Democratic Republic of the Congo: Mining Comparative Guide

1 Legal and regulatory framework

1.1 Which legislative and regulatory provisions govern mining in your jurisdiction?

Legislative provisions: Mining in the Democratic Republic of Congo (DRC) is governed by Act 007/2002 of 11 July 2002 establishing the Mining Code, as amended by Act 18-001 of 9 March 2018 ('Mining Code').

Regulatory provisions: Mining in the DRC is further governed by the following regulatory provisions:

• Decree 18/24 of 8 June 2018 on mining regulation;
• Decree 068/2003 of 3 April 2003 relating to the creation, organisation and functioning of the Mining Cadastre;
• Decree 05/160 of 18 November 2005 relating to the creation, organisation and functioning of the National Committee of the Initiative for Transparency in the Management of Extractive Industries in the DRC;
• Decree 18/042 of 24 November 2018 relating to the declaration of strategic minerals;
• Decree 19/15 of 5 November 2019 on the safeguarding of activities relating to strategic mineral substances of artisanal exploitation;
• Decree 19/16 of 5 November 2019 on the creation, organisation and operation of the Authority for the Regulation and Control of Strategic Mineral Substances Markets;
• Interministerial Decree 00820/CAB.MIN/MINES/01 and 003/CAB.MIN/AFF.SOC.A.H.SN of 21 December 2021 relating to the approval of the procedural manual for the management of the minimum 0.3% of turnover contribution to community development projects in the mining sector; and
• Decree 00879/2022 of 2 February 2022 setting out the principles applicable to the organisation and operation of a trading centre.

1.2 When was the mining legislation last reviewed?

The mining legislation was last revised on 9 March 2018 by Act 18-001 of 9 March 2018, which substantially amended the Mining Code.

In terms of transitional measures, the only transitional measure in the 2018 act was a three-year grace period for the newly added requirement to locally process minerals. Other than that, the 2018 act had immediate application to the holders of existing exploration and exploitation permits. As such, all exploration and exploitation permits granted under the 2002 act must comply with the 2018 act.

The stability clause under the 2018 act ensures that the tax, customs and foreign exchange rights attached to and flowing from existing exploitation permits will remain in place for five years after the adoption of the 2018 Act (8 March 2023) and, in the case of future exploitation permits following from existing exploration permits, for five years after their issuance.

1.3 What other legislative and regulatory provisions have relevance for mining operations in your jurisdiction?

Further relevant legislative and regulatory provisions for mining operations in the DRC include:

• Ministerial Order 0057/71 of 20 December 1971 regulating safety in the workplace;
• Ministerial Order 0013 of 4 August 1972 establishing the conditions of hygiene in the workplace;
• Act 11/009 of 9 July 2011 setting general principles related to environmental protection;
• Act 15/2002 establishing the Labour Code, as amended by Act 16/010 of 15 July 2016; and
• Act 17/001 of 8 February 2017 setting the rules applicable to subcontracting in the private sector.

1.4 Are there any regional treaties or laws that need to be taken into account?

In addition to national legislation, relevant international instruments apply at multiple levels.

International legislation: On the international level, the DRC is a member of several international organisations, including:

• the World Trade Organization;
• the World Bank Group;
• the Multilateral Investment Agency; and
• the International Centre for the Settlement of Investment Disputes.

The DRC has also ratified the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

In addition, the DRC voluntarily adheres to the Extractive Industries Transparency Initiative criteria.

Regional legislation: In July 2012, the DRC joined the Organisation for the Harmonisation of Business Law in Africa (OHADA). OHADA provides a single, modern, flexible and more reliable business law framework, primarily covering commercial, corporate, loan guarantee, accounting and arbitration law. OHADA law already applies in 17 OHADA member states and supersedes previous or subsequent national legislation. Congolese law, however, remains applicable in areas not governed by OHADA law. Congolese law – which is closely modelled on Belgian law – therefore remains important in order to understand the myriad of applicable statutes that must be navigated to clear bureaucratic, legal and, especially, cultural and linguistic hurdles.

In March 2022, the DRC joined the East African Community. The DRC's membership provides access to the customs union and the single common market that exist between the member states of the community. This facilitates cross-border trade and transport of mining products, including better access to the strategic ports of Mombasa (Kenya) and Dar es Salaam (Tanzania).

US, UK and EU legislation: Certain US, UK and EU laws are also relevant for companies active in the DRC, including:

• the US Foreign Corrupt Practices Act and Section 1502 of the US Dodd-Frank Wall Street Reform Act;
• the UK Bribery Act; and
• the EU Conflict Minerals Regulation.

Depending on the type of mineral traded – tin, tungsten, tantalum or gold – these laws impose extensive supply-chain due diligence obligations on both upstream and downstream companies.

Bilateral legislation: Finally, the DRC has entered into bilateral investment treaties with several countries, and into double tax agreements with Belgium and with South Africa.

1.5 Which bodies are responsible for enforcing the applicable mining laws and regulations? What powers do they have?

Enforcement of the mining laws and regulations in the DRC is multi-layered.

The prime minister is responsible for the designation of protected areas and the classification of minerals, including which minerals qualify as strategic minerals.

The minister of mines, the Ministry of Mines and the Mining Cadastre are the most important enforcement bodies:

• The minister of mines is responsible for granting or refusing mining rights and other related permits and authorisations. He also establishes artisanal exploitation zones.
• The Ministry of Mines carries out technical studies, implements mining policies and conducts investigations.
• The Mining Cadastre is responsible for cadastral registration of (applications for) mining rights.

In addition, the authorities at the provincial and local levels have specific powers.

Prime minister: The prime minister exercises the following prerogatives by means of a decree, deliberated in the Council of Ministers:

• enacts the mining regulations for implementation of the Mining Code;
• classifies, downgrades or reclassifies mineral substances as mines or quarry products and vice versa;
• confirms the reservation of a deposit subject to tender made by order of the minister of mines;
• declares a mineral substance a strategic mineral substance;
• declares an area closed to mining, quarrying or mining activity;
• declares the classification or downgrading of a mineral substance to a reserved substance; and
• delineates or classifies a portion of the land as a protected area.

