Governments from Kinshasa to Hanoi to Washington are rewriting the rules of mineral ownership without touching the deed. A June 2026 Gibson Dunn analysis warns that export bans, production quotas, and processing mandates have supplanted outright nationalisation as the defining legal risk for critical mineral investors, and that the stabilisation clauses and force majeure provisions that protected capital during the last commodities cycle are no longer fit for purpose.
Introduction
In the spring of 2025, the operations managers at CMOC's Tenke Fungurume mine in the Democratic Republic of Congo were confronting a problem their lawyers had not quite anticipated. The world's largest cobalt producer had signed offtake agreements, secured financing, and built an export logistics chain calibrated to move tens of thousands of tonnes of cobalt concentrate annually out of Lualaba Province and onward to refineries, most of them in China. Then, in February, Kinshasa banned cobalt exports entirely. By late June, CMOC's metals trading arm, IXM, had declared force majeure on its sales contracts. Glencore, operating the Kamoto and Mutanda mines a few hundred kilometres to the south, did the same.
No assets had been seized. No officials had arrived at the mine gate with government orders. No equity had changed hands. And yet, in every practical sense that mattered to the banks, the offtake counterparties, and the insurers, the investment had been interrupted as decisively as if the equipment had been physically confiscated. The DRC had discovered, as a handful of other resource-rich governments had already discovered, that you do not need to nationalise a mine to control its output. You need only to control its paperwork.
That insight, replicated across seven jurisdictions and three continents in the span of eighteen months, is the subject of a June 2026 analysis by the global law firm Gibson Dunn, published under the title 'Resource Nationalism's New Frontier: Lithium, Rare Earths, and the Legal Map Ahead.' The firm's conclusion, as reported by Mining.com on June 4, is terse and somewhat alarming for anyone with capital deployed in the critical minerals sector: 'Resource nationalism has moved well beyond royalty disputes. The legal terrain is shifting as quickly as the political one, and the strategies that protected investors during the last commodities cycle will not be sufficient for the next.'
The Anatomy of a New Playbook
The old resource nationalism was legible. A government, typically newly elected or newly emboldened, would announce the renegotiation of a mining contract, raise royalties, demand a larger equity stake, or, in the most dramatic cases, announce outright expropriation. The legal response was equally legible: invoke the bilateral investment treaty, file for arbitration at ICSID, and negotiate. The process was slow and expensive, but the conceptual framework was settled. An investor knew what a taking looked like.
What Gibson Dunn is documenting in its 2026 analysis is something structurally different. The firm identifies a global wave of policy measures that achieve the economic objectives of nationalisation without triggering its legal definitions: export controls that trap minerals inside a country's borders; production quotas that cap how much a foreign-owned operation can extract or sell; processing mandates that require value-added transformation before any material may leave; and technology controls that restrict the transfer of the know-how needed to process minerals abroad. Across China, the DRC, Vietnam, Indonesia, Chile, the European Union, and the United States, some version of this toolkit is now in active deployment.
Verisk Maplecroft, the global risk intelligence firm, has counted seventy-two nations adopting increasingly protectionist mineral policies in recent years. The International Energy Agency noted last year that even as supply has grown alongside demand, the share of key energy mineral processing concentrated in China rose from roughly eighty-two percent in 2020 to eighty-six percent in 2024. Wood Mackenzie projects that China could control thirty-nine percent of global lithium production by 2030. These are not statistics that describe a market becoming more competitive. They describe a market becoming more controlled.
The minerals at the centre of this contest, copper, lithium, cobalt, nickel, and the suite of rare earth elements essential for permanent magnets, are the physical substrate of the energy transition and of modern weapons systems. That dual role is precisely what makes them so attractive as instruments of policy. A government that controls access to dysprosium or cobalt controls, at a remove, the production lines of electric vehicles, missile guidance systems, and wind turbines in countries on the other side of the world. The export control is, in this sense, a form of projection of power that requires no military budget.
