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"They can never absolve themselves of oversight and governing of the contract"

Norton Rose Fulbright partners discuss liability around TSFs

Mining Journal

 Mark Berry is a senior projects lawyer and co-head of the European Infrastructure group at Norton Rose Fulbright. A qualified engineer, he specialises in EPC and EPCM contracts and has extensive expertise in the natural resources sector including mining construction and associated infrastructure development, primarily in emerging markets. 

He has a long history of helping companies deliver effective and commercially strategic outcomes to complex projects in challenging jurisdictions. Mark co-authored a chapter on Engineer Procure Construction Management (EPCM) contracts in International Construction Contract Law. The second edition was launched in Autumn 2018.

 Milana Chamberlain is a corporate partner who leads the Norton Rose Fulbright's global Environmental, Social and Governance group. Milana advises borrowers and lenders on environmental and social issues in project finance transactions where she focuses on human rights. 

She is a co-lead of the global Norton Rose Fulbright team that is advising the Equator Principles Association on the legal review of the changes to be implemented in the Equator Principles IV. She also advises clients on human rights due diligence, human rights risk assessments, implementation of systems and processes designed to combat modern slavery and human trafficking and corresponding reporting obligations. 
Milana is a member of the Human Rights Law Committee of the International Bar Association.
The only protection against catastrophic tailings dam failures resulting in environmental damage or loss of life is by strenuously applying best practice governance, according to global law firm Norton Rose Fulbright.
"[Mining companies] are always going to be out there with their reputation, with potential liabilities rising not purely from contractual breaches and obligations but from potential impacts that have been made on the environment or the humans around the mine," London-based partner Milana Chamberlain told Mining Journal. 
"So, in that way, they can never absolve themselves from the oversight and governing of the contract, making sure either their own employees or contractors are following best practice to avoid substantive problems - that is ultimately the only way to protect yourself."
She said community groups were also seeing increasing success in bringing human rights cases to bear in the courts of developed nations, such as the charges Vedanta were told it would answer to in London recently for alleged offenses in Zambia.
Chamberlain said in such cases plaintiffs stood a much better chance of a fair trial and appropriate remedy.
Her colleague and fellow partner, Mark Berry, said the risks around tailings storage facilities should be clearly established and build into a contractual matrix that binds companies and their contractors to best practice, as a starting point.
To ensure this is followed, he said the appointment of an engineer of record was key and then, subsequently, the proper allocation of risks without "gaps".
"It's significant responsibility but there are plenty of professional bodies out there that are supported by the mining association and have years of know-how and knowledge and they implement that knowledge depending on the specifics of the project," Berry said. 
"It's well within the competence of all engineers of record in the market. And, indeed, they would be much more comfortable knowing they are the focal point and at the top of the hierarchy in managing those facilities."
This podcast is part of Mining Journal's ongoing Tailings and Water Management Series, which will be followed by a white paper discussion.