Minister of mines: The minister is responsible for:

• granting or refusing to grant mining and/or quarrying rights for mineral substances other than construction materials for common use;
• disqualifying a holder, withdrawing mining and/or quarrying rights, acknowledging declarations of renunciation of mining and/or quarrying rights and recording the expiration of mining and/or quarrying rights, in accordance with the Mining Code;
• authorising, by derogation, the export of minerals in their raw state by interministerial order deliberated in the Council of Ministers;
• establishing artisanal exploitation zones;
• approving and withdrawing the approval of purchasing offices for artisanal mining products, mining cooperatives or quarry products and mineral processing entities;
• authorising the extension of exploitation works;
• approving mining mortgages;
• supervising the specialised public services of the Ministry of Mines;
• reserving the deposits to be submitted to tender, to be confirmed by the prime minister;
• accepting or refusing the extension of a mining or quarrying right to non-associated substances;
• issuing authorisations for the processing of artisanal mining products;
• proposing to the prime minister the classification, reclassification or downgrading of reserved substances, mineral substances classified as mines or quarry products and vice versa, as well as prohibited areas;
• appointing, on the proposal of the sectoral ministers concerned, the members of:
• • the interministerial commission in charge of selecting the winning bids relating to the exploitation of a deposit submitted for tender; and
  • the interministerial commission in charge of examining the lists of goods to be imported for mining activities;
• approving mining and quarrying agents;
• approving laboratories for the analysis of mineral substances;
• approving geological survey offices;
• approving or refusing transfers of mining rights;
• issuing, in collaboration with the ministers responsible for the economy and foreign trade, the nomenclature of market products;
• ruling on the results of environmental audits in conjunction with the minister of environment;
• approving, jointly with the minister of finance, the lists of goods to be imported under the privileged customs regime; and
• setting, jointly with the minister of finance, the rates of duties, taxes and fees to be collected on the initiative of the minister of mines.

Mining Administration: The Mining Administration comprises:

• the General Secretariat; and
• the directorates, divisions and other administrative services of the Ministry of Mines, including those involved in the administration of the Mining Code and all its implementing measures.

The technical departments involved in the process of granting mining and/or quarrying rights are as follows.

Department of Geology: This department is responsible for:

• designing and developing draft geological policies and strategies for the mining sector and ensuring their implementation;
• drafting geological legislation and regulations for the mining sector and ensuring their implementation;
• ensuring the archiving and conservation of soil samples, rocks, drill cores and minerals deposited by mining and quarrying rights holders;
• producing geological and mining maps in collaboration with the National Geological Service of Congo;
• affixing the "let-it-pass" visa on the description of samples taken for analysis or testing abroad in accordance with Articles 50bis and 64bis of the revised Mining Code;
• ensuring the technical instruction for the applications for approval or renewal of approval, as a laboratory of analysis of mineral substances;
• assessing, through an ad hoc form, the quantity and volume of samples of mineral substances necessary for analysis and tests;
• issuing opinions in case of:
• • certification of the commencement of exploration works, submitted by a holder of mining rights;
  • extension of a mining permit to other substances; or
  • application for the approval of geological consulting firms;
• issuing technical opinions on exploration works to be undertaken outside the perimeter covered by a mining or quarrying right;
• receiving from any holder of mining or quarrying rights a written declaration of geophysical surveys or geochemical prospecting campaigns and communicating the results;
• issuing prior authorisation for earthworks, whatever the location or purpose, to be carried out outside the perimeter covered by a mining or quarrying right;
• taking note of a prior declaration of works of public utility by the 'project owner';
• inspecting and controlling all drillings, underground works, excavations, earthworks and public utility works, and obtaining all samples, documents and information of a geological, geotechnical, hydrological, topographical, chemical or mining nature;
• ensuring the creation and use, by a holder of mining rights, of the monetary provision to be used for the reconstitution of the mineral deposit;
• controlling and inspecting the activities of laboratories for the analysis of commercial mining products approved by the minister of mines; and
• participating in the work of:
• • the Interdepartmental Bidding Commission;
  • the Interministerial Commission for the Approval of Lists of Goods for Import under the Privileged Customs Regime; and
  • the Permanent Evaluation Committee (PEC).

Department of Mining: This department is responsible for:

• designing and elaborating draft policies, strategies and standards relating to mining activities and ensuring their implementation;
• contributing to the elaboration of preliminary drafts of legislation and regulations relating to mining products and ensuring their implementation;
• controlling and monitoring mining activities in accordance with the legal and regulatory provisions in force;
• recording and liquidating acts generating non-tax revenues from the mining sector;
• collecting and processing data on tax, non-tax and customs revenues from the mining sector;
• issuing technical opinions on:
• • the appropriateness of putting an exploitation right out to tender;
  • the characteristics of small-scale mining; and
  • the extension of an operating permit or quarrying authorisation;
• ensuring the technical instruction on requests for approval:
• • as a mining or quarrying agent;
  • of the grant or renewal of mining exploitation rights;
  • of the commencement of development and construction works;
  • of transfers and mortgages;
  • of the purchase and sale of artisanal mineral substances and their renewal;
  • as a buyer or additional buyer of approved artisanal mining outlets; and
  • of exceptional treatment of mining products for processing abroad;
• examining the industrialisation plan submitted by the holder of a mining right or mining authorisation;
• monitoring and controlling the compulsory repatriation of exploitation revenues by a holder of mining or quarrying rights and all banking institutions in collaboration with the Central Bank of Congo;
• verifying and issuing opinions on the accordance or discordance with market practices of the conditions and terms of loan agreements concluded by a holder of mining rights with foreign financial backers;
• monitoring the allocation of funds borrowed by a holder of mining rights in accordance with the investment plan for funds received as loans;
• participating in the implementation of:
• • specific legal or regulatory measures enacting national, regional and international standards for transparency, traceability and certification of mineral substances; and
  • procedural manuals for traceability of mining products, from extraction to export;
• ensuring, in accordance with the legal and regulatory provisions in force:
• • the control of demarcation, commencement of development and construction work and exploitation of mines; and
  • the implementation of measures relating to the approval of the list of the goods benefiting from the privileged customs regime set out in the Mining Code;
• investigating disputes relating to the establishment of a quarrying perimeter on the perimeter of an exploitation permit or a small mine exploitation permit;
• settling through arbitration disputes concerning easements of passage between the holders of mining rights and/or those of quarrying permits;
• participating in:
• • meetings of the Interdepartmental Bidding Commission; and
  • meetings of the PEC;
• chairing and acting as permanent secretariat of the Interministerial Commission for the Approval of Lists of Goods for Import under the Privileged Customs Regime; and
• examining periodic activity reports and carrying out economic studies and mining statistics based on them.

Department of Mining Environment Protection: This department is responsible for:

• in collaboration with the Congolese Environmental Agency, the National Fund for Promotion and Social Service and, where appropriate, any other relevant government agency:
• • implementing mining regulations on environmental protection; and
  • conducting environmental appraisals of mitigation and rehabilitation plans, environmental and social impact assessments and environmental and social management plans;
• ensuring the control and monitoring of the obligations of:
• • holders of mining and quarrying rights;
  • entities that process or treat mineral substances; and
  • laboratories that analyse marketable mining products in terms of safety, hygiene, health and environmental protection in the mining sector;
• issuing certificates of release from environmental obligations;
• issuing opinions on the approval of environmental consulting firms; and
• overseeing the implementation of the social responsibility policies of mining and quarrying companies vis-à-vis local communities affected by mining projects.

