- Cf. Marian Radetzki and Stephen Zorn, Financing, Mining Projects in Developing Countries (London, Mining Journal Ltd., 1979).
- Martin Bartels et al., Bibliography on Transnational Law of Natural Resources (Frankfurt, Kluwer, 1981), is a bibliography on much of the pertinent writing of the 1970s.
- Paris, Economica, 1983.
- For earlier rather broad studies, see Rex Bosson and Bension Varon, The Mining Industry and the Developing Countries (Oxford, Oxford University Press, 1977) and Zuhayr Mikdashi, The International Politics of Natural Resources (Ithaca, Cornell University Press, 1976).
- The role of the new state raining enterprises in contributing to oversupply is the focus of a sophisticated discussion by Christopher Stobart; “Effect of Government Involvement on the Economics of the Base-Metals Industry,” in Bangkok-IMM Conference, to be published in Natural Resources Forum, 1984. In 1984, Theodore Moran, in Copper in Chile (Princeton) 1974, already made the observation that the new Chilean state enterprises will face problems in co-ordinating their actions with other production, an observation that seems to be borne out by the very aggressive Chilean copper investment strategies which will raise Chile's market share at the expense of US and African high-cost producers.
- See also Norman Girvan, Corporate Imperialism: Conflict and Expropriation (New York, Praeger, 1976) and most recently the study on the new state classes by Hartmut Elsenhans, Abhängiger Kapitalismus oder bürokratische Entwicklungsgesellschaft (Frankfurt, Campus, 1981).
- See Istvan Doboz, “Mineral development: co-operation between socialist countries and developing countries” (1983) 7 Natural Resources Forum 339–351. It should be added that Dobozi's view is not an authoritative statement, and it seems to be received with some scepticism by U.S.S.R. experts.
- New York, Pergamon, 1980.
- New York, Monthly Review Press, 1980.
- New York, Praeger, 1981.
- London, Gower, 1981.
- Cambridge, Oelgeschlager, Gunn and Hain, 1982.
- The Ok Tedi project, perhaps the only major investment project at present (gold/ copper), apart from the Carajas iron ore/multi-metal project in Brazil, is reviewed in an article by Stewart McGill, “Project Financing Applied to the Ok Tedi Mine—a Government Perspective,” in (1983)7 Natural Resources Forum 115–131. A book by Sam Pintz analysing the Ok Tedi negotiations in 1976 and renegotiations in 1980/81 is about to appear.
- However, a study on state mining enterprises in developing countries by Marian Radetzki is about to be published. State enterprises have been the object of internal research papers at the Harvard Institute for International Development, in particular by Raymond Vernon and Malcolm Gillis. cf. also Malcolm Gillis et al., Tax and Investment Policies for Hard Minerals: Public and Multinational Enterprises in Indonesia (Cambridge, Ballinger, 1980).
- This question is particularly voiced by representatives from private mining companies who fear that their commercial viability is imperiled by competition from state mining enterprises that operate through subsidies, be it from the government's direct revenues, or from international financing institutions by concessional lending. This issue was discussed in detail at the Bangkok Conference of the Institution of Mining and Metallurgy, December 1983, to be published, cf. also note 4, supra.
- cf. several contributions by Malcolm Gillis, e.g. “Public-enterprise finance: toward synthesis,” from: Public enterprises in LDCs (Cambridge, 1982) and Economics of Development (Norton, NY 1983).
- The World Bank's Development Report of 1983 has focused on the issue of performance of the public sector in developing countries. For several analyses of their legal status, and country-studies of state petroleum enterprises, cf. United Nations, State Petroleum Enterprises in Developing Countries (Pergamon, NY, 1980).
- William Stoever, Renegotiations in International Business Transactions (Lexington, D.C. Heath, 1979) presents several cases of renegotiations, including renegotiations following the quasi-bankruptcy of PERTAMINA.
