DRC MINING LEGISLATION

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24/04/2023

Spotlight: Mining law in Democratic Republic of the Congo​

Liedekerke Wolters Waelbroeck Kirkpatrick
Global October 12 2022
This article is an extract from The Mining Law Review, 11th Edition. Click here for the full guide.

Spotlight: Mining law in Democratic Republic of the Congo

Mining represents a critical sector for the development of the Democratic Republic of the Congo (DRC). According to the World Bank, the mining sector…

www.lexology.com

 

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09/05/2023
Xerof Posted

The Governor of Tanganyika, Julie Ngungwa, was removed from office on Monday, May 8, 2023 by provincial deputies. Out of 25 elected officials, 14 voted for her disqualification following a plenary convened in Kalemie by the office of the Provincial Assembly.

Initially, an oral question with debate introduced by provincial deputy Kakudji Wama to understand the outline of the management of the province of Tanganyika, the governor has not appeared in the Assembly since April 28. The elected representative of Tanganyika turned the oral question with debate into a motion of no confidence against Governor Julie Ngungwa.

He is accused of the mismanagement of the province of Tanganyika, the poor procurement of over-the-counter public contracts, the lack of leadership and clear vision for the development of the province.

This disqualification comes after the reshuffle of his government team. This reshuffle caused several discontent, especially the exclusion of several ministers close to the Chief of Staff of the Head of State and members of the dynamic Guylain Nyembo (DGN) Kalemie.

Since the beginning of this legislature, this is the second time that provincial deputies have dismissed governors. Before her, it was Zoé Kabila, brother of the former President of the Republic, Joseph Kabila, who had been deposed with the advent of the sacred union of the nation.

Tanganyika : Julie Ngungwa destituée à la tête de la province à cause notamment des malversations

La gouverneure du Tanganyika, Julie Ngungwa, a été destituée de ses fonctions ce lundi 8 mai 2023 par les députés provinciaux.

actualite.cd

 

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06/05/2023
Carlos Posted

Der Les just posted a translation of the letter to the President of the Commercial Court of Lubumbashi from the pineapple brigade in Feb 2022. If legit it is an insight to the clown show that the bod are having to deal with. Most of it is batshit insane drivel but it does give references for the correspondence around the FROR.

@9cardomaha any chance you can get your hands on CEM/DG/051/amm/2021 and / or CL/098/MMA/08/2021 ?

Franck Fwamba sang a very different tune about the content of those documents. And while I'm 99.9% sure who's telling the truth it would be amazing to have them so we can confirm what happened and then use the proof to rub the haters noses in it.

Reply By 9Cardomaha

And the response:

Carlos Reply

Lol

9Cardomaha Replied
This one from the lawyers also related to the above documents i think:

Carlos Replied

 

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09/05/2023
Carlos posted

It's possible that there is a clause in Article 10 of Dathcom's Articles of Association (which I don't have a copy of) that prevents Cominiere having their pre-emption rights. Also possible that Cominiere have signed a waiver that hasn't been made public. But according to Article 9 of the Dathcom JVA the pre-emption right is held by all current shareholders of Dathcom for transfers to a third party.

09/05/2023
John Reed Posted

Could it be that Dathcom Board meetings can only be convened by AVZ-I under new company structure Yibin wanted, therefore, no transactions can happen without AVZ-I’s cooperation?

AVZ did recieve a letter from Cominiere on its intention to sell to Zijin. But AVZ point out that letter should have been sent to AVZ-I Dathcom member.

This letter makes it clear it’s not just a matter of pre-emption rights:but Board approval, and that means AVZ basically

Carlos Replied

The problem with the Cominiere to Zijin 15% is that AVZ indicated that they wanted to exercise the pre-emption within the 40 days but were then ignored by Cominiere when they asked what the price was. Bit hard to pay if you don't know what the amount is.

As for the AVZ to CATH 24% it would be the same process according to the JVA. Again there could be something that changes this that is not publicly available. Assuming there isn't something that overrides the JVA then AVZ would have needed to inform the other shareholders of Dathcom of their intention to sell and given them 40 days to reply.

Article 9 of the JVA is very clear that the exercise of pre-emption must be done at the same percentage and price. So to accept Cominiere would have needed to be able to come up with $240m USD plus the additional $160m USD for construction costs. No chance Cominiere have $400m USD so most likely they weren't able to exercise the pre-emption due to not having the ability to prove that they had adequate funds to complete the transaction.

 

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09/05/2023
Carlos Posted

This is just an added legal point to show that Cominiere didn't follow the rules of the JVA. The fact that AVZ indicated interest to buy and asked what the price was within the 40 days shows that we would have still exercised our pre-emption despite Cominiere technically sending the letter to the wrong company.

