An End to European mining claims in South Africa?
By Elizabeth Whitsitt
December 6, 2009
On November 2, 2009 claimants in the high-profile arbitration involving mining interests owned by Piero Foresti, Laura de Carli and others against the Republic of South Africa requested the discontinuance of ICSID arbitral proceedings that have been ongoing since the beginning of 2007.
The request comes approximately one month after the tribunal in this case accepted two petitions for participation by a coalition of non-governmental organizations and the International Commission of Jurists (ICJ). As previously reported, the parties’ redacted documents were expected be forwarded to the non-disputing parties in mid-November so that the coalition and the ICJ could file their written submissions with ICSID by December 21, 2009.
In an interview with ITN, counsel for both parties confirmed that, for now, distribution of those documents to the non-disputing parties has been delayed in light of this latest procedural wrangling.
A recent announcement on the ICSID website indicates that South Africa has objected to the claimants’ request for discontinuance and filed an application for a default award.* The Tribunal has given the claimants until mid-January to respond to South Africa’s submission. While details of the claimants’ request for discontinuance and South Africa’s application have not been made public, one could expect that an interesting issue for the tribunal to consider will be related to the question of costs in light of these recent events.
* Case Details in Piero Foresti, Laura de Carli and others v. Republic of South Africa (ICSID Case No. ARB(AF)/07/1) are available at:
http://icsid.worldbank.org/ICSID/FrontServlet
For further background on this dispute, see the ITN’s previous reporting:
“An ICSID Tribunal Introduces Innovative Steps Into Non-Disputing Party Procedure,” By Elizabeth Whitsitt, Investment Treaty Newsletter, 3 November 2009, available here:
“In Brief: Suspension extended in Piero Foresti, Laura de Carli and others v. Republic of South Africa”, By Damon Vis-Dunbar, Investment Treaty Newsletter, 8 June 2009, available here:
“European miners and South Africa suspend proceedings”, By Damon Vis-Dunbar, Investment Treaty Newsletter, 2 April 2009, available here:
“South African court judgment bolsters expropriation charge over Black Economic Empowerment legislation in the mining sector”, By Damon Vis-Dunbar, Investment Treaty Newsletter, 23 March 2009, available here:
