Negotiating Mining Agreements: Past, Present and Future Trends

Name: Negotiating Mining Agreements: Past, Present and Future Trends | Past, Present and Future Trends
Brand: Kluwer Law International
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Past, Present and Future Trends

Danièle Barberis(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 1. November 1998

290 Seiten

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Inhalt

Cover
Half Title Page
Editorial Board
Title Page
Copyright Page
Preface
Table of Contents
Acknowledgements
Table of Abbreviations
Table of Statutory and Other Materials
List of Tables
Chapter 1 Introduction
1.1 INTRODUCTION
Chapter 2 Mineral Sector Regulatory Approach
2.1 DIFFERENT MEANS FOR HOST-COUNTRIES TO EXPRESS POLITICAL WILL TOWARD FOREIGN INVESTMENT
2.1.1 Mining Codes
2.1.2 Mining Agreements
2.1.3 Foreign Investment Code and Foreign Investment Contract
2.1.4 Constitution, Declaration of Policy and Guidelines
2.1.4.1 Constitution
2.1.4.2 Policy Statement and Guidelines
2.2 RELATIVE ROLES OF NATIONAL REGULATIONS AND MINING AGREEMENTS IN THE LICENSING SYSTEM
2.2.1 Main Ways of Granting Mineral Exploitation Rights: Mining Agreement, Licensing and Hybrid Systems
2.2.1.1 The Australian Licensing System
2.2.1.2 The Chilean Licensing System
2.2.1.3 The Indonesian Licensing System
2.2.1.4 The Papua New Guinea Licensing System
2.2.2 The Relationship Between Mining Agreement and National Regulations
2.2.2.1 The Choice Between the Mining Agreement-Efficiency, and the Legal System-Legitimacy
2.2.2.2 Co-Existence, Interference and Overlap Between Mining Agreement and Mining Code Under Civil and Common Law Systems
2.2.2.2.1 Mining Agreement Versus Mining Code Within Civil Law Systems
2.2.2.2.2 Mining Agreement Versus Mining Code Within Common Law Systems
2.3 THE PARTICULAR FUNCTION OF MINING AGREEMENTS
2.3.1 Why Use a Mining Agreement?
2.3.2 Nature and Role of Mining Agreements
2.3.2.1 The Obsolescing Bargain
2.3.2.2 The Unbundling of the Mining Agreement
2.3.3 Future For Mining Agreements: Toward Standardization?
2.4 CONCLUSION
Chapter 3 Political Factors Affecting the Mining Agreement Bargaining Process
3.1 IMPACT OF POLITICAL WILL ON ATTITUDES TOWARDS BALANCE OF BARGAINING POWER BETWEEN PARTIES TO A MINING AGREEMENT
3.1.1 Is There a Bargaining Process in Mining Business? The Development of the Bargaining Process in the Mining Sector
3.1.2 What Are the Interests of the Parties?
3.1.3 The Balance of Bargaining Power
3.1.4 Win-Lose or Mutual Benefit
3.1.5 Future Relationship of Parties to a Mining Agreement
3.2 THE ORIGINS OF HOST-COUNTRIES' POLITICAL WILL TOWARD TMCS
3.2.1 The Ultimate Goal of Policy: The Good of the Community
3.2.2 The Key Elements in the Formation of a Host-Country's Political Will Toward TMCs
3.2.2.1 Public Opinion and Political Parties
3.2.2.2 National Ideologies
3.2.2.3 Economic System and State of the National Economy
3.2.2.4 National Sovereignty Over Natural Resources
3.2.2.4.1 Evolution of the Concept of NSONR
3.2.2.4.2 Consequences of the Influence of the Concept of NSONR on National Political Will and the Mining Agreement
3.2.2.5 Global Trends in Mineral Prices
3.2.3 Political Will in the Policy-Making Process
3.2.4 Conclusions
3.3 THE TRENDS OF EVOLUTION OF HOST-COUNTRIES' POLITICAL WILL TOWARD TMCS OVER THE PAST THREE DECADES
3.3.1 The Major Trends in the Evolution of Political Will in Australia
3.3.1.1 Background
3.3.1.2 Federal Policy Versus State Policy: The Respective Powers
3.3.1.3 Main Policy Objectives with Regard to Mining
3.3.1.4 Political Organizations Influencing Australian Political Will
3.3.1.4.1 Australian Political Stage
3.3.1.4.2 Evolution of Australia's Political Will Toward Environmental Protection and Its Impact on Mining Activities
