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Part A: General Topics - 20. Dispute Resolution | 20.3 Awards and Settlements

In cases where the mining law provides for alternative dispute resolution mechanisms that do not carry enforceability powers, resolutions arrived at in such forums are generally only enforceable if incorporated into an official court judgement. As such, where a mining law allows for such mechanisms, it should also clarify whether such decisions are enforceable by virtue of the law or whether such decisions should seek the imprimatur of the courts in order to be enforceable.

20.3. Example 1:

Article [_]

(1) The [Authorized Jurisdictional Forum] other than a court, may file for execution, any order made under [relevant section] (Dispute Settlement Jurisdiction Provisions) to a court presided over by a [Judicial Reviewer] within the local limits of whose jurisdiction the subject matter of the order is situated.

(2) On receiving the order under subsection (1), the court shall cause the order to be enforced as if that order was made by the court.

(3) The fees payable upon the enforcement of an order shall be those which would be payable upon the enforcement of the like order made by the court concerned.

Annotation

Drawn from Tanzania’s mining law (2010), this provision explicitly provides for the procedural steps to be taken in order to enforce decisions made by bodies other than the courts possess inherent authority. In this case, such orders or decisions are filed with the court with subject matter jurisdiction to render them enforceable.

20.3. Example 2:

Article [_]

(1) Decisions made by the arbitrator shall be binding and an application regarding enforcement said decisions may be brought before any court with jurisdiction in the National Territory according to the procedures provided for in the [Code of Civil Procedure for the Country] or in the mining right holder's country.

(2) Should the provisions of the above paragraph be applied; the State shall waive any immunity relating to jurisdiction or enforcement.

Annotation

Drawn from DRC’s mining law (2002), this provision makes the decision of an arbitral body enforceable and goes further to waive any sovereign immunity defence against such awards.