From Kinshasa to Hanoi: Case Studies in the New Regime
The DRC's cobalt intervention is, in many respects, the most instructive case study of the new nationalism's mechanics and its consequences. The export ban imposed in February 2025 was justified on economic grounds: cobalt prices had collapsed to their weakest level in nine years, briefly trading below ten dollars a pound, a threshold not breached in over two decades except for a brief dip in 2015. Kinshasa argued that the country was subsidising the global battery industry by exporting a strategic resource at distressed prices. The logic was defensible. The method was a shock to the system.
By October 2025, the ban had been converted into an annual quota of 96,600 metric tonnes for each of 2026 and 2027, with ten percent of future volumes reserved for what the government designated as 'strategic national projects.' CMOC received a 2026 export quota of 31,200 tonnes, representing only twenty-seven percent of its total 2024 production and forcing the company to choose between curtailing output, accumulating stockpiles, or seeking new arrangements. Glencore received allocations for its Kamoto and Mutanda operations. A government body called ARECOMS holds the strategic reserve tranche. President Tshisekedi, according to cabinet minutes seen by Reuters, has directed that violators face 'exemplary sanctions' including permanent exclusion from the regime.
The market effects were pronounced. Cobalt prices rebounded approximately ninety-two percent from their March 2025 lows and rallied roughly one hundred and seventy percent from January 2025 lows. The DRC's intervention demonstrated that a producing nation controlling roughly sixty percent of global unrefined cobalt supply possesses effective pricing power, even without formal cartel architecture. It also demonstrated the speed with which force majeure clauses can be invoked and the difficulty of enforcing offtake agreements when export documentation simply does not exist. The DRC quota model is now being studied as a template across other producing jurisdictions.
Vietnam moved more quietly but no less decisively. On December 11, 2025, the country's National Assembly adopted amendments to the geology and minerals law that classified rare earths as a 'special strategic' mineral and prohibited the export of unprocessed material, effective January 1, 2026. The legislation requires all exploration, mining, and processing activities to align with a national rare earth strategy and restricts participation to state-designated or state-approved companies. A subsequent decree, published on January 19, 2026, tightened the licensing requirements for exploitation permits. Vietnam holds an estimated 3.5 million tonnes of rare earth reserves, ranking sixth globally according to the U.S. Geological Survey, a figure sharply revised downward from a previously cited 22 million tonnes. The commercial impact of the new restrictions is constrained in the near term by Vietnam's limited refining capacity, but the legal architecture is now in place to shape how any future processing infrastructure gets built and who controls it.
Indonesia's Template and the Consuming Nations' Mirror
If there is a single episode that gave other resource-nationalist governments both the confidence and the practical roadmap to proceed, it is Indonesia's nickel export ban. Implemented in January 2020 and reinforced by escalating downstream processing requirements through 2025, the ban has become, in Gibson Dunn's framing, the 'canonical producer-side template.' The numbers that followed are striking: in the two years after the ban took effect, the value of Indonesia's nickel exports surged from three billion to thirty billion dollars. The country's share of global nickel production rose from 31.5 percent in 2020 to 60.2 percent in 2024, and is projected to reach seventy percent by 2026. The number of domestic nickel smelters grew from two in 2014 to fifty-nine by 2025.
The mechanism was straightforward: by banning raw ore exports, Jakarta forced foreign buyers, primarily Chinese firms and their affiliates, to invest in Indonesian processing capacity rather than simply extracting and shipping ore. Chinese companies, often operating through affiliates registered in Hong Kong and Singapore, now control approximately seventy-five percent of Indonesian refining capacity. The arrangement has enriched both parties, though it has also created the world's most concentrated single-country supply position in a critical industrial mineral. LME nickel prices climbed to twenty thousand dollars per metric ton on May 6, 2026, the highest level recorded since May 2024, as markets priced in the implications of tighter Indonesian ore supply.
