Remarks by Peter Leon to the 2013 Johannesburg Indaba on Investing in Resources and Mining in Africa - Hilton Sandton, October 29 2013
Developing an investor friendly mineral regulatory regime: What can South Africa learn from international best practice?
1. Introduction
Resource rich developing countries regularly complain that they do not receive an equitable share of resource rents from mining companies. Policy makers need to find an equitable balance between the interests of host states, resource extractors and communities while simultaneously recognising that mining is an inherently high risk, long term, and capital intensive business.[1] Accordingly, the structure of any mineral regulatory regime should mitigate, as far as possible, the risks undertaken by mining companies and foster investment in the extractive industries.
2. Key principles of international best practice in mineral regulation
order to do so, a mineral regulatory regime should provide certainty, stability and predictability to investors. The regulatory regime should thus meet certain generally recognised standards of international best practice, which include:
The rule of law principle, which requires that:
The law should be stated clearly and unambiguously:
- the legal framework governing the allocation and management of mineral rights should be clear and unambiguous;[2] and
- mining investors should be able to ascertain accurately what is expected of them under the regulatory framework, and thus meet the relevant requirements without unnecessary difficulty.[3]
The law should limit administrative discretion:
- the mining code should both guide and limit, as far as possible, the discretionary powers of administrative officials;[4] and
- by limiting administrative discretion, investors are generally able to determine with reasonable certainty what is expected of them and, as such, more accurately assess the economic viability of their investments.[5] In addition, it can also reduce the potential for corruption or bias.
Mineral right holders should have access to administrative and judicial reviews:
- resource extractors should be able to challenge decisions of a regulatory authority through administrative or judicial review. This right should be provided for in the governing legislation;
- the independence of the judiciary and, where applicable, tribunals, is thus crucial to protect an investor's rights and security of tenure;[6]
- multiple systems of dispute resolution may exist simultaneously, including appeals and similar forms of relief through the administrators themselves, specialist tribunals, domestic courts and international arbitration mechanisms arising from treaties;[7] and
- access to international arbitration is a key consideration for resource investors owing to, among other things the (i) neutrality and autonomy of the arbitral tribunal, (ii) flexibility of the procedural timetable and (iii) relatively expedient resolution of disputes.
Some important African mining jurisdictions have managed to develop a regulatory regime which broadly accords with international best practice principles.[8] Ironically, two of them are South Africa's immediate neighbours, while the other is Africa's second biggest gold producer.[9]
3. The comparative application of international best practice in key African resource jurisdictions
The Republic of Botswana ("Botswana")
Botswana is a stand-out example among African resource jurisdictions.
In 1999, Botswana substantially revised its mining legislation. Under the Botswana Mines and Minerals Act, 1999 (the "Act"), the process of mineral licensing is now predictable and clear.
The Minister of Minerals, Energy and Water Resources, who grants licences and performs other functions under the Act, has little or no administrative discretion; and licensing conditions are explicitly stated and clearly set out in the Act.[10] This ensures that applicants are treated equally.[11]
Botswana's application of principles of best practice is evident in the latest 2012/2013 "Fraser Institute annual survey of mining companies" (the "survey"). In the survey's crucial policy potential index ("PPI"), which measures the overall policy attractiveness of mining jurisdictions to investors, and takes into account various factors including regulatory certainty, Botswana improved its score (from 76.9 out of 100 in 2011/2012 to 78.1 in 2012/2013) while the average PPI score for Africa decreased.[12] In 2012/2013, Botswana ranked 17th out of the 96 jurisdictions assessed. The country is - and has been since the inception of the survey - the highest ranking jurisdiction in Africa.[13] It is unsurprising that foreign direct investment ("FDI") is expected to increase from 5.19 per cent of GDP in 2012 to 5.33 per cent in 2013, owing primarily to major projects such as the relocation of the De Beers Group's diamond trading operations from London to Gaborone.[14]
Republic of Ghana ("Ghana")
Ghana has significantly de-politicised its mineral regulatory regime and sharply limited administrative discretion. In 1993, the Ghanaian government established an independent Minerals Commission to regulate the granting and administration of prospecting and mining rights.[15] The Minerals Commission has helped to remove administrative uncertainty; reduce bureaucracy and corruption as well as improve administrative efficiency.
