Caught in the Legal Crossfire? Critical Minerals Agreements and International Economic Law

Over the past few years, a rapidly expanding network of ‘critical minerals’ agreements has added further complexity to global trade and investment frameworks. The surge in deal making is driven by geopolitical rivalries among large economies to secure their supply chains as well as by mineral-rich country interest in mining sector development. At a deeper level, the agreements reflect a shifting economic paradigm, including greater reliance on state action to steer economic transformation, and on bilateral arrangements as a governance mode. The terms of the deals also highlight that, to some extent at least, larger economies are competing not only for security in supplies, but also for alignment from mineral-rich countries.

These novel arrangements may interact with, and depart from, established international economic law obligations. New bilateral arrangements may also include commitments that compete or conflict with existing obligations owed to third party states. While some public commentary has already discussed these trends from the viewpoint of large economies, this blogpost explores implications for mineral-rich low and middle-income countries, assessing the risk that these countries might end up being caught in the legal crossfire of great-power rivalries.

Evolving landscape of minerals deals 

States have been using different approaches in their critical minerals agreements: from memoranda of understanding (MOUs) to framework or strategic partnerships to integrating minerals-specific obligations into trade and investment agreements. These bilateral, at times transactional agreements—whether soft or binding in nature—are being layered on top of existing trade and investment obligations, which remain in force.

The EU has signed at least 15 agreements concerning critical minerals, with most of these agreements being described as MOUs or strategic partnerships on ‘sustainable’ minerals, materials or metals. The instruments are non-binding and focus primarily on establishing mechanisms for cooperation, integration of value chains, and joint financing of projects, among other aspects.

Despite a broader retreat from public international law, the US has been active in concluding critical minerals agreements—signing at least 21 agreements by February 2026 and reportedly concluding negotiations with 17 other countries. Most of these agreements are framed as MOUs or framework agreements, including express clauses clarifying that the agreements are not intended to be legally binding.

This preference for soft-law instruments may reflect a policy concern about rapidity of public action, though it can also bypass constitutional safeguards—such as ratification processes—that exist around conclusion of binding treaties. While non-binding, the MOUs are nevertheless designed to influence state action, particularly around promoting integration of critical minerals supply chains. The extent and contours of such outcomes remain to be seen, though asymmetries and pressures in the geopolitical conditions surrounding some of the deals would tend to increase momentum towards concrete outcomes.

Beyond soft-law instruments, both the EU and US have incorporated binding minerals-specific provisions into recent trade treaties. This includes EU agreements with Chile and Indonesia, and US agreements with Argentina, Cambodia and Malaysia. Moreover, the agreement the US concluded with the Democratic Republic of the Congo (DRC) in December 2025, while titled ‘strategic partnership’, stands out in that it reads like a binding instrument, using ‘shall’ in operative provisions.

Other countries have also been active in expanding the global network of critical minerals deals, with Australia, Brazil, India, Japan, South Korea and the United Kingdom, among others, having proactively concluded a variety of bilateral agreements.

Tensions between new frameworks and existing obligations 

The new instruments present distinctive emphases relative to existing international economic law obligations. For example, several bilateral partnerships concluded by the EU and mineral-rich countries refer to promoting domestic value addition and local beneficiation, including agreements with Rwanda, South Africa and Zambia. Yet existing treaties on trade and investment can constrain policy options for low and middle-income treaty partners to pursue effective industrial strategies and realize these goals. For example with regards to local content, domestic processing or technology transfer requirements. Meanwhile structural constraints—such as limited fiscal space—may restrict feasibility of options consistent with international obligations.

Elements of agreements concluded by the US present a clearer tension with international economic law obligations, particularly those that mineral-rich countries may owe to third-party states. The US-DRC strategic partnership, for example, requires that the DRC give US investors priority—a ‘right of first offer’—for Strategic Asset Reserve (SAR) projects. SAR projects are defined broadly and flexibly as an ‘evolving list’ (Article IV). US persons are granted a priority negotiation window, only after which—if a US proposal has not been accepted—the DRC can open negotiations up to ‘aligned persons’ (i.e. a non-US person not excluded under US domestic law and sanctions).

