Bear Creek Mining Corporation, a Canadian mining company, filed an investor-state claim against Peru under the Canada-Peru Free Trade Agreement (FTA) for the revocation of their approval for a silver mining project.¹ In 2007, Bear Creek was granted approval to operate a silver mining project located in Santa Ana, near the border of Bolivia and Lake Titicaca, the largest freshwater lake in South America.² However, since approving the project, Peruvian legislators were faced with strong opposition to the mining project in the form of regional protests and large-scale social unrest, due to concerns of the environmental impacts of mining and threat of contamination in the surrounding waterways, especially to the Indigenous communities in the area that rely on Lake Titicaca for fishing and farming.³ As a result, in 2011 the Peruvian government issued Supreme Decree 032, rescinding the company’s rights to operate the Santa Ana mining project and effectively halting their activities.⁴

Bear Creek claimed that revoking their approval of the mining project constituted violations under the Canada-Peru FTA, including expropriation and fair and equitable treatment. The company also claimed the expropriation caused a reduction in value of their larger silver mining project located 350 km of Santa Ana, Corani, alleging it would be very difficult for Bear Creek to obtain financing for the development of the Corani unless the government returned Santa Ana to Bear Creek.⁵ The company sought $522 million in damages.⁶

Two of the three arbitrators ruled in favor of the investor, ordering Peru to compensate Bear Creek $18.2 million in damages plus interests and 75% of Claimant’s arbitration costs for an estimated total of $30.4 million.⁷ The tribunal reasoned that Peru violated the Canada-Peru FTA by unlawfully expropriating Bear Creek’s investment.⁸

The sole dissenting arbitrator expressed reproach for the lack of accountability assigned to Bear Creek for contributing to the social unrest, “…the Respondent has clearly established the Claimant’s contributory responsibility, by reason of its acts and omissions, to the social unrest that left the Peruvian government in the predicament it faced, and the need to do something reasonable and lawful to protect public well-being.”⁹ The dissenting arbitrator further explained the causality between the investor’s acts and omissions and the circumstances that ultimately led to the revocation of the Santa Ana mining project.

In May 2008, members of the U.S.-based Clayton family – the owners of a concrete company – and their U.S. subsidiary, Bilcon of Delaware, launched a NAFTA challenge against Canadian environmental requirements affecting their plans to open a basalt quarry and a marine terminal in Nova Scotia.¹

The investors planned to blast, extract, and ship out large quantities of basalt from the proposed 152-hectare project,² located in a key habitat for several endangered species, including one of the world’s most endangered large whale species.³ Canada’s Department of Fisheries and Oceans determined that blasting and shipping activity in this sensitive area required a rigorous assessment given environmental risks and socioeconomic concerns raised by many members of the local communities.⁴ A government-convened expert review panel concluded that the project would threaten the local communities’ “core values that reflect their sense of place, their desire for self-reliance, and the need to respect and sustain their surrounding environment.”⁵

On the recommendation of the panel, the government of Canada rejected the project.⁶ The Clayton family argued that the assessment and resulting decision was arbitrary, discriminatory, and unfair, and thus a breach of NAFTA’s minimum standard of treatment, national treatment, and most favored nation obligations.⁷

In a March 2015 ruling, two of the three ISDS tribunalists decided that the environmental assessment’s concern for “community core values” was “arbitrary” and frustrated the expectations of the foreign investors.⁸ This, they asserted, violated a broad interpretation of the minimum standard of treatment obligation, which they imported from another ISDS tribunal (Waste Management).⁹ The tribunal majority also declared a national treatment violation.¹⁰

The dissenting tribunalist explicitly warned of the chilling effect the decision would have: “Once again, a chill will be imposed on environmental review panels which will be concerned not to give too much weight to socio-economic considerations or other considerations of the human environment in case the result is a claim for damages under NAFTA Chapter 11. In this respect, the decision of the majority will be seen as a remarkable step backwards in environmental protection.”¹¹

