Os desafios regulatórios das práticas de buy-back na comercialização de recursos minerais no ordenamento jurídico moçambicano: a garantia à segurança jurídica

Abstract

This thesis analyzes how Mozambican law regulates the commercialization of mineral resources by holders of mining concessions, certificates, and mining permits, given the possibility of entering into offset agreements, in particular buy-backs, which are common practice in international trade. The analysis is conducted in light of the Legal Regime for Commercial Contracts, approved by Decree-Law No. 3/2022 of May 25, the Mining Law No. 20/2014 of August 18, 2014, and the respective Regulation, approved by Decree No. 31/2015 of December 31. Essentially, it appears that article 147 of the LRCC, in providing for commercial purchase and sale contracts, does not cover buy-back contracts, given their complex synallagmatic nature, marked by the future delivery of mineral products as a form of payment for the prior international transfer of technology or production units for that purpose. On the other hand, the Mining Law, when defining the rights of mining title holders, does not expressly provide for the possibility of entering into counterparty contracts, and the Regulation is also silent on the applicable contract models. The study thus highlights the lack of a specific legal instrument regulating buy-backs, creating uncertainty as to their conclusion in the mining sector. It is therefore argued therefore, the need to create a regulatory framework inspired by international guidelines and recommendations, which would allow holders of concession licenses, certificates, and mining permits to use this type of contract as a mechanism to enable their activities, ensuring the predictability of contractual obligations, legal certainty for the parties involved, and the attraction of foreign investment in the mining sector.