Although the DRC-US agreement is the publicly available text with the strongest statement of priority for US firms, other binding and non-binding instruments also contain prioritization commitments. The Malaysia-US MOU refers to participants working ‘to prioritize investment from the United States’, while under the Thailand-US MOU ‘Participants expect to have first opportunity to invest, in accordance with domestic laws, in critical minerals assets’ (Article 1). Meanwhile, the US-Argentina trade and investment agreement includes an obligation to prioritize the US as an investment and trade partner ‘over market manipulating economies or enterprises’ (Article 4.1(4)). 

Depending on how such commitments are implemented, they could foster state conduct that conflicts with pre-establishment obligations mineral-rich countries may owe to third-party states under applicable investment treaties. These obligations can require host states to admit and treat foreign investment no less favourably than investors from other states (‘most-favoured-nation’ treatment), i.e. without prioritizing based on nationality. The ASEAN Comprehensive Investment Agreement (ACIA), for example, includes pre-establishment obligations that extend to the admission of investment (Articles 5 and 6). Malaysia and Thailand are both party to this treaty.

The Regional Comprehensive Economic Partnership (RCEP, Articles 10.3 and 10.4, subject to reservations) and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP, Articles 9.4 and 9.5) both also extend non-discrimination to establishment, acquisition and expansion of investments, in addition to defining investors as those ‘seeking’ (RCEP, Article 10.1) or ‘attempting’ (CPTPP, Article 9.1) to make investments. Malaysia is party to both RCEP and CPTPP, while Thailand is a party to RCEP. Thailand’s bilateral treaties with Canada and Japan also extend non-discrimination provisions to establishment, acquisition and expansion.

Depending on the circumstances, then, implementing new bilateral prioritization commitments could place Malaysia and Thailand in breach of their treaty obligations towards third-party states, possibly exposing them to state-to-state or (where applicable) investor-state dispute settlement (ISDS) claims.

Potential tensions between new instruments and existing obligations may also arise in connection with offtake arrangements. For example, the binding US-DRC agreement requires the DRC to prioritize US firms or the US market for minerals offtake (Article XI). World Trade Organization (WTO) most-favoured-nation obligations require that ‘any advantage, favour, privilege or immunity’ granted by a party to an import or export ‘be accorded immediately and unconditionally’ to all other members (GATT Article I(1)). Implementation of priority offtake commitments could conceivably expose treaty parties to WTO litigation with third-party states, though the operation of the WTO dispute settlement system is currently impaired and requests for consultations have become less frequent. Bilateral and regional trade agreements with third countries may also have a bearing on these issues.

Depending on how it is done, the establishment of plurilateral trade clubs on critical minerals could further upscale these issues. In February, the EU, Japan and the US announced plans to establish such a plurilateral trade initiative, also with aligned mineral-rich countries, in order to reduce dependence on China. According to a press release issued by the three sides, such a scheme ‘could include exploring the development of coordinated trade policies and mechanisms, such as border-adjusted price floors, standards-based markets, price gap subsidies, or offtake-agreements’.

Critical minerals agreements within a changing economic law landscape

In a global context characterized by great-power competition, critical minerals deals—while negotiated bilaterally, often in conditions of asymmetric negotiating power—are cumulatively advancing shifts in global economic governance. In the process, tensions between new and long-standing commitments, and between different bilateral instruments, can create legal risks for mineral-rich low and middle-income countries. While it is too early to tell how the sliding scale of softer commitments or harder obligations in the critical minerals agreements will translate into actual state practice, implementation could expose host countries to ISDS claims or trade disputes under existing economic treaties.

Such legal risks associated with the rise of ‘transactionalism’ in critical minerals diplomacy echo developments in other areas of investment and trade policy. For example, while the EU-Mercosur trade agreement includes protection of geographical indications in line with the EU’s regulatory approach, the Argentina-US agreement on trade and investment requires Argentina not to restrict market access for the US due to mere use of protected terms for meat and cheeses (Articles 2.4 and 2.5 and Annex II). Once both instruments are in force, or at least provisionally applied, Argentina may be faced with how to reconcile competing and even conflicting obligations.

These risks highlight the need for a more holistic understanding of interrelations between different yet closely connected policy areas and legal instruments, including critical minerals deals, investment treaties and trade law. They underscore the need for a more coordinated approach to critical minerals diplomacy, nurturing spaces for dialogue and for collective action—including by groupings of mineral-rich low and middle-income countries—in multilateral fora on trade, investment and climate change.

Image credit: Diego Delso, CC BY-SA 2.0 DE.