Mining Cadastre: The Mining Cadastre is a public institution with legal personality. It is responsible for:

• registering applications for the grant of mining and/or quarrying rights;
• registering the mining and/or quarrying rights granted and decisions of refusal;
• registering the withdrawal, cancellation or forfeiture of mining and/or quarrying rights;
• registering transfers and amodiations of mining rights;
• registering mining securities.
• instructing applications for mining and/or quarrying rights;
• instructing the renewal, extension, mutation, amodiation or renunciation of mining and/or quarrying rights;
• coordinating technical and environmental examinations of applications for mining and/or quarrying rights and certifying the commencement of exploration and/or development and construction work;
• issuing certificates of confirmation of compliance with the obligations set out in Article 196, point c of the Mining Code and of construction of the head office;
• notifying interested applicants after cadastral, technical and environmental instructions, and issuing them with mining and quarrying titles by virtue of the rights granted by the competent authority;
• issuing opinions on the classification, declassification or reclassification of prohibited zones or protected areas, and on the establishment of artisanal exploitation zones;
• keeping the mining and quarrying titles;
• keeping registers and maps of mining impacts according to a specific national cadastre which is open to public consultation;
• removing inscriptions of mining or quarrying perimeters on the cadastral map; and
• exercising notarial powers to authenticate the mortgage, amodiation and transfer of mining and quarrying rights.

Provincial governor: The provincial governor is responsible for:

• elaborating and proposing to the provincial assembly, in accordance with the general norms of national planning, the provincial policy on mining, mineralogical, industrial and energy programmes of provincial interest;
• supervising the execution by the provincial government of decrees relating to the provincial policy on mining, minerals, industrial and energy programmes of provincial interest;
• proposing the establishment of areas closed to mining activities; and
• issuing opinions in the event of the establishment of artisanal mining zones.

Provincial minister of mines: The provincial minister is responsible, on the advice of the head of the provincial division of mining, for:

• executing – under the supervision of the provincial governor and where necessary in consultation with other provincial ministerial departments involved – edicts relating to the provincial policy on mining, minerals, industrial and energy programmes of provincial interest;
• issuing artisanal miners' cards;
• authorising the possession of mining products by jewellers, artists and dentists;
• supervising, in harmony with the technical services of the Ministry of Mines and establishments under the supervision of the minister, the activities of the services of the Ministry of Mines installed in the province;
• issuing receipts to holders of mining or quarrying rights before the commencement of their activities in the province;
• granting to artists approved by the Ministry for Culture and the Arts special authorisation to hold or transport the products of the artisanal exploitation of mineral substances;
• granting authorisations for the exploration of quarry products and for the exploitation of quarries for construction materials for current use; and
• deciding on the opening of quarries for public utility works on state-owned land.
  

Head of the provincial division of mines: The provincial divisional chief of mines is responsible for:

• controlling and monitoring mining activities in the province;
• receiving applications for the approval of mining cooperatives submitted to the minister; and
• issuing notices of conformity prior to the decisions and acts of the provincial minister.

1.6 What is the regulators' general approach in regulating the mining sector?

The general approach of the regulators is to ensure that:

• the mining industry in the DRC develops in accordance with environmental and social standards; and
• the DRC state and local communities benefit from the resources derived from the mining industry.

2 Mining industry

2.1 How mature is the mining industry in your jurisdiction?

The mining sector has dominated the Congolese economy since the early 1910s. However, mining activity progressively slowed down after independence in 1960. Since the 2000s, the Democratic Republic of Congo (DRC) has experienced renewed industrialisation. As such, the mining industry is still maturing.

2.2 What are the key minerals which are mined in your jurisdiction and where is mining activity typically based?

There are four main regions for the most important minerals, as follows:

• In the south, the Katanga Copper Belt contains the country's main deposits of cobalt and copper. The DRC has:
• • the largest cobalt reserves in the world, with 5 million metric tons in total; and
  • the second-largest copper deposits in the world, with 70 million metric tons in total.
• The main diamond deposits in the DRC – the largest in the world – are located in the central south.
• From the south to the east are significant deposits of tin, tantalum and tungsten.
• The main gold deposits in the DRC – the largest in the world – are located in the northeast.

This is confirmed by the 2023 reports issued by the Technical Coordination and Mining Planning Unit (https://mines-rdc.cd/fr/statistiques).

Minerals are also found in other regions, albeit to a lesser extent.

2.3 Are any minerals deemed strategic and, if so, what impact does this have?

In 2018, the DRC government designated cobalt, coltan and geranium as strategic minerals, followed by copper in 2022. Strategic minerals are subject to a separate legal regime, which includes a higher royalty rate (10%) due on the gross commercial value of the commercial products in the exploitation phase.

2.4 Who are the key players in the mining industry in your jurisdiction?

The key player in the mining industry in the DRC is the state-owned mining company Générale des Carrières et des Mines. Other key players include:

• Ivanhoe Mines Ltd;
• Barrick Gold Corporation;
• Glencore Plc;
• Eurasian Resources Group;
• Shalina Resources;
• Zijin Mining Group Co Limited; and
• China Molybdenum Company Limited.

2.5 In addition to exploration rights and mining rights, what other mining rights and titles exist (eg, artisanal or small-scale mining rights)?

In addition to the common exploration and exploitation mining rights, the following mining rights and authorisations exist in the DRC:

• artisanal exploitation;
• small-scale exploitation;
• tailings;
• authorised trader;
• authorised middleman;
• treatment and transformation entity; and
• laboratory analysis.

3 Exploration rights

3.1 What licences are required to undertake prospecting and exploration activities in your jurisdiction? Do these vary depending on the type of mineral or the location of the activity?

In the Democratic Republic of Congo (DRC), underground minerals belong exclusively to the state. However, any private party may be authorised by the state to engage in mining activities, provided that specific objectives of eligibility, priority and capacity set forth in the Mining Code are met.

As such, the DRC requires licensees to undertake prospecting and exploration activities.

The licence required to undertake prospecting activities is a prospecting permit. Any person can request a prospecting permit from the Mining Cadastre without any requirements. This permit is not a mining right, however, and affords no priority in relation to potential future exploration or exploitation rights.

The licence required to undertake exploration activities is an exploration permit. An exploration permit does not vary depending on the type of mineral or the location of the activity. An exploration permit covers only the minerals for which it is granted (and associated substances, if the holder requests an extension to such associated substances).

3.2 What requirements must be satisfied to obtain a licence?

To be eligible for an exploration permit, a company must demonstrate a minimum financial capacity of at least five times the total amount of annual surface rights payable for the area covered by the exploration permit in its last year.

The surface rights amount to $36.52 per carré (one carré equals approximately 85 hectares or 0.85 square kilometres (km2)). The amount equivalent to the minimum financial capacity must be deposited in a DRC bank account which will be blocked during the evaluation of the request.

In addition, the following general limitations apply to exploration permits:

• The exploration permit's surface area may not exceed 471 km2;
• A company may not possess more than 50 exploration permits; and
• The combined total surface area of the exploration permits may not exceed 23,542 km².

3.3 What is the procedure for obtaining a licence? How long does this typically take?

To apply for an exploration permit, a company must submit its request to the Mining Cadastre. The request must include:

• specific documentation on the company and the requested exploration permit;
• proof of payment of the filing fee; and
• proof of the minimum financial capacity.