3.3.1.4.3 Influence of Politics on the National Uranium Policy
3.3.1.5 The Concept of NSONR and Abolition of the Government's Compulsory 50 Per Cent Local Equity Requirement
3.3.1.6 State of the National Economy
3.3.1.6.1 Encouraging Exploration
3.3.1.6.2 Encouraging Investment Through a Simple and Attractive Tax System
3.3.1.6.3 Encouraging Further Mineral Processing Before Exportation
3.3.1.6.4 Restriction of Governmental Support to Finance Infrastructure
3.3.1.7 National Ideology
3.3.1.7.1 'Shrinking Australia' or Restricting Access to Land
3.3.1.7.2 Development of Aboriginal Rights
3.3.1.8 Global Mineral Prices and their Influence on Australian Mining Policy
3.3.1.9 Conclusion: The Future of the Australian Mining Industry
3.3.2 Major Trends of Evolution of the Political Will in Chile
3.3.2.1 Background: Chile, the 'Most Impressive Economic Success in Latin America'
3.3.2.2 Main Policy Objectives With Regard to Mining
3.3.2.3 Political Organizations Influencing Chilean Political Will
3.3.2.4 National Sovereignty Over Natural Resources
3.3.2.5 State of the National Economy: The National Debt
3.3.2.6 National Ideology
3.3.2.7 Copper Price
3.3.2.8 Conclusion
3.3.3 Major Trends of Evolution of the Political Will in Indonesia
3.3.3.1 Historical and Political Background
3.3.3.2 Main Policy Objectives With Regard to Mining
3.3.3.3 The Influence of Political Organizations on Indonesia's Political Will
3.3.3.4 National Sovereignty Over Natural Resources
3.3.3.5 State of the Economy and its Influence on the Issue of Local Involvement Through the Different Generations of COW
3.3.3.5.1 Indonesian Population
3.3.3.5.2 Labour Unrest
3.3.3.6 National Ideology
3.3.3.7 Global Mineral Prices and their Influence on Indonesian Mining Policy
3.3.3.8 Conclusion
3.3.4 Major Evolutionary Trends in Papua New Guinea's Political Will
3.3.4.1 Background
3.3.4.2 Main Policy Objectives With Regard to Mining
3.3.4.3 Political Organizations Influencing Papua New Guinea's Political Will
3.3.4.4 Local Separatist Ideology: Bougainville or ' a revolution staged by shutting a foreign-owned mine'
3.3.4.5 The Influence of NSONR on the Attitude of Papua New Guinea Governments Toward State Equity in Mining Ventures
3.3.4.6 State of the National Economy Influencing Papua New Guinea's Political Will
3.3.4.7 Conclusions
3.4 CONCLUSION
Chapter 4 The Diversity in the Forms of Modern Mining Agreement Arising From Changes in Host-Countries' Political Will
4.1 THE EVOLUTION IN THE FORM OF MINING AGREEMENTS SINCE THE OLD CONCESSION SYSTEM
4.1.1 The Old Concession System: A Reflection of the Colonial Period
4.1.2 Origins of the Increasing Diversity in the Forms of Mining Agreements
4.2 THE VARIOUS EXISTING FORMS OF MINING AGREEMENTS WITHIN A POLITICAL CONTEXT
4.2.1 Categorizing Mining Agreements: A Confusing Task
4.2.1.1 An Endless Doctrinal Debate
4.2.1.2 Is the Title of a Mining Agreement More Than a Political Label?
4.2.2 Varioui Forms of Mining Agreements
4.2.2.1 Joint Ventures
4.2.2.2 Service Contracts
4.2.2.3 The Issue of Production-Sharing Agreements
4.2.2.4 Hybrid Forms
4.3 THE FUTURE OF THE FORMS OF MININGAGREEMENTS
Chapter 5 How Trends in the Evolution of Mining Agreements Relate to Political Will
5.1 MAJOR GLOBAL TRENDS IN THE NEGOTIATION OF MINING AGREEMENTS OVER THE PAST THREE DECADES
5.1.1 The Decrease in Governmental and National Equity: The Issue of Control
5.1.1.1 The Evolution of the Idea of Equity: From Ownership to Control
5.1.1.2 The Reasons for the Evolution
5.1.1.3 Consequences of the Worldwide Decrease in the Equity Requirement for Nationals and Governments
5.1.2 Increased Consideration of Local Interests: Development Strategy and the Interest of Natives
