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Journal of Energy & Natural Resources Law Volume 25, 2007 - Issue 4
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Original Articles

Disputes and their Resolution under the Mining Code 2002 of the Democratic Republic of Congo

Hubert André-Dumont Hubert André-Dumont, Lie Jur (Louvain), LLM (Bristol) is a member of the Brussels Bar and a partner in the Brussels office of McGuireWoods LLP. The author has been assisting clients with projects in the Democratic Republic of Congo for more than 20 years and in particular in a number of mining projects for more than ten years. The author would like to thank Gilles Carbonez, an attorney with McGuireWoods LLP, Brussels, for his valuable assistance in the revision of drafts of this article. The author can be contacted by e-mail at [email protected].
Pages 351-374 | Published online: 08 Jun 2015

  • Law No 007/2002 of 11 July 2002 enacting the mining code (the ‘Mining Code 2002’), available on the website of the ‘Cadastre Minier’ (Mining Registry) at: www2.gaf.de/cami.
  • Decree No 038/2003 of 26 March 2003 enacting the new mining regulation (the ‘Mining Regulation 2003’).
  • The Mining Code 2002 also applies to quarry rights, which are mentioned here only pro memore.
  • Law No 81–013 of 2 April 1981 enacting general legislation on mines and hydrocarbons, which remains applicable to hydrocarbons (the ‘Mining Law 1981’).
  • Ordinance No 67–416 of 23 September 1967.
  • See the ‘Exposé des Motifs’ (Explanatory Memorandum) to the Mining Code 2002, in Journal Officiel de la République Démocralique du Congo, 15 July 2002, pp 5, 9 and 21.
  • of J Otto and J Cordes, The Regulation of Mineral Enterprises (RMMLF, Westminster, Colorado, 2002), pp 3–5.
  • For those mining conventions entered into and duly approved by Presidential decree pursuant to the Mining Law 1981 prior to the entry into force of the Mining Code 2002, and for which the title holder did not elect to opt for the Mining Code 2002, the Mining Law 1981 (and the Mining Regulation 1967) remains applicable—of Article 343. a of the Mining Code 2002.
  • ‘Permis de recherche’—Article 50 of the Mining Code 2002.
  • ‘Permis d'exploitation’—Article 64 of the Mining Code 2002.
  • ‘Permis d'exploitation des rejets’—Article 86 of the Mining Code 2002.
  • Article 34 of the Mining Code 2002.
  • Article 33 of the Mining Code 2002.
  • Inter alia, in civil and commercial matters: the Decree of 7 March 1960 enacting the Code of Civil Procedure; Law No 82–020 of 31 March 1982 enacting the Code of Judicial Organisation and Competence; Ordinance-Law No 82–017 of 31 March 1982 relating to the procedure before the Supreme Court.
  • Mainly the ‘Tribunaux de Grande Instance’ (Tribunals of Great Instance) in first resort, the ‘Cours d'Appel’ (Courts of Appeal) in appeal, and the recently re-created ‘Cour de Cassation’ (Supreme Court, formerly, the ‘Cour Supreme de Justice’) in last resort—cf Law No 82–020 of 31 March 1982 enacting the Code of Judicial Organisation and Competence. There are one or more Courts of Appeal for each province and two for Kinshasa, and there are several Tribunals of Great Instance in Kinshasa and one in each main city of each province.
  • Articles 299 to 311 of the Mining Code 2002, including, inter alia, fraud, corruption, etc.
  • cf ‘Title holder’ below.
  • Articles 312 to 322 of the Mining Code 2002.
  • cf, eg, Articles 46, 62, 72, 80, 170, 279 and 289.
  • Explanatory Memorandum to the Mining Code 2002, in Journal Officiel de la République Démocratique du Congo, 15 July 2002, pp 29–30.
  • For a definition of ICSID, see ‘International arbitration’ below. These few cases are available on the internet (www.worldbank.org/icsid/cases).