The Mining Cadastre will formulate a favourable or unfavourable opinion within 20 working days. Thereafter, the Mining Cadastre will send the request and its opinion to the minister of mines, who will grant or refuse the exploration permit within 30 working days.

3.4 Who can own exploration rights in your jurisdiction? Do specific requirements or restrictions apply to foreign operators?

Exploration permits can be owned by DRC or foreign legal entities whose corporate purpose relates exclusively to mining activities. In order to obtain an exploration permit, foreign companies must elect domicile with a DRC 'mining agent'.

3.5 What fees and other charges are incurred in obtaining a licence?

The application fee for an exploration permit is $1,000 per carré (see question 3.2). In addition, the filing fee for the rehabilitation and mitigation plan is $3,500.

3.6 What is the duration of a licence? What is the process for renewal?

An exploration permit may be granted for a period of five years, renewable once for the same duration. To renew an exploration permit, a company must renounce half of the surface area and submit a specific request with supporting documents.

More specifically, to renew the exploration permit, the applicant must:

• submit proof that it has complied with the obligations to maintain the exploration permit, which comprises:
• • proof of certification of the commencement of works duly issued by the Mining Cadastre; and
  • proof of payment of the annual surface fees;
• submit a report on the status of the exploration works;
• submit a timeline for completion of the exploration works;
• determine the remaining stages of the works;
• present a budget corresponding to the remaining stages of the works;
• submit proof of completion of the requisite construction works; and
• submit proof that it has respected its fiscal, parafiscal and customs obligations.

The exploration permit expires on the last day of its validity period, unless it has been renewed or a request for transformation into an exploitation permit has been filed by that day.

3.7 What are the operator's rights and obligations under the licence?

The operator has the following rights under an exploration permit:

• the exclusive right to carry out, within the perimeter for which it has been granted and for the duration of the validity period, exploration works for the mineral substances for which such licence has been granted (and associated substances, if the holder requests an extension to such associated substances);
• the right to collect samples of mineral substances within the perimeter for which it has been granted for industrial analysis or testing in the laboratory or plant of its choice, within the DRC. The operator may send collected samples overseas for analysis or testing, as long as it has obtained an exit authorisation issued by the Geology Directorate (which is part of the Ministry of Mining); and
• the right to obtain an exploitation permit for all or part of the mineral substances that are the subject of the exploration permit within the surface area covered by the exploration permit if, following the exploration works, the licence holder discovers an economically mineable/workable deposit. The operator may request that all or part of its exploration permit be transformed into an exploitation permit. Similarly, the holder of several exploration permits may request that all or part of them be transformed into a single exploitation permit.

The operator has the following obligations under an exploration permit:

• to start exploration and specific construction work within one year of issue of the exploration permit; and
• to pay the annual surface rights.

3.8 Are there any requirements re relinquishment of an exploration licence or part of the area covered by an exploration licence?

The following requirements apply to the partial or total relinquishment of an exploration licence:

• The relinquished part of the perimeter must be composed of whole squares; and
• The remaining part of the perimeter must conform to the shape of a mining perimeter.

The declaration of partial or total renunciation addressed to the minister of mines and deposited with the Mining Cadastre must specify the coordinates of the whole or part of the perimeter renounced and that retained. It takes effect on the date of the minister's acknowledgement or, in any event, within three months of the deposit of the declaration. The perimeter covered by the exploration permit is free, in whole or in part as the case may be, of all rights as of the date of the minister's decision.

Total or partial renunciation will not result in any reimbursement of the fees and expenses paid to the state for the grant or maintenance of the permit. Neither will it relieve the exploration permit holder of its responsibility for the protection of the environment.

3.9 Can licences be transferred? If so, how and subject to what consents? Do any restrictions or taxes apply to direct or indirect transfers?

Yes, all mining rights in the DRC are conveyable. The total or partial transfer of the exploration permit is allowed and is subject to the common legal provisions on transfers.

However, the transferor remains responsible for its environmental obligations from before the transfer.

In addition, the transferee must:

• be eligible to apply for and hold an exploration permit;
• prove the requisite financial capacity to hold an exploration permit; and
• in the case of a partial transfer, respect the form and location of the mining perimeters covered by the transferred exploration permit.

The procedure is similar to that for the grant of an exploration permit:

• The transfer request must be deposited with the Mining Cadastre.
• Within 20 working days, the Directorate of Mines will conduct a technical investigation to verify:
• • the financial capacity of the transferee;
  • whether the transferee has taken over the obligations relating to the exploration permit and the obligations of the transferor; and
  • if applicable, that any changes by the transferee to the documents based on which the exploration permit was granted do not modify any technical conclusions regarding the project.
• Finally, within 10 working days, the minister of mines must approve or refuse the transfer.

The Mining Cadastre will register an approved transfer after payment of a registration tax which amounts to 1% of the transfer price. The transfer is only opposable to third parties after registration.

3.10 Does an exploration licence give any priority when applying for a mining right?

Yes. An exploration permit entitles the holder to obtain a mining permit for all or some of the minerals and associated substances covered by the exploration permit if it discovers an economically exploitable deposit thereof.

4 Mining rights

4.1 How is ownership of mining rights determined in your jurisdiction?

In the Democratic Republic of Congo (DRC), underground minerals belong exclusively to the state. However, any private party may be authorised by the state to engage in mining activities, provided that specific objectives of eligibility, priority and capacity set forth in the Mining Code are met.

As such, the ownership of mining rights is determined by exploitation permits granted by the DRC state and the various rights that the law confers on the holders of such exploitation permits.

Request for an exploitation permit: To obtain an exploitation permit, a company must submit its request to the Mining Cadastre, after which the process is as follows:

• Within 20 working days, the Mining Cadastre will formulate an opinion. If this is favourable, the Mining Cadastre will send it to the Directorate of Mines.
• Within 60 working days thereafter, the Directorate of Mines will conduct a technical investigation. If the outcome is favourable, the Directorate of Mines will send it to the Congolese Environmental Agency.
• Within six months, the Congolese Environmental Agency will conduct an environmental study. If the outcome is favourable, the agency will send this to the minister of mines.
• Within 30 working days thereafter, the minister of mines will grant the exploitation permit.
• However, if there is an unfavourable opinion at any stage of the process, it will be sent to the minister of mines, who will refuse the permit within 30 working days.

Rights and obligations of the permit holder: Upon receiving an exploitation permit, a company is entitled to mine the minerals for which it has been granted in the area for which it has been granted. These minerals are:

• those which were identified during the exploration works; and
• those for which the existence of an economically mineable/workable deposit has been demonstrated.

An exploitation permit provides access to both:

• surface rights (eg, to build any infrastructure); and
• subsurface rights (ie, to the exploitation of the minerals).

An exploitation permit further confers the exclusive right to carry out, within the area for which it has been granted and for the duration of its validity, exploration, development, construction and exploitation works targeting the minerals covered by the permit, as well as any associated or non-associated substances if the permit holder has requested an extension thereto.

