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Outline of the new Insurance Code of the DRC

By Pathy Liongo and Alain Kasende In its path to the stabilization of business climate and protection of private investments, the Democratic Republic of the Congo ("DRC") has just completed the reforming process of its insurance sector, one of the basic activities for the economic and social development of the country. This reform is accomplished by the Law No 15/005 of 17 March 2015 on Insurance Code ("Insurance Code"), promulgated by the President of the Republic on 17 March 2015 and recently published in the Official Gazette[1]. This new Insurance Code represents a real revolution in this sector, which has been...

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Recent measures on the form of the articles of association and the minimum capital of SARL in the DRC: advantages and weaknesses

The Minister of Justice and Human Rights and the Minister of Finance in the DRC signed jointly in December 30, 2014 theinterdepartmental Order No. 002/CAB/MIN/JGS &DH/014 and No. 243/CAB/MIN/FINANCES/2014 determining the form of the Articles of Association and the minimum capital of a limited liability company. According to this order, the following provisions must henceforth apply to single-member and multi-member SARL: (1) the Articles of Association are established by notarial deed or private agreement (article 1); (2) the share capital is freely set by the shareholders, taking into account the business (article 2); (3) the pay-in slip cleared by a credit or microfinance...

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Ratification to the treaty relating to Grand Inga Hydroelectric Project

In accordance with articles 213 paragraph 1 and 214 paragraph 1 of the Constitution of February 18, 2006 as amended to date, the President of the Democratic Republic of Congo («DRC”) promulgated on the 21st November 2014 the Law No. 14/026 authorizing the ratification by the DRC of the Treaty relating to the Grand Inga hydroelectric project between the Republic of South Africa («RSA») and itself. I. PURPOSE OF THE TREATY The Inga Project aims at building a hydroelectric complex on the Congo River, on the site named Inga Site whose installations are based in the West of the DRC, 150 km...

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Deforestation Tax: Problematic of Tax Liability of Mining Titleholders

For some time, mining companies in the Democratic Republic of the Congo are facing the National Forest Fund, (“Fonds Forestier National”), a technical and financial public establishment set up by the law N° 011/2002 of 29 August 2002 relating to the Forestry Code (“Forestry Code”) for the payment of the “deforestation tax” as a result of the deforestation made by them concerning the mining areas covered by their mining titles. With regard to the taxes, customs and other duties and levies regime applicable to the mining titleholders provided for in the Law n° 007/2002 of11 July 2002 relating to the Mining Code...

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Monthly new employer’s share to be paid by employers to national employment agency “ONEM”

  Edouard Laddy Tshishimbi Mpamba On September 26, 2013, the Minister of Labour and Welfare passed an Order No 125/CAB/MIN/ETPS/MBL/DKL/dag/2013 amending and supplementing this Departmental Order No 028/CAB/MIN/ETPS/DKL/dag/2013 of March 18, 2013 establishing the rate of monthly employer's share to be paid by Employers to ONEM in accordance with article 93 as stipulated in the Constitution of Democratic Republic of the Congo, which allows the Minister to decide by means of an Order. Under articles 204 and 205 of Law No 15/2002 of October 16, 2002 establishing the Labour Code, a technical and social institution with legal status was created; named "National Employment Agency"...

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OHADA: DRC corporations faced with two overlapping OHADA compliance procedures with the entry into force of the new AUDSC-GIE

[caption id="attachment_3317" align="alignleft" width="222"] Emery Mukendi Wafwana, Founding Partner[/caption] Emery Mukendi Wafwana As you know, the Democratic Republic of the Congo ("DRC") is the last country to have joined the Treaty on the Organization of the Harmonization of Business Law in Africa, (“OHADA") on September 12, 2012. The OHADA dates back to October 17, 1993, as revised in Quebec on October 17, 2008 (“Treaty”); the DRC’s adherence was initiated by the filing of the ratification instrument of the Treaty on July 12, 2012, by the Minister of justice of the DRC, in accordance with Article 53 of the Treaty. The Treaty, Uniform...

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DRC/RSA: Inga Falls set to harness power potential of the Congo River

By Michele da Silva da Mata and Willy Bashiya Mbayi Following the energy cooperation agreement between the Democratic Republic of Congo and the Republic of South Africa on 7 March 2013, the $ 80 billion hydro power project- “Inga power project” which will start in October 2015 is set to harness the power potential of the Congo River, sub-Saharan Africa’s greatest waterway. With a power output of almost 40,000 MW the grand Inga project is expected to bring electricity to most of the African continent. The first phase of the project (out of the total of seven phases) – Inga III will...

