Time and money: the growing value of ADR in African Mining

 The increasing global demand for African critical minerals and the varied parties becoming more interested, involved, and ‘fighting for their piece of the pie’ is creating a breeding ground for potential disputes, say mining experts Bryan White and Chantal Murdock, directors at leading South African firm Beech Veltman.

“You’ve got investors, you’ve got private companies chasing after critical minerals, you’ve got governments like Canada with their strategy, the US with their strategy,” shared White in a conversation on the Mining 901 podcast.

At this year’s Investing in African Mining Indaba in Cape Town, there were several discussions about the critical minerals strategy of the United States, as Washington sent its largest-ever delegation to the event as it increasingly seeks to counter China’s two-decade dominance of the global minerals supply chain.

“One of the very interesting discussions we had with the International Chamber of Commerce was about the role of alternative dispute resolution in mining contracts,” says White, who along with fellow Beech Veltman director Murdock was recognised as a Next Generation Partner by Legal 500 earlier this year.

From a commercial perspective, says Murdock, African mining can create strange sets of cross-border facts and circumstances. “You can have a situation where you’re a South African mining company with South African mining licences, you supply your minerals to a company in China, but you export through a separate country in Africa, then end up in a dispute with a contractor that’s a registered entity in Canada. So the question comes in, what law applies to this situation?”

Such scenarios are no longer exceptional; they are increasingly representative of how modern mining business is conducted. Which elevates the role of dispute resolution clauses in modern mining contract. Murdock and White say such clauses shouldn’t be treated as boilerplate or routine provisions inserted at the end of commercial negotiations, but as strategic risk management tools.

They can be the difference between a future dispute being resolved efficiently, or becoming a costly, multi-year legal battle.

Finding a dispute resolution mechanism that cuts out all the complicated noise really does make it easier to deal with matters, adds Murdock, while presenting an opportunity for parties to get disputes resolved expeditiously as opposed to trying to go through the ‘significantly backlogged’ South African court system.

“I think mining companies should look right from the get-go,” says White, “when they enter into their contracts to supply these critical minerals, or whatever minerals they’re supplying, to build strong arbitration clauses, strong ADR clauses just as a means of – in South Africa, particularly – keeping out of court.”

Arbitration can provide significant advantages: a neutral forum for parties operating across multiple jurisdictions, avoiding court delays, lowering costs.

"You can sitting waiting three or four years just to get a court date," says White, who was involved in two large matters in the latter half of 2025 that were resolved by private arbitration. “The alternative is that you sit in courts and wait for 10 years for a resolution. We’ve got to focus more on alternative dispute resolution.”

An increasing focus on ADR in African mining reflects a broader shift across commercial disputes more generally. Courts in several African jurisdictions, including South Africa, Nigeria, Uganda, Kenya, and many OHADA nations, are increasingly mandating (or at least strongly encouraging) that parties to civil disputes try to resolve matters via mediation before any litigation proceeds.

That becomes interesting, says Chantal, in terms of why don’t mining parties just agree to such methods in their commercial contracts from the beginning.

Of course, when ADR clauses are included in contracts, they need to be drafted well. Last year, Chantal was involved in a dispute between South African and Chinese parties, with an arbitration based in Singapore. The dispute became very messy, with one of the reasons being a poorly drafted arbitration clause.

“Getting those clauses right in your commercial agreements, right from inception, will save you a lot of money and time down the line,” says White.

Overall, say the Beech Veltman experts, in an African mining industry increasingly defined by surging global demand for various critical minerals, along with regulatory change, international investment, geopolitical challenges, and cross-border supply chains, dispute resolution should not be a reactive consideration.

It should be a strategic one.  

For more information on Beech Veltman, visit here.