Mining Arbitrations – A Perspective from Germany

This article explores Germany's historical and contemporary relationship with mining, its legal framework, and its potential as a venue for resolving mining disputes.

Germany’s Role in Mining Arbitrations: A Legal and Industrial Perspective

Mining is one of the world’s most globalized industries, demanding significant upfront capital expenditure – often backed by foreign companies. It serves as the backbone for industries like automotive and technology, which rely on critical minerals such as lithium, cobalt, and nickel. However, its intrinsic connection to state-controlled resources makes the mining sector susceptible to regulatory changes and political interference. The concession agreements often include arbitration agreements.

Despite its industrial legacy and robust arbitration framework, Germany is not known for its mining arbitrations.

Germany’s Mining Legacy and Current Industry Dynamics

Germany’s rise as an industrialized nation was fueled by its abundant coal resources. While hard coal mines have closed, lignite mining continues to play a controversial role in the nation’s energy mix, facing significant public opposition due to environmental concerns. The German government aims to phase out lignite mining by 2030 while striving to balance public acceptance of domestic mining projects.

Today, Germany’s mineral economy primarily involves the processing of imported minerals, with a strong emphasis on metals and refined mineral products essential for advanced manufacturing and digitalization.

German companies, while not major players in domestic mining, may be significant investors, contractors and stakeholders in international mining projects, from financing and joint ventures to equipment supply and technical expertise. German companies (or their subsidiaries) active in the mining sector include Deutsche Rohstoff AG (whose key focus is abroad), thyssenkrupp, or BASF.

Legal Framework for Mining in Germany

Germany’s mining activities are governed by the Federal Mining Act (BBergG), which extensively regulates exploration and extraction through a licensing system and contains regulations for different environmental and land management issues.

Internationally, Germany currently has 112 active bilateral investment treaties (BITs) and has played a critical role in the Energy Charter Treaty (ECT), particularly as part of broader EU discussions about its relevance and modernization. The ECT, originally designed to protect energy investments, has faced increasing criticism for enabling investor-state disputes, particularly those involving fossil fuels, leading Germany and several other EU member states to reassess their participation. Germany announced its intent to withdraw from the ECT in late 2022, aligning with the EU's climate goals and commitment to renewable energy. The withdrawal stems from concerns that the ECT's provisions will ultimately hinder the transition away from fossil fuels by allowing companies to sue governments over climate-related policy changes.

Germany as a Venue for Mining Arbitrations

Investor-State Arbitration

Germany’s extensive network of BITs frequently includes arbitration clauses under ICSID or UNCITRAL frameworks. German investors may leverage these treaties to protect mining investments abroad. While German investors have been active in mining operations, no arbitration involving a German party has been recorded to date.

Commercial Arbitration

Although Germany’s enforcement-friendly legal system make it a preferred seat for commercial arbitrations, there is no publicly available information of any commercial arbitration relating to the mining sector. Even though arbitral awards are in principle confidential, Germany may not be the first choice when it comes to mining arbitrations. While English is commonly used in the proceedings itself, German-language documentation may be necessary where court assistance is sought, especially in enforcement matters. In addition, Germany’s strong regulatory approach may discourage mining companies seeking more lenient jurisdictions.

Conclusion

While Germany’s legacy as an industrial power is undeniable, its impact on mining arbitrations is minimal at best. This may be due to its focus on environmental sustainability, its phased withdrawal from fossil fuels, its focus on import and processing rather than actual mining, and the global orientation of its investors. This positioning underscores Germany’s status as an important global partner but not as a leading forum for resolving mining-related disputes.

This article was originally published on Daily Jus on Friday 6^th December, with thanks to Jus Mundi & Jus Connect, and is available here.