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Nationalism: A
Gathering Storm?
Mark Clarke
Partner, Ashurst LLP, London
Tom Cummins
Senior Associate, Ashurst LLP, London
Expropriation; International commercial arbitration;
Nationalisation; Oil and gas industry; Oil and gas
On January 18, 2012, a Financial Times article asked a
pertinent question for investors in the oil, gas and mining
industries: 2012: the year of resource nationalism?.
The article noted that whereas 2011 could be characterised
as the year of protest (with significant consequences for
oil and gas companies operating in countries affected by
the Arab Spring), this year may be remembered for
measures taken by producing states to secure greater
rewards from the extraction of their natural resources.
The consultancy, Maplecroft, concurred, with an
analysis that 44 per cent of global oil production is taking
place in countries that pose a high or extreme risk of
resource nationalism.
As the search for reserves focuses
ever more on less stable parts of the world, this is likely
to become an increasingly live issue.
These predictions were borne out in April 2012 in a
high profile way. President Cristina Fernndez of
Argentinas government enacted legislation to enable
Argentina to seize a controlling 51 per cent stake in the
energy company, YPF, from the Spanish company,
Repsol has threatened that this act will not
remain unpunished and commenced legal proceedings.
It is not only extractive projects which are in the firing
line. The following month, Bolivia nationalised the states
principal electricity transmission company which had
been controlled by the Spanish company, Red Elctrica
This article looks at the history of so-called resource
nationalism, with a focus on the oil and gas industry. It
discusses the reasons for resource nationalism, how it
manifests itself, and the mechanisms, contractual, and
treaty, which can be deployed by affected parties.
History of resource nationalism
Resource nationalism is an umbrella term which is
frequently applied to acts by host states to expropriate or
change the terms on which resources are extracted, and
monetised, in order to obtain greater benefits for the host
state. The International Energy Forum has defined it as
nations wanting to make the most of their endowment,
a formulation which suggests the ideologically charged
nature of the topic. This is reflected in the 1962 United
Nations resolution on the permanent sovereignty of
natural resources which was based on the inalienable
right of all States freely to dispose of their natural wealth
and resources in accordance with their national interests.
Resource nationalismmay take a variety of forms, from
outright nationalisation of resources to regulatory and
fiscal measures which deprive an investor of the value of
the resources it is exploiting, and increase the host states
take. The 1970s was the high water mark for
nationalisation of assets, with the Middle East being the
principal arena. Long-term oil concessions which
extended over vast swathes of the Middle East on
extremely beneficial terms for oil companies had been
renegotiated in the 1950s and the 1960s. In the 1970s a
wave of nationalisations, facilitated by the creation of
national oil companies, took place, permanently changing
the landscape of the international petroleum industry.
Subsequent decades sawa retrenchment fromresource
nationalism, with greater emphasis placed on opening up
developing economies to foreign direct investment, and
privatisation of inefficient state assets. States needed
private investors to develop infrastructure and oil and gas
reserves. Oil companies took advantage of greater access
to exploration acreage, and negotiated favourable
exploration and production deals with producing states.
A feature of the history of resource nationalism is its
cyclicality. Just as the generous concessions of the
pre-war period were the subject of attack by producing
states in the 1960s and 1970s, the terms offered (and
willingly accepted) by oil companies in the 1980s and
1990s were revisited in the 2000s by states ill at ease with
the small fraction of value which they were receiving
from soaring oil prices. This spate of unilateral measures
by states in the early years of the millennium extended
from Russia and Eastern Europe to South America (long
a bastion of antipathy to the concept of preferential
treatment for foreign investors).
Thus, by way of example, measures which could be
characterised as resource nationalism were imposed by
governments in Venezuela (which took steps to migrate
oil resources to companies majority-Venezuelan owned
in 2007), Ecuador (which imposed windfall taxes on oil
exporters in 2006 and later insisted that oil companies
2012: the year of resource nationalism? Financial Times, January 18, 2012.
Maplecroft, Forty-four per cent of Global Oil Production Taking Place in Countries with a High Risk of Resource Nationalism New Report (March 1, 2012).
Argentina moves to seize control of Repsols YPF Reuters, April 17, 2012.
YPF Repsol: Spain says Argentina shot itself in foot BBC News Online, April 17, 2012.
