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 progressive 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 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.