The EU, it is worth noting, successfully challenged Indonesia's nickel ban at the World Trade Organization in 2021. Indonesia largely ignored the ruling. That sequence matters, because it signals to other governments that the reputational and legal costs of export controls are manageable if the economic benefits are sufficiently large.
The consuming nations have responded with their own variants of the same logic. In the United States, as I reported in June, Project Vault committed twelve billion dollars to a strategic critical minerals reserve backed by a record ten-billion-dollar EXIM Bank loan, and the State Department convened fifty-four countries and the European Commission to discuss a preferential trade zone using adjustable tariffs to maintain a price floor. The November 2025 National Security Strategy named critical mineral supply chains a matter of national security. The EU's Critical Raw Materials Act pulls in the same direction, establishing benchmarks for domestic sourcing and processing, with state aid and project-designation mechanisms designed to anchor refining capacity within European borders. The consuming nations, in other words, are deploying the same instrument as the producing nations: regulatory architecture designed to reshape where processing happens. The difference is one of starting position, not of method.
China's Extraterritorial Architecture and the Compliance Trap
China's contribution to the new resource nationalism is the most legally sophisticated and, for foreign manufacturers, the most difficult to navigate. On October 9, 2025, Beijing issued export controls covering five additional rare earth elements: holmium, erbium, thulium, europium, and ytterbium, bringing twelve of the seventeen rare earths under restriction. The controls included an extraterritorial de minimis rule subjecting any foreign-produced item to Chinese export licensing requirements if it contains Chinese-origin rare earth content representing at least 0.1 percent of the item's total value. A separate Foreign Direct Product Rule extends Chinese controls to items manufactured abroad using Chinese-origin rare earth mining, smelting, or processing technologies. A fifty-percent ownership rule restricts exports to subsidiaries where entities on China's export control list hold majority stakes.
Those October measures were suspended for one year on November 7, 2025, as part of the understanding reached between President Xi and President Trump to roll back tariffs and trade barriers. But as I detailed in my earlier reporting, what the suspension did not touch was MOFCOM Announcement No. 18 of 2025, issued on April 4, which established the original seven-element licensing regime covering samarium, gadolinium, terbium, dysprosium, lutetium, scandium, and yttrium, along with related compounds, metals, alloys, and permanent magnets. That regime remains fully in force. The October suspension expires in November 2026. If it is not extended, the extraterritorial architecture, the 0.1 percent de minimis rule and the Foreign Direct Product provisions, automatically resumes.
For global manufacturers, the resulting compliance environment is one of structured uncertainty. A company assembling electric motors in Germany or South Korea may find that its products, or the magnets inside them, fall within the reach of Chinese export licensing requirements depending on where the rare earth content originated and what percentage of total product value it represents. That is an auditing and documentation burden that scales with every component in a supply chain. Gibson Dunn's analysis flags overlapping export control systems, sanctions regimes, and foreign investment reviews as a distinct legal risk category for companies operating across multiple jurisdictions, one that sits alongside, rather than within, the traditional framework of bilateral investment treaty arbitration.
The Lawyer's Warning: When Stabilisation Clauses Meet National Security Arguments
At the centre of Gibson Dunn's analysis is a sober assessment of how poorly existing legal instruments are matched to the new policy environment. The firm notes that many mining and infrastructure agreements negotiated during previous commodity cycles contain stabilisation clauses intended to insulate investors from regulatory changes. Those clauses typically freeze the legal and fiscal conditions in place at the time of contract execution, or require compensation if the state subsequently changes them. They were designed for a world in which the primary risks were changes to tax rates, royalty structures, or environmental permitting requirements.
They were not designed for a world in which a government imposes a blanket export ban citing commodity price instability, or designates an entire mineral category as a strategic national asset, or mandates that processing take place within its own borders as a condition of continued mine operation. Governments invoking national security, public interest, or economic necessity as justifications for such measures occupy a legal grey zone that stabilisation clauses were not drafted to address. The force majeure provisions that CMOC and Glencore invoked in the DRC were not adjudicated as a result of those declarations; the companies simply had to manage the contractual disruption while negotiating with Kinshasa for quota allocations. The legal mechanisms existed. They were simply inadequate to the pace and the character of the disruption.
