Mining arbitration used to be fairly predictable. Gold, coal, iron ore, the disputes were about royalties, concessions, licenses going wrong, and they mostly stayed within the four corners of a commercial contract. That’s changing fast, and anyone watching the caseload numbers at ICSID and the ICC has probably already noticed it.
Two things are happening at once. The energy transition has put lithium, cobalt, copper and nickel at the Centre of global industrial policy, and governments are rewriting the rules while the game is still being played. Chile folding its lithium sector into state control through the Codelco-SQM arrangement, the DRC adjusting cobalt royalties and license terms more than once in recent years, a string of mining code rewrites across Mali, Ghana and Burkina Faso, these aren’t isolated events. At the same time, a broader wave of resource nationalism is pulling sovereign wealth funds and state-backed enterprises deeper into the same disputes, as governments lean on state capital to secure supply chains rather than leaving it to private offtake alone.
Put those two trends together, and you get a genuinely new kind of dispute. It’s not just a commercial contract dispute, and it’s not just a treaty claim; rather, it’s usually both, tangled into the same proceeding. An offtake agreement gone wrong sits next to a bilateral investment treaty claim over the same project, often with a sovereign or state-linked entity on one side of the table. That combination didn’t really exist ten years ago at this scale, and it means these disputes are arriving faster, valued higher and needing arbitrators who can move comfortably between commercial fundamentals and treaty-level questions.
That’s a narrow overlap, and not many practitioners sit squarely in it. Handling a case like this well tends to call for direct experience of reading concession agreements, offtake terms and license disputes, which a metal and mining dispute arbitrator possesses. An investment treaty and sovereign dispute arbitrator would combine this with a working grasp of investment treaty and sovereign-risk questions, including when a state’s conduct toward a resource project tips into expropriation.
It has thus become increasingly necessary to appoint an arbitrator with expertise not only in one sector but also in sectors that can be combined to form a new hybrid dispute, as shown here. The more complex the disputes become, the more important it is to seek expertise across multiple sectors when appointing an arbitrator.
Given how quickly this space is moving, it’s worth expecting more of these hybrid disputes over the next few years, not fewer. Parties or counsel keeping an eye on this trend would realize that an arbitrator with cross-jurisdictional experience, such as an experienced English arbitrator in India with expertise in both sectors or an English arbitrator in USA with expertise in both sectors, would be a better fit for such disputes, as they have the experience, expertise and knowledge required to deal with the complexity of this kind of dispute.
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