is co-financed by the European Social Fund
through the Sectoral Operational Programme for Human Resources Development 2007-2013.
Investing in people!
2 Cristina Elena Popa Tache - Doctor in Law and an associated scientific researcher with the Judicial
Research In stitute of the Romanian Academy, associated with Chartered Institute of Arbitrators,
arbiter and mediator with Vienna International Arbitral Centre and member of Arbitral Women;
3 Támas Hamor, Statement on behalf of the European Union and its 27 Member States, Intergovernmental
preparatory meeting of the 19th Commission on Sustainable Development, Mining Session, CSD 19 IPM
Draft statement on Mining (New York, 2 March 2011). The document is available on the official Internet
page:, accessed on
16 Volume 7, Issue 1, June 2017 Juridical Tribune
1. Introductory considerations
International investments are a pro-eminent topic on nowadays political,
economic, financial, social and cultural agendas. International transactions in the
field of foreign investments have been, are and will continue to be under
expansion, especially in the last decades, during which period foreign investments
have diversified, while their frequency has intensified as a side effect of
globalization. If in 1996 there still were voices that claimed both that there is no
doubt that direct foreign investments have joined international commerce as a main
engine of globalization”, as well as that a a growing symbiosis and an integrated
relationship between commerce and investments4 has been observed, today it is
certain that any analysis of the foreign investments is not complete until it is made
through the lens of international public law. Jacques Percebois5 has characterized
mondialization (a term preferred to that of globalization) as a transnational decision
network, a concept mirroring the investment action. According to UNCTAD,
globalization is a product of deregulation6. Continuous unity for economic
efficiency raises new issues regarding deregulation and investment promotion.
Globalization is simultaneously a cause and a result of the movement to conclude
international treaties regarding investments between nations7”. Mining
investments, although they occupy a reduced percentage on a global level, are still
classified at the top of special importance investments due especially to their side
effects on the global economy, on the environment, on human rights and, last but
not least, on international law. However, the boom of foreign investments in
mining projects over the last 2 decades, is only a herald of the global competition
for access to mineral resources in the decades to come8.
In the transactional theory and practice, it has been established that direct
foreign investments and portfolio foreign i nvestments are governed by the legal
regimen of international investments, naturally, without going into debates
regarding the distinction between the two types of investments, their relevant
characteristics and the marking of the “grey area”. Among these there exists a large
variety of other contractual relations, especially long term mining claim
agreements that are legally considered as “investments” to the extent that a
contractual party/partner invests capital and important financial resources i n such a
4 See the presentation of Renato Ruggiero general manager, in 1996, of World Trade Organization
(WTO) during the UNCTAD seminar regarding d irect foreign investment and the multilateral
commerce system, which took place in Geneva on February 12, 1996.
5 Jacques Percebois currently is the manager of the Economics and Energy Law Research Centre
(CBEDEN), Montpelier I University, France.
6 In the World Investment Report for 2016, UNCTAD focuses on the tendencies of direct foreign
investments (ISD) on a global, regional and national level and on the measures that are being
implemented to improve its contribution to the development.
7 Jeswald W. Salacuse in The Law of Investment Treaties, Second edition 2015, Oxford Intern ational
Law Library, p.33.
8 Richard W. Roeder, Foreign Mining Investment Law. The Cases of Australia, South Africa and
Colombia, Springer International Publishing, Switzerland, 2016, p.1.

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