West Africa transaction know-how - Mauritania

Transcription

1 Article West Africa transaction know-how - Mauritania By Alban Dorin Overview of legal system (Anglophone, Francophone, civil law v. Common law, etc). In the case of Francophone jurisdictions overview of OHADA/UEMOA The legal system of Mauritania is a mix of the colonially inherited French civil law legal system and Sharia law. There were major efforts to reform all substantive laws to make them reflect Sharia law, however, this theoretical predominance of Sharia law has not fundamentally altered the civil law foundation upon which the legal system has been developed. Mauritania is not a member of the West African Economic and Monetary Union (WAEMU) and the WAEMU Mining Code does not therefore apply in Mauritania. Overview of laws applicable to mining activity (mining laws and regulations, environmental, health and safety, etc. to include description of types of mining licences available, procedure to acquire same and need for mining conventions/agreements, etc.) The key laws and regulations applying to mining in Mauritania are: (a) the Mining Code (Law n dated 27 April 2008 enacting the Mining Code, as amended by Law n dated 7 April 2009, Law n dated 22 February 2012 and Law n dated 27 April 2014) 1 ; (b) the Model Mining Convention Law (Law n dated 12 February 2012, on mining conventions and approving the Model Mining Convention); (c) the Environmental Code (Law n dated 26 July 2000); (d) the Mauritanian Tax Code for the fiscal provisions and Decree n dated 4 November 2008, on taxes and mining royalties; (e) Decree n dated 4 November 2008, on mining and quarry titles (as amended by Decree n dated 4 February 2009); and (f ) all regulations implementing the above. Other laws which may apply (directly or indirectly) to mining activities include: (a) the Constitution of the Islamic Republic of Mauritania (initially adopted on 12 July 1991 as amended notably by the constitutional referendum held in August 2017); (b) the Code of Obligations and Contracts (Order n dated 14 September 1989 as amended notably by Law n dated 7 February 2001); (c) the Commercial Code (Law n dated 18 January 2000 as amended); (d) Law n dated 25 July 2004, on the financial relations with foreign countries; and (e) the Investment Code (Law n 52/2012 dated 31 July 2012 as amended). Mauritania had also signed investment treaties with countries such as Switzerland, Algeria, Tunisia and Belgium. Alban Dorin Partner, Paris E: adorin@mayerbrown.com T: Note that the Government of Mauritania is discussing the opportunity to revise the Mining Code.

2 Mining Licences Exploration Licences: the holder is given an exclusive right to prospection and research of the relevant mineral and the right to use the land in the licence area. Exploration Licences are granted for a period of 3 years, with the option to renew twice for no more than three years for each time. The total land available in one Exploration Licence is 500 kilometres square for most mineral substances (such as iron, gold, silver, copper etc) and 3000 kilometres square for diamond. No individual, company or group of companies may hold simultaneously more than 10 exploration licenses for most mineral substances. During the exploration period the holder must supply energy infrastructures, and construct a scrap disposal zone. A minimum cost of works is determined by the Government. If the company does not start the works and investments, the equivalent amount is due to the State. The operating company must provide the Government with an annual report explaining all the research and results. Once the Exploration Licence application has been checked for admissibility, the Mining Registry will assign an identification code and enters the name of the applicant and time of the application in a register, which is jointly signed by the applicant and the person in charge of the Mining Registry. A signed copy of the form is returned to the applicant by way of a receipt. Within 15 days of registration, if the application complies with the provisions of the Mining Code and the Decree of application, the Mining Registry proceeds with its provisional registration on the map of the Mining Registry, which is valid for the duration of the investigation. Until a final decision is taken, any new application for an exploration permit covering all or part of the requested perimeter will be refused. The Mining Registry will prepare the draft decree granting the permit, or a letter which refuses the application (giving reasons for such refusal), as appropriate. If approved, the draft decree will be sent by the Minister of Mines to the Council of Ministers for approval. Once approved, it is sent to the Mining Registry and the applicant will be notified. This will take within 4 months, from the date of registration of the application. If refused, the letter signed by the Minister is returned to the Mining Registry who will send this to the applicant and the provisional registration of the application is cancelled. The Mining Registry will also tell the applicant of the amounts of duties and the surface royalty and the deadline of 7 days from notification for when it must be paid; and the amount of the performance banking guarantee, and the deadline of 14 days to provide documentary proof of the performance banking guarantee to the Mining Registry. Once a receipt of payment has been provided, the applicant signs the letter of receipt, from which date the exploration permit is valid. Exploitation Licence: are granted for 30 years inside the zone of a previously granted Exploration Licence, with the option to renew for 10 years several times. The Exploitation Licence is automatically ( de droit ) granted to the holder of an Exploration Licence if all obligations have been performed during the exploration period and if the operating company shows that it has enough technical and financial resources to carry the exploitation out. The operating company must carry out exploitation works within 24 months after the licence is granted, comply with mining and environmental laws, pay taxes and fees and comply with the program of works and investments set out in the Exploitation Licence. 2 mayer brown