5.1.2.1 Ways of Promoting Local Interests
5.1.2.2 Political Will and Economic Development Through Mining: The Issues of Local Employment and Economic Linkages
5.1.2.2.1 Evolution of Host-Countries' Requirements For Promoting Development
5.1.2.2.2 The Indonesian Example: Local Interest Provisions in the Sixth Generation COW
5.1.2.2.3 Consequences
5.1.2.3 Public Opinion Influencing Political Will: Protection of Native Rights
5.1.2.4 Conclusion
5.1.3 Enhanced Environmental Protection-'The GreenChallenge'
5.1.3.1 Definitions of Environment
5.1.3.2 The Evolution of the Environmental Protection Issue
5.1.3.3 The Attitude of the International Community Towards Environmental Issues
5.1.3.4 The Attitude of TMCs Towards Environmental Issues
5.1.3.5 The Strategy of Host-Countries as to Environmental Issues
5.1.3.6 Changes in Principles Regarding Polluters' Attitude
5.1.3.7 Examples of Host-Countries' Attitudes Towards the Environment
5.1.3.8 The Future of Environmental Protection in Mining
5.1.3.9 Conclusion
5.1.4 Decrease in Taxation Levels
5.1.4.1 Minerals Taxation: A Separate and Negotiable Issue?
5.1.4.1.1 Does the Mining Industry Need a Separate Taxation System?
5.1.4.1.2 Is Mineral Taxation a Negotiable Issue?
5.1.4.2 Evolution of Taxation Provisions in Mining Agreements: A 'Standard' Tax System?
5.1.4.3 Reasons for the Global Lowering of the Tax Burden
5.1.4.4 The Evolution of Indonesian Tax Requirements: A Counter-Example?
5.1.4.5 The Future of Mining Agreement Taxation Provisions
5.1.4.6 Conclusion on Taxation Trends
5.1.5 Conclusion on Trends in Mining Agreements
5.2 HOW NATIONAL POLITICAL WILL RELATES TO THE INTERNATIONAL TRENDS
5.2.1 The Key Factor: The Search For Economic Development
5.2.2 Universality: Toward a Uniformization of Government Objectives?
5.2.3 Consequences and Future of the International Trends
5.2.3.1 From a State-Centred View to a Globalist View of Policy Making
5.2.3.2 International Political Will-The Missing Ingredient
5.2.3.3 Decrease of National Political Will
5.2.4 Conclusion
Chapter 6 Host-Country's Changing Political Will Versus TMCs' Need For Stability
6.1 THE DILEMMA BETWEEN 'PACTA SUNT SERVANDA' AND 'REBUS SIC STANTIBUS'
6.1.1 Why the Mining Industry is Particularly Sensitive to Changes
6.1.2 TMCs Need For Stability
6.1.2.1 TMCs' Plans and Expectations
6.1.2.2 TMCs' Fear of Changes
6.1.2.2.1 Nationalization and Expropriation
6.1.2.2.2 Declining Profits
6.1.3 Why Host-Countries Make Changes: Changing Political Will
6.1.3.1 Why Would Host-Countries Alter the Terms of Mining Agreements?
6.1.3.2 Changes in Political Will Leading to Changes in Mining Agreements
6.1.4 Conclusion
6.2 PLANNING FOR CHANGES: SOLUTIONS IN MINING AGREEMENTS PROVISIONS
6.2.1 Solutions For Conflicts Arising From Changes in Host-Countries' Political Will
6.2.1.1 Providing For the Resolution of Conflict: the Arbitration Clause
6.2.1.2 Preventing Conflict: Stabilization and Renegotiation/Variation Clauses
6.2.1.2.1 Variation Clause/Renegotiation: Changes in Circumstances
6.2.1.2.2 Stabilization Clause
6.2.2 Force Majeure: A Change Independent From Host-Countries' Political Will?
6.3 CONCLUSION: TOWARDS AN IDEAL MINING AGREEMENT TO DEAL WITH CHANGES OR 'NEGOTIATING A MINING AGREEMENT THAT WILL STAND THE TEST OF TIME'?
Chapter 7 Findings, Viewpoint and Conclusions
7.1 LINKING NATIONAL POLITICAL WILL WITH THE MINING AGREEMENT AS A TOOL OF MINERAL POLICY
7.2 LINKING NATIONAL POLITICAL WILL WITH THE FORM AND CONTENT OF MINING AGREEMENTS
7.3 INCREASING IMPORTANCE OF INTERNATIONAL FACTORS IN SHAPING NATIONAL POLITICAL WILL
7.4 THE MINING AGREEMENTS OF THE FUTURE
Select Bibliography
Index
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