How investment treaties impact Tanzania’s mining regulatory policy

Author: Joshua Woodend, Associate Researcher and Analyst, Governance and Economic Policy Centre

Introduction

Tanzania’s mining sector is a major contributor to the nation’s economic development. Over the past decade, the industry has experienced steady growth, with mining projected to contribute 10% of GDP in 2025 (Ministry of Minerals, 2024). This significance is equally reflected in employment trends. A 2018 UNEP study estimated that the artisanal small-scale mining sector employed over a million Tanzanians, and in 2021, large scale mines were recorded to employ 14,742 people, significant figures for a nation of 60 million (Mutagwaba et al, 2018; Ministry of Minerals, 2024).

Tanzania’s mineral wealth has drawn substantial international investment, a trend actively encouraged by the government given the country’s limited capacity to exploit these resources without external capital. Consequently, as with many African nations, the mining industry is inexorably tied to foreign investment and ownership. The nation’s 2023 investment report on foreign private investments demonstrates this as mining and quarrying dominates FDI, being over 3 times larger than the second highest ranking sector, manufacturing (Bank of Tanzania, 2023).

For Tanzania, attracting international investment in the mining sector is a complex balancing act. On the one hand, the government must provide conditions favourable enough to persuade international mining companies to supply the capital needed to stimulate national growth and drive economic development. On the other hand, it is necessary to ensure these terms are not so generous that they undermine the government’s ability to control the mining sector, or that they provide conditions so favourable for foreign mining firms that there is no incentive to protect local people and retain some profits locally. This challenge is clearly reflected in Tanzania’s investment treaty regime.

Tanzania’s mining sector is central to national economic growth, contributing significantly to GDP and employment. However, the country’s reliance on foreign investment has bound its regulatory space to the constraints of international investment treaties. Bilateral investment treaties (BITs), in particular, grant expansive investor protections such as the ‘fair and equitable treatment’ standard, which often allow companies to challenge legislative reforms through costly arbitration. These mechanisms restrict Tanzania’s ability to implement necessary policies, including reforms aimed at increasing tax revenues, enhancing local employment, and addressing social and environmental concerns. While reforms since 2010 have boosted government revenues and domestic benefits, they have also triggered arbitration claims, with Tanzania already paying over $100 million in related costs. To regain policy autonomy, Tanzania may consider terminating existing treaties, clarifying regulatory frameworks, and developing a model BIT with targeted carve-outs, thereby balancing investment promotion with sovereign control and sustainable development objectives.

What are investment treaties?

Investment treaties are agreements that define how a state treats foreign investors within its territory. Their scope is broad, encompassing a range of formats and parameters. Some are bilateral, covering investment flows between two states, such as the treaty between Tanzania and Finland. Others are multilateral, like the General Agreement on Tariffs and Trade (GATT), or regionally focused, such as the African Continental Free Trade Area. At present, Tanzania has 11 bilateral investment treaties in force, 7 treaties with investment provisions, is party to a range of multilateral intergovernmental agreements, and has also entered into an unknown number of privately negotiated investment agreements with large-scale investors (UNCTAD).

Whilst these treaties often succeed in creating favourable conditions for international companies investing in the mining sector, they also limit the government’s power to regulate this sector. This stems from the broad protections such agreements provide and the stringent enforcement mechanisms they enable. In particular, bilateral investment treaties (BITs) are especially known for constraining a nation’s ability to enact legislation changes, an especially contentious issue in Tanzania’s mining sector.

This is because the wording of BIT provisions is notoriously vague, leaving room for extremely broad interpretation. For example, all of Tanzania’s BITs include a provision guaranteeing the ‘fair and equitable treatment’ of investments. Whilst this may appear innocuous, it has often been interpreted to protect a business’s legitimate expectation of a stable regulatory environment. As a result, even necessary changes to the mining industry can breach these treaties, as the regulatory environment is no longer stable. This results in a process known as investment treaty arbitration, a legal mechanism that favours investors over governments, allows companies to bypass domestic legal systems, and, on average, costs respondent states $4.7 million USD in legal fees, before any damages are awarded (Hodgson, Kryvoi, and Hrcka, 2021).

The threat of arbitration, combined with the broad scope of BIT provisions, often enables international mining companies to protest any legislative changes, including those aimed at improving the well-being of local communities. For example, in Foresti v. South Africa (2007), an Italian mining company alleged South Africa had breached the FET clause of the South Africa-Italy BIT by introducing affirmative action legislation that required mining license owners to divest a percentage of shareholdings to historically disadvantaged South Africans (Poulsen, 2015). Whilst this legislation was obviously necessary to reduce apartheid era inequalities, was universally applied and non-discriminatory in its implementation, the FET provision presented a huge legislative hurdle and cost in its implementation.

