Key elements of a model mining code: a Middle East case study
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There can be an inclination amongst some governments and non-governmental organisations (NGOs) to view the resource sector with some cynicism. Junior mining companies sometimes engage with local communities (or not), leave without a trace (or perhaps with tracks, trails and trenches) and offer only a brief hope for betterment (or long-standing court battles over environmental or community issues) causing strong emotive reactions. None of the major miners have managed to avoid controversy in their own corporate histories either; of course, none ever could. The art of crafting reform to mineral regulation throughout the world has become a balancing act for the international resource lawyer. The mining company requires certainty when investing in exploration, development or expansion projects in a foreign country to offset the substantial uncertainty inherent in the exploration and mining processes themselves. One needs clear rules which are consistently applied that assure the developer that it may explore, develop and produce any discovery without interference of government or any other person and can measure with some accuracy the expected investment and the anticipated reward. This paper examines several mining codes in the Middle East and offers a critical assessment of their relative opportunity and risk to the developer. It examines each risk in comparative detail, including in comparison to a set of principles found in an exemplary mining code adopted by Madagascar in 2005. The principles of a model mining code (MMC) have been determined after examining more than 50 mining codes from around the world and benefit from the work of MineHutte and the Fraser Institute, which offer ratings for mining regulatory regimes based on different criteria.
KeywordsMining code Mining law Mining licence
Special mention must be made of the many individuals who offered invaluable assistance in the preparation of this paper, namely Iain Duncan (UK), Adrian Nizzola (Qatar) and Maha Lawson (Qatar) of Simmons & Simmons; Suhaib Hammad (Saudi Arabia) of Hammad & Al-Mehdar; Nicholas Williams (United Arab Emirates (UAE)) of Newton Legal Group; Poulad Berenjforoush (UAE) of CMS UK; Omer Erdogan (Turkey) of Güner Law Office; Khalid T. Abdullah of Sheikh Mohammed Abdullah Sons (Yemen); Taimur Malik (Oman) of Clyde & Co; Zareen Austin (Oman) and Brad H. Doline (UK) of Curtis, Mallet-Prevost, Colt & Mosle LLP; Fadi Sarkis (Syria) and Ghada Armali (Syria) of Sarkis & Associates; Isabelle El Kallab Kyrillos (Lebanon) of Consolidated Contractors Company; Simon Jaffa (Israel) and Anat Even Chen (Israel) of Barnea & Co.; Dubi Gross (Israel) of Gornitzsky & Co.; Steven Berelowitz (Israel) and Amnon Sorek (Israel) of Hamburger Evron & Co.; David G. Glennie (UK) and Dr. Saud Al-Ammari (Bahrain) of Blakes, Cassels & Graydon LLP; David Walker (Kuwait) of ASAR – Al Ruwayeh & Partners; and Professor Mohammad A.A. Al-Moqatei (Kuwait). Whilst the author notes their kind contributions, the author remains solely responsible for the contents (and any errors in analysis) contained in this paper. Gratitude is also owed to Jodi Katz and Vanessa McMinn of Fasken Martineau LLP, Tiffany Ramsubick of HBC; Julien Naginski of Chammas & Marcheteau, Bryan C. Land of the World Bank and John Chandler of the University of Western Australia for their helpful comments on this paper.
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Conflict of interest
Albert C. Gourley, LLB (Ottawa University, 1990) and BBA (York University, 1987), is a partner with Fasken Martineau LLP, co-head of its London Mining Group and Director of the World Association of Mining Lawyers (formerly the World Initiative of Mining Lawyers).