Role of lawyers in the developments of large mining projects Ecole des Mines de Paris *** CESECO Mining Workshop September 17, 2014 *** Role of lawyers in the developments of large mining projects Focus on francophone Africa and lessons learnt from other regions Marc Frilet Avocat au Barreau de Paris Managing Partner Frilet/GcilA Secrétaire Général, Institut des Experts Juridiques Internationaux (IFEJI) Chargé de cours en droit des investissements internationaux – Université Paris V René Descartes Co chair PPP Working Group CICA - IFEJI Frilet - Société d'Avocats

A major challenge for stakeholders and legal profession Challenge of advising on a large international investment Challenge of advising on an investment of long term nature Challenge of advising on development of associated infrastructures Challenge of advising on a public private partnership venture Frilet - Société d'Avocats

The main issues: project description The stages of development of a mining project The initial exploration The development phase Conceptual studies: order of magnitude Prefeasibility Feasibility Financing The investment phase The operation phase Example of large project The need to invest and to operate A mine A rail way A port The need to benefit from other public infrastructure The need to benefit from reliable power and water sources The need to minimize negative impact and maximize positive impact Frilet - Société d'Avocats

The main issues for legal advisers How to appraise the legal, regulatory and procedural risks ? How to organize the process of identifying and mitigating the risks and reward in an acceptable manner? Who is judging the acceptability of the balance between risks and reward? A good appraisal of the role of the stakeholders The mining company The State The Communities The Lenders The IFIs The NGOs Frilet - Société d'Avocats

The involvement of legal advisers During conceptual and prefeasibility phase Due diligence Compilation of law regulations & practices Identification of the main issues Organization of the legal team During feasibility phase The substance of the advice The general conclusion: need to adapt, improve or secure the legal and regulatory framework for the project The process : how to engage with the authorities? What methodology? For which purpose? Examples: land issues, resettlement issues, stability of the regulations, tax and custom regime, investment protection guarantee, early termination, dispute avoidance, Arbitration. The outcome: a mining investment agreement How to prepare, negotiate and conclude? Frilet - Société d'Avocats

The organization of legal advisers team The credentials Which quality for which purpose? Local specialists International investment specialists Environmental specialists Mining specialists Public infrastructure specialists including concessions and PPP Railway Port Power The team: need of integrated team The team leader Outside or in house : the issues How to select the team? How to engage and to have the best guarantees? Frilet - Société d'Avocats

Conclusion A major challenge for all mining companies Many lessons learnt and among others: Learning by doing always leads to problems The substance of advice in francophone civil law Africa is quite different from other countries and Common Law world (French mother tongue is generally a prerequisite) Outcome in terms of content of documentation, letters and procedure substantially different Engaging with the authorities very different from other countries and the Common Law world. Understanding the leverage and downside of seniority and how to optimize is essential Integrated approach between substance and process essential Need of lawyers having a broader range of skills than usual Good team is made of three layers or legal advisers with different seniority and skills From those lessons it is easier to understand why some of projects in civil law Africa could be developed more easily and at a lower cost In a nutshell lawyers must go beyond sectorial expertise and include CSR in their radar screen. They must become familiar with a new concept: “SOCIAL LICENCE TO OPERATE” Frilet - Société d'Avocats

Thank you! Me Marc Frilet International Mining Law Experts Frilet - Société d’Avocats/GcilA 91, rue du Faubourg Saint Honoré 75008 Paris – France Tel : + 33 1 56 26 00 40 e-mail : avocats@frilet.com Frilet - Société d'Avocats