  • Article 319 of the Mining Code 2002—cf ‘International arbitration’ below.
  • Article 313 of the Mining Code 2002—cf also ‘Judicial recourse—overview’ below.
  • Articles 146 and 147 of Ordinance-Law No 82–020.
  • Article 147 of Ordinance-Law No 82–020.
  • The ‘breach of the forms either substantial, or sanctioned by nullity’ is a typical civil law concept that allows a party to seek the annulment of an act or decision when the formalities (‘forms’) imposed by law are not complied with and where the law provides that such formalities are either substantial (ie absolutely required) or that in the event they are not complied with. The act concerned can be declared null and void.
  • Article 87 of Ordinance-Law No 82–017.
  • Article 88 of Ordinance-Law No 82–017.
  • Article 89 of Ordinance-Law No 82–017.
  • Article 148 of Ordinance-Law No 82–020.
  • Article 147 of Ordinance-Law No 82–020; Article 29 of Ordinance-Law No 82–017.
  • Article 149 of Ordinance-Law No 82–020.
  • Article 158 of Ordinance-Law No 82–020.
  • cf Articles 315 and 316 of the Mining Code 2002—cf ‘Judicial recourse’ below.
  • cf Article 46 of the Mining Code 2002—cf ‘Peculiarities’ below.
  • For mining conventions entered into and duly approved by Presidential decree pursuant to the 1981 Mining Law prior to the entering into force of the Mining Code 2002, the title holders could elect, within nine months of the entry into force of the Mining Code 2002, either to keep their mining conventions or to opt for the application of the provisions of the Mining Code 2002 in their entirety in lieu of their mining conventions—cf Article 340 of the Mining Code 2002.
  • Article 314 para 3 of the Mining Code 2002.
  • Article 314 of the Mining Code 2002 shortening the time limit of Article 88 of Ordinance-Law No 82–017 of 31 March 1982.
  • Article 314 of the Mining Code 2002 shortening the time limit of Article 89 of Ordinance-Law No 82–017 of 31 March 1982.
  • Article 89 of Ordinance-Law No 82–017.
  • From a maximum 275 days to 142 days—cf Articles 88 and 89 of Ordinance-Law No 82–017 of 31 March 1982, the time limits of which were amended by Article 314 of the Mining Code 2002.
  • Article 314, para 2 of the Mining Code 2002 setting the time limits under Article 79 of Ordinance-Law No 82–017 of 31 March 1982.
  • Explanatory Memorandum to the Mining Code 2002, in Journal Officiel de la République D´emocratique du Congo, 15 July 2002, pp 29–30.
  • Article 46 of the Mining Code 2002—cf ‘Peculiarities’ below.
  • Such decisions are taken pursuant to Article 336 et seq of the Mining Code 2002.
  • Article 339 of the Mining Code 2002.
  • Article 340 para 3 of the Mining Code 2002 and Article 593 et seq of the Mining Regulation 2003.
  • Article 316 of the Mining Code 2002. It should be noted that Article 316 contains a drafting mistake where it refers to recourse ‘against a judicial decision relating to the matters’ provided in Article 315, while this in fact concerns recourse ‘relating’ to such matters (and not only against judicial decisions), the appeals against a decision on such recourse being governed by the ordinary rules applicable in judicial matters.
  • Ordinance-Law No 82–020 enacting the Code of Judicial Organisation and Competence and Decree of 7 March 1960 enacting the Code of Civil Procedure.
  • Decree of 6 August 1959 enacting the Code of Criminal Procedure.
  • Ordinance-Law No 82–017 relating to the procedure before the Supreme Court of Justice.
  • Article 316 of the Mining Code 2002: possibility of appeal of the decision of the Tribunal of Great Instance before the Court of Appeal, and further possibility of recourse in ‘cassation’ for breach of the law before the Supreme Court of Justice.
  • Article 88 of Ordinance-Law No 82–017 cited above in ‘Administrative recourse—overview’.
