Erica Li [1]
Introduction
On 30 June 2026, Young IFILA convened a panel discussion titled “Critical Mineral and Critical Infrastructure Disputes Post‑Pax Americana” at the London offices of LALIVE. The event brought together a distinguished group of practitioners and experts to examine the investment disputes landscape involving critical minerals and infrastructure, in an increasingly fragmented and multipolar world.
Trisha Mitra‑Veber (Reed Smith), the moderator of the panel, commenced the event by introducing the themes and topics to be discussed, before presenting the following panellists:
- Eric Humphery-Smith (Control Risks), who would provide an overview of the critical minerals sector and explore recent geopolitical trends in the sector.
- Kevin Huber (LALIVE), who would explore recent trends in the disputes landscape involving critical minerals and critical infrastructure.
- Manuel Casas (Twenty Essex), who would discuss disputes relating to deep sea mining.
- Bart Wasiak (Arnold & Porter), who would provide an overview of the critical infrastructure and explore recent geopolitical trends in the sector.
Panel Discussion
1. Critical Minerals and Recent Geopolitical Trends
Mr Humphery-Smith began by addressing the increasing strategic significance of critical minerals in the global economy. He first clarified the concept of “critical minerals”, noting that “criticality” is a loosely defined concept but typically refers to a combination of (i) the importance of a mineral in the context of the energy transition and next-gen technologies and (ii) the degree of supply concentration and risk to which it is subject. In recent years, regulators have further refined this definition by creating a new category of “strategic minerals”, which generally refers to minerals with a higher degree of criticality because of their importance to national security and defence.
Mr Humphery-Smith observed that critical minerals are indispensable to the energy transition, including for electric vehicles (“EVs”), battery storage, and renewable energy technologies. This has intensified State interest in securing stable and resilient supply chains.
A central feature of the current landscape is the disproportionate concentration of supply. Mr Humphery-Smith noted that production and processing of many critical minerals are geographically concentrated and, in many cases, effectively dominated by China. For example, cobalt production is heavily concentrated in the Democratic Republic of the Congo. Against this backdrop, Mr Humphery-Smith highlighted an emerging geopolitical contest, particularly between the United States and China, for access to and control over critical minerals. While China has spent decades building strategic dominance across the value chain, Western economies are widely perceived as having been “late to the party” and are now seeking to catch up.
Demand pressures also arise from technological developments. In the EV sector, for instance, the rapid expansion of lithium iron phosphate (“LFP”) batteries could shift demand for traditional cobalt and nickel-centric chemistries. As a result, producing countries are facing changing priorities in terms of investors and bilateral partners seeking to shore up supply.
This convergence of factors has contributed to a resurgence of resource nationalism, as States seek to maximise domestic control over mineral resources. By way of illustration, Mr Humphery-Smith referred to the case of gallium, a mineral of critical importance for semiconductors, defence technologies, and fast charging EV infrastructure. China accounts for an overwhelming share of global gallium supply, estimated at approximately 98%, and has used export controls to assert influence over global markets. Meanwhile, Guinea, a large producer of bauxite, is tightening control over raw exports, meaning that future gallium production could pivot to the country.
2. Recent trends in the disputes landscape involving critical minerals and critical infrastructure
Mr Huber began by noting a marked increase in the number of investor-state disputes arising in the mining sector in recent years, with some estimates suggesting that investor-state mining disputes have increased by approximately 65% over the last decade. He attributed this rise to the growing strategic importance of critical minerals, heightened geopolitical tensions, particularly between China and the West, and the resurgence of resource nationalism.
Against this backdrop, Mr Huber observed that States are adopting various strategies to assert greater control over natural resources. At one end of the spectrum are more direct approaches, exemplified by Guinea, where measures have included the revocation of permits and the seizure of mineral assets, thus giving rise to traditional expropriation claims. By contrast, in other jurisdictions, such as Burkina Faso and Mali, governments have pursued more nuanced approaches, including amendments to mining codes and the renegotiation of existing contracts.
In Latin America, the trend also varies by country, but in certain circumstances can be seen as more forward looking. As an example, Mr Huber pointed to developments in Chile, which has taken a more pragmatic approach by seeking to limit changes primarily to new projects, while leaving open the question of whether, and to what extent, existing contracts may be subject to renegotiation.
Mr Huber further noted that these developments raise a range of novel legal issues for ISDS. In particular, many existing investment treaties were drafted at a time when the notion of “critical” or “strategic” minerals had not yet emerged and therefore it remains unclear how tribunals will grapple with these issues.
Finally, Mr Huber highlighted the potential tension between State reliance on doctrines such as police powers and investors’ legitimate expectations. As certain minerals are re‑characterised from commercially valuable commodities to assets of strategic national importance, it remains unclear how tribunals will assess State measures taken in the public interest.
