Foreign mining companies with investments in Kenya whose mining licenses are cancelled and/or whose revenues decrease as a result of these new drilling charges and/or royalty schemes may be able to bring compensation claims against Kenya before international investment arbitration tribunals. Compensation claims are not restricted to active mining properties as exploration and development properties may also have significant value that can be determined by expert means on an independent basis.
Kenya has entered into a number of bilateral investment treaties (BITs) and the treaties that are in force may be relied upon by investors to bring claims against Kenya. The bilateral investment treaties that are currently in force include those between Kenya and France, Germany, Italy, the Netherlands, Switzerland, and the United Kingdom, respectively. Bilateral investment treaties entitle investors from one State party to submit claims against the other State party to international arbitration. Even if no treaty exists between an investor’s home state and Kenya, the investor may be able to bring claims under a treaty between Kenya and a third country if its investment is held through a subsidiary incorporated in that country.
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