Keeping pace amidst rapid change: the critical role external counsel play for mining in-house legal teams

In today’s fast-evolving legal landscape, collaboration between in-house counsel and external counsel is no longer a ‘nice to have’; it is a commercial necessity, says Martin van der Schyf, partner and Chair of Tiefenthaler Legal, an international law firm with experience across the mining, energy, and construction sectors.

“The mining industry operates in one of the most complex commercial and regulatory environments,” he says. “Large-scale capital investments, multi-party contractual frameworks, long project lifecycles, and stringent compliance obligations mean that even small contractual oversights can escalate into significant financial and operational risk.”

Martin, who is dual qualified in South Africa and Australia, has acted in high-value disputes across Africa and internationally, including matters resolved through adjudication, arbitration, and litigation. His message to the mining fraternity is not that external counsel should take over. Rather, it is that the most resilient mining businesses are those where in-house and external teams operate as one, with clarity on roles, accountability, and decision-making.

In-house legal teams sit closest to the business. They understand operational pressures, stakeholder relationships, internal governance and the commercial context in which decisions must be made. That proximity is a strategic advantage and is often what enables sensible, early problem-solving. 

External counsel, by contrast, bring continuous exposure to the sharp edge of legal risk: the realities of contract enforcement, evolving case law, shifting regulatory approaches, emerging dispute tactics, and what succeeds (and fails) in formal proceedings.

“While in-house teams play a critical role in aligning legal strategy with business objectives, practising attorneys bring something complementary and highly practical,” says Martin. “It is the benefit of daily engagement with disputes, contractual interpretation, procedure, and developing legal trends, with the ability to translate those lessons into preventative action on live projects.”

Where the relationship between in-house teams and external counsel is structured well, he says, external counsel are not a separate function. They become a trusted extension of the in-house team — strengthening internal capability, accelerating decision-making, and reducing the likelihood of avoidable escalation.

“By the time a dispute ‘arrives’ on the desk as a formal claim or referral, the outcome is often shaped by what happened months earlier,” says Martin. This is why the most cost-effective approach is to integrate specialist external support early, and not only when a dispute has become unavoidable, but during the pre-contract stage and throughout the project lifecycle. “In our experience, dispute avoidance is far more commercially sensible than dispute resolution,” he says. “That is achieved through early and continuous legal involvement — properly embedded into project processes, not bolted on once the wheels are coming off.”

The complexity and pace of modern mining projects demand what Martin calls a hybrid model, where an empowered in-house legal function is supported by external legal counsel who can add bandwidth and depth where required

Crucially, Martin says successful collaboration is not about external counsel presenting themselves as ‘the answer’. It is about sound judgement, respectful teamwork, and aligning around achievable outcomes.

Tiefenthaler Legal supports mining legal teams through targeted contractual and project training, particularly in standard forms such as JBCC, GCC, NEC and FIDIC, and in more advanced, practical contract management topics relevant to projects.

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