In Official Gazette No. 893 (Wednesday, November 30, 2016) the
Ministry of Mining issued Ministerial Agreement No. 2016-339
concerning "Instruction for the authorization of transfer and
assignment of mining rights and assignment made as security or
collateral assignment of mining rights."
Important aspects of the new instruction include:
differentiation between the
authorization of transfer and assignment of mining rights and
assignment made as security or collateral assignment of these
obtainment of prior authorization from
the State for the transfer to secure the guarantee
assignment under guarantee can be made
through the execution of a contract which explicitly requires that
the assignee accept existing obligations in order to guarantee
fulfilment of those obligations, and which requires the assignee to
notify the parties about any legal impairment to the concession
that is under guarantee.
In the event that the assignee so requires, it may enter an
agreement called a Direct Contract with the Ministry of Mining
(through the Sub secretariat of Industrial Mining). Said agreement
is intended to provide certainty to the assignee that it will be
notified in the same time periods as the transferor, in the event
that an administrative procedure for termination of mining rights
is initiated as a result of a breach of the Mining Exploitation
Contract or a breach stipulated in the Mining Law). If the Direct
Contract contains clauses stipulating alternative methods of
conflict resolution abroad, the clauses must be endorsed by the
Attorney General's Office before the contract is executed.
By means of a resolution, the Sectoral Ministry will authorize
or deny the application for an assignment in guarantee (submitted
by the holder of mining rights that intends to apply for the
assignment in guarantee). If the Ministry authorizes the
application, the assignment in guarantee will be executed. The
executed assignment in guarantee will be submitted to a public
deed, to which the resolution of authorization, or a certificate
that it was not issued (with the understanding that it is
approved), be attached as an enabling document.
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.
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