In 2019, the tribunal issued an award on damages, ordering Canadian taxpayers to pay the quarry investors $7 million, plus interests.¹² Due to their dissatisfaction with the award – $7 million in contrast to their initial claim for over $440 million – the investors later petitioned a Canadian judge to set aside the award issued by the tribunal, arguing the tribunal violated public policy, exceeded its jurisdiction in its causation analysis, and breached due process and natural justice. The Canadian judge dismissed the petition.¹³

U.S. corporation Tobie Mining and Energy, and the Canadian investors Cosigo and Cosigo Resources, claimed that the Colombian government violated the United States-Colombia FTA when it decided to create a nature reserve to protect Amazon rainforest land and prohibit mining within its borders. In 2008, the companies were granted interests in a gold mining concession by the Alvaro Uribe administration in the Taraira region of Colombia, near the Brazilian border, but before a final agreement could be reached, a national park was created, blocking the mine.¹

The investors claim creating the national park was “fraudulent” and that denying their concession due to the park constitutes an expropriation of their investment.² Thus, the companies are asking a private tribunal to order Colombia either to return their concession to allow them to mine in the Amazon, or to pay $16.5 billion – over 25 percent of Colombia’s national budget – to the corporation. Despite admitting having spent only $11 million in mining-related preparations, Tobie justifies the $16.5 billion demand by claiming that is what the corporation hypothetically could have earned if allowed to extract all the gold and iron believed to lie beneath the rainforest land.³

The Canadian investors are listed in the notice of intent despite Canada not being a party to the U.S. treaty with Colombia.⁴ The lawyer representing the claim has suggested that more claims against Colombia related to the nature reserve will be forthcoming.⁵

Eco Oro Minerals Corp., a Canadian mining company, launched an ISDS claim against Colombia, alleging violations of the minimum standard of treatment and expropriation under the Canada-Colombia Free Trade Agreement (FTA), demanding $250 million for their investment plus interest and legal fees.¹



In 1994, Eco Oro signed a contract with Colombia for an open-pit gold mining operation in the Santurbán Páramo. Páramos are defined as “high-mountain ecosystems that play a central role in maintaining biodiversity, premised on a unique capacity to absorb and restore water.”² The Santurbán Páramo where Eco Oro’s mining project was located provides water to approximately 2.5 million people in 68 surrounding municipalities.³ At the time of signing, the Páramos were not demarcated, mining activities were unrestricted, and the area was not protected by law.⁴



Due to growing environmental concerns, Colombia began restricting mining activities in the Páramos over the years.⁵ By the time Eco Oro submitted a final application for construction in 2009, mining was eventually fully prohibited in the Páramos ecosystems,⁶ which encompassed about 54% of Eco Oro’s mining project.⁷ Eco Oro specifically objected to not being “grandfathered in” as a special exception to the mining ban.⁸



In 2021, the majority of the arbitral tribunal found that while there was no expropriation,⁹ Colombia had still breached the FTA’s provision establishing a “minimum standard of treatment” for the company.¹⁰



Despite this, the tribunal ruled that Eco Oro was not entitled to any damages, stating that Eco Oro failed to provide enough evidence to substantiate the amount of money that the company demanded.¹¹ Still, Colombian taxpayers were ordered to cover half of the tribunal’s legal fees in addition to their own legal defense fees, amounting to more than $5.3 million.¹²

In February 2014, Infinito Gold, a Canadian mining firm, filed a $94 million claim against Costa Rica under the Canada-Costa Rica BIT for a Costa Rican court decision to revoke Infinito’s Las Crucitas open-pit gold mining concession on environmental grounds.¹ The mining license was secured in 2008 from then-President Oscar Arias and his environment minister. The Costa Rican Administrative Appeals Court later ordered a criminal investigation of Arias for having signed off on the project while environmental studies were still incomplete.² The concession raised significant environmental concerns, including deforestation of 153 acres of pristine tropical rainforest. It also posed a significant health concern related to the leaching of chemicals used in the mining process that could contaminate drinking water near the San Juan River system.³