Just when you thought it was safe Evo Morales nationalises a Spanish electric company The Economist, May 5, 2012.
Middle East Economic Survey (2006) 49, p.39, referred to in Paul Stevens, National oil companies and international oil companies in the Middle East: Under the shadow
of government and the resource nationalism cycle (2008) 1 Journal of World Energy Law & Business.
General Assembly Resolution 1803 (XVII) of December 14, 1962, Permanent sovereignty over natural resources.
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operating in the state enter into new flat-fee service
contracts, rather than the more profitable production
sharing deals), Bolivia (which adopted a similar approach
to extant oil and gas contracts in 2006), Algeria (which
imposed an exceptional profits tax in 2006 and required
majority control by the national oil and gas company,
Sonatrach, in all new projects), Kazakhstan (where the
state has taken operating stakes in major oil projects and
imposed export duties on companies operating in the
country) and Russia (where the oil company, Yukos, was
subject to various tax claims which resulted in its
bankruptcy in 2006 and where pressure has been placed
on Western investors such as BP and Shell to cede control
of strategic projects, such as the huge Kovytka gas field
and the Sakhalin-II oil and gas development).
Today, Nigeria is struggling to enact its newPetroleum
Industry Bill which is intended to bring in a new royalty
and taxation regime and participation in the fruits of the
industry by indigenous communities. Uncertainty has
restrained investment by oil companies. The interim
government in Libya has suggested it may revisit
contracts entered into by the previous regime.
This list might suggest that resource nationalismis the
province exclusively of African, Eastern European and
South American states. However, the governments of
Australia (which threatened a Super Profits Tax), the
Canadian province of Alberta (which increased the royalty
rates applicable to oil sands projects) and the United
Kingdom (which has periodically imposed higher taxes
on North Sea oil and gas production) have been the
subject of criticism and furious lobbying by oil
Drivers of resource nationalism
The provocations for resource nationalism are diverse.
Ideology plays a role. The renegotiation of concessions
in the 1950s to 1970s took place in the context of
de-colonialisation and the perception that investors from
wealthy states should not be able simply to cart off a
states natural patrimony. A redistribution of the
ownership of natural resources followed. In more recent
times hostility to the United States and its allies has
engendered calls for renegotiation of the terms on which
resources are exploited. Producing states may have valid
concerns about the depletion of resources, favouring a
more gradual exploitation of reserves, rather than an
aggressive production profile preferable to oil companies.
Less utilitarian is resource nationalism inspired by greed
for the profits of corruption. Some leaders take the view
that political careers are short and that oil and gas
revenues should be garnered in such a manner as to
facilitate the skimming off of sums for personal gain.
Closely allied to ideology are economic factors. In
states where there is a growing youthful population with
limited access to jobs or opportunities (as fuelled the Arab
Spring) populist leaders seek to distract attention from
domestic woes by attacking international oil companies
and expropriating their assets. Increased revenues from
oil and gas are used on social programmes aimed at
ameliorating the effects of unemployment and
disenchantment, without addressing the underlying causes.
Weak political institutions can enhance the likelihood of
nationalistic campaigns bearing fruit.
High oil prices are invariably a catalyst for resource
nationalism. The examples cited above took place in a
world where oil prices had increased from around $20
per barrel in 2000 to a record $147 per barrel in 2008. In
early 2012 oil prices lingered at over $100 per barrel,
before declining in the light of ongoing economic
Structurally, the notion of the obsolescing bargain,
where negotiating power lies with the oil company at the
start of the investment, but then switches to the host state
when infrastructure is installed and oil flowing, explains
why the relationship between the host state and oil
company is always likely to be dogged by a degree of
uncertainty. Instability is inherent in the evolving bargain
between host and investor. This is exacerbated where
terms were originally entered into which were inflexible,
unsophisticated, and did not provide for the host states
take to increase progressively with the oil companys
As noted above, resource nationalismis not necessarily
final or irreversible. The process is perceived as cyclical.
As oil prices decline, oil companies are enticed to return
to states which had sought to discourage private
investment. As recovery of reserves becomes more
technically difficult, for example, where enhanced oil
recovery techniques are required, or where intractable
geology exists, the expertise of the international oil
companies becomes essential. In August of last year
Mexicos monopoly state oil company awarded the first
ever operating contracts for its oilfields to private
companies. The 2008 reforms authorising this were
controversial, as state control over Mexicos oil industry
has been a source of national pride since nationalisation
in 1938. Mexicos change of heart after years of
underinvestment in its resources illustrates the dynamism
of the industry and this influences the responses of
investors faced with resource nationalism.