Ghana's Minerals and Mining Act, 2006 provides for dispute resolution under international arbitration. Where the complainant is a foreign investor, it may institute, international arbitration under the dispute resolution provisions of the applicable bilateral or multilateral investment treaty. Importantly, in the absence of such treaty, such an investor has automatic recourse to international arbitration under the United Nations Commission on International Trade Rules ("UNCITRAL").[16]
Ghana's mining industry has experienced challenges since February 2012 when the country established a committee under Professor Akilagpa Sawyer to review its long term mine development agreements with mining companies (the "committee"). The renegotiation is part of Ghana's drive to increase the contribution of the mining industry to tax revenue.[17] The International Monetary Fund ("IMF") has supported these moves, warning that Ghana needs to rework its revenue and spending administration if it is to see the benefit of revenue from its extractive industries, particularly after a shortfall in expected revenues from Ghana's Jubilee oil field.[18] The committee's mandate is to review and renegotiate agreements to ensure that Ghana derives maximum benefits from its resources.[19]
It is thus unsurprising that in the 2012 Survey, the Fraser Institute lowered Ghana's PPI score from 52.9 in 2011/2012 to 48.2 in 2012/2013. Although it is still ranks ten places above South Africa, Ghana is now ranked 54th out of 96 in 2012/2013, having previously been placed 34th out of 72 in 2010/2011. Ghana's FDI inflows have averaged a healthy 4.3 per cent of GDP from 2006 - 2012.
The Republic of Namibia ("Namibia")
Namibia's score under the PPI has improved dramatically, rising from 51.6 in 2011 to 63.7 in 2012. This caused Namibia to jump from 45th out of 93 in 2011/2012 to 30th out of 96 in 2012/2013, making it the second best performing jurisdiction in Sub-Saharan Africa, some 34 places ahead of South Africa, the continent's most mature mining jurisdiction. The survey indicates that the improved rating may be attributed to improvements in regulatory certainty concerning administration, interpretation or enforcement of existing regulations, among other things. However, the survey also indicated that investors remain concerned that the government is considering a new tax and regulatory structure to ensure that the government receives greater revenues from mining. At this stage the Namibian government has deferred any changes until it completes a regulatory impact assessment.[20]
In the second quarter of 2013, Namibia reported a 20.2 per cent year on year expansion in mining, primarily attributable to growth in the diamond sector.[21]
4. International best practice in the context of South Africa's Mineral and Petroleum Resources Development Amendment Bill, 2013 (the "Bill")
While generally well drafted, the Mineral and Petroleum Resources Development Act, 2002 ("MPRDA") contains too much unguided discretion and employs ambiguous language in relation to its key licensing provisions. It is for this reason that the Minister of Mineral Resources (the "Minister") introduced the Bill with the stated objectives, among others, of improving the regulatory system and removing the MPRDA's ambiguities. These objectives are consistent with international best practice. The unfortunate reality is that the Bill's proposed amendments to the MPRDA exacerbate these problems, fail to achieve the Bill's stated objectives and do not reflect international best practice.