In addition, the holder of the exploitation permit may, without limitation:

• enter the exploitation area to proceed with the mining operations;
• build the facilities and infrastructure required for mining exploitation;
• use the water and wood resources within the mining area for the purposes of mining exploitation, in compliance with the standards set out in the environmental and social plans;
• freely dispose of, transport and market its tradeable products originating from the exploitation area;
• proceed with concentration, metallurgical or technical treatment operations for the mineral substances extracted from the deposit within the exploitation area; and
• proceed with works for the extension of the mine.

The holder of an exploitation permit must process and transform the mineral substances it mines within the Congolese territory. Derogations from this obligation may be granted.

4.2 What are the key requirements in order to apply for a mining right?

To be eligible for an exploitation permit, an applicant must:

• demonstrate through a feasibility study the existence of:
• • an economically workable ore deposit (including tailings, for which specific permits exist); and
  • sufficient financial capacity for the development, construction and exploitation of a mine;
• submit a technical and financial study, including a rehabilitation plan, which must include a financial guarantee to carry out the rehabilitation. The plan must specify:
• • each type of financing;
  • the sources of financing targeted; and
  • justifications for their likely availability.
• In any event, the applicant must provide at least 40% of the resources;
• submit for prior approval an environmental and social impact study and an environmental and social management plan;
• offer commitments to respect its obligations towards local communities;
• offer commitments to process and manufacture minerals in the DRC and provide proof of its capacity thereto;
• to the extent that it has not formed a joint venture with a state-owned company that already holds the necessary permits, transfer a mandatory 10% stake of its share capital to the DRC government. The shares must be free of all encumbrances and non-dilutable;
• at each transformation, within the framework of a separate mine or a separate mining project, create an affiliated company in which it holds at least 51% of the shares; and
• submit proof that it has complied with its obligations to maintain the exploration permit, which comprises:
• • proof of certification of the commencement of works duly issued by the Mining Cadastre; and
  • proof of payment of the annual surface fees.

An exploitation permit may be refused only for three specific reasons:

• the rejection of the feasibility study;
• the rejection of the environmental studies; or
• the insufficient financial capacity of the applicant.

4.3 What fees and other charges are incurred in obtaining a mining right?

The application fee for an exploitation permit is $5,500.

In addition, the following fees are payable during the technical and environmental investigation of the licence application:

• Validation of the terms of reference for the environmental and social compliance plans: $500
• Validation of the terms of reference for the environmental and social studies: $1,000
• Elaboration of the terms of reference for environmental and social compliance: $1,000
• Development of the terms of reference for environmental and social studies: $2,000
• Validation of environmental and social impact studies: $2,000
• • Investment of less than $100,000: $2,000 + 1%
  • Investment of between $100,000 and $1 million: difference investment amount $11,000 + 0,125%
  • Investment of between $1 million and $10 million: difference investment amount $22,250.50 + 0.025%
  • Investment greater than $10 million: difference in investment amount

The filing fee for the mitigation and rehabilitation plan is $3,500.

4.4 What is the duration of a mining right? What is the process for renewal?

The duration of an exploitation permit is 25 years. It may be indefinitely renewed for periods of up to 15 years each on the request of the holder of the exploitation permit.

More specifically, to renew an exploitation permit, the applicant must:

• provide proof that it has maintained the permit's validity, which comprises:
• • proof of certification of the commencement of works duly issued by the Mining Cadastre;
  • proof of payment of the annual surface fees; and
  • proof of drafting and respecting a local community plan;
• provide proof that it has respected its fiscal, parafiscal and customs obligations;
• submit a new feasibility study that demonstrates the existence of mineable reserves;
• demonstrate the existence of the financial resources necessary to continue carrying out its project in accordance with the technical and financial plan and the rehabilitation plan;
• obtain the approval of the updated environmental and social impact study and the environmental and social management plan;
• offer commitments to respect its obligations towards local communities;
• offer a commitment to actively continue its operations;
• demonstrate entry into the profitability phase of the project;
• demonstrate the regular and uninterrupted development of the deposit; and
• on each renewal, transfer to the DRC state an additional 5% share of the company.

4.5 Who can own mining rights in your jurisdiction? Do specific requirements or restrictions apply to foreign operators?

Unlike in the case of exploration permits, there is no possibility to elect domicile with a DRC 'mining agent' for exploitation permits. As such, only DRC companies can own exploitation permits. The DRC company's corporate purpose must exclusively relate to mining activities.

Furthermore, a DRC natural (not legal) person must hold a 10% participation in the share capital of the DRC company. This is in addition to the requirement to transfer a 10% share to the DRC state, as mentioned under the requirements to obtain an exploitation permit in question 4.2.

However, this obligation for a 10% participation by a DRC natural person is often not complied with in practice and instead is only raised by the DRC state during discussions relating to the number of directors it may appoint. This should be carefully discussed with the DRC state.

4.6 Do any indigenous ownership requirements apply in your jurisdiction?

There are no indigenous ownership requirements in the DRC. There are, however, provisions aimed at obtaining the consent of indigenous people.

More specifically, Act 22/030 of 15 July 2022 on the protection and promotion of the rights of indigenous Pygmy peoples provides that:

In addition, there are requirements relating to local communities (but not specifically indigenous), such as those:

• requiring to generally involve the Congolese population, including caps on foreign workers and obligations to train Congolese workers;
• requiring commitments to be offered to local communities when applying for mining rights;
• requiring occupants of the land to be indemnified if their activities are affected; and
• requiring that a constructive dialogue with local communities be maintained.

One particularly notable requirement regarding local communities is the requirement to draft a local community plan before commencing exploitation. This consists of a set of social commitments towards affected local communities. The provincial government must approve the plan. In practice, a significant number of mining companies do not have a local community plan. Generally, the DRC's infrastructure is either outdated or non-existent. Companies are thus frequently required to participate in local development – for instance, by funding roadworks, hospitals or schools.

One final important requirement regarding local communities is the requirement to provide 0.3% of the company's turnover to a legal entity charged with local development that is comprised of company representatives and those of local communities. The funds must be fully provided by the end of the fiscal year following the company's year of establishment. The legal entity will be created by interministerial decree of the ministers of mines and social affairs.

Any subcontracting related to mining activities must be done by companies which are majority held by Congolese nationals, pursuant to Act 17/001 of 8 February 2017 establishing the rules applicable to subcontracting in the private sector, which allows for only limited exceptions.

4.7 What role does the state play in the mining industry in your jurisdiction?

The DRC state owns and operates the important public mining companies. The main state-owned mining company is Générale des Carrières et des Mines (Gécamines). Most large mining projects in the DRC are structured as joint ventures with the DRC state or Gécamines.

4.8 Are there requirements for the government to enter into a mining development (or similar) agreement in addition to the licences/permits? When is this required or available?

There is no requirement to enter into agreements with the DRC state, but most large mining projects in the DRC are structured as joint ventures with the DRC state or Gécamines.