3 The official application form must be filled at least 6 months prior to the date of expiry of the ongoing exploration permit. The Mining Registry will make a provisional registration if the application complies with the Mining Code. The Mining Registry will prepare a draft decree and submit it to the Minister of Mines, who presents it to the Council of Ministers, for approval. The Mining Registry will within 6 months from registration notify the applicant of the permit as well as the amounts payable. The applicant must present a receipt of payment of such amounts, within 15 days of receiving notification. The applicant will then sign a letter of receipt from which date the permit becomes valid. The Mining Registry will then remove the provisional registration, record the permit on the map of the registry and the registry of permits, and inform the Department of Mines and Geology of the permit. Restrictions on foreign ownership Only a legal entity incorporated under Mauritanian law can hold an exploitation permit which gives a holder the right of prospection, exploration and mining for a defined group of minerals for which evidence of a commercially viable deposit has been provided (including the rights and obligations of an owner of the minerals extracted within the perimeter of the permit). Exploration permits may be held by individuals or by legal entities. The rights conferred by an exploration permit or small-scale permit may also be held by a joint venture. Local Content There are no requirements for indigenous persons to have any ownership in the mining operating company. The Mining Convention, amongst other things guarantees the free choice of direct and indirect suppliers, contractors and subcontractors and the free choice of the human resources management policy. However, with respect to recruitment, preference shall be given, at equal skills, to citizens of the Islamic Republic of Mauritania. Furthermore, the holder undertakes, at equal skills, to use the services of national laboratories. The holder must provide an internal plan for training students or trainees belonging to a profession likely to be trained in the course of the holder s activities. The holder is also entitled to make normal use of the public infrastructures, provided that the holder contributes to their construction and/or repair. The exploitation company must generally contribute to the development and preservation of the local communities and must not harm the natural development of the local communities and their welfare. In an attempt to reduce the disputes between the companies and the local communities, the legislation involves local communities by consulting with local representatives and conducting public inquiries. Available structures for borrowing vehicles (corporations, jv s, etc) There are no legal restrictions on forms of JV or exploitation companies. Generally exploitation companies are incorporated as sociétés anonymes (SA); sociétés à responsabilité limitée (SARL) or sociétés anonymes simplifiées (SAS). Government free/earned carried interest in projects (if relevant) Under article 38(2) of the Mining Code, an exploitation permit may only be granted to a legal person incorporated under Mauritanian law in which the State possesses a 10% free participation. The State also reserves the right to exercise an option to acquire (for consideration) additional participation of up to a further 10% in the operating company. mayer brown 3