Protecting investors against resource
How can investors protect themselves against resource
nationalism, or, at least, mitigate the consequences of its
Investments in host states do not take place in a
vacuum. They are not isolated from prevailing political
and social factors. The prospects of stability can be
enhanced if oil companies are seen to contribute more to
the host nation than just tax receipts and royalty payments.
Thus, investment in oil and gas infrastructure can be
accompanied by investment in social programmes and
social and transport infrastructure. This may reduce the
potential for outcry against oil companies when oil prices
rise and investor profits increase. A recent feature of oil
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and gas exploitation in Africa has been the aggressive
approach taken by Asian consumers, particularly China,
to securing exploration and production acreage. As The
Economist noted earlier in the year:
One of Chinas favourite tools is oil for
infrastructure. China offers to provide poor countries
with schools, hospitals and the like (usually financed
by soft loans and built by Chinas infrastructure
giants) in return for a guaranteed supply of oil or
some other raw material.
While China can offer things which private companies
cannot, the benefits of being seen to be contributing to
the host states wellbeing cannot be overstated.
Investment in the host state is a positive, proactive step
which can be taken by investors. Equally important is
seeking to avoid the negative consequences of
exploitation. Promoting transparency in how the receipts
of oil production are managed and invested reduces the
scope for corruption and for popular anger against oil
companies. Similarly mitigating any harmful
environmental impact from operations makes it more
difficult for investors to become easy targets for criticism.
One further approach would be to obtain finance from
a multilateral institution such as the World Bank, the
European Bank for Reconstruction and Development or
the Asian Development Bank. The presence of such
institutions in a project may reduce the willingness of a
host state to interfere as this would damage its relationship
with the institutions and reduce its likelihood of obtaining
future financing.
Much can also be done in the drafting of agreements
with host states. There are three principal elements to
First, contracts can provide for a progressive
remuneration systemfor the host state, with the host state
fully participating in increasing oil prices, together with
the investor. A host state which considers that it is
receiving a fair take which will swell as oil prices rise
will be less willing to countenance aggressive action
against an investor which could lead to disruption of
production and a reduction in sums received by the state.
Structurally, such an effect may be achieved by permitting
a national oil company to become an equity participant
in a project.
Secondly, stabilisation clauses can be included which
aim to preserve the legal and economic bargain agreed
by the investor and the host state at the outset of the
investment. Stabilisation clauses have a long history in
the extractive industries. They are believed to have
emerged between the world wars when US companies
sought to preserve the terms which they had agreed over
the length of their contracts in the wake of a spate of
nationalisations in Latin America. Stabilisation clauses
can broadly be divided into two categories: clauses which
impose an obligation on the host state not to make any
changes to the lawin place when the contract was entered
into (such as increasing tax rates) and clauses which
provide for adjustment of contractual terms to reflect such
changes. The purpose of the latter clauses is not to
prohibit actions by the host state. Rather, it is to prescribe
the consequences of such actions.
The trend in recent decades has been away from
so-called freezing clauses which seek to prevent host
states acting as they see fit, towards adjustment clauses.
The latter may take the formof clauses providing that the
contract adjusts automatically in accordance with an
agreed formula upon the occurrence of a specified event
(such as the increase in, or imposition of, a new tax).
Alternatively the clause may mandate negotiations
between host state and investor to achieve a negotiated
settlement which ensures that the investors anticipated
returns are maintained. This may be difficult to operate
in practice, if the host state is not prepared to negotiate
to achieve this. Issues may also be raised with regard to
whether an obligation to negotiate new fiscal terms is
unenforceable for lack of certainty. A superficially neat
fix is a clause which provides that any increase in taxes
beyond those agreed at the commencement of the
investment will be borne not by the investor, but by the
national oil company of the host state. However, if the
national oil company is not in a position to meet its tax
burden (such as in circumstances where it has been
drained of funds by competing state interests such as
social programmes, infrastructure or defence), recourse
is likely to be sought against a deep-pocketed investor.