  • cf'Administrative recourse—overview’.
  • cf Article 315 of the Mining Code 2002.
  • Article 46 of the Mining Code 2002.
  • The author would like to thank attorneys Lambert Djunga and Emery Mukendi Wafwana, both members of the Kinshasa Bar, for their patient research at the clerk's offices of the Kinshasa-Ngombe Tribunal of Great Instance and Court of Appeal.
  • In addition, Article 178 of the Mining Code 2002 and Article 373 of the Mining Regulation 2003 refer, for leases, to Article 46 of the Mining Code 2002, which deals with recourse against failures of registration of mining rights as is set out in ‘Peculiarities’ below.
  • Article 281 wrongly qualifies arbitration in such a situation as a ‘non-jurisdictional way of settlement’.
  • cf ‘Application to mining matters’ below.
  • Ibid.
  • ‘Application to mining matters’ para (1) above.
  • Article 46 of the Mining Code 2002. It should be noted that Article 315 of the Mining Code 2002 refers to the judicial recourse ‘without prejudice to the provisions of Article 46’. Since Article 46 provides for a specific matter subject to judicial recourse, the judicial recourse under Article 315 is not provided ‘without prejudice’ but ‘in addition’ to the one provided in Article 46.
  • eg, for an exploitation permit, that the conditions set out by the Mining Code 2002 are duly complied with, such as those of Articles 69 to 71, including, inter alia, the approved environmental impact study.
  • Article 46, last para of the Mining Code 2002.
  • cf ‘Judicial recourse—overview’ above.
  • cf Article 244 of the Land Law No 73–021 of 20 July 1973 and Article 258, para 5 of the Labour Code, Law No 015–2002 of 16 October 2002; cf the main legal comment on the DRC legal mining system in the monograph on DRC mining law by E Mukendi Wafwana, Droit Minier, tome I (Brussels: Bruylant, 2005), in particular No 814, p 319.
  • Article 317 of the Mining Code 2002.
  • cf the Explanatory Memorandum to the Mining Code 2002, in Journal Officiel de la République D´emocratique du Congo, 15 July 2002, p 30.
  • Namely, recourse against a refusal to grant a research permit, which is subject exclusively to administrative recourse—cf Article 57 of the Mining Code 2002, or those specifically awarded to judicial recourse—cf Article 46 of the Mining Code 2002.
  • An unofficial English translation of the Mining Code 2002 in circulation provides, in respect of Article 317: ‘Subject to the provisions relating to administrative and judicial appeals, and subject to the breaches, penalties and sanctions set forth by the present Code, ….’ This translation is misleading as it seems to withdraw ‘penalties and sanctions’ from arbitration, which could be understandable, but also alleged ‘breaches’, which would ruin the purpose of arbitration as a way to resolve disputes arising from the interpretation or application of the Code.
  • In any case, international arbitration will remain available as a last resort.
  • cf the Explanatory Memorandum to the Mining Code 2002, ibid.
  • E Mukendi Wafwana, op cit, No 817, p 320.
  • cf Article 340 of the Mining Code 2002.
  • cf Article 72 of the Mining Code 2002.
  • Article 320 para 2 of the Mining Code 2002.
  • Article 178 of the Code of Civil Procedure (Decree of 7 March 1960).
  • See ‘Domestic arbitration’ below
  • cf Article 42.3 of the ICSID Convention; Course 2.6 on Dispute Settlement ‘Applicable Law’, 2003, issued by the United Nations Conference on Trade and Development available on www.unctad.org, pp 29–31; M Hirsch, The Arbitration Mechanism of the ICSID (Boston: Graham & Trotman, 1993), p 153.
  • cf ICSID Case Arb 77/2 (B & B v Congo, I ICSID Rep 330 (1993), where damages were awarded ex aequo et bono as compensation for the nationalisation of a plastic bottle factory.
  • Article 178.
  • Article 318.
