Advisory Services on Mining Law Modernization
Since the 1980s, the Firm has advised
national governments on the modernization of their mining and related tax and investment
laws.
Carrying on a tradition established prior to 1960 by its predecessor firm, Duncan
& Allen since its founding in 1970 has analyzed developments in mining and petroleum
laws of countries around the world for public and private publication and support
of policy development by bilateral and multilateral development institutions. In
the early to mid 1990's, the Firm contributed to The World Bank’s Strategy for African
Mining and its Mining Strategy for Latin American and the Caribbean (World Bank
Technical Papers Nos. 181 and 345).
Since the collapse of the Soviet Union in 1991 and the subsequent globalization of
the world economy, developing countries seeking to maximize the benefits of their
natural resource endowments have faced a new paradigm. They have had to compete
for a limited pool of private investment capital and learn to harness the competitive
forces and risk management capabilities of the international mining industry and
capital markets to achieve their development objectives. To succeed in doing so,
they have needed a new set of laws, regulatory instruments and institutions, and
skill sets.
Building on its analytical work for The World Bank, Duncan & Allen has developed
an approach to the modernization of the laws and regulations governing mining to
facilitate and regulate socially and environmentally responsible private investment
in mineral resource development. The Firm's approach is based generally on the "Latin
American Mining Law Model" which it has explained in various publications, together
with certain proprietary analytical and pedagogical tools. This approach has been
directly and successfully implemented in Bolivia, Mongolia, Madagascar and the Democratic
Republic of the Congo, and has inspired legal reforms in other countries in Latin
America, Africa and Asia.
The Firm played a key role in the design and drafting of the Minerals Law of Mongolia
in 1997, which spurred an unprecedented period of growth of the Mongolian mineral
sector. (the number of mineral extraction licenses holders increased from 198 in
1997 to over 5200 in 2004; in 2006 the mining industry represented 12% of the GDP,
half of the industrial output and 43% of the export earnings of Mongolia).
In Bolivia, the Firm advised the Bolivian government on the reform of its legal framework
for mining, resulting in the adoption in 1997 of the Bolivian Mining Code, one of
the most progress mining laws in Latin America, which facilitated foreign investment
in the Bolivian mining sector, despite a deteriorating international investment
climate for mining. In Guatemala, the Firm assisted the government in forging a
national mining policy that through a process of compromise and consensus with representatives
of a disparate group of stakeholders that were previously in conflict. Although
mining law reform is progressing slowly there, the policy has brought stability
to the process, by integrating local and regional representation into the oversight
of mine development planning and decision-making, and insuring the proper identification
and utilization of mining-related fiscal resources for the development of local
and regional improvements.
In Madagascar, the Firm assisted the Malagasy Government in reforming its Mining
Code and in drafting the related implementing regulation, a comprehensive environmental
regulation for the mining sector, and a law designed to attract large scale investments
in the Malagasy mining sector, as well as subsequent amendments to the Mining Code
and large scale investment promotion law, all enacted in 1999-2005. The Malagasy
mining sector has experienced significant investment and growth since the implementation
of the reforms designed with the assistance of Duncan & Allen, and the country’s
first world class mines are currently under development.
With the Firm's advice and assistance, the Democratic Republic of the Congo (DRC)
enacted and implemented a new Mining Code of 2002 and Mining Regulation of 2003
with comprehensive licensing, tax, customs, foreign exchange, environmental and
social provisions that have led to a resurgence of national and foreign investment
in that country’s fabled copper and cobalt mining sector despite a delicate period
of political transition.