Since the 1960’s Tanzania has signed a long list of Double Taxation Agreements and Bilateral Investment Treaties with different Countries.  Some of these have since been terminated while a number of these continue in force with their corresponding provisions having relative effect on the mining.

Table 1 – Tanzania’s BITs in force (Excluding Investment Related Instruments)

Impacts of Investment treaties on Tanzania’s mining sector regulation

The Tanzanian mining sector has been repeatedly constrained by treaty obligations, facing both threats and actual arbitration proceedings in response to reforms aimed at retaining greater value within the country. Notable measures include the Mining (Value Addition) Regulations of 2020, which require the use of local service providers and processing facilities; the Mining (Local Content) Regulations of 2018, which mandate the employment of Tanzanian nationals; and the Mining Act of 2010, which significantly increased royalty rates.

Whilst all these changes may violate investment treaty provisions, such as the ‘fair and equitable treatment’ standard, due to their radical nature, such efforts for reform are to be expected given the previous unfavourable legislative status quo that disadvantaged Tanzanian people. The scale of this disadvantage is stark: between 1997 and 2005, Tanzania exported over US $2.54 billion worth of gold yet collected merely 10% in tax revenue, a disparity that generated significant social tension (Curtis and Lissu, 2008; Noe, 2006). In 2015 Tanzania instituted significant mining reforms, including changes to the mining fiscal regime, increasing government stake and control of the mining sector.  For comparison, since Tanzania’s mining sector reforms, between 2023/24 alone, Tanzania raised over US $2.5 billion in tax revenue and massively increased the employment of local people (Ministry of Minerals, 2024).  These reforms triggered  investment disputes and led to costly arbitral awards.

Determining the precise financial cost of Tanzania’s mining regulation changes through investment arbitration fees and penalties is challenging. Through ICSID, a widely-used arbitration mechanism, Tanzania had by 2025 already paid over $100 million USD in fees for its legislative changes, specifically for cancelling retention licenses that had granted foreign mining companies pre-emptive rights to specific locations (UNCTAD, 2025).

However, this figure likely represents only a fraction of the total arbitration costs stemming from Tanzania’s mining policy reforms. Many BITs enable arbitration through mechanisms that operate without public disclosure requirements outside of ICSID, meaning the actual financial burden on the Tanzanian government may be substantially higher than publicly reported figures suggest.

Consequently, investment treaties significantly impact Tanzania’s capacity to introduce mining reforms by granting investors broad rights that enable litigation over even minor regulatory changes. The threat of compensation payments, combined with high arbitration costs, at best imposes a substantial financial burden on mining sector reform efforts, and at worst, creates powerful disincentives that discourage the government from proposing or implementing changes that improve local development. This can easily result in a regulatory environment that favours investors and foregoes significant taxation revenue that could benefit the nation at large, including those who are proximate to mining enterprises and it’s damaging effects.

Consequently, investment treaties constrain Tanzania’s capacity to reform its mining sector by granting investors expansive rights that allow them to litigate against even modest regulatory changes. While the immediate impact is the risk of substantial compensation awards and the heavy financial burden of arbitration proceedings, the implications extend further. Bilateral investment treaty provisions can lock in tax concessions or limit fiscal space, resulting in foregone revenues that could otherwise support national development. Equally, non-financial costs emerge: the prospect of diplomatic or political pressure, the withholding of aid, and negative media portrayals of Tanzania as a hostile investment destination. Together, these pressures can deter policymakers from pursuing reforms that prioritise domestic welfare over investor interests. In practice, this often produces a regulatory environment that privileges foreign mining companies at the expense of local communities and the state’s ability to capture taxation revenues.

Policy Recommendations

So, what can Tanzania do to remedy this situation? The most direct step would be to terminate its existing bilateral investment treaties, a move already taken by countries such as Ecuador, Bolivia, South Africa, Indonesia and India (Public Citizen, 2018). Yet this is far from a quick solution. As shown in table one, many of Tanzania’s treaties contain survival clauses that ensures provisions can be in force for up to 20 years after termination, this makes termination a necessary but inevitably long-term measure.

In the meantime, Tanzania must work to reduce perceptions of risk by presenting a clearer and more predictable regulatory environment. While past legal reforms in the mining sector have often appeared erratic, future changes should be grounded in transparent communication with stakeholders and shaped around consistent licensing and tax frameworks. This would build investor trust in the market, despite the lack of BITs, as they can rely on the government to act in rationale, legal manner, with space for negotiation.

Finally, Tanzania may invest in developing its own model BIT, complete with prudential carve-outs that reflect Tanzania’s development priorities. The development of such a treaty would allow the country to reassure investors of fair treatment while avoiding the loss of vital policy space.

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