 

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09/05/2023
Carlos Posted

So you reckon AVZ are hiding behind the fact we have a TIA with CATH instead of a normal sale as the reason for no Cominiere pre-emption notification?

Makes sense but it's a bit shady to announce the deal to the ASX without telling the JV partners first. Not that I care if Cominiere are getting rat fucked by this structuring haha

But it does give ammo to Cominiere with their 'AVZ don't have any money' claims which they have used to delay the finalising of the licence as we can't fund construction without the CATH money as things stand in official announcements

 

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09/05/2023
Cruiser Posted
CATH has is a TIA (a signed document), which can be terminated any time. The deal has never been completed, ie CATH has an agreement to buy, but not bought.

A completely different concept as the AVZI - Dathomir deal, which is a completed sales contract!

John Reed Posted
Condition precedent; mining license is the obvious one.

The SAS to SA company for Dathcom structure was a CP for Yibin Tianyi to invest, for AVZ to have more control over the Board. Cominiere doesn’t seem to have understood or accepted that. Minister of Mines does though. Perhaps this is why Cominiere doesn’t have the pre-emptive rights it thought it has.

I think or should i say, guess this is one of the single biggest points on how AVZ blocks the equity theft attacks legally speaking. And it is the least discussed

Carlos Posted
Then why would the MoM cite Cominiere's claims eg 'abuse of majority' in the new decrees?

 

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10/05/2033
Cruiser Posted

 

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10/05/2023
Flight996 Posted

International Court of Arbitration of the International Chamber of Commerce (ICC).

(Not to be confused with the International Criminal Court [also ICC], which is where half the DRC officials should headed).

 

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10/05/2023

 

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15/05/2023
Don Carlos Posted
The transfer contract between Cominiere and Jin Cheng is from the Christian Lukusa interview as I said in my post. I just took screenshots of the video that is linked. I can't remember the time stamp now but it was around the middle from memory.

The first document is from CATH's announcement on September 27th 2021. Obviously this is after the purported transaction between Cominiere and Zijin was approved by the MoP on September 1st 2021. Clearly CATH also doesn't recognise Zijin as being in Dathcom.

Stock.us

stock.us

 

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15/05/2013
9Cardomaha Posted

The reason this concerns me is that I have been made aware of potential ICC action by Cominiere against AVZ - if this turns out to be true (it is heresay at the moment) then I think others would share the same concern - though i am uncertain what Cominiere could possible be filing at ICC.

Few tidbits from me:

• I have confirmed that Zijin and Comniniere's joint case for damages was submitted on/around the 28th of April to the ICC - it is not impacted by the emergency arbitration ruling.
• The favourable AVZ ruling at ICC emergency arbitration stops Cominiere from terminating JVA at DRC local court, it also stops them from any shenanigans like when MMCS had their license revoked (ie, Cominiere sold to Dathomir, new JV was established, and new licenses were issued for a new tenement)
• The acknowledgement by Zijin on the value of the project will bite them in the ass and is proof that they underpaid for their supposed 15% - they supposedly even cited our feasibility study in the ICC claim to justify the value.
• If the original ICC case by Zijin flops then this second case would also flop, since the precedence would be that Zijin as a non-shareholder, doesn't even have the right to bring either ICC case. (the conflict in schedule seems even more suspect now...)
  • In this event, not sure if the case would be then trimmed down to just Cominiere's damages, but this is a pretty nifty way for Zijin to bankroll the legal proceedings IMO - the lead counsel for the newest case are Zijin's legal team

Zijin do not need to include Cominiere in their current ICC case since the first case is still pending. However as I mentioned above, this seems like a failsafe to ensure the case is heard even if ICC determines it doesn't have jurisdiction given Zijin are a bunch of rat fucking scumbags. If the original case had kept its jurisdiction hearing, then Zijin wouldn't be able to bring this case and Cominiere would have to go it alone (if at all)

Given the way the latest ICC claim is structured, I also believe Zijin is attempting to drag Dathomir into the case.... AVZ's ann is pretty good though since it puts a spotlight on those actors who are in cahoots. If Dathomir does jump on board, it just confirms what we've all known about, that Dathomir, Cominiere and Zijin are all giving each other the reach around, trying to fuck AVZ.

 

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18/05/2023
Carlos Posted

Zijin aren't in the trade register. Jin Cheng are.

Are subsidiaries allowed in the register without government approval?

Who signed the notarial deed?

Have Cominiere violated Article 9 of the Dathcom JVA by not allowing AVZI to exercise its pre-emption right?