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New Exploitation License for Mining Operators in the DRC

New Exploitation license (environmental): new requirement for mining operators in the DRC Esther-Rose LUFUTA BIDUAYA and Eric TSHIMANGA MUKENDI The consideration of environmental issues by the International Community, and its consequences on the life quality, with tangible effects, including reduction in biodiversity, soil, air and water pollution, has urged the International Community to adopt multilateral environmental agreements, which obligate the working-out of national laws, policies, plans and programs to regulate and supervise mankind's activities and to mitigate their impact on the environment, which is the common heritage of all human beings, presents and futures. In accordance with these agreements and the DRC Constitution (« DRC »)...

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New exploitation license (environmental): new requirement for mining operators in the DRC

Esther-Rose Lufuta Biduaya and Eric Tshimanga Mukendi The emergence of various environmental issues and their negative impacts on the quality of life, including the reduction in biodiversity, soil, air and water pollution, has urged the International Community to adopt multilateral environmental agreements engaging countries to develop ancillary national laws, policies, plans and programs to regulate and supervise human activities and to mitigate their impact on the environment, constitutes the common heritage for all human beings. In accordance with these agreements and the DRC Constitution (”DRC” of February 18, 2013 as amended to date, particularly article 123-15, Law No. 11/009 dated July 9, 2011...

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DRC: Non-Transferability of Telecom Licenses Challenged by OHADA

The principle of non-transferability of telecommunications licenses challenged by the OHADA Law as a result of the accession of the Democratic Republic of the Congo to OHADA Alain Serge Kasende M’bay  Since September 12, 2012, OHADA Law (Organization for the Harmonization of Business Law in Africa) is directly applicable and binding, as a domestic positive law, in the Democratic Republic of the Congo (“DRC”). In accordance with article 53, section 2 of the OHADA Treaty[1], all provisions thereof, regulations and Uniform Acts (“OHADA Law”) adopted before the accession of the DRC come into force in the DRC sixty (60) days after the date...

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DRC: Adoption of Legal framework for Fiber Optic Networks

The DRC adopts a legal framework for the implementation and operation of fiber optic telecommunication networks Eric Tshimanga Mukendi The Minister of Posts, Telecommunications and New Information Technologies and Communications, « the Minister », has recently taken, with a cause, a Decree of major importance in a world where the quality of telecommunication services is required at any price. It is the Ministerial Decree of n° CAB/MIN/PTNTIC/TKKM/PKM/sap/022/012 of December 21, 2012 establishing the conditions and procedures to operate fiber optic telecommunication networks in the Democratic Republic of the Congo1, (« DRC ») referred to as « the Ministerial Decree». Fiber optics offer several advantages over sending excellent quality...

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Accession of DRC to OHADA: Impact on State-Owned Companies

Protection of state-owned companies subsequent to the accession of the Democratic Republic of Congo to OHADA Emery Mukendi Wafwana and Upio Kakura Wapol On September 12, 2012, the Democratic Republic of Congo (DRC) became party to the community law, Treaty, Decisions and Uniform Acts of the Organization for the Harmonization of Business Law in Africa (OHADA Law) , thus making the country, the OHADA 17th member State. This membership does not create any coexistence problem due to OHADA supranationality of its norms that make its legal and regulatory provisions binding and repealing. However, such enforceability of OHADA Law seems to have worried in some ways the...

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DRC: Impact of the “Doing Business” Report on tax and duties payments

Progress towards tax and duties payment in the Democratic Republic of the Congo in connection with the “Doing Business Report”  Eric Tshimanga Mukendi The DRC Government initiated in the last few years a set of reforms in order to improve the business climate which has been extensively deteriorated over time. One reform in particular is the DRC membership to OHADA, the simplification of payments of duties to the State through the implementation of a single window, etc. These actions are a result of the World Bank recurrent reports published in the context of ‘’Doing Business’’ which ranked the Democratic Republic of the Congo...