The amendments proposed in relation to beneficiation, for example, will empower the Minister to set the levels and developmental pricing conditions for the beneficiation of designated minerals. Further, the Minister must to consent to and set the conditions for the export of "designated minerals". Such a provision creates, among other things, regulatory uncertainty owing to the breadth of this unbound discretion. This uncertainty is contrary to international best practice, South African public law and may well contravene South Africa's international obligations under its bilateral investment treaties ("BITs").[22]
To give one example, the proposed amendment may contravene article 2(2) of the BIT between South Africa and the United Kingdom ("UK"), which requires, among other things, that South Africa and the UK afford investors and their investments "fair and equitable treatment". This principle imposes obligations on South African authorities to act transparently, reasonably and without ambiguity. South Africa will be found to be in breach of a BIT where it fails to protect investors' legitimate expectations to rely on its earlier commitments, by not providing a predictable regulatory framework for investments.[23]
The proposed amendments may also potentially contravene article XI, read with article XX, of the 1994 General Agreement on Tariffs and Trade, and article 19, read with article 27, of the European Union ("EU") - South Africa Trade, Development and Cooperation Agreement, 1999, both of which prohibit quantitative restrictions on imports or exports.[24]
5. International best practice in the context of the Department of Trade and Industry's ("DTI") review of South Africa's BITs
Since 2007, the DTI has engaged in a review of South Africa's BITs. When reporting on this review in 2009 (the "Review"), the DTI indicated, among other things, that, "[u]nequal and exploitative investment agreements, which prohibit the very policies developing countries need to fight poverty, is no way to put trade and investment at the service of sustainable development".[25] According to the DTI, BITs allowed the legal and business community to challenge regulatory changes, which the government considered to be in the public interest.[26]
The DTI accordingly recommended the restructuring South Africa's BITs to ensure that the treaties align with South Africa's broader social and economic priorities.[27] The DTI has suggested that domestic legislation might replace BITs to appropriately "balance protection of investment with measures that ensure FDI supports national investment".[28] To this end, the DTI have drafted the Promotion and Protection of Investment Bill (the "Investment Bill"), which was last week approved by Cabinet for publication and public comment, but is yet to published.[29] The DTI has promised that the Investment Bill will follow the constitutional protection of property in section 25 of the Constitution[30] and will provide "substantial, significant and robust protection for the rights of investors in South Africa". [31]
In 2012, possibly as a result of the Piero Foresti, Laura de Carli & Others v The Republic of South Africa[32] matter, convened before an International Centre for the Settlement of Investment Disputes ("ICSID") tribunal to decide a dispute under South Africa's BIT with Belgium-Luxembourg and Italy, South Africa gave notice to terminate the relevant BIT.[33] Termination notices have also recently been served on the Kingdom of Spain[34] and the Kingdom of the Netherlands[35]. Most recently, on 28 October 2013, it was announced that South Africa had also served a cancellation notice one of its most significant investors, the Federal Republic of Germany. The South Africa-German Chamber of Commerce and Industry said in response to the move that "[b]ilateral investment treaties are of particular importance to small and medium-sized companies, who are the majority of German companies in South Africa... The psychological effect on prospective investors should not be underestimated".[36]
South Africa has also announced its intention not to renew treaties with its other EU trading partners.[37] In response to this, EU Trade Commissioner Karel De Gucht observed in July that "investors are watching developments very carefully. It only takes a critical mass of measures before investors decide to defer investments in South Africa". This is significant as in 2010, 88 per cent of all foreign direct investment in South Africa originated from the EU.[38]
Without the BITs, investors may rely on section 25 of the Constitution which provides "just and equitable" compensation in the event of an expropriation of property which has to take into account a number of factors which will take such compensation below market value. The existing EU BITs, however, provide for full market value compensation ("prompt, adequate and effective")[39] in the event of an expropriation of an EU investor's investments. This will obviously leave such investors somewhat short-changed and may suggest another reason for the proposal to terminate the BITs.
The termination of the BITs will have a negative impact on already fragile investor confidence in the local mining sector - and is certainly not in line with international best practice, as it denies investors the option of protecting their rights and legitimate expectations through international arbitration.
It is also worth noting that, although the DTI has not officially singled out the EU in the Review, South Africa has yet to serve notices of termination of BITs with non-EU countries; which would seem to suggest a case of unequal treatment of our largest trading partner and biggest investor.
6. A brief examination of the Southern African Development Community ("SADC") Protocol on Finance and Investment, 2006 (the "Protocol") in the context of the BIT review
South Africa's termination of its EU BITs has not in fact left investors without an international arbitration remedy. This is because South Africa signed up to the Southern African Development Community Protocol on Finance and Investment on 18 August, 2006. The Protocol was ratified by South Africa on 19 June 2008 and entered into force on 16 April 2010. The objects of the protocol include "creating a favourable investment climate within SADC with the aim of promoting and attracting investment in the Region".
