阿根廷矿业投资分析(上) 作者:程军 Gallardo Carolina 2023-09-18






Although Argentina is essentially an agricultural country, the mining industry has become increasingly important in recent decades, especially in certain regions of the country, offering vast opportunities for mining investors due to its wide range of minerals such as copper, silver, gold, zinc, lithium, rare earths, and others, coupled with a stable and effective mining regime. Moreover, Argentina has become the world's fourth-largest producer of lithium, and the production is expected to continue increasing, with several projects in the pipeline, according to a mining investment report by the Ministry of Productive Development of Argentina.


尽管阿根廷本质上是一个农业国,但近几十年来矿业的重要性与日俱增。尤其是在阿根廷某些地区,由于其矿产种类繁多,如铜、银、金、锌、锂、稀土等,再加上稳定有效的采矿制度,为矿业投资者提供了大量机会。此外,根据阿根廷生产发展部(Ministry of Productive Development)发布的一份矿业投资报告,阿根廷已成为世界第四大锂生产国,且预计产量还将继续增加,目前多个项目正在筹备中。


1. General Framework of the Argentine Mining Law 




Argentina operates as a federal republic, featuring a tripartite governmental structure that includes the executive, legislative, and judicial branches. This structure further entails three government tiers at the national, provincial, and municipal levels. The provinces inherently maintain the power over all aspects not explicitly assigned to the national state by the National Constitution (NC). Furthermore, the provinces hold jurisdiction over issues that are specially designated to them through distinct agreements established during their formation.




Mining regulations in Argentina are mainly governed by the Argentine National Mining Code (AMC), which mainly regulates: (i) the ways to acquire mineral exploration and mining rights; (ii) the contents of such exploration rights (known as “exploration permits” – EPs) and of such mining rights (known as “mining concessions” – MC); (iii) a limited number of contractual provisions relating to mining concessions regarding leasing, usufruct and liens that allow mining concessions to serve as security; and (iv) environmental obligations and procedures that apply to all of mineral exploration and mining, including sanctions that apply where those obligations are violated.


阿根廷的矿业法规主要由《阿根廷国家矿业法》(Argentine National Mining Code,下称“《国家矿业法》”)管辖,该法主要规范以下内容:(i)获得探矿权和采矿权的方式;(ii)探矿权(Exploration Permits)和采矿权(Mining Concessions)的内容;(iii)有关采矿权租赁、用益权和留置权的部分合同条款,允许采矿特许权作为担保;以及(iv)适用于所有探矿权和采矿权的环境义务和程序,包括对违反这些义务的处罚。


Moreover, the mining regulations also include provincial laws, such as the provincial Proceedings Mining Codes and specific federal laws, the Mining Investment Law No.24196  and the Law No.25161 which amended it. It is also important to mention other material regulations that, although not being of a strictly mining nature, nevertheless affect the industry, such as the national and provincial environmental regulations; Rural Lands Law No. 26737, among others.




2. Classification of minerals under the Argentine National Mining Code




The AMC classifies minerals into three categories:




First category: These minerals are the exclusive property of the State, the land is only an accessory, and the minerals can only be exploited by means of mining concessions. This category includes but is not limited to gold, silver, platinum, mercury, copper, iron, among others (AMC, Section 2).




Second category: These minerals, due to their lesser importance, are considered “substances subject to concessions preferably granted to landowners”, including but not limited to metallic sands and precious stones which are found in riverbeds and on the banks of water courses, or at tailing dams of abandoned mines.  This category also includes minerals which, due to the conditions of their deposits, are considered to be of common use (AMC, Section 2).


第二类:这些矿物因其重要性较低,被视为 "优先授予土地所有者特许权的物质",包括但不限于在河床、水道两岸或废弃矿山尾坝中发现的金属沙和宝石。这类矿产还包括因其矿藏条件而被认为具有普通用途的矿产(《国家矿业法》第2条)。


Third category: These minerals belong solely to the landowner; no one else may exploit them without the landowner’s consent, except where those minerals have been deemed to be of public use (AMC, Section 2).  Productions of a stony or earthy nature and, in general, all minerals used as construction and ornamental materials which form quarries, are also classified as third-category minerals (AMC, Section 5).




3. Ownership of the Mineral Resources




The National Constitution establishes that the provinces have the original ownership of the natural resources located in their regions, although they are not allowed to directly participate in the exploitation of these resources. As a result, each province acts as the regulator and grantor of the rights over the mineral resources within its territory to private parties through legal concessions. Upon the issuance of this mining concession, the holder of the title assumes the ownership of mineral deposits located within the area stipulated, regardless of the specific mineral content.




It is important to mention that surface landowners do not hold direct rights over mineral deposits, except with regard to minerals of the so-called “second category” and “third category” (as explained above), over which surface landowners have priority rights or exclusivity rights, depending on the type of mineral.




In addition, the specific mining regulatory regime of each province will determine whether the competent authority to administer mining matters is the Mining Directorate or Ministry of Mining (referred to as the "Dirección de Minería" or "Ministerio de Minería") or, alternatively, the Mining Court (referred to as the "Juzgado de Minas"). The Mining Directorate or Ministry of Mining operates typically under the provincial executive branch, whose main authority is vested in the Mining Director or Ministry. In contrast, the Mining Court falls under the jurisdiction of the provincial judiciary, and its jurisdiction is vested in a Mining Judge.