  • cf ‘Representation of the State and the serving of notices and writs of summons’ below.
  • cf ‘Application to mining matters’ below and E Mukendi Wafwana, op cit, No 828, p 324.
  • Article 320 of the Mining Code 2002 only provides, for international arbitration, that it will take place ‘at the place agreed upon by the State and the title holder’. Accordingly, a disagreement will entail the need for some judicial intervention, at least in the cases of domestic arbitration. This provision also raises an issue for international arbitration as will be seen below—cf ‘International arbitration’ below.
  • Such incidents are, eg, the appointment of the arbitrator(s), the extension of the time of their assignment if need be, the challenging of an arbitrator, etc.
  • cf E Mukendi Wafwana, op cit, No 820, p 321.
  • cf Article 320, para 3 of the Mining Code 2002.
  • Article 318 of the Mining Code 2002.
  • Article 318 of the Mining Code 2002, which refers to Articles 159 to 174 of the Decree of 7 March 1960 enacting the Code of Civil Procedure.
  • cf ‘Scope’ above where the scope of arbitral recourse is set out.
  • Article 320, para 2 of the Mining Code 2002.
  • Article 320, para 3 of the Mining Code 2002.
  • Article 320, para 3 of the Mining Code 2002.
  • With respect to ICSID arbitration, these issues are addressed by the ICSID Convention, namely in respect of procedure (Articles 41 to 47, ICSID Convention), arbitral award (Articles 48 to 52) and exequatur (Articles 53 to 55). Accordingly, the argument that Article 320 applies only to international arbitration is not relevant.
  • In relation to the territorial competence governing the jurisdiction of the relevant Tribunal of Great Instance, see the beginning of this subsection.
  • Article 161, para 4 and Article 166 of the Code of Civil Procedure.
  • See, however, objections as to the validity of such an arbitration clause or agreement referred to in ‘Scope’, in the paragraph before the penultimate one.
  • Article 163 of the Code of Civil Procedure.
  • Article 319 of the Mining Code 2002.
  • Article 319, para 2 of t he Mining Code 2002. See also, for further comments, ‘Title holder’ above.
  • The ICSID Convention extends its scope to local subsidiaries of foreign investors that therefore can qualify as being considered as a ‘national of another contracting state’—cf Article 25.1 of the ICSID Convention of 18 March 1965.
  • Article 319, para 1 of the Mining Code 2002.
  • Article 319, para 3 of the Mining Code 2002.
  • As required by Article 25.1 of the ICSID Convention.
  • Cf Articles 312 and 318 of the Mining Code 2002.
  • Written consent to ICSID arbitration may be given (i) directly from an arbitration clause, (ii) through a bilateral investment treaty, or (iii) through the national legislation of the state where the investment is made—cf Course 2.3 on Dispute Settlement ‘Consent to Arbitration’, 2003, issued by the United Nations Conference on Trade and Development available at www.unctad.org.
  • Article 319, para 2 of the Mining Code 2002.
  • cf K Nathan, The ICSID Convention (New York: Juris Publishing, 2000), p 117.
  • cf M Hirsch, The Arbitration Mechanism of the ICSID (Boston: Graham & Trotman, 1993), p 52.
  • cf ICSID Course 2.3 ‘Consent to Arbitration’, ICSID 2003, cited above, pp 11–15 and the ICSID cases cited therein.
  • cf Article 26 of the ICSID Convention.
  • Article 320, para 1 of the Mining Code 2002.
  • Articles 62 and 63 of the ICSID Convention and Article 13(3) of the ICSID Rules of Arbitration.
  • cf Article 54 of the ICSID Convention, and Course 2.9 ‘Binding Force and Enforcement’, 2003, issued by the United Nations Conference on Trade and Development available at www.unctad.org, p 11 and the ICSID cases cited therein.
  • As is stated in Article 320, para 3 of the Mining Code 2002.
  • Under Article 64 of the ICSID Convention, such a case can be brought only by a Contracting State, in this case either by the country of origin of the investor, or by the DRC.
