Part IV Law and Applicable Principles, 18 Substantive Contractual Principles

Abstract

The mining industry relies on a myriad of contractual agreements to organize relations between the different actors involved in mining projects and transactions. It follows naturally that international mining disputes will often concern the respective obligations of the different parties involved in these agreements. This chapter discusses the principal substantive principles applicable to international contractual mining disputes. It notes the importance of considering the applicable law when drafting an agreement. It pays particular attention to the principles invoked by parties seeking to avoid existing contractual or legal obligations, which are frequently invoked but often misunderstood. These defences include force majeure and its corollary, the act of the prince (fait du prince) doctrine, hardship, and necessity, which States can invoke to excuse non-compliance with their international obligations. This is particularly relevant given the strong nexus between the mining sector and State sovereignty.