Annex 1 of the Protocol is entitled "co-operation on investment" (the "Annex"). Under article 2 of the Annex, state parties, including South Africa, are required to promote investment in their territory and to create a predictable investment climate. Under article 6 of the Annex, investors are entitled to "enjoy fair and equitable treatment in the territory of any State Party" and that this treatment "shall be no less favourable than that granted to investor's a third State". Further, article 8 of the Annex provides that parties "shall promote and establish predictability, confidence, trust and integrity by adhering to and enforcing open and transparent policies, practices, regulations and procedures as they relate to investment".
Article 5 of the Annex protects investments from expropriation "except for a public purpose, under due process of law, on a non-discriminatory basis and subject to the payment of prompt, adequate and effective compensation". By giving effect to the Hull formula of"prompt, adequate and effective" compensation, the Protocol provides full market value compensation for the expropriation of any investments made in South Africa by any investor since 16 April 2010, independent of any BIT.[40] As noted by the DTI in the Review, these provisions differ from equivalent provisions found in the EU BITs.[41] Although it does not provide the full range of BIT protection, the Protocol does provide reasonable protection to investors from expropriation and unfair or inequitable treatment, which is subject to international arbitration.
In terms of article 1 of the Annex,[42] investors need not be nationals of a SADC country in order to enjoy protection under the Protocol. This means that any investor has the option of international arbitration. South Africa, as a State party, is obliged to submit to arbitration under either the rules of ICSID or UNCITRAL, provided that domestic remedies are first exhausted.[43]
The Protocol only applies to disputes which arose after the entry into force of the Protocol; ie 16 April 2010 (Article 28(4) of the Annex) and, as noted by the DTI in the Review, the Protocol only affords protection to investors making investments in SADC countries and not to SADC investors making investments in other countries.[44] The good news for EU investors is that, notwithstanding the DTI's Review, they still have recourse to international arbitration in the event of an investment dispute with South Africa and full market value compensation in the event of an expropriation of their investments. In order to remove this protection, South Africa would have to withdraw from the Protocol on twelve months' notice to SADC, which may obviously have regional consequences.[45]
7. Conclusion
The application of the principles of international best practice has aided in the growth of mining industries in Africa's strongest mining jurisdictions, while any departure from these principles can lead to a decrease in FDI. Foreign Direct Investment flows into South Africa decreased by 24 per cent between 2011 and 2012 from ZAR60.6 billion to ZAR46.46 billion in contrast with FDI inflows to our neighbour Mozambique as well as the Democratic Republic of Congo have almost doubled.[46] Regulatory certainty and predictability, combined with access to neutral forums of international arbitration, are essential elements of international best practice.
EU investors may still find some comfort in the Protocol which, although providing narrower investment protection than its EU BITs, at least provides for the fair and equitable treatment of investors and market value compensation in the case of an expropriation.
Footnotes:
[1] Considering that mining is a high risk, capital intensive industry, with long lead times between discovery and production and, often, a significant lack of profitability in its early stages; profitability itself is subject to volatile cycles of supply and demand; and in many developing countries, productivity is subject to major domestic infrastructure constraints (illustrated by logistics problems besetting Mozambique's coal industry in Tete province). K Campbell Mozambique bottlenecks not discouraging Vale nor stopping growth Mining Weekly, 27 September 2013 (27 October 2013).
[2] "Policy, legal and contractual framework", EI Source Book Online, (Accessed 26 October 2013) at 5.3.2. and at 5.4.1.
[3] See Affordable Medicines Trust v Minister of Health of RSA 2005 6 BCLR 529 (CC), at para 108:" [the law should] indicate with reasonable certainty to those who are bound by it what is required of them so that they may regulate their conduct accordingly".
[4] "Policy, legal and contractual framework", op cit. 2, at 5.1 and 5.3.1; EO Girones, A Pugachevsky and G Walser, "Mineral Rights Cadastre", Extractive Industries for Development Series #4, June 2009, at 15.
[5] See Dawood and Another v Minister of Home Affairs (8) BCLR 837 (CC), at para 47: "if broad discretionary powers contain no express constraints, those who are affected by the exercise of the broad discretionary powers will not know what is relevant to the exercise of those powers or in what circumstances they are entitled to seek relief from an adverse decision".