4 Taxation of mining projects (including royalties) There are special rules that apply to taxation of exploration and mining entities which are set out in the mining legislation and the Model Mining Convention. Applicable taxes include: (a) Remuneratory tax: 2,000,000 ouguiyas (for exploration permits) and 10,000,0000 ouguiyas (for exploitation permits); and (b) Annual surface royalty: 2,000 ouguiyas per km² for the first year, and 24,000 ouguiyas per km² for the ninth year (for exploration permits) and 50,000 ouguiyas per km² (for exploitation permits). The mining royalty is payable at an escalating amount (based upon sale price) (i.e. 6.5% where the price is more than $1,800 per ounce for gold. Mining companies benefit from exoneration from (i) the corporate income tax (BIC) for 36 months (from the preliminary production phase) and after that pay no more than 25%; and (ii) fixed minimum tax on any sale or export for 36 months (from the beginning of the preliminary production phase) and after that period pay it at half the rate of the fixed minimum tax for the accounting period with a ceiling of 1.75%. Withholding tax on interest and dividends. Possible structures to mitigate withholding on interest The dividend withholding tax is 10%. There is no withholding tax if the dividend is paid to a mother company which is registered in Mauritania. F/X issues (ability to hold foreign currency (from loan proceeds, metal sales, etc) both onshore and offshore; ability to maintain any offshore accounts; ability to remit dividends, etc offshore. Impact of same on traditional project finance structure) A free exchange regime exists in Mauritania, and any investor can purchase foreign currency in a bank or exchange office. The investment code guarantees the freedom to transfer capital to persons or companies that have invested foreign or joint capital. The transfer of convertible currency applies only to funds relating to: the investment or its products; dividends, capital inflow in the event of assignment or final disposal; and compensation in the event of nationalization, expropriation or requisition or in the form of exemption from duties, taxes or income tax. In practice, the transfer of capital is handled by the primary banks and authorisation is not needed from the central bank to transfer funds abroad. Hedging (in particular availability of set-off/ netting (including existence of ISDA opinion) and any structuring (e.g. Back-to-back hedging) required to address this) There is no ISDA opinion available which would address the enforceability of the termination, bilateral close-out netting and multibranch netting provisions of the 1992 and 2002 ISDA Master Agreements. This does not mean that such provisions would not be enforceable and if necessary, a legal opinion from a local counsel in Mauritania can be sought to confirm this. Alternatively (or if such enforceability cannot be confirmed), back-to-back hedging structure can be put in place with a shareholder of a Mauritanian company or another group company located in a jurisdiction where enforceability of such provisions has been confirmed in an ISDA opinion. 4 mayer brown

5 Nature of available security (in context of usual project finance structure requiring security over all available assets - including shares; remedies available to security holder Security over the mining licence (hypothèque sur le permis d exploitation) is subject to the general legislation relating to mortgages and would therefore need to be registered at the Land Registry and should be notarised to be effective. Cost of granting security (stamp/registration taxes, notarial fees, etc.) Stamp duties are applicable to certain transactions at various rates. Registration duties apply on transfers of real property or businesses. The rates vary between 0.25% and 15% 2. An assignment of more than 10% of the shares of the operating company and/or change of the majority of shareholding would however require a public decision of the Minister of Mines to be effective. Receivables can be assigned (cession de créances) by way of a simplified commercial assignment of the receivables or by way of a civil law assignment. 2 To be confirmed by local counsel. Mayer Brown is a global legal services provider advising many of the world s largest companies, including a significant portion of Fortune 10 FTSE 100, CAC 40, DAX, Hang Seng and Nikkei index companies and more than half of the world s largest banks. Our legal services include banking and finance; corporate and securities; litigation and dispute resolution; antitrust and competition; US Supreme Court and appellate matters; employment and benefits; environmental; financial services regulatory and enforcement; government and global trade; intellectual property; real estate; tax; restructuring, bankruptcy and insolvency; and wealth management. Please visit for comprehensive contact information for all Mayer Brown offices. Mayer Brown comprises legal practices that are separate entities (the Mayer Brown Practices ). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe-Brussels LLP, both liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Reg Authority and registered in England and Wales number OC ); Mayer Brown, a SELAS established in France; Mayer Brown Mexico, S.C., a sociedad civil formed under the laws of the State o Durango, Mexico; Mayer Brown JSM, a Hong Kong partnership and its associated legal practices in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is as Mayer Brown Consulting (Singapore) Pte. Ltd and its subsidiary, which are affiliated with Mayer Brown, provide customs and trade advisory and consultancy services, not legal services. Mayer Brown and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions The Mayer Brown Practices. All rights reserved. Attorney advertising. Prior results do not guarantee a similar outcome. 2033fin