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Part A: General Topics - 20. Dispute Resolution | 20.2 Guarantee of Due Process

Due process, often referenced in more detail in other national laws of a country, outlines certain procedural guarantees that will protect the parties’ interests. It is valuable for a mining law to address or restate (where applicable) due process guarantees as part of ensuring a consistent, stable legal framework for the country’s mining sector. Due process guarantees are also particularly important as a concept as it applies to the creation and management of review boards, experts, and similar institutions or roles.

20.2. Example 1:

Article [_]

(1) Subject to the [Domestic Administrative Justice Law], any administrative process conducted or decision taken in terms of this Act must be conducted or taken, as the case may be, within a reasonable time and in accordance with the principles of lawfulness, reasonableness and procedural fairness.

(2) Any decision contemplated in subsection (1) must be in writing and accompanied by written reasons for such decision.

Annotation

Drawn from South Africa’s mining law (2006), this provision references a relevant national law that regulates administrative procedures. While it does not mention “due process” explicitly, the substance of the provision ensures procedural due process.

20.2. Example 2:

Article [_]

The rights provided under this [Law][Act][Code] with respect to all activities related to the obtaining, possession, exploitation and commercialization of minerals are guaranteed in accordance with the due process provisions of the Constitution.

Annotation

Unlike example 1, this suggested provision references a constitutional guarantee which can be interpreted to incorporate both procedural and substantive elements of due process.