[6] N Mutemeri et al., "Granting mineral rights: A good practice note", EI SourceBook, December 2010, at 10.
[7] J Southalan (2012) Mining law & Policy: International Perspectives, at 210.
[8] The Fraser Institute's annual survey of mining companies for 2012/2013 (the "Survey") listed South Africa 64th out of the 96 mining jurisdictions ranked (in other words in the bottom third), and eighth of 16 African mining jurisdictions included in the survey. This is a significant fall from South Africa's ranking in the 2011/2012 Survey, where it was placed 54th of 93 mining jurisdictions ranked. The survey cites labour regulations and disruptions, and general security as major areas of concern. The survey also gave South Africa a score of only 35.0 on the survey's policy potential index, dropping from 44.5 in 2011/2012.
[9] See The top 10 gold producing countries Mining Technology, 7 October 2013 (Accessed 27 October 2013).
[10] Prospecting licences are regulated by sections 13 to 24 of the (Botswana) Mines and Minerals Act, 1999, and mining licences are regulated by sections 37 to 51. Sections 13 to 15 and sections 37 to 39 apply to the grant of mining and prospecting licences respectively.
[11] James Campbell, CEO of Rockwell Diamonds, has described the regime as follows: "[t]he terms for doing business in Botswana are ... very clearly set out and implemented. You do not have to deal with issues such as the interpretation of some of the legislation"; Miningmx, Botswana to dominate SA in diamond cutting, 2 November 2011.
[12] Ibid., at 14 and 43.
[13] Ibid., at 14.
[14] Botswana Snapshot - 2013 Quarter 2 KPMG (Accessed 25 October 2013); Further, Botswana has been a party to the International Convention on the Settlement of Investment Disputes ("ICSID") since 15 January 1970, thus opening itself up to arbitration under ICSID. Although investors in Botswana appear to have been satisfied with the resolution of disputes domestically, the added safety net of international arbitration provides investors with further certainty and contributes to investor confidence in the jurisdiction.
[15] Minerals Commission Act, 1993.
[16] See section 27 of the Ghana Minerals and Mining Act, 2006.
[17] M McCann et al Ghana's Budget 2012: is there cause for concern for the mining industry Norton Rose, March 2012 (Accessed 26 October 2013).
[18] L Rutherford and M Ofori-Mesah "Ghana's mining code: in whose interest?" in Governance Newsletter The Institute of Economic Affairs, July/August 2011, at 6 (Accessed 28 October 2013); L Kotey Ghana: IMF Boss warns nation oil revenue will not make a difference, The Chronicle18 February 2010 (Accessed 28 October 2013); IMF Country Report No. 12/36 - Ghana, IMF, February 2012, at 23 (Accessed 28 October 2013);IMF Country Report No. 11/128 - Ghana, IMF, June 2011, at 17 (Accessed 28 October 2013); Oil and the 2012 Budget Statement The Chronicle (Accessed 26 October 2013).
[19] Ghanaian Vice President Kwesi Amissah-Arthur has said that Ghana need to increase revenue arising from mining, to boost fiscal space and to ensure that regulation of the sector is fair. Update 1 - Ghana needs to renegotiate some resource deals - Vice President Reuters, 12 June 2013 (Accessed 25 October 2013).
[20] Dr J Guzek & R McDonald Who Benefits from Mining? Deloitte (Accessed 25 October 2013).
[21] Namibian Snapshot - 2013 Quarter 2 KPMG (Accessed 25 October 2013).
[22] This includes common key protections with regards to, amongs others, promotion, admission and establishment of investment; national treatment; most-favoured-nation treatment; minimum standards of treatment; and expropriation; see A Newcomb & L Paradel (2009) Law and Practice of Investment Treaties, at 121 et seq.
[23] See Emilio Agustin Maffezini v The Kingdom of Spain, ICSID Case No. ARB /97/7, Decision on Jurisdiction (25 January 2000), 5 ICSID Reports 296 (2002); CME Czech Republic B.V. (The Netherlands) v The Czech Republic, Partial Award (13 September 2001) at para 611.