4.9 Can mining rights be transferred? If so, how and subject to what consents? Do any restrictions or taxes apply to direct or indirect transfers?

Yes, all mining rights in the DRC are conveyable. The total or partial transfer of an exploitation permit is allowed and is subject to the common legal provisions on transfers.

Nonetheless, the transferor remains responsible for its environmental obligations from before the transfer.

In addition, the transferee must:

• be eligible to apply for and hold an exploration permit;
• fulfil the requirements to obtain an exploitation permit; and
• in the case of a partial transfer, respect the form and location of the mining perimeters covered by the transferred exploitation permit.

The procedure is similar to that for the grant of an exploitation permit:

• The transfer request must be deposited with the Mining Cadastre.
• Within 20 working days, the Directorate of Mines will conduct a technical investigation to verify:
• • the financial capacity of the transferee;
  • whether the transferee has taken over the obligations relating to the exploration permit and the obligations of the transferor; and
  • if applicable, that any changes by the transferee to the documents based on which the exploration permit was granted do not modify any technical conclusions regarding the project.
• Afterwards, within 30 working days, the DRC Environmental Agency will conduct an environmental investigation, to verify whether the obligations from the environmental and social management plan are respected.
• Finally, within 10 working days, the minister of mines must approve or refuse the transfer.

The Mining Cadastre will register an approved transfer after payment of a registration tax which amounts to 1% of the transfer price. The transfer is only opposable to third parties after registration.

In addition to a transfer of the exploitation permit, the prior approval of the DRC state is required for:

• a change of control in the company holding the exploitation permit; and
• a change of control via any change in the shareholding of the company controlling a subsidiary that is a shareholder of the company holding the exploitation permit.

4.10 Can security be taken over mining rights?

Yes. Exploitation permits can be mortgaged.

The holder of the exploitation permit or the mortgage creditor must submit an approval request to the Mining Cadastre, after which the procedure is as follows:

• Within seven working days, the Mining Cadastre conducts its investigation to verify:
• • potential previous mortgages;
  • the authenticity of the mortgage; and
  • the validity of the mortgaged exploitation permit.
• Thereafter, within 10 working days, the Directorate of Mines will conduct its technical investigation to verify whether the mortgage is properly established to guarantee the financing of the permit holder's mining activities within the perimeter of the exploitation permit.
• Finally, within 45 days, the minister of mines will approve or refuse the mortgage.

4.11 What provisions apply with regard to closure or abandonment of a mining right?

The holder of an exploitation permit may, by declaration addressed to the minister of mines, relinquish at any time all or part of the right covering its perimeter.

A declaration of partial relinquishment must specify the coordinates of the part of the perimeter relinquished and those of the part retained. It takes effect:

• on the date on which the minister of mines gives notice; or
• in any case, within three months of filing of the declaration.

The relinquished part of the perimeter must be composed of whole squares. The remaining part of the perimeter must respect the form of a mining perimeter.

The perimeter covered by the mining permit is free, in whole or in part as the case may be, from any right as from the date of the minister of mines' decision.

Total or partial renunciation does not entitle the permit holder to any reimbursement of the fees and expenses paid to the DRC state for the grant or maintenance of the permit. It further does not relieve the permit holder of its responsibility for the protection of the environment and its commitments to the local community.

5 Surface rights

5.1 Does the law of your jurisdiction distinguish between mining rights and surface rights? If so, how does an owner of mining rights acquire surface rights?

In the Democratic Republic of Congo, the law indeed distinguishes between mining rights and surface rights, but in the opposite sense. The owner of mining rights does not have to acquire surface rights. Instead, the law stipulates that the holder of surface rights cannot use its rights to claim any ownership over the minerals in the soil and subsoil.

Mining rights provide access to both:

• surface rights (eg, to build any infrastructure); and
• subsurface rights (ie, to the exploitation of the minerals).

5.2 Where surface rights are acquired, what are the operator's rights and obligations as regards the landowner? And what are the landowner's rights and obligations as regards the operator?

Any occupation of land that deprives the rightful owners of the enjoyment of the land, or any modification that renders the land unfit for cultivation, will entail, at the request of the rightful owners of the land and at their convenience, an obligation for the holder of the mining rights to pay fair compensation corresponding either to the rent or to the value of the land at the time of its occupation, increased by half.

The occupants of the customary land may, with the agreement of the owner, continue to exercise their right to cultivate, provided that field work does not interfere with the mining operations. The owner of the land is not authorised to construct or continue the construction of buildings on it.

5.3 Please give an overview of the process for any mandatory acquisition of surface rights (eg, process and time to enforce).

Not applicable.

5.4 Are any native title issues applicable, either at the exploration licence stage or when a mining right is issued?

See question 4.6.

5.5 Are any other rights needed to use the land (eg, zoning permissions or planning requirements)?

No.

6 Environmental issues

6.1 What environmental authorisations are required to undertake prospecting, exploration and mining activities in your jurisdiction? Do these vary depending on the type of mineral or the location of the activity?

Three environmental authorisations are required to obtain an exploitation permit in the Democratic Republic of Congo (DRC):

• Environmental and social impact study: This involves a systematic process of identification, prediction, evaluation and mitigation of physical, ecological, aesthetic and social effects prior to the development, construction, equipment, installation or establishment of a permanent mining or quarrying operation, or processing entity. It allows the direct or indirect consequences on the environment to be assessed.
• Environmental and social management plan: This sets out the environmental specifications of the mining project, consisting of a programme for the implementation and monitoring of the measures envisaged by the environmental and social impact study to eliminate, reduce and possibly compensate for the harmful consequences of the mining project on the environment.
• Rehabilitation and mitigation plan: This sets out the holder's commitment to carry out certain mitigation measures aimed at reducing the impact of its activity on the environment, as well as measures to rehabilitate the site. These include the holder's commitment to provide or constitute financial security to ensure or guarantee the cost of mitigation and rehabilitation of the site environment.

In addition, the Congolese Environmental Agency will issue an administrative document after a positive environmental inspection in the process of obtaining an exploitation permit (see question 4.1), which is called the environmental certificate.

Even though no environmental authorisations are required to obtain an exploration permit in the DRC, the holder of an exploration permit must submit a rehabilitation and mitigation plan before starting any exploration activity.

6.2 What environmental obligations must the operator observe while the mine is operational?

The operator must observe its environmental obligations as set out in the environmental and social impact study, the environmental and social management plan and the rehabilitation and mitigation plan (see question 6.1).

6.3 What environmental obligations must the operator observe in relation to closure of the mine?

The operator must observe its environmental obligations as set out in the rehabilitation and mitigation plan (see question 6.1).

6.4 What are the potential consequences of breach of these requirements – both for the operator itself and for directors, managers and employees?

The holders of exploration or exploitation permits have absolute liability for damages caused to any person, property or the environment as a result of their mining activities, even in the absence of any fault or negligence. They are required to repair any damages.