A Costa Rican court revoked the concession in 2010 on the basis of environmental damage caused by the project.⁴ Polls indicated that more than 75 percent of the Costa Rican population opposed the proposed mine, due in part to environmental concerns.⁵ Several weeks before the court ruling revoking Infinito’s concession, the Costa Rican legislature voted unanimously to ban new open-pit metal mines.⁶ Infinito appealed to Costa Rica’s Supreme Court, which upheld the lower court ruling against the firm in 2011.⁷ In its investor-state claim, Infinito asks a three-person tribunal to second guess the rulings of Costa Rica's courts and rule that Costa Rica’s prohibitions on new open-pit mining permits are an “unlawful expropriation” of Infinito’s investment and a violation of the firm’s BIT-protected right to fair and equitable treatment. “As a result of the new ban on open-pit mining, Industrias Infinito cannot apply for any new mining rights over the project area,” the firm noted in its brief.⁸ The case is pending.

An environmental NGO from Costa Rica submitted multiple non-disputing party submissions to the tribunal, alleging (among other things) that the company’s investment was procured through corruption.⁹



In 2021, the tribunal ruled that Costa Rica had breached the BIT’s fair and equitable treatment clause,¹⁰ noting that the state’s pursuit of environmental regulations “does not exempt the Respondent from [ISDS] liability” and dismissed the corruption claims.¹¹ While Costa Rica was not ordered to pay any legal damages to the company,¹² the court still ordered Costa Rica to pay for half of the tribunal costs in addition to all of their legal defense fees,¹³ amounting to approximately $3.7 million.¹⁴

In 2019, Legacy Vulcan LLC, a U.S. mining company and its Mexican subsidiary, Calizas Industriales de Carmes (“Calica”), launched an investor-state case against Mexico, alleging NAFTA violations. Specifically, the investors claimed Mexico violated NAFTA’s provisions on expropriation, most-favored-nation treatment, and fair and equitable treatment by interfering with its limestone extraction and exportation operations on the Yucatan Peninsula in the coastal state of Quintana Roo.¹

In 1986, the investors acquired a limestone quarry lot² and in 1996 acquired two more.³ The investor claims it entered into an agreement with the Mexican federal and local state government of Quintana Roo and received authorization “from an environmental standpoint” to exploit the reserves of limestone.⁴

The companies claim their mining project became targeted by “adverse measures” from Mexico that compromised their operation.⁵ The “adverse measures” were implemented to safeguard the environment and prevent further damage once Mexico became aware that the company had extracted limestone from a greater area and at a faster pace than agreed upon.⁶ The companies launched domestic litigation against Mexico and in 2014, the parties entered into comprehensive settlement agreements.⁷ The investors claim Mexico failed to uphold one of the agreements.⁸ The exact amount claimed by the investors has not been made public, but the Mexican government previously estimated the compensation sought at $500 million in damages.⁹

In 2021, the United States and Canada submitted separate non-disputing party submissions through which they addressed legal questions, not the merits of the case. The United States and Canada stated that the trade agreement does not include a duty to protect the investor’s legitimate expectations and commented on the distinction between direct and indirect claims for damages.¹⁰

In 2023, a representative for the Indigenous Playa del Carmen communities submitted a non-disputing party submission urging the tribunal to consider Mexico’s legal obligations towards its communities, stating that “if the mine continues… such a decision will result in a violation of international environmental [and human rights] law.”¹¹ The case is pending.