  • cf ‘Scope’ above.
  • Article 89 of the Mining Regulation 2003: administrative recourse or arbitration. This is a questionable solution since Article 315 of the Mining Code 2002 stipulates that disputes relating to the event of force majeure are subject to judicial recourse—and implicitly to further international arbitration if need be, while there is no legal ground allowing the Mining Regulation 2003, which is a decree that is lower in the hierarchy of norms, to provide any other recourse—cf ‘Application to mining matters’ point (8) above.
  • Article 72 of the Mining Code 2002: judicial recourse or arbitration. International arbitration should remain available in addition, beyond judicial recourse.
  • Article 80 of the Mining Code 2002: arbitration. However, account should be taken that Article 80 of the Mining Code 2002 refers to Articles 317 to 320 of the Mining Code 2002 and that since Article 317 indicates that the arbitral recourse applies ‘subject to the administrative and judicial recourse’, it can be inferred that administrative recourse remains available.
  • Article 275 of the Mining Code 2002: judicial recourse or arbitration. International arbitration should remain available in addition, beyond judicial recourse.
  • Article 281 of the Mining Code 2002—cf ‘Application to mining matters’ point (6) above.
  • Article 289 of the Mining Code 2002, which refers to Articles 317 to 320: since Article 317 indicates that the arbitral recourse applies ‘subject to the administrative and judicial recourse’, it can be inferred that administrative recourse remains available.
  • Article 57, para 2 of the Mining Code 2002.
  • cf ‘Application to mining matters’ above, last para.
  • cf the Explanatory Memorandum to the Mining Code 2002, in Journal Officiel de la République D´emocratique du Congo, 15 July 2002, pp 29–30; E Mukendi Wafwana, op cit, No 811, p 318.
  • cf Article 319, paras 2 and 3.
  • Article 317 of the Mining Code 2002.
  • ‘The title holder and the State are granted the right to exercise recourse through the administrative, judicial and/or arbitration means set forth in this Code’: the use of the expression ‘and/or’ allows a cumulation, to a certain extent, of the recourses made available, cf also E Mukendi, op cit, Nos 828 and 829.
  • cf the conditions imposed by Article 319, paras 2 and 3.
  • cf ‘Domestic arbitration’ above.
  • The original French provision—Article 321 of the Mining Code 2002—mentions ‘le Responsable’ (ie the person in charge) without any further clarification.
  • Article 321 of the Mining Code 2002.
  • Article 1.3 of the Mining Code 2002.
  • And for certain cases also the Minister of Mines and the Governor of the Province—cf Articles 10 and 11 of the Mining Code 2002.
  • Article 12 of the Mining Code 2002—cf also the Explanatory Memorandum, op cit, p 7.
  • Article 12 of the Mining Code 2002.
  • Article 18 of Decree No 068–2003 of 3 April 2003 enacting the bylaws, organisation and functioning of the Mining Registry.
  • eg for arbitration as set out in ‘Domestic and international arbitration’ above.
  • Article 322 of the Mining Code 2002, para 1.
  • Article 322 of the Mining Code 2002, para 2.
  • cf the various divisions of the mines administration such as the ‘Cadastre Minier’ (Mining Registry), the Directorate of Mines, the Provincial Directorate, etc, and the Minister of Mines or the Governor of the Province.
  • cf ‘Context’ and ‘International arbitration’ above.
  • cf ‘Judicial recourse’, ‘Application to mining matters’ and ‘Arbitral recourse’, ‘Application to mining matters’ above.
  • cf ‘Domestic and international arbitration’.
  • cf ‘Domestic arbitration’ above.
  • Ibid.
  • cf ‘Domestic arbitration’ and ‘International arbitration’ above.
  • cf ‘Domestic arbitration’ and ‘International arbitration’.
  • cf ibid.
  • cf ‘Representation of the State and the serving of notices and writs of summons’ above.

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