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DRC postpones ban on export of copper and cobalt concentrates

DRC’s ban on export of copper and cobalt concentrates postponed until December 31, 2013 Jonathan van Kempen and Fulgence Kalema Bwatunda. On April 5, 2013, the Minister of Mines of the Democratic Republic of the Congo (“DRC”), jointly with the Minister of Finance, enacted Inter-Ministerial Decrees No.122/CAB.MIN/MINES/01/2013 and No.782/CAB.MIN/FINANCES/2013 on the regulation of export of merchant products (“Decree”) which raised strong opposition from the mining industry in the DRC and negatively impacted share prices of several listed mining companies active in the DRC. The Decree banned the export of copper and cobalt concentrates while giving a 90-day moratorium to mining operators who still hold...

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DRC – OHADA: Delay in Uniform Act to regulate company accounting systems

DRC: Delay in the application of the Uniform Act organizing and harmonizing company accounting systems  Emery Mukendi Wafwana  The entry into force of the OHADA Treaty in the Democratic Republic of the Congo (DRC) resulted in the immediate application of the Treaty, its Regulations and Uniform Acts. It also led to the repeal of any DRC previous legal instruments contrary to the Treaty and its Uniform Acts. In particular and in accordance with article 10 of the OHADA Treaty, it repealed all instruments contrary to the Uniform Act organizing and harmonizing companies accounting systems (Uniform Act Organizing and Harmonizing Companies Accounting...

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DRC: Adoption of National Economic and Social Council Law

Adoption of the law on the organization of the National Economic and Social Council Emmanuel Kabupwe According to the provisions of articles 123, 124, 130, 131, 208 and 210 of the Constitution of the Democratic Republic of the Congo ("DRC") of February 18, 2006 as amended to date ("Constitution"), the National Assembly has recently passed the law governing the organization and functioning of the Economic and Social Council which was introduced at its own initiative. The institution of an Economic and Social Council in the DRC set forth in Article 208 of the country’s Constitution, mainly stemmed from the absence of a well-organized...

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Accession of the DRC to the New York Convention on arbitration

Emery Mukendi Wafwana and Jonathan van .  After its adoption by the National Assembly and the Senate of the Democratic Republic of the Congo ("DRC"), the President of the Republic promulgated on June 26, 2013 the Law No. 13/023 authorizing the accession of the DRC to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards signed in New York, on June 10, 1958 (the "Convention"). This Law is based on Articles 213 al. 1 and 214 al. 1 of the Constitution authorizing the President of the Republic to sign and ratify the Convention. However, the Law authorizes the accession of...

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Significant changes currently taking place in electrical power law in the Democratic Republic of Congo

Eric TSHIMANGA MUKENDI In article 48 of DRC Constitution of 18 February 2006 as amended to date, the right of access to electricity is enshrined and guaranteed to the entire Congolese population. However, in actual fact, the situation is quite different because of the huge deficit in the supply of electricity to the population i.e. there is a weak coverage rate. Only a small number of the population have access to electricity and even then only infrequently. Amongst causes behind this situation mainly lies the existence of a legal framework which is unattractive and inadequate to current environment. The legal framework that...

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DRC: Adoption of legal framework for fiber optic telecommunication networks

DRC: Adoption of legal framework for the implementation and operation of fiber optic telecommunication networks Eric Tshimanga Mukendi The Minister of Posts, Telecommunications and New Technologies of Information and Communication, « The Minister », has recently  taken,  not without  reason, a Decree of major importance in a world where the  quality of telecommunication services is required at any price. It is the Ministerial Decree of n° CAB/MIN/PTNTIC/TKKM/PKM/sap/022/012 of December 21, 2012 defining the terms and conditions to establish and operate fiber optic telecommunication networks in the Democratic Republic of the Congo[1], (« DRC ») referred as « the Ministerial Decree». Optical fibers are recognized for their excellent qualities...

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Protection of State-owned companies following accession of the DRC to OHADA

Protection of State-owned companies subsequent to the accession of  the DRC to OHADA By Emery Mukendi Wafwana & Upio Kakura Wapol The entry into force of the Organization for the Harmonisation of Business Law in Africa (OHADA Law) since 12 September 2012 in the Democratic Republic of Congo (DRC) i.e. the Treaty, Regulations, Decisions and Uniform Acts, thus making the country the OHADA 17th member State does not cause any coexistence problem, as OHADA norms are supranational in nature, mandatorily apply and repeal any previous or subsequent regulatory and legal provisions. However, such enforceability of OHADA Law seems to have worried in a...

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