[24] If South Africa is found to be in breach of the GATT, the Dispute Settlement Body of the World Trade Organisation ("WTO") may make recommendations to South Africa which, if not met, may result in the suspension of concessions or other obligations owed to South Africa by affected member states under the GATT or another WTO treaty (article 2 and 22 of the Understanding on Rules and Procedures Governing the Settlement of Disputes, annex 2 to the Marrakesh Agreement Establishing the WTO, 1994. Further, the co-operation council established by the EU - South Africa Trade, Development and Cooperation Agreement, 1999 ("TDCA") or an international arbitration panel constituted under it, may issue a binding decision requiring South Africa to implement correct measures (article 104 of the TDCA).
[25] Bilateral Investment Treaty Policy Framework Review DTI, June 2009, at 46 (the "Review").
[26] Ibid, at 10.
[27] Leandi Kolver SA proceeds with termination of bilateral investment treaties Engineering News 21 October 2013 (Accessed 25 October 2013).
[28] X Carim Update on the review of Bilateral Investment Treaties in South Africa DTI, 15 February 2013 (Accessed 26 October 2013).
[29] M Allix & L Ensor Investment Bill Faces Scrutiny Business Day, 25 October 2013.
[30] of the Republic of South Africa, 1996.
[31] T Creamer New investment law to offer substantial and robust protection, Davies promises Engineering News, 19 September 2013 (Accessed 26 October 2013).
[32] ICSID Case No. ARB(AF)/07/01.
[33] On 7 September 2012.
[34] On 23 June 2013.
[35] Dr Mustaqeem de Gama indicated this on 21 October 2013 but did not give the exact date of termination.
[36] C Paton SA annuls bilateral investment treaty with Germany Business Day, 28 October 2013 (Accessed 28 October 2013).
[37] Leandi Kolver SA proceeds with termination of bilateral investment treaties Engineering News, 21 October 2013 (Accessed 24 October 2013).
[38] M Allix South Africa gets tongue-lashing at SA-EU Business Forum Business Day, 17 July 2013 (Accessed 24 October 2013); N Peacock and H Ambrose South Africa terminates its bilateral investment treaty with Spain: second BIT terminated, as part of South Africa's planned review of its investment treaties Herbert Smith Freehills, 21 August 2013 (Accessed 24 October 2013).
[39] See for example Middle East Cement Shipping and Handling Co SA v Egypt(Award 12 April 2002) and Petrolane Inc v Iran (1991) 27 Iran-US CTR C4.
[40] See A Newcombe & L Paradell (2009) Law and Practice of Investment Treaties,at 384 for a discussion of "adequate and effective compensation".
[41] The Review, at 17.
[42] Of Annex 1 to the Protocol.
[43] Under the Protocol, disputes may also be resolved at the SADC Tribunal. However the tribunal's activities were suspended in 2011 following complaints by the government of the Republic of Zimbabwe ("Zimbabwe") that the tribunal was not legitimate. This claim came after it found that Zimbabwe's Land Reform Programme was "racist and violated property rights and the right of access to justice" the case of Mike Campbell (Pvt) Ltd and Others v Republic of Zimbabwe (2/2007) [2008] SADCT 2 (28 November 2008). The tribunal was finally disbanded in 2012; K Premhid The SADC Tribunal lives on... kind of Helen Suzman Foundation, 12 July 2013 (Accessed 25 October 2013).
[44] The Review, at 7.
[45] It is important to note that article 28(1) of Annex 1 to the Protocol requires that all local remedies be exhausted before a party proceeds to arbitration. This is a significant barrier as, because the Protocol does not provide a clause for bypassing local remedies where there is a high possibility of bias, investors will have to go through the time consuming process of exhausting all available local remedies, even when there is very little chance of success due to political interference.
[46] Press Release - Foreign direct investment to Africa increases, defying global trend for 2012 United Nations Conference on Trade and Development, 26 June 2013 (Accessed 28 October 2013); SAPA Foreign direct investment into SA down 24% Moneyweb 27 June 2013
Click here to sign up to receive our free daily headline email newsletter
