Insights

London – October 14, 2025: Crowell & Moring U.K. LLP has been recommended in five practice areas in the Legal 500 United Kingdom 2026.

Washington – June 10, 2025: Crowell & Moring partners Paul Haskel and Paul Muscutt, senior counsel Scott Lessne, and counsel John Laird authored a chapter entitled “An Overview of Litigation Funding” for the International Comparative Legal Guide – Lending & Secured Finance 2025 edition.

Washington – July 20, 2021: Crowell & Moring’s International Dispute Resolution Group has been included in the 14thedition of Global Arbitration Review's GAR 100, a guide to the top 100 law firms with international arbitration capabilities. GAR is one of the leading journals of public and private arbitration.

Part Two of a Two-Part Client Alert Series. This Alert builds on the discussion in Part One, which surveyed Bear Creek (2017), Copper Mesa (2016), South American Silver (2018), Eco Oro (2021), and Lupaka (2025).

This Alert, the first in a two-part series, surveys the legal landscape at the intersection of two issues that increasingly shape the outcome of mining and natural resources disputes regarding the protections available to foreign investors under investment treaties, as enforced through Investor-State Dispute Settlement (ISDS). The first is the prior consultation obligation imposed on States under the Indigenous and Tribal Peoples Convention, 1989 (No. 169), adopted by the International Labour Organization (ILO 169). The second is social license, the practical acceptance of a project by surrounding communities, which is distinct from but related to the formal State consultation duty. This Alert examines these issues across five foundational ISDS decisions:

English law has long treated the choice between terminating for repudiatory breach and exercising a contractual termination right as consequential. Under the Financings[1] causation principle, a party exercising a contractual right for a non-repudiatory breach could recover losses accrued to the date of termination — but nothing more. Loss of bargain was out of reach unless the breach went to the root of the contract. A practical workaround, confirmed in Lombard,[2] was to designate the relevant obligation as a condition, elevating any breach to repudiatory status, but that device carries significant strategic risk if the termination is later found to have been wrongful.