3. Deep Sea Mining
Dr Casas considered whether deep sea mining was a potential ‘new El Dorado’ in the world’s scramble for critical minerals. He first provided an overview of what deep sea mining actually involves. He explained that it is principally concerned with the extraction of polymetallic nodules lying on the seabed plains. These nodules contain metals such as nickel, cobalt, copper and manganese, all of which are crucial to the energy transition and battery supply chains.
Dr Casas explained that deep sea mining is governed by a distinctive international legal regime. The seabed beyond national jurisdiction, referred to under the United Nations Convention on the Law of the Sea (“UNCLOS”) as “the Area”, is treated as the common heritage of humankind. In principle, this means that mineral resources in the Area are not subject to unilateral sovereign appropriation and that activities must be organised for the benefit of humankind as a whole.
Dr Casas further explained that the International Seabed Authority (“ISA”) is responsible for organising, regulating and controlling mineral-related activities in the Area, including through the grant of exploration contracts and the development of rules for any future exploitation. While the ISA has been working on a comprehensive regulatory framework before the commencement of commercial mining, progress on a Mining Code has been slow.
Dr Casas noted a further complication that UNCLOS has not been ratified by all states, the United States being a prime example, which has led to various issues for US-linked enterprises. Dr Casas referred in this context to The Metals Company (“TMC”), a NASDAQ-listed Canadian company with US operations, which has sought to move from exploration of the seabed to commercial extraction, but has not yet obtained an exploitation licence under the ISA regime. This has led TMC to move its projects forward by exploring alternative national permitting routes (a situation that has led the ISA to investigate that conduct). This shows that the legal regime of deep sea mining is still evolving and this may lead to disputes, including under the law of the sea.
4. Critical Infrastructure and Recent Geopolitical Trends
Mr Wasiak first noted that “critical infrastructure” is a term of art in the national security community, but one whose precise scope varies from State to State. At its core, the concept refers to assets, systems and networks that are essential to national security, public safety and the day-to-day functioning of society.
Mr Wasiak explained that the regulation of 5G technology illustrates this shift. In many jurisdictions, 5G networks have been classified as part of critical national infrastructure because they underpin not only ordinary communications, but also essential services such as healthcare, emergency response, energy distribution and other public functions. Control over 5G equipment and network access therefore raises questions not merely of market regulation, but of national security.
Against that background, Mr Wasiak referred to Sweden’s de facto “ban” on Huawei and ZTE equipment from its 5G networks in 2020 for national security reasons. The Swedish telecoms regulator introduced the restriction in 2020, on the advice of the country’s Security Service and Armed Forces, as a condition for mobile network operators to participate in Sweden’s first-ever 5G spectrum auction. Two years later, in 2022, Huawei brought an ICSID claim against Sweden, arguing that the measure constituted a breach of Sweden’s obligations under the Sweden-China BIT. The case serves as a useful example of how a telecoms regulatory measure can lead to a dispute about critical infrastructure and the extent to which investment arbitration tribunals should defer to States’ national security assessments.
Mr Wasiak also noted that, at the EU level, the EU toolbox for 5G security has provided guidance to Member States on measures to mitigate security risks associated with 5G networks. Although the regulation of national security remains principally a matter for individual EU Member States, the Toolbox reflects a broader European trend towards coordinated scrutiny of high-risk suppliers, supply-chain dependencies and the resilience of communications infrastructure. It is to be seen whether regulatory measures in this area lead to any future disputes.
Mr Wasiak also highlighted investment screening as another important source of potential future disputes. Many States in Europe and elsewhere have strengthened their powers to review, condition or block investments in sectors considered sensitive for national security reasons. These regimes may apply to both inward investment and, in some cases, outbound transactions involving strategic technology or infrastructure.
By way of illustration, Mr Wasiak referred to the UK Government’s intervention in the acquisition by LetterOne, a company ultimately owned by Russian nationals, of broadband provider Upp Corporation, over national security concerns. LetterOne challenged the decision in the UK courts, but both the High Court and the Court of Appeal found in favour of the UK Government, thus confirming its broad powers under the National Security and Investment Act 2021. The case is now subject to an appeal to the Supreme Court, which will be heard in November 2026.
Mr Wasiak also referred to the UK Government’s intervention in the acquisition of Chinese-owned Nexperia BV of Newport Wafer Fab, a Welsh semiconductor manufacturer. The UK Government considered that the transaction raised national security concerns because of the strategic importance of domestic semiconductor capability, supply-chain resilience and the potential transfer of technology and know-how. The UK Government therefore required Nexperia to divest the majority of its interest in Newport Wafer Fab. This example shows that national security screening is not limited to obviously defence-related assets but may also extend to enabling technologies that are viewed as strategically important in the wider industrial and geopolitical context.
Concluding Remarks
The panel concluded by emphasising that growing geopolitical fragmentation and increasing resource nationalism are likely to make critical minerals and critical infrastructure central issues in future investment disputes.
[1] Erica Li is a Senior Associate and Solicitor Advocate in LALIVE’s London office, where she practises in the firm’s arbitration group. She is qualified in England and Wales with broad experience in international arbitration and complex, cross-border litigation.