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A multinational mining company with operations in one or more Latin American countries – countries with diverse cultures and widely different stages of social and economic development – is invariably faced with significant challenges that dictate the need for periodic legal checkups or diagnoses of its projects on a case by case basis.

Challenges Faced by Multinational Mining Companies

Some of the challenges multinational mining companies face in Latin America include the following:

  • Communication problems with the company’s Latin American offices, often as a result of language barriers and/or the failure of in-country personnel to recognize critical timing requirements, may make it difficult to obtain complete and accurate information on the status of in-country operations.
  • The locations of the company’s Latin American offices – often far removed from the company’s home office – frequently result in host country personnel making decisions on their own, without seeking appropriate senior management input or approval.
  • Home office executives and their North American counsel may be unaware of potential problems faced in a given Latin American country and the consequences imposed by the host country’s legal system. All Latin American countries operate in civil law jurisdictions (there are a variety of types of civil codes), which may be unfamiliar to North American common law
  • Legal documents in Latin America may be extremely formalistic and rigid, in large measure because they are based on civil law. These documents tend to be sparsely worded, often accompanied by unacceptable explanations that omitted items are “understood” or “unnecessary.”
  • The laws in a given Latin American country may provide severe remedies (g., prejudgment attachment of bank accounts, pretrial detention or even criminal proceedings) that can significantly disrupt or paralyze a Company’s in-country operations.

Goals of an Effective Mining Legal Diagnosis

Some of the goals sought to be achieved in connection with an effective mining legal diagnosis of a mining company’s Latin American operations include: Continue reading

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Effective Diagnosis for Mining Companies to Achieve a Social License to Operate: Who should perform the diagnosis? What to do after the investigation?

Final in a series of articles about mining companies achieving an effective social license to operate

by Jordi Ventura

See Part 1: What is a Social License to Operate (SLO) and How Do Mining Companies Achieve an SLO?

See Part 2: Effective Diagnosis of Social License to Operate – Off-site preparation and on-site investigation

What happens after the investigation?

It is imperative that a follow-up SLO diagnosis report be prepared as soon as practicable after the on-site visit (and, as a time and cost saving measure, perhaps the SLO diagnosis report should be initiated during the visit). The SLO diagnosis report should contain, at a minimum, the following:

  • a description of the scope and methodology employed in conducting the on-site investigative work SLO diagnosis;
  • the on-site investigative work findings and conclusions (making sure that they are duly supported);
  • concrete recommendations for correcting problems/issues encountered during the on-site investigative work; and
  • with the input and assistance of experts in the sustainability concepts, proposals for the adoption of key concepts.

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Effective Social License to Operate: Off-site preparation and on-site investigation

Second in a series of articles about mining companies achieving an effective social license to operate

by Jordi Ventura

See Part 1: What is a Social License to Operate (SLO) and how do mining companies achieve an SLO?

See Part 3: How Mining Companies Can Achieve an Effective License to Operate in South America – Who should do the diagnosis?

 

An effective diagnosis for a Social License to Operate (SLO) will include off-site preparatory work as well as on-site investigation.

Off-site preparatory work

In order to ensure a quick, successful and cost-effective investigation, the SLO diagnosis initially involves preparatory work that takes place away from the proposed mining project and prior to any significant presence of the mining company on the ground. This preparatory work consists of, at a minimum, the following:

  • meeting with relevant members of the company’s senior management team to:
    • ascertain what, if any, endeavors have already been conducted by the company or additional companies (mining or otherwise) concerning the SLO and related matters, and obtain any copies of all documentation;
    • discuss any particular areas of concern that the company may have; and
    • agree to an overall game plan that includes expected deliverables, deadlines and costs.

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