Mining Mirror January 2019 | Page 20

Indaba preview law to mitigate the risk of expropriation without compensation,” Leon adds. So where does this leave the international investor? In a document authored by Leon, Hannah Ambrose, professional support consultant at Herbert Smith Freehills, and Ernst Müller, associate at Herbert Freehills in Johannesburg, they state that it is an accepted principle of international law that a country cannot simply implement domestic legislation to avoid its international law obligations. Because of this, regardless of what domestic from USD8.3-billion to USD1.3-billion, its annual GDP growth fell from 2.5% to 1.3%,” says Leon. “The proposed amendment of section 25 of the Constitution — the property clause — even while it is still being debated, may well affect the pricing of investment risk, which can lead prospective as well as existing investors to turn their attention to more hospitable investment destinations. Existing foreign investors, in particular, will need to consider what rights and recourse might be available to them under international [18] MINING MIRROR JANUARY 2019 legislation prescribes (which includes the Constitution), foreign investors can still rely on the protection afforded by the existing bilateral investment treaties or BITs (that is, concluded between two states) if they can show that they qualify as ‘investors’ in terms of those treaties. The report states that many of the BITs include ‘sunset clauses’, which provide that the protection afforded under the BIT will remain in place for a specified number of years after the BIT is terminated. As a consequence, a foreign investor’s rights under these treaties remain in place even after it is terminated. Article 14 of the BIT between the United Kingdom and www.miningmirror.co.za