"We are proud to be preparing the Congolese mining lawyers and businessmen of tomorrow."

Patrick Bondonga

CO-FOUNDER AND LAWYER, OVK LAWFIRM

March 01, 2024

Can you introduce OVK Lawfirm and how you assist your mining customers?

The mining sector is essential for us. The lawyers who make up OVK and I took part as consultants in the drafting of the Mining Codes of the DRC and the Republic of Congo, as well as in the drafting of the Mining Code of the Central African Economic and Monetary Community (CEMAC) for the creation of a Community Mining Code. We support projects and procedures for obtaining mining rights, as well as the management of mining portfolios. We also monitor any disputes that may arise on behalf of our clients. This is particularly true of disputes arising from recent revocation decisions taken by the Minister of Mines against companies holding mining and quarrying rights.

Can you paint us the picture of the regulatory framework in the DRC today? 

The legal framework is well regulated by the 2002 Mining Code, amended in 2018. The framework includes provisions for obtaining mining and quarrying rights using transparent, objective and rapid procedures, but this does not prevent disputes sometimes arising that are subject to the jurisdiction of the judicial, administrative and/or arbitration courts. For example, the Mining Code provides for a public offer of international arbitration before ICSID for holders who meet the jurisdictional criteria set out in the Washington Convention. There is a wide range of remedies available to holders of mining rights against decisions taken against them. The legal framework is clear as regards the granting of mining rights and the life of mining projects. Holders of mining rights have a preferential tax regime that cannot suffer any exceptions. Today, most of the former mining agreements entered into under the 1981 Mining Code have abandoned the treaty regime in favour of full application of the 2002 Mining Code. Some mining projects have not yet reached the expiry of their mining convention, but the 2018 Mining Code has expressly waived this convention regime so that ongoing mining projects have been required to switch to the 2018 Mining Code regime.

Is it too early to add new revisions to the mining code?

The Code itself provides mechanisms for its revision, with an intangibility provision in that the reform can only be carried out following an initiative from parliament, and the deadline for implementing the new provisions will also be subject to a five year stability guarantee given by the State. The 2018 revision is still being tested, so there are no other reforms planned at the moment. There are always isolated moves to make changes, as in the case of the law on the collaboration agreement, which organises a special regime for access to mining activities for investments above a certain threshold. This law enshrines a form of contractual regime banned in the Mining Code, but accepted by it.

How attractive is the DRC today from an investor’s standpoint?

From the point of view of potential, the DRC is an attractive country because of the good quality and variety of its minerals. With the transition to energy, we have the minerals to meet the need to preserve the environment and provide the vehicles of tomorrow. Our legal framework is also an asset. It is designed to obtain mining rights with clear principles: priorities, transparency and objectivity. It's true that some people abuse their power, but the law provides for that. If there is a favourable cadastral opinion, and the law has granted an exploration license, the law gives the applicant the possibility of having the grant issued automatically. If the land registry does not comply within a certain period of time, the case will be referred to a judicial judge under an ex-gratia procedure.

What will be OVK Lawfirm’s growth priorities in 2024? 

We are in the process of expanding the firm in all mining areas, as this is our core business. We are going to open an office in Goma in the future, as well as in Lubumbashi. We took part in the drafting of the Mining Code in 2002, and are still involved in major events in the mining sector. We want to remain an active player in the sector, as well as in training. 

We've just had trainees from Germany, for example. We already have the idea of seeing how to create special university diplomas to promote knowledge of Congolese mining legislation. In our law faculties, mining law is not one of the core courses. Given our country's potential, not having lawyers trained in mining law means giving way to foreign competition. We are proud to be preparing the Congolese mining lawyers and businessmen of tomorrow.

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