Strategic Minerals, Concession Reviews, and Arbitration Trends in Africa’s Extractive Sector

THE AUTHOR:
Chérine Sophia Ftouki, International Arbitrator, Consultant | Public International Law Advisory & Resource Governance ALMATURA & PARTNERS & ICSID Middle East & North Africa Regional Delegate 2026

Introduction

The intersection of state sovereignty, foreign direct investment, and international law in Africa’s mining sector is undergoing a period of profound recalibration. As reaffirmed during the February 2026 Mining Indaba in Cape Town, the continent has moved past the era of mere extraction into a phase of intensive production and infrastructure integration. Driven by the global energy transition and surging demand for critical minerals—such as lithium, cobalt, and rare earths—African governments are implementing sweeping regulatory reforms aimed at maximising domestic revenue and enforcing in-country beneficiation.

This geopolitical shift was palpable at the Indaba, characterised by a targeted presence of foreign delegations seeking to secure strategic supply chains. However, African leaders delivered a unified message: the exploitation of resources will be firmly rooted in national sovereignty. For the international arbitration community, this paradigm shift is of critical importance. The rapid evolution of domestic mining laws and regulations often intersects with the protections afforded to foreign investors, elevating the role of arbitration as a neutral, stabilising mechanism in an increasingly complex legal landscape.

Geopolitics, Elections, and the Shift to Industrial Nationalism

The current regulatory volatility is inextricably linked to both global competition and the continent’’ internal political calendar. Several major general and presidential elections across resource-rich African states in 2025 and 2026 serve as seismic indicators of policy shifts. During electoral cycles, resource nationalism frequently emerges as a central concern. However, the legal community is witnessing a distinct evolution: a transition from purely fiscal nationalism (demanding higher royalties) to industrial nationalism (mandating local processing and value addition).

This structural trend is evidenced by several precise developments:

Mali’s Mining Code Revisions: Following the 2023 mining code adoption, which increased potential state and local stakes to 35%, the government has initiated comprehensive reviews of existing concessions to align legacy projects with the new framework.
Zimbabwe’s Lithium Mandate: Zimbabwe, a global leader in lithium, has banned the export of raw and concentrated ore to force local transformation. While this strategy aims to catalyse domestic industrialisation, it fundamentally alters the economic assumptions of existing investments, potentially triggering complex contractual stabilisation disputes over who bears the capital cost of transition.
The DRC’s Strategic Partnerships: The Democratic Republic of Congo (“DRC”) continues to accelerate projects like the Kamoa-Kakula expansion. While the state emphasises that all investments must strictly adhere to the mining code, bilateral and strategic frameworks face intense scrutiny regarding their tangible benefits for local populations.

The Rise of Mega-Corridors and ESG Mandates

In 2026, the success of African mining is inextricably linked to the development of massive infrastructure corridors that require coordination between private firms and multiple national governments.

Interlocking Contract Risks: The extraction of bulk and strategic minerals is driving unprecedented rail and port construction. Projects like the Lobito Corridor (connecting Zambia and the DRC to Angola), Guinea’s Simandou railway, and Algeria’s Gara Djebilet mega-project (unlocking massive, historically unexploited iron reserves through extensive new rail networks) illustrate this shift. From a dispute resolution perspective, these mega-projects create a web of interlocking joint ventures and construction contracts. A regulatory disruption in one jurisdiction can trigger a cascade of cross-border liabilities, presenting unique jurisdictional and consolidation challenges for tribunals.
ESG and the Green Transition: “Green mining” is now a functional requirement. Global buyers demand full traceability and low carbon footprints, leading to the integration of solar and wind farms directly into mining operations. When states abruptly amend environmental or water management regulations to enforce these standards, it sparks friction with investors over the allocation of unforeseen capital costs and the limits of regulatory predictability.

The Evolving Role of International Arbitration and the ALSF

As these regulatory and macroeconomic pressures mount, international arbitration serves as the vital mechanism for resolving disputes arising from state intervention. Concurrently, there is a recognised need to balance the negotiating power between multinational corporations and sovereign states before disputes crystallise.