 

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18/05/2023
9cardomaha Posted

Lithium de Manono: who advises Zijin and Cominiere in their new arbitration against AVZ Minerals​

Several law firms support the Chinese subsidiary Zijin Mining and the Congolese state company Cominière in their recent petition filed with the International Chamber of Commerce. In all, more than 1.4 billion dollars in damages is claimed from AVZ

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on 05/17/2023 at 4:02 p.m., by Africa Business+
The law firms De Gaulle Fleurance & Associés and Fasken Martineau DuMoulin are advising Jin Cheng Mining Company , a subsidiary of the Chinese group Zijin Mining , in a new arbitration initiated against the Australian company AVZ Minerals regarding the Manono lithium project in ground floor. This procedure, announced on May 15 by AVZ, was launched jointly before the International Chamber of Commerce ( ICC ) with the Congolese state company Cominière , which will be supported by the Congolese firm Muamba Mukengeshayi & Associés .

Lithium de Manono : qui conseille Zijin et Cominiere dans leur nouvel arbitrage contre AVZ Minerals

Plusieurs cabinets d’avocats appuient la filiale du chinois Zijin Mining et la société d’Etat congolaise Cominière dans leur récente requête déposée devant la Chambre de commerce internationale. En tout, plus d’1,4 milliard de dollars de dommages et intérêts est réclamé à AVZ

www.africabusinessplus.com

 

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22/05/2023
Carlos Posted
Dathcom need to cede 10% to the DRC government under Article 71 (d) of the mining code

Cominiere are committed to being the party within Dathcom to cede the 10% to the DRC government under Article 5.1 (i) of the Dathcom JVA

 

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23/05/2023
Don Carlos Posted

It would seem so. There's certainly no question that 10% needs to go to the DRC government in the mining code.

Cominiere's commitment doesn't specify a percentage. It requires them to 'comply with an obligation resulting from the law then applicable' and 'transfer free of charge to the DRC part of its participation in Dathcom'. Neither AVZ or Dathomir have this listed in their commitments in the JVA.

I've read through the entire document and couldn't see another section that refers to this matter. But it's a long document and my French is okay but not fluent so I may have missed it. Cominiere's commitment was written this way without the specified 10% just in case the percentage required to cede to the DRC government was changed in the mining code imo

But this isn't the way the MoP sees it. She expects the 10% to be ceded on a pro rata basis.

 

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23/05/2033
@Carlos Danger

Once again Don Carlos coming up with the goods. Hope you don’t mind me adding your information into this thread

The problem for Felix and his officials if their intention is to rat fuck AVZ is Dathcom are the applicant that have completed the DFS. Any new application would need to go through the whole process again under the mining code. Including new drilling for JORC certification. Which will delay the project years and cost them billions in damages.

 

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25/05/2023
Flight996 Posted
My understanding is that the DRC is a member of the International Center for Settlement of Investment Disputes (ICSID) Convention, and a Contracting State to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention).

In addition, ICC brokered agreements or findings are binding on the member states. That includes the DRC.

Adverse judgements against a member state are backed by its offshore property and funds, and can be enforced by courts within the external jurisdiction.

 

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9cardomaha Posted

Regarding the joint case and ICC request that was submitted, peeps who want a gander hit me up on PM. I gots the EN version as detailed on the first page of the frog version. let me pm you


Azzler Replied
Thanks 9card. What bollox that is! But it was to be expected hey.

The jist of the ICC request seems to rest on the assumption that the JV is terminated and the mine developement can not proceed, and it's all because of AVZ being evil corrupt wretches who are power hungry, uncooperative thieves!

Classic move really, accuse the others of doing all the dodgy shit you're doing.

However the emergency ICC ruling is that for the moment, the JV is still in effect.

I don't claim to understand a thing about legal processes, but as a layman, I would imagine this request can not be processed until the ICC case regarding the JV status is complete.

Also I can't imagine it going down too well in Kinshasa, that a government department is being funded and teaming up with a foreign business entity together in an international court. Complete conflict of interest, but it's the fkn DRC isn't it...
It does look like a bit of a desperate move, throwing everything but the kitchen sink at AVZ. Hope that's the way of the matter anyway.

 

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31/05/2023
Flight996 Posted

According to Jus Mundi, AVZ vs Dathmir (I) case has a single arbiter, Caroline Duclercq who has been an arbitrator in at least five (5) international cases. Four of these are pending, and zero International Center for Settlement of Investor Disputes (ICSID) are pending annulment (whatever that means). She was appointed by the respondent, which I presume is Dathomir

I understand the International Center for Settlement of Investor Disputes (ICSID) is sponsored by the World bank, and is not the same as the International Court of Arbitration of the International Chamber of Commerce (ICC) that will arbitrate on AVZ's issues. The DRC govt is a signatory to the ICSID, which binds the country to any judgements, agreements or settlements handed down by the ICC.