To avoid liability, the holders of exploration or exploitation permits must prove that the damage resulted from a cause that is unrelated to their mining activity.

Actions for compensation for damages caused by mining activities are imprescriptible.

Anyone that carries out or contributes to carrying out a project or an activity without having conducted an environmental and social impact study can be punished with a fine equal to five times the costs that it would have paid for the evaluation and validation of the study. The competent court may also order the destruction of the works.

Without prejudice to the sanction of imprisonment provided for by the Criminal Code, any person that intentionally provides erroneous or inaccurate information in an environmental and social impact study can be punished with a fine amounting to double the costs which would have been paid for the actual evaluation and validation of the study.

6.5 Which bodies are responsible for enforcement of environmental obligations?

As discussed in question 1.5, the main bodies responsible for the enforcement of environmental obligations in the DRC are:

• the Department of Mining Environment Protection; and
• the Congolese Environmental Agency.

6.6 What is the regulators' general approach in regulating the mining sector from an environmental perspective?

The regulators conduct regular inspections to ensure compliance with environmental obligations.

7 Health and safety

7.1 What key health and safety requirements apply to operators in your jurisdiction?

The operators must respect the labour legislation. They must further respect the health and safety legislation – including, for instance, the obligations to:

• submit their safety guidelines to the Directorate of Mines; and
• take preventive measures to protect their workers and the environment from radioactivity.

All employers must respect a wide variety of health and safety obligations. Mining companies in particular must respect obligations regarding:

• air quality;
• temperature;
• noise;
• hazardous products;
• classic security measures; and
• procedures for working in small places.

7.2 What reporting requirements apply with regard to mining accidents in your jurisdiction?

Any serious or fatal accident occurring in a mine or in its outbuildings must be reported without delay and by the quickest means of communication to:

• the Directorate of Mines; and
• the administrative and judicial authorities of the jurisdiction.

In addition, work accidents and occupational diseases must be reported to the agencies responsible for labour inspections.

7.3 What are the potential consequences of breach of these requirements – both for the operator itself and for directors, managers and employees?

Anyone that violates the provisions concerning public health and safety will be liable to:

• a prison sentence of between one month and one year; and/or
• a fine of between $5,000 and $10,000.

7.4 What best practices in relation to health and safety should operators consider adopting in your jurisdiction?

The following best practices in relation to health and safety can be considered in the Democratic Republic of Congo:

• Ensure the assistance of occupational health services;
• Organise a special service for safety, hygiene and beautification of the workplace;
• Establish a safety, health and beautification committee for the workplace;
• Keep the company in a constant state of cleanliness and present the conditions of hygiene and safety necessary to ensure the health of personnel;
• Notify the agencies responsible for labour inspections in the jurisdiction of the conditions, through the forms and by the deadlines provided for by the legislation and regulations of social security, of work accidents or occupational diseases duly noted; and
• Provide medical services to workers.

7.5 Which bodies are responsible for enforcement of health and safety obligations?

As discussed in question 1.5, the main body responsible for enforcing health and safety obligations is the Mining Administration. The additional enforcement bodies are the agencies responsible for labour inspections.

7.6 What is the regulators' general approach in regulating the mining sector from a health and safety perspective?

The regulators conduct regular inspections to ensure compliance with environmental obligations.

8 Processing, refining and export

8.1 What requirements and restrictions apply with regard to the processing or refining (beneficiation) or minerals?

Processing minerals in the DRC: The holder of a mining exploitation right or a permanent quarrying authorisation must process or have processed the minerals into marketable products in its own facilities or at approved processing entities established in the territory of the Democratic Republic of Congo (DRC).

A holder of an exploitation permit must submit to the Mining Directorate its industrialisation plan containing a programme to this end.

Exceptional processing of raw minerals outside the DRC: By way of derogation, the holder of an exploitation permit may be authorised, for a period of one year, to have its mining products processed outside the DRC by an interministerial decree of the minister of mines and the minister of foreign trade, deliberated in the Council of Ministers, in return for payment of the related tax. The authorisation is granted only if the holder demonstrates:

• the non-existence of a possibility to process the mining products in the DRC at an economically profitable cost;
• the existence of a contract for the processing of mining products outside the DRC concluded with a company established abroad;
• its agreement that the metal produced after processing abroad will be accounted for as an export on behalf of the DRC; and
• its agreement to be subject to the duties and taxes due to the public treasury in connection with the exceptional processing of raw mineral substances abroad.
  

8.2 What requirements and restrictions apply to the export of minerals?

The holder of an exploitation permit is authorised to export and market its products to customers of its choice, at freely negotiated prices.

9 Taxes and royalties

9.1 What taxes, royalties and similar charges are levied on mining operators in your jurisdiction? How are these calculated?

Taxes: The taxes levied on mining operators in the Democratic Republic of Congo (DRC) are set out below:

• The import of goods is subject to value added tax (VAT) at a rate of 16%. The tax base equals the cost, insurance and freight value plus any duties and taxes (with the exception of VAT itself). The import of goods is deemed to take place when the goods cross the border of the DRC, but VAT is due only upon the declaration for release of the goods. The VAT due on goods imported by mining companies is established and liquidated by way of declaration of goods to Customs at the point of entry, and will subsequently be declared to the DRC tax administration department to which the licensed company belongs at the first VAT declaration due date following the import.
• The corporate income tax rate is set at 30% of turnover, identical to the common tax rate.
• The rate on expatriate remunerations is set at 25%, half of the common tax rate.
• The withholding tax rate payable on dividends is set at 10% of the gross amount. In principle, withholding tax on interest is levied at the ordinary rate of 20% on the gross amount. However, interest paid in respect of loans granted from abroad in a foreign currency is not subject to withholding tax, provided that the interest rate and other loan conditions are at least as favourable as those the company could obtain from unaffiliated companies.
• When commodity prices rise by 25% in comparison to their level in the feasibility study, a super-profit tax of 50% is due. The revenues subject to the super-profit tax are then exempted from the profit tax (ie, the corporate income tax at 30%).
• Capital gains tax will become due in the case of a share transfer. The amount that is taxable is calculated on the basis of the share transfer price and the accounting value of the share.
• Other relevant taxes include taxes on surface, wages, rental revenues, real estate, vehicles and more.

Royalties: Royalties are due on the gross commercial value of all commercial products. They become due at the exploitation phase and are payable when the goods leave from the exploitation or processing site of the project. Although mining royalties are deductible expenses for the determination of corporate income tax, they are due regardless of the mining company's profitability.

The rate varies per group of minerals and amounts to:

• 10% for strategic minerals (ie, cobalt, coltan, geranium and copper);
• 1% for iron or ferrous metals;
• 3.5% for non-ferrous metals;
• 3.5% for precious metals;
• 6% for gemstones;
• 1% for industrial minerals; and
• 0% for common construction materials.

Duties: The customs regime applicable to mining companies includes certain exemptions – for instance, for:

• temporary imports (up to 18 months); and
• furniture imported by expatriates.