The African Legal Support Facility (“ALSF”) has become a pivotal actor in this space, assisting African states in negotiating complex mining contracts to ensure they engage on an equal footing. This capacity-building proactively reduces the likelihood of fundamentally unbalanced contracts that are prone to future political repudiation. However, when disputes are unavoidable, they increasingly test the boundaries of established legal doctrines:

Interpretation of Stabilisation Clauses vs. Police Powers: Tribunals must navigate the delicate boundary between a compensable breach of a stabilisation guarantee and the legitimate, non-compensable exercise of a state’s police powers. Adjudicating whether strict new ESG mandates or export bans breach these guarantees increasingly requires a rigorous proportionality analysis. Tribunals are now looking closer at the empirical and scientific justification behind host state regulations to determine if they are genuinely directed at public interest objectives rather than covert protectionism.
Fair and Equitable Treatment (FET) Claims: Coercive renegotiation demands or the enforcement of retroactive audits frequently trigger FET claims under applicable Bilateral Investment Treaties (“BITs”). However, jurisprudence is evolving; tribunals are increasingly conducting a highly granular assessment of “legitimate expectations”, noting that sophisticated investors must anticipate a dynamic, evolving regulatory environment in developing economies, unless explicit, formal stabilisation guarantees were provided.
Currency and Liquidity Disputes: Shortages of foreign exchange and the inability to freely repatriate earnings remain primary dispute triggers. Legal debates often centre on the specific valuation mechanics—whether financial obligations should be calculated at official exchange rates, prevailing market rates, or contractually benchmarked rates that may have become commercially unsustainable due to macroeconomic shocks.

Strategic Considerations for Project Structuring

To navigate this dynamic environment, legal counsel must adopt forward-looking strategies that mitigate dispute risk from the project’s inception:

The Shift to Economic Equilibrium Clauses: Modern contracting practice increasingly relies on “economic equilibrium” clauses rather than rigid stabilisation. These provisions outline a formulaic approach to adjusting the financial balance of a project should changes in law occur, establishing a framework for renegotiation and preserving the long-term commercial relationship, rather than immediately defaulting to breach-of-contract claims.
The Role of the “Cooling-Off” Period: The mandatory negotiation periods found in most BITs often serve as a structured mechanism for dispute avoidance. In practice, the credible prospect of arbitration acts as a catalyst for meaningful dialogue during this phase, creating critical windows for commercial settlements.
The Role of Treaty Networks: The availability of robust BIT networks continues to be a primary consideration for foreign capital. The architecture of global investments frequently relies on these jurisdictions to provide an established, predictable legal framework for assessing state conduct under international law.

Conclusion

The African extractive sector has definitively exited the era of static, asymmetrical concessions. Today, the integration of multi-jurisdictional mega-corridors and the strategic pivot towards industrial nationalism demand a far more sophisticated legal architecture. In this recalibrated environment, international arbitration transcends its traditional function as a reactive dispute forum; it acts as the critical pricing mechanism for regulatory risk. Tribunals will increasingly be called upon to perform highly granular balancing exercises, testing the empirical limits of state police powers against the evolving expectations of global capital. Ultimately, securing the massive investments required for the global energy transition relies on abandoning rigid contractual entrenchment in favour of dynamic, economic equilibrium models. By structuring agreements that anticipate regulatory evolution rather than resisting it, the legal community can transform inevitable friction into managed adaptation, ensuring that African sovereign mandates and international investor protections operate as complementary catalysts for sustainable growth.

ABOUT THE AUTHOR

Chérine Sophia Ftouki is an International Arbitrator and Consultant specialising in energy, natural resources, and climate governance. She is the founder of Almatura & Partners, a specialised consulting firm providing strategic advisory in Public International Law, Resource Governance, and cross-border dispute resolution. Reflecting her prominent role in the field of investment arbitration, she serves as the Regional Delegate for the Middle East and North Africa (MENA) at the International Centre for Settlement of Investment Disputes (ICSID – World Bank Group) for the 2026 mandate.
Equipped with a dual legal education in civil and common law, she holds an LL.M. in International Dispute Resolution from King’s College London and a Master’s in International Law from La Sorbonne-Panthéon Paris I. As an academic researcher, she has taught Investor-State Dispute Settlement (ISDS) at California State Polytechnic University-Pomona and is a frequent guest lecturer for international arbitral institutions and governmental organisations.
Her transversal expertise at the intersection of international arbitration, environmental governance, and State sovereignty has led to her nomination as an expert for the UN Intergovernmental Panel on Climate Change (IPCC). Her practice is deeply focused on high-value, complex proceedings across the hydrocarbons, mining, and infrastructure sectors.

*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.