此外,各省特定的矿业监管制度将决定管理矿业事务的主管机构是矿业局还是矿业部("Dirección de Minería"与"Ministerio de Minería"),或者是矿业法院("Juzgado de Minas")。矿业局或矿业部通常隶属于省级行政部门,其主要权力属于矿业局长或矿业部长。相比之下,矿业法院隶属于省级司法部门,由一名矿业法官管辖。


4. The Acquisition of Mining Rights




The AMC provides two categories of mining rights: i) airborne reconnaissance and exploration permits (“cateos”) and ii) mining concessions.




Airborne Reconnaissance




Section 31 of the AMC provides the rules applied to airborne reconnaissance, which is regulated differently to exploration carried out with on-the-ground methods. In airborne EPs, the maximum surface area a permit may cover is 40,000 km2, and the maximum duration is 120 days. The mining authority processes the application through a fast-track procedure that includes filing with the aeronautical authority. Failure to make such filing leads to automatic denial of the application.




On-the-ground Exploration Permits




Section 25 and subsequent of the AMC provide the rules for the EPs, which are exclusive authorizations to explore a certain area during the period and to the extent established by the Code, with maximum area of 10,000 hectares covered by the EP. The maximum number of EPs that any person (individual or corporate) may hold in one Province is 20.  Therefore, any mining company may hold, at any given time, permits for up to 200,000 hectares per Province.




In order to obtain an EP, the miner needs to lodge an application including (i) minimum work plan, (ii) an estimate of the investments to be made, and (iii) the payment of provisional exploration fee in accordance with the size of the requested area. The termination of the exploration permits occurs ex officio, by the lapsing of the granted term. During the life term of an exploration permit, its holder has the exclusive right to apply and obtain the granting of one or more mining exploitation concessions within the areas covered by it.




Mining Concessions




Mining concessions are granted i) upon submission of a statement of discovery (which may or may not be preceded by an exploration permit); or ii) upon application of a vacant mine (due to expired concessions). Mining concessions are not subject to a term limit, therefore, once granted are perpetual in nature. Notwithstanding, the maintenance of the rights over mining concession is subject to the fulfilment of the following conditions:


采矿特许权是在以下情况下授予的:i) 提交发现声明(可能是在勘探许可证之后);或ii)申请空置矿山(由于特许权过期)。采矿特许权没有期限限制,因此一旦授予即具有永久性质。尽管如此,采矿特许权的保持必须满足以下条件:


(i) Payment of the annual mining fee (royalty);




(ii) Fulfilment of the investment plan (the amount to be invested may not be less than 300 times the amount of the annual fee applicable to the concession).




In addition, Section 225 of the AMC provides that when a mining property has been inactive for more than four years, the mining authority may require the submission of a “Reactivation Plan” within six months, under penalty of revoking the concession. Please note that a mine is considered inactive when no regular works of exploration, preparation and/or production have been undertaken for more than four years, and such situation is not cured after due notice being given by the mining authority.




5. Special provisions applicable to natural oil and gas




Argentina has a very well-developed statute regulating oil and gas exploration and exploitation.  The first set of rules to regulate oil and gas was the AMC, issued in 1887.  Once oil was found in Argentina in 1907, some tax-reserve laws and decrees also became applicable to oil exploration and exploitation.  In 1935, through Law No. 12161, a new chapter was included in the AMC to regulate the legal regime of petroleum and fluid hydrocarbons.  In 1967, Law No. 17319 (currently in force, as amended) was enacted.  This legislation constitutes an independent statute regulating oil and gas in Argentina.




6. Foreign Investment and Ownership




According to Section 7 of the AMC, all individuals and legal entities are entitled to be granted exploration permits, mining concessions, and make use of the latter as owners. This means that foreigners, as well as legal entities created and organized abroad, are entitled to own the same exploration and mining rights as nationals are. Nevertheless, foreign companies need to register in Argentina as a local vehicle to own mining rights.




Additionally, certain restrictions and prior approvals apply to the acquisition of land by foreign entities. In this aspect, the Rural Lands Law No 26737, as regulated by Decree No 274/2012, establishes certain limits to the acquisition or possession of rural lands by foreign investors.




7. Transfer and Security over Mining Rights




The AMC does not explicitly allow the transfer of mining rights. However, there is no legal impediment to their transfer. Therefore, right holders can transfer either directly (e.g., through the sale of the EP) or indirectly (e.g., through the change of control of the title holder). However, in order for the transfer to be legally binding on third parties, the transfer documentation must be filed with the corresponding authority in the event of a change of ownership.




Moreover, there are no restrictions on using encumbrances such as mortgages, as with any other legal right over mining rights.  In particular, mining concessions are deemed by the AMC to be real estate property (Section 12) and, as such, are subject to the creation of mortgages which must be constituted by public deed and registered before the competent authority according to its jurisdiction.




8. Rights over the Surface of Land




As mentioned above, the holder of an EP or MC does not own the surface land but has the right to request the mining authority to grant all easements necessary to exercise the mining rights, as they may be required to establish the infrastructure to develop the project. Furthermore, the holder of an EP or MC must compensate the landowner or provide sufficient guarantee that a compensation will be paid.  The AMC contains the provision that states that a landowner must be compensated for “the value of the pieces of land” occupied by the miner.  However, the actual payment of the compensation should not defer the exercise of the right to use the land, provided the miner produces a guarantee stating that compensation shall be paid when fixed.  If the landowner and the miner cannot reach an agreement, a judge will resolve the conflict.