- -20 Mining investment agreements between governments and foreign companies in several developing countries have for the first time been the focus of a major study by David Smith and Louis Wells, Negotiating Third World Mineral Agreements (1975). For a review of this book and other earlier works on mineral development agreements, cf. Thomas Wälde, “Lifting the Veil from Transnational Mineral Contracts, A Review of Recent Literature” (1977) 1 Natural Resources Forum 166–285. cf. also in that period, Stephen Zorn “New Developments in Third World Mining Agreements” (1977) 1 Natural Resources Forum 239–251. More recent studies are: Stephen Zorn, “Coal and Uranium Investment Agreements in the Third World” (1982) 6 Natural Resources Forum 345–359 and Thomas Wälde, “Permanent Sovereignty over Natural Resources: Recent Developments in the Minerals Sector” (1983) 7 Natural Resources Forum 253–263. Texts of recent agreements (negotiated since 1975), and increasingly detailed analytical comments, are published on a regular basis by Peter Fischer and Thomas Wälde in A Collection of International Concessions and Related Instruments: Contemporary Series, starting 1975, Vols I-V (Dobbs Ferry, Oceana, 1982, 1983 and 1984). While the question of investment agreements has received much attention by public international lawyers in the last 10 years—cf. Juha Kuusi, The Host State and the Transnational Corporation (Farnborough 1981) and Jutta Voss, Vereinbarungen zwischen Staat und auslaendischem Investor (Springer, Berlin 1982)—these works have focused on rather generalised issues of agreements between TNCs and governments, and have not—as seems usual for public international law studies—based their analysis on the specific content of mineral development agreements.
- Information on recent mining legislation (also including agreements) can be obtained from the commercial information service on “Mining Legislation,” published periodically by Barrows, Inc. Mining legislation of an older date is summarised in a publication by the US Bureau of Mines (IC 8544 of 1972) under the title Summary of Mining and Petroleum Laws of the World”. A more recent, and very short, summary has been prepared by the Indian Bureau of Mines, in 1981, entitled Mining Laws of Various Countries—Some Salient Features. The Commonwealth Secretariat has published an analysis of mining legislation and mining agreements of African Commonwealth Countries (1976) and of Pacific Commonwealth Countries (1981). Most recently, the Ministry of Industry of France has sponsored a comparative study of mining and petroleum legislation in 10 countries (by F. de Saint Olive-Madignier, 1983). For a description of the U.S.-American mining law, see Terry Maley, Handbook of Mineral Law (Boise, Idaho, 1983). The only systematically done comparative survey of mining laws is still the study by Rudolf Isay. Das Bergrecht der wichtigsten Kulturstaaten in rechtsvergleichender Darstellung, (Berlin, Vahlen 1929).
- Pierre Legoux, “Report on mining legislation in African countries,” ECA document E/CN.13 of June 6, 1980.
- Erich Schanze, Michael Fritzsche et al., Mining Ventures in Developing Countries: Part II, Analysis of Projects Agreements, (Deventer, Kluwer, 1981).
- But cf. the joint article by S.K.B. Asante and A. Stockmayer, “Evolution of development contracts: the issue of effective control,” in UN/DSE, Legal and Institutional Arrangements in Minerals Development, (London, Mining Journal Ltd., (1982) at pp.53–64, which emphasises a functional, as contrasted with a more academic and formalistic approach.
- See e.g. Mike Faber, in Legal and Institutional Arrangements, op. cit. supra, note 24.
- Ross Garnaut/Anthony Clunies Ross, “Uncertainty, risk aversion and the taxation of natural resources projects” (1975) 85 Economic Journal 272.
- Particularly various studies co-authored by Malcolm Gillis, especially, Tax and Investment Policies for Hard Minerals: Public and Multinational Enterprises in Indonesia (Cambridge, Ballinger, 1980).