Lupaka Gold Corp., a Canadian mining company, launched an investor-state claim against Peru in 2021, demanding at least $47.7 million plus interest in damages under the Canada-Peru Free Trade Agreement (FTA) over disputes arising from a gold, silver, and copper mining project.¹ The company claims Peru failed to dissolve the violent invasions and blockades from the surrounding communities that opposed the mining project and as a result, the mining project was destroyed.²

Peru responded that Lupaka Gold failed to obtain a “social license” to operate, meaning achieving the trust and support for the mining project from the local communities and stakeholders as early as possible, as required under Peruvian law, international law, and industry principles.³

The state cited to the tribunal in Bear Creek v. Peru in defining the importance of obtaining a social license, “even though the concept of ‘social license’ is not clearly defined in international law, all relevant international instruments are clear that consultations with Indigenous communities are to be made with the purpose of obtaining consent form all the relevant communities”.⁴

Peru also emphasizes Indigenous people’s right to free, prior, and informed consent regarding the utilization of minerals and other resources affecting their lands or territories and other resources, as provided in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), a fundamental international instrument that provides the framework of the rights of Indigenous people and was adopted by 144 countries, including Peru and Canada.⁵

Furthermore, Peru asserted that the investor ignored the environmental concerns expressed by the communities over the project,⁶ repeatedly demanded forceful intervention from the Peruvian government,⁷ and deployed a private security company to use force and violence against the locals rather than engaging in meaningful conversations to understand and address the concerns.⁸

An official responsible for facilitating dialogues between the community and the company noted that the company “did not appear to understand, or they refused to accept, that in situations involving the rights of rural or Indigenous communities… the conflict must be approached through dialogue and not through public force.”⁹ The case is pending.

Odyssey Marine Exploration Inc., a U.S. deep-ocean mining company, launched a claim against Mexico alleging violations under NAFTA’s provisions on national treatment, minimum standard of treatment, and expropriation of their investment located on Mexico’s Gulf of Ulloa, involving one of the largest sedimentary phosphate sand deposits discovered in the Americas. Phosphate is a valuable finite resource used mainly to produce fertilizer and animal feed.¹

To begin extraction, the project required environmental approval from Mexico’s Ministry of the Environment and of Natural Resources (“SEMARNAT”). The Ministry denied Odyssey’s request due to the projected impact on the Gulf of Ulloa’s ecosystem, specifically on endangered species such as the loggerhead turtles, and cited concerns over Odyssey’s lack of experience, technical expertise, or data on risky deep-sea mining.² Odyssey petitioned the tribunal to decide whether Mexico illegitimately denied the seabed mining project while Mexico maintains that the project was fairly denied because the proposed activities would have catastrophic impacts on the Gulf of Ulloa.³

In 2021, the Center for International Environmental Law (“CIEL”) and the Puerto Chale Fishing Cooperative, whose fishing grounds would be devastated by the mining project, requested permission to introduce a non-disputing party submission or amicus curiae to provide factual information on the effects of the project on the ocean, but the majority of the tribunal rejected their petition.⁴ The dissenting arbitrator expressed that the petitioners had significant interest in the outcome of the arbitration and would contribute a unique perspective that would assist the tribunal in its decision.⁵

Odyssey is demanding $3.5 billion for future lost profits.⁶ The case is pending.

In 2018, Red Eagle Exploration Limited, a Canadian mining company, initiated an ISDS case against Colombia under the Canada-Colombia Free Trade Agreement (FTA). Red Eagle claims the FTA was violated when the Colombian Constitutional Court decided to ban mining operations in the Páramos,¹ a range of high-altitude ecosystems that provide 85% of the country’s water supply (See Eco Oro v. Colombia above).² The ban was placed to create a natural reserve to protect the Amazon rainforest and Indigenous communities in the region. Red Eagle claimed that the ban on mining activities in the Páramos affected a significant portion of their investment and sought $118 million in damages for lost profits.³



In 2024, the tribunal ruled against Red Eagle, arguing that the company’s claims lacked merit. Despite “winning,” Colombia still had to pay its legal defense fees in addition to half of the tribunal fees, amounting to approximately $3.4 million USD.⁴