Why choosing the right arbitration clause matters in international contracts

Orano reports that it initiated a first arbitration in December 2024 following the withdrawal of the Imouraren permit. On January 21, 2025, the group announced a second arbitration, this time concerning the loss of operational control over SOMAÏR. The case database of the International Centre for Settlement of Investment Disputes (ICSID) lists two Orano Mining cases against Niger, ARB/25/8 and ARB/25/9, registered on March 5, 2025 and based on contracts. 1 2 3

In a statement dated September 26, 2025, Orano says it obtained a measure prohibiting Niger from selling or transferring to third parties the SOMAÏR uranium at issue in the dispute. This account comes from a party to the proceedings. A provisional measure seeks to preserve a situation while proceedings are underway; it is not a final award on liability or compensation. 2 4

As of November 8, 2026, the case database records a suspension of case ARB/25/8 since February 16, 2026. For case ARB/25/9, it records a reply on the merits filed on October 28, 2026. These procedural steps must be distinguished from a final decision on the merits of the parties’ claims. 2 3

In Mali, the companies operating Loulo and Gounkoto also initiated ICSID proceedings under their mining conventions. On November 24, 2025, Barrick announced a comprehensive agreement providing for the withdrawal of the arbitration claims. The ICSID case database records the conclusion of the proceedings on January 21, 2026 through an order taking note of their discontinuance. This outcome is therefore not an award on the merits finding Mali liable. It shows that negotiation and arbitration proceedings can coexist. 5 6 7

The public documents reviewed do not establish that the clauses in these projects were poorly chosen or drafted. The lesson we draw concerns preparation: understanding the available recourse, its scope and how it relates to a project’s operational needs.

Commercial arbitration and investment arbitration operate under different frameworks. A contract between businesses may provide for arbitration administered under the rules of the International Chamber of Commerce (ICC). Recourse under the ICSID Convention requires, among other things, written consent and compliance with the conditions relating to the investment and the parties. Naming ICSID in a contract is not enough to establish its jurisdiction. 8 9

Investment arbitration can itself be based on a contract, as the case records discussed above confirm. It is therefore necessary to identify the precise basis for the claim, the parties entitled to bring it and the disputes it covers. Where a state-owned company is involved, its status, powers and actual commitments require particular analysis; its involvement does not automatically make the State a party to the arbitration.

For a Canadian business, this assessment should take place while the project is being structured, with counsel qualified in the relevant jurisdictions. It helps the parties negotiate a mechanism that can be used by those who will actually assume the commitments.

The ICC recommends specifying several parameters and avoiding ambiguous wording. A suitable clause reflects choices that are consistent with the contract and the parties’ constraints. 8

• The institution and rules. Clearly identify the chosen framework, the method for appointing arbitrators and the applicable rules.
• The seat of arbitration. In commercial arbitration, the choice of seat determines the relevant legal framework and judicial supervision. It is distinct from the physical location of a hearing, which may be different. 10
• The applicable laws. Distinguish the law governing the contract, the procedural framework for the arbitration and, where necessary, the law governing the arbitration agreement itself.
• The language and number of arbitrators. Choose them with the teams, documents, financial stakes and cost of the proceedings in mind.
• The scope of the clause. Check which disputes are covered and whether the mechanisms in the project’s related contracts are consistent.
• Urgency and amicable resolution. Organize negotiation or mediation stages, their time limits and how they interact with any urgent measures that may be needed.

These questions also apply to supply contracts, services and partnerships. Familiar wording taken from an earlier contract deserves another look when the parties, countries or conditions of performance change.

Obtaining an award and enforcing it are two distinct steps. For many foreign awards, the New York Convention provides a framework for recognition and enforcement while also setting out grounds for refusal, including those relating to the validity of the arbitration agreement or a party’s right to present its case. 11

Awards rendered under the ICSID Convention are subject to a specific regime: Article 54 provides for the recognition and enforcement of pecuniary obligations, while Article 55 preserves the rules on State immunity from execution. Consent to arbitration must therefore not be equated with the ability to seize any public asset. 12

Contract planning should take account of the countries where enforcement might be sought, the security arrangements that could be considered and the relevant assets, with input from qualified specialists. The aim is to assess the practical reach of the remedy before relying on it to protect a significant commitment.

Prevention also depends on how the relationship is managed. Clear obligations, identified approval responsibilities and regular tracking of decisions help teams identify difficulties early enough to address them.

Specifying who receives a notice, how a change is approved, which records must be retained and where a disagreement should be escalated makes the contract useful in day-to-day work. This organization helps the parties seek a solution while also preparing, if necessary, to defend the business’s position.

Preparing effective recourse also means organizing the decisions and exchanges that may help avoid having to use it.

Aigba works at the preparation stage alongside business leaders, legal teams, project managers and procurement teams to align commercial strategy with contractual commitments.

Our support can include reviewing dispute resolution mechanisms, preparing negotiating positions, drafting clauses and checking their consistency across project contracts. We also help teams organize approvals, notices and the monitoring of obligations.

For international projects, we coordinate input from local counsel and arbitration specialists when the matter requires it. Questions of local law, jurisdiction and enforcement are examined with the relevant professionals. This preparation aims to reduce uncertainty and preserve options for resolving disputes, without promising that litigation will be avoided or guaranteeing its outcome.

Are you preparing an international contract or partnership? Let’s discuss the commitments to safeguard and the difficulties to anticipate before signing.

Analysis prepared on November 8, 2026 using the public sources listed below. Communications from Orano and Barrick express those companies’ positions. The procedural steps, provisional measures and agreements cited are distinguished from decisions on the merits. The status of the cases should be checked again before any later distribution.

• 1 — Orano, second arbitration concerning SOMAÏR, January 21, 2025; reference to the first arbitration concerning Imouraren.
• 2 — ICSID, Orano Mining SAS v. Niger, ARB/25/8: contractual basis and procedural history.
• 3 — ICSID, Orano Mining SAS v. Niger, ARB/25/9: contractual basis and procedural history.
• 4 — Orano, statement on measures relating to SOMAÏR uranium, September 26, 2025.
• 5 — Barrick, ICSID proceedings initiated by the Loulo and Gounkoto companies, December 18, 2024.
• 6 — Barrick, announcement of the agreement with Mali, November 24, 2025.
• 7 — ICSID, Loulo and Gounkoto companies v. Mali, ARB/25/2: conclusion of the proceedings recorded on January 21, 2026.
• 8 — ICC, recommendations for drafting an arbitration clause.
• 9 — ICSID Convention, Article 25: jurisdictional requirements.
• 10 — 2026 ICC Arbitration Rules, in particular Articles 19 to 22.
• 11 — New York Convention, in particular Articles II and V; text published by WIPO.
• 12 — ICSID, recognition and enforcement of awards under the Convention, Articles 54 and 55.

This article provides general guidance. Its application depends on the contract, the parties and the relevant laws.