International arbitration
The third contractual mechanism is international
arbitration. Rather than litigate any disputes in the courts
of the host state, investors can bring their claims in a
neutral venue before a neutral tribunal. The advantage of
this is not confined to the obvious one of evading the
deliberations of a potentially partial judiciary, or a
judiciary obliged to apply any new laws enacted which
form the subject of the investors claim. Arbitration can
involve the appointment of a sophisticated tribunal and,
potentially, the rendering of a portable arbitration award
in the investors favour which can be enforced elsewhere
in the world.
Arbitration also avoids the practical
discomforts of litigating in foreign courts. Caution should
be exercised, however, to ensure that all that is necessary
to make arbitration provisions binding on states has been
done. Some states require specific procedures to be
undergone in order to perfect their consent to
The role of arbitration is not confined to disputes
arising from contract. Proceedings may be brought on
the basis of a host states consent to arbitration in either
an investment statute (such as a national investment law)
or an investment treaty.
Going abroad The world in their hands The Economist, January 21, 2012.
However, host states may rely on the doctrine of sovereign immunity to resist successful enforcement of arbitration awards against their assets. Argentina has consistently
refused to honour arbitration awards made against it.
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The network of investment treaties is extensive. As of
2010, there were over 2,800 bilateral investment treaties
in force. In the energy sector, the Energy Charter Treaty,
established in 1994 provides for multilateral cooperation
on energy transit, trade and investment protection.
Fifty-one countries have signed the Treaty, and it has
been signed collectively by the European Union and the
European Atomic Energy Community.
Many treaties provide for arbitration between investors
and host states with an option as to the forum and rules
governing such arbitration. Frequently, arbitration at the
International Centre for Settlement of Investment Disputes
(ICSID) is provided for. ICSID is dedicated to the
resolution of international investment disputes, under the
auspices of the World Bank, and has published its own
arbitration rules for this purpose.
Protection may also be enhanced by acquiring political
risk insurance for a project from a private insurance
company. The cost of such insurance may be lower if
investment treaty protection is in place. Indeed, the
existence of a bilateral or multilateral investment treaty
may be a prerequisite to the provision of insurance.
The protections typically afforded by investment
treaties may be engaged by acts of resource nationalism.
Thus, an obligation upon a host state to afford fair and
equitable treatment to investors could be breached by the
frustration of an investors legitimate expectation that it
would receive a certain return for its investment. An
obligation to ensure that foreign investors are treated no
less favourably than nationals of the host state could be
breached by a law directed specifically at foreign oil
companies. A common provision of investment treaties
is that dealing with expropriation. While treaties
invariably recognise that expropriation may occur, they
provide for the level of compensation to which the
investor is then entitled. Expropriation will often be
permissible if it is justified and non-discriminatory, and
if prompt, adequate and effective compensation is paid
to the investor.
Expropriation is often the term used when resource
nationalism arises. However, there are a number of
different shades of expropriation, ranging from direct
expropriation, involving the transfer of the title of an asset
from the investor to the host state (or an organ thereof)
to indirect expropriation where, although title is retained,
the investor suffers a substantial deprivation of the value
of its investment. A form of indirect expropriation which
is commonly seen is so-called creeping expropriation
where a series of acts, perhaps only very gradual,
incrementally deprive the investor of his investment.
Creeping expropriation might describe increases in taxes
leviable on the investors profits, regulatory measures
which inhibit the investors enjoyment of his investment,
or measures gradually increasing the mandatory level of
state participation in a project. Legislation which
mandates the reservation of increasing volumes for
domestic, or non-export, use would also fall within this
Claims arising from resource nationalism may also be
made on the basis that a duty to provide physical
protection for an investment has been breached (perhaps
where operations have been disrupted by demonstrations
with the tacit consent of the host state, or where a restive
populace has damaged installations of private investors)
or a duty to permit free transfer of returns from the host
state to the investors country of domicile has been
The highest proportion of ICSID disputes have arisen
in the energy and mining industries. This reflects the scale
of foreign direct investment in the sector and the rising
tide of resource nationalismsince 2000 (a period in which
ICSIDs caseload has dramatically increased).
Arbitration claims arising fromresource
What sorts of claims have been brought to arbitration as
a result of resource nationalism? Unsurprisingly, a large
proportion has arisen fromunilateral state actions in South
America. Venezuela, in particular, is facing a welter of
claims brought following nationalisations imposed by
Hugo Chavezs government.