- Cf. Albrecht Stockmayer, Projekt-Finanzierung und Kreditsicherung (Frankfurt, Kluwer, 1982) (English translation expected); summarised in Legal and Institutional Arrangements, supra, note 24, see also the contribution by David Suratgar, “International project finance and security for lenders” ibid, and in (1982) 6 Natural Resources Forum 113–127.
- Cf. particularly Hasen Zakaryia, “Impact of Changing Circumstances on the Revision of Petroleum Contracts,” MEES 12 (July 11, 1969), Supplement; S.K.B. Asante, “Restructuring Transnational Mineral Agreements,” in (1979) 73 American Journal of International Law 335 and “Stability of Contractual Relations in the Transnational Investment Process,” (1978) 28 International and Comparative Law Quarterly 401; T. Wälde, “Revision of Transnational Investment Agreements,” (1978) 10 Lawyer of the Americas 265 and in UN/DSE, Legal and Institutional Arrangements for Minerals Development, op. cit. supra, note 24. A number of legal research projects are at present under way that examine actual cases of renegotiation and relevant legal theories.
- See Mikesell, op. cit. and several contributions in Legal and Institutional Arrangements, op. cit., supra, note 24.
- Also, e.g. long-term iron ore contracts with West German/British concerns were abrogated in 1975 in Venezuela, due to fixed prices well below market rates, while, several years later, US Steel did not honour purchase commitments under a similar arrangement due to excess capacity, cf. Raymond Vernon, “State-owned Enterprises in Latin American Exports” in (1981) 21 Quarterly Review of Economics and Business 97, 104.
- Richard B. Bilder, Managing the Risks of International Agreement (Madison, University of Wisconsin Press, 1981) analyses risk-management techniques from the perspective of public international law. Many of the techniques discussed in the latter study—non-binding arrangements, open-ended formulations, risk diversification strategies, revision and renegotiation procedures—constitute a vital issue in mineral development negotiations. On political risk issues cf. W. G. Prast and Howard Lax, “Political Risk as a Variable in TNC Decision-Making” (1982) 6 Natural Resources Forum, 183–199.
- (1981) 21 I.L.M.
- Günter Jaenicke et al., A Joint Venure Agreement for Seabed Mining (Frankfurt, Kluwer, 1981) on possible contractual arrangements of investor consortia with the “Enterprise”, could be of practical value when and if actual investments take place.
- While studies by academics on host state/transnational corporation questions abound, few useful analyses exist on how to structure a suitable legal regime for small-scale mining. At first, the attitude of many mining services towards small-scale mining is negative, because a certain civil service tradition has looked upon the smaller miner as an obnoxious intruder in a clear picture dominated by the geological survey and by large international mining companies. This attitude expresses itself in mining regulations that are too complicated and burdensome for smaller miners and which tend to produce efforts to circumvent the law on the enforcement level. In fact, most efforts at tight regulation and policing of smaller miners (e.g. the gold mines in the Guyanas, in Brazil, Peru, the precious-stone miners in East Africa or the offshore tin miners in Southeast Asia) have conspicuously failed, and policy-makers still have to realise that such miners will respond more effectively to well-thought out economic incentives than to restrictions which tend to be unenforceable on the level of interaction between miners and government policemen and inspectors. Economics and policies for small-scale mining have been addressed by a few publications, notably: UN, The Future of Small-Scale Mining (McGraw Hill, 1980); UN, Small-Scale Mining in the Developing Countries (1972), Sales No. E.72.11.A.4; Michael Woakes and John Carman (eds.), AGID Guide to Mineral Resources Development (1983) and State of Montana, Handbook for Small Mining Enterprises (March 1976).
- As an exception the study by Rex Bosson and Bension Varon, The Mining Industry and the Developing Countries, pp. 151–175 (Oxford University Press, 1977) should be noted.
- Cf. the Arab Mining Company, the Arab Mining Organisation and the Inter-Arab Investment Guarantee Corporation.
Journal of Energy & Natural Resources Law
Volume 2, 1984 - Issue 4