The Licence as a Basis for Responsibility and Liability
In Responsibilities and Liabilities for Commercial Activity in the Arctic: The Example of Greenland, edited by Vibe Ulfbeck, et al., Taylor and Francis, 2016
CEVIA Working Paper Series, Issue 2/2017, No. 7
23 Pages Posted: 27 Dec 2017
Date Written: December 20, 2017
In order for an investor to be able to embark on prospecting, exploration and exploitation of mineral resources in Greenland, the investor must have a licence from the Greenlandic Government. The licence forms the basis of the investment. For the private investor, it is crucial that there is stability around the investment and that the basis for the investment cannot easily be changed. On the other hand, for the state entity, granting a licence for a very long period of time it may be necessary to have ways of adjusting the terms of the licence to changes in the surrounding society. Consequently, a central question is whether the licence can be regarded as a stable basis for the investment or whether the terms of the licence can be subject to change during the lifetime of the project. Potentially, changes can be brought about in three different ways. First, it may be that changes can be made on the basis that the legal nature of the licence allows for this (§§2 and 3 below); second, it may be that specific statutory provisions or provisions in the licence itself allow for changes (§4 below); third, it may be that changes can be introduced by way of regulatory intervention (§5 below). At the international level, stability for the investor has been brought about by the use of bilateral investment treaties (BITs) aiming at providing protection of the international investor against changes. Moreover, BITs normally include an arbitration clause making it possible for the private investor to sue the state directly claiming a breach of the BIT. As will be explained in Chapter 13, although Denmark is a party to several BITs, Greenland is not bound by any of these. This means that the question of the extent to which the private investor is protected against unilateral changes must be answered by looking primarily3 to national law (i.e. Greenlandic law).
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