In the oil and gas industry, high profile claims have
been brought by Exxon Mobil and ConocoPhillips.
In January 2012, an ICC arbitration tribunal produced
an award arising from Exxons claim for as much as $10
billion (later reduced to $7 billion) in compensation for
the 2007 nationalisation of the Cerro Negro heavy oil
project in Venezuelas vastly prospective Orinoco Belt.
The award, arising from breach of contract, rather than
treaty, required Venezuela to pay to Exxon $908 million,
less than 10 per cent of the sum originally claimed.
The scope of a separate treaty claimbrought by Exxon
against Venezuela was reduced by an ICSID tribunal in
June 2010. The tribunal concluded that claims brought
under the Netherlands-Venezuela Investment Treaty could
proceed only insofar as they related to measures taken by
the Venezuelans after Exxons 2006 corporate
restructuring which had brought Exxons investments
within the scope of the Treaty. Claims arising from a
Venezuelan statute were also struck out on the basis of
lack of consent to arbitration on the part of Venezuela.
ConocoPhillips claim is pending before ICSID. In
February 2012, Venezuelas application to disqualify one
of the arbitrators appointed, the Canadian, Yves Fortier,
on the basis that he had failed to disclose the merger of
his law firm with a law firm which had acted previously
against Venezuela, was rejected.
See ICSID, The ICSID CaseloadStatistics, Issue 2012-1.
Exxon win is less than expected Global Arbitration Review, January 3, 2012.
Blow to ExxonMobil in Venezuela claim Global Arbitration Review, June 21, 2010.
ConocoPhillips Company v The Bolivarian Republic of Venezuela ICSID Case No.ARB/07/30 February 27, 2012.
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Ecuador, too, has been the subject of proceedings
arising from its 2006 Law 42 which substantially
increased Ecuadors share of revenues from oil
production. In December 2009 Ecuador succeeded in
challenging the appointment of an arbitrator in
proceedings brought by Perenco. Ecuadors challenge
was on the basis that the arbitrator, appointed by Perenco,
had made adverse comments with regard to Ecuadors
compliance with orders of arbitral tribunals and thus had
given rise to justifiable doubts regarding his impartiality
or independence.
In a claim brought by ConocoPhillips subsidiary,
Burlington Resources, against Ecuador the tribunal in
June 2010 accepted Ecuadors arguments that certain
claims fell out with the Bilateral Investment Treaty upon
which Burlington relied.
Similarly, in Murphy Oils
claim against Ecuador, Ecuador successfully resisted
claims on the basis that Murphy Oil had failed to comply
with a six-month consultation and negotiation period
under the Ecuador-United States Investment Treaty.
Elsewhere in the world, in September 2010 a tribunal
sitting in Stockholm determined that Russia unlawfully
expropriated the investment of an English investor in
Yukos. The claim brought pursuant to the United
Kingdom-Russia Bilateral Investment Treaty resulted in
an award of $3.5 million.
The investor had sought $230
million. A separate $100 billion claim against Russia
under the Energy Charter Treaty, termed the largest
international arbitration ever is proceeding at the
Permanent Court of Arbitration in The Hague following
the rejection of Russias arguments that the tribunal had
no jurisdiction because Russia had terminated its
provisional application of the Energy Charter Treaty.
What conclusions can be drawn?
First, claims are relatively few and far between. Exxon
and ConocoPhillips decided to pursue Venezuela through
arbitration. Other international oil companies in a similar
position adopted a different approach, electing to remain
in the country and accept the straitened economic terms
offered. Investors need to weigh up whether they are
better off accepting a neweconomic reality imposed upon
them, and retaining access to the hydrocarbons extracted
from producing states, or taking the dramatic step of
commencing proceedings, potentially severing irreparably
the relationship with the host state and alienating other
states in which they have investments (which, like certain
states in South America, may feel a degree of solidarity
with their regional neighbours). Electing to leave a
country and to commence proceedings may bring with it
a sudden, and irreplaceable, loss of crude volumes,
necessitating rearrangement of contractual and logistical
relationships with counterparties fromshippers to refiners.