In addition, various preferential rates on imports apply to mining companies. These rates increase as the project progresses:

• 2% for all goods and products strictly for mining use which are imported before exploitation of the mine has begun;
• 5% for all goods and products strictly for mining use which are imported after exploitation of the mine has begun; and
• 5% for fuel, lubricants, reagents and consumer goods which are destined for mining activities throughout the duration of the project.

The preferential rates apply only to goods that appear on the list that the holder of the mining permit must submit to the Congolese authorities, which must be approved by a joint decree issued by the Ministry of Mines and the Ministry of Finance.

9.2 Are any tax incentives available for mining operators?

The following tax incentives are available for mining operators:

• an exemption from the contribution on vehicles used exclusively within the mining area for the transport of persons or materials, handling or traction;
• an exemption from movable property taxes on interest paid by the holder to affiliates on loans contracted in foreign currency abroad, provided that the interest rates do not exceed the average of the effective rates applied by credit institutions in the country where the lending company is established, according to information from the Central Bank of Congo;
• payment of the movable property tax at a reduced rate of 10% (normally 20%) on dividends and other distributions paid by the holder to its shareholders;
• an exceptional tax for expatriates' remuneration at:
• • 12.5% for the first 10 years of the project; and
  • 25% for the remaining period.
• Expatriates' remuneration normally is normally subject to 25% exceptional tax;
• for corporate income tax calculation, the ability to deduct some specific provisions;
• deferred depreciation in loss-making periods. They may be accumulated and carried forward without any time limit to subsequent years up to the amount of taxable income; and
• carry-forward loss, meaning that professional losses for an accounting year may be deducted from the profits made in subsequent years up to one-fifth of the year following that in which there is a loss. However, the deduction of losses brought forward is capped at 60% of the net taxable profit of the particular year in respect of which the loss deduction is claimed.

9.3 What other strategies might mining operators consider to mitigate their tax liabilities?

Not applicable.

9.4 Have there been any significant changes to the taxation rates applicable to mining companies in the last three years?

No.

10 Disputes

10.1 In which forums are mining disputes typically heard in your jurisdiction?

The preferred method of resolving mining disputes in the Democratic Republic of Congo (DRC) is international arbitration. There are several options:

• Arbitration based on investment legislation: The DRC state consents to arbitrate disputes regarding the interpretation and application of the mining legislation in accordance with the International Centre for the Settlement of Investment Disputes (ICSID), provided that the titleholder is a national of another contracting state.
• Arbitration based on bilateral investment treaties: The DRC-US Bilateral Investment Treaty (BIT) of 1984 is one of the BITs in force that provides for investor-state arbitration. The 1984 US-DRC BIT contains an 'umbrella clause' which provides that disputes that may be brought to ICSID arbitration can relate to:
• • the interpretation and application of an investment agreement;
  • the interpretation and application of any investment authorisation granted by the competent foreign investment authorities; or
  • an alleged breach of any right confirmed or created by the BIT itself.
• The BIT can thus cover:
• • contractual claims;
  • treaty claims; and
  • claims based directly on the mining legislation.
• Arbitration based on contracts: Arbitration clauses can also be included in investment contracts. Foreign arbitration centres – such as the International Chamber of Commerce (ICC), the Organization for the Harmonization of Business Law in Africa and ICSID – are usually preferred to Congolese arbitration centres (eg, the National Centre for Arbitration, Conciliation and Mediation), as they are much more experienced. An arbitration clause in a contract will typically only cover contractual claims, but it may also be possible to draft the arbitration clause such that it covers all types of disputes. These could include both BIT claims and mining legislation claims. French-speaking jurisdictions/seats of arbitrations are usually preferred because of the civil/continental law system and the use of the French language, which ease the enforcement process. Common seats include Geneva (Switzerland), Paris (France) and Brussels (Belgium).

10.2 What issues do such disputes typically involve? How are they typically resolved?

Disputes in the DRC typically involve a failure to meet contractual obligations.

10.3 Have there been any recent cases of note?

As mentioned in question 10.1, the preferred method of resolving mining disputes in the DRC is arbitration. As such, most cases of note are not public.

However, recent developments surrounding the Manono Project provide notable examples of both arbitration and judicial proceedings. For context, the Manono Project is potentially the largest lithium deposit in the world.

In practice, there are multiple disputes concerning the shareholding of Dathcom Mining SA, the company that holds the mining rights for the Manono Project, which is majority held by Australian mining company AVZ International Pty Ltd. The parties to the disputes are DRC state-owned mining company Cominiere SA, mining company Dathomir Mining Resources SARL and AVZ.

More specifically, AVZ started two ICC arbitration proceedings against Dathomir to seek a declaration affirming AVZ's legal title to a 15% stake acquired from Dathomir (in addition to AVZ's 60% stake).

Furthermore, AVZ commenced judicial proceedings through Dathcom against Cominiere with regard to the transfer by Cominiere of 15% of its 25% stake in Dathcom to Chinese mining company Jin Cheng Mining via a share purchase agreement, which, in AVZ's opinion, was made in violation of the pre-emption rights held by AVZ.

11 Trends and predictions

11.1 What changes have there been to the mining landscape in your jurisdiction in the last five years?

Since 2018, both legislative and factual changes have increased the complexity for mining operators. These have largely been driven by the evolving political circumstances between 2002 and 2018, and the lack of profits made by the Democratic Republic of Congo (DRC) state in the mining sector. More specifically:

• the mining legislation was substantially revised in 2018. The new mining legislation reinforced local content requirements, reduced the attractiveness of the tax regime and abrogated the 10-year stability clause; and
• the practice by the DRC state followed the legislative changes. The DRC state is seeking to:
• • shift from a profit-sharing model to a production-sharing model;
  • renegotiate existing joint venture agreements; and
  • scrutinise amodiation contracts.

11.2 How would you describe the current mining landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

In the DRC mining landscape, we can identify multiple positive trends:

• the rise of commodity prices;
• the high demand for DRC minerals (eg, electric vehicle batteries, renewable energy, electronics); and
• the resolve of the DRC president to increase production and demonstrate a positive influence on the mining sector.

However, the 2023 presidential elections and the conflict between the DRC and Rwanda could have a negative impact on the mining sector and the regulatory landscape in the DRC.

12 Tips and traps

12.1 What are your top tips for mining operators in your jurisdiction and what potential sticking points would you highlight?

The mining sector is the main economic industry in the Democratic Republic of Congo (DRC) and the DRC state's main source of revenue. The regulators closely monitor mining operations and conduct regular inspections. Mining companies should comply with every aspect of the mining legislation and the administration tends to interpret the legal texts very strictly.

Subcontracting is a potential blind spot for mining companies. As mentioned in question 4.6, pursuant to Act 17/001 of 8 February 2017 and the Mining Code, any subcontracting related to mining activities must be done by companies majority held by Congolese nationals, with only limited exceptions. While the act does not directly apply to mining companies, they will nonetheless be held liable and fined if a subcontractor does not comply with the requirements.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.