Gibson Dunn identifies three primary dispute flashpoints in the new environment: stabilisation clauses, force majeure language, and indirect expropriation claims under bilateral investment treaties. Investors may argue that governments have violated expectations created by permits, contracts, or public commitments, and seek relief on grounds of indirect expropriation or breach of fair and equitable treatment standards. Joint ventures, strategic investments, and offtake agreements are attracting heightened regulatory scrutiny as foreign-investment review bodies focus on national security and foreign ownership. The firm's practical recommendations are structured around the premise that dispute avoidance is preferable to dispute resolution: review ownership structures before problems arise, update contracts to address modern resource-nationalism risks, evaluate political-risk insurance coverage, and, critically, reassess where processing takes place.
That last recommendation is perhaps the most consequential reorientation in the firm's advice. 'Geography may become as important as geology,' Gibson Dunn warns, in determining whether a project succeeds or fails. A deposit's ore grade, recovery rate, and capital cost remain important. But a deposit whose output cannot be exported without a government licence, or whose processing is legally required to occur within a specific jurisdiction, or whose ownership structure triggers foreign investment review in three countries simultaneously, is a fundamentally different commercial and legal proposition from what the same deposit would have represented a decade ago.
In Chile, where President José Antonio Kast took office on March 11, 2026 with market-friendly rhetoric and signed critical minerals agreements with the United States on his inaugural day, the underlying legal architecture has not moved. Lithium remains non-concessionable under Decree Law No. 2886. Access requires a state contract. Kast has pledged to make lithium concessionable, but doing so requires amending the national mining code through a Congress where his allies hold a Senate minority. For investors, the Gibson Dunn analysis of the Kast transition is instructive: the question is not whether the tone has changed, but whether the legal route to control, develop, and monetise a lithium asset has fundamentally changed. As of mid-2026, it has not.
Conclusion: The Mine That Was Never Seized
There is a useful thought experiment buried in Gibson Dunn's analysis, though the firm does not state it quite so bluntly. Imagine a foreign-owned copper or lithium mine operating under a twenty-year concession agreement. The host government, facing an election, a commodity price collapse, or pressure from a major power, issues an export licensing requirement. Shipments slow. The company's offtake partners invoke penalties. The project's lenders review their covenants. The company files a force majeure notice, then an indirect expropriation claim under the applicable bilateral investment treaty. Three years later, an arbitral tribunal rules in the company's favour and awards damages. The government pays, eventually, at a fraction of the award. The mine has been operating at reduced capacity throughout. The concession is not renewed.
No asset was seized. No equity changed hands. The flag above the administration building never changed. And yet the investment was effectively expropriated through the patient application of licensing, quota, and regulatory tools that fall just below the threshold of the legal definitions that would trigger immediate and certain relief. That is the architecture Gibson Dunn is documenting, and it is worth noting that seventy-two nations are now building versions of it.
The companies best positioned to navigate this environment will be those that treat legal and geopolitical risk as inputs to project design rather than complications to be managed after the fact. Processing location, ownership structure, contract language, and political-risk insurance coverage will need to be evaluated with the same rigour as ore grades and strip ratios. The firms that fail to make that adjustment will find themselves in the position of CMOC's trading arm in the summer of 2025: holding valid contracts, sitting on a functioning mine, and unable to ship a tonne.
The title 'Resource Nationalism's New Frontier' understates the situation somewhat. What Gibson Dunn is describing is not a frontier so much as a new steady state, one in which the ownership of a mineral deposit confers less and less of the commercial value that deposit might generate, and in which that value is progressively captured by whoever controls the paperwork. In the race for critical minerals, geology was always the starting point. It is no longer anywhere near the finish line.