Commencing arbitration against a host state is not a
decision to be taken lightly. It is disruptive, public and,
even if done in order to uphold contractual rights, an
aggressive step. It is for that reason that the threat of
arbitration proceedings, accompanied by high-level
delegations with detailed presentations illustrating the
benefits provided by the investor to the host state, may
be employed in the first instance. Earlier this year, in
March, Anadarko and Maersk Oil announced that they
had settled their contract and treaty claims against Algeria
arising from a windfall tax on profits imposed in 2006.
The companies announced that the deal would result in
the delivery to them of additional crude volumes in the
short term and a higher volume of oil going forward.
Secondly, tribunals have shown a tendency to make
conservative damages awards in favour of investors. Often
detailed submissions are made by investors illustrating
the returns that the investor would have received but for
the host states acts. Discounted cash flow analysis is
deployed to illustrate the fair market value of the asset.
However, tribunals often show little inclination to award
big numbers. So, in the case against Yukos referred to
above, only $3.5 million was awarded on the basis that
the investor had known of Yukoss legal difficulties when
it had invested, and the award of damages on a best case
valuation was inappropriate. In Exxons ICCclaimagainst
Venezuela, Exxons counsel observed that the tribunal
had applied a higher discount rate to Exxons claims than
Exxon had contended for, reducing the damages
Thirdly, host states have become increasingly savvy
about frustrating and delaying arbitration proceedings
and taking jurisdiction points which reduce the scope of
the claims against them. Such states are well-advised.
They know the mechanisms which may be deployed to
achieve this. Thus, challenges to arbitrators are
increasingly frequent. Preliminary issues are arbitrated
with regard to whether the arbitrators have jurisdiction
to hear disputes (such as on the basis that the investor is
not protected by the treaty under which the jurisdiction
of the arbitrators is claimed). The availability of ICSID
arbitration is disputed by respondent host states.
Procedural points are taken with regard to compliance
with cooling off periods prior to commencement of
claims. All of this makes it harder for international oil
companies considering their options to retain the stomach
for a long drawn out, and public arbitration battle.
Fourthly, states facing claims before ICSID have not
confined their response to taking jurisdiction points once
proceedings have commenced. Ecuador and Bolivia have
previously withdrawn fromICSIDand Venezuela notified
ICSID of its intention to do the same in January of this
year, with Venezuela formerly withdrawing from ICSID
Mixed result on jurisdiction in claim against Ecuador Global Arbitration Review, June 30, 2010.
Murphy loses Ecuador claim for failing to cool off Global Arbitration Review, December 17, 2010.
Abandon hope, all ye speculators Global Arbitration Review, March 11, 2011.
Tribunal says Yukos case can proceed Global Arbitration Review, November 30, 2009.
Anadarko and Maersk settle with Sonatrach Global Arbitration Review, March 15, 2012.
Exxon win is less than expected Global Arbitration Review, January 3, 2012.
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in July.
The legal consequences of withdrawal on claims
arising from contracts or treaties providing for ICSID
arbitration entered into prior to such withdrawal remain
open to debate.
Fifthly, it should be noted that even if an investor is
successful in obtaining an arbitration award, enforcement
against a state may not be straightforward. Many states
pay arbitration awards against them voluntarily, so as to
avoid the adverse publicity of refusing to honour awards
handed down by impartial tribunals. Others, however,
are less compliant. Argentina, in particular, is notorious
for refusing to honour awards made against it by ICSID
tribunals. ICSIDalso contains a mechanismfor annulment
of awards in certain circumstances. Applications by states
to annul awards have proliferated in recent years.
As 2012 has gone on, oil prices have declined
somewhat, leading some to believe that the fears of
resource nationalism this year will not be realised. The
Financial Times, departing from its bleak prediction in
January 2012 asked in June whether the resource
nationalism tide that has scared energy, mining and
agribusiness executives around the world over the last
decade may start to ebb.
The article concluded by
talking of resource nationalism-lite, rather than the
full-blown incarnation previously forecast.
Regardless of which prediction comes true, investors
in regions prone to resource nationalism, and arbitration
practitioners, must remain alive to the possibility of
further instances of unilateral state acts, and further claims
which will require determination.
Venezuela Submits a Notice under Article 71 of the ICSID Convention ICSID website, January 26, 2012.
The turning tide of resource nationalism Financial Times, June 15, 2012.
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