Emery Mukendi Wafwana

Maître Emery Mukendi Wafwana

Mr. Emery Mukendi Wafwana has been practicing law since 1995 in the capacity of Barrister registered with the Bar of Kinshasa/Gombe, after serving as Barrister before Kinshasa High Instance tribunals (1992-1993) and as Legal Adviser to Air Transport Office airline company (1993-1995). He is also a registered Mining and Quarry Proxy and has been chairing Cabemery activities from 2003 to date. He has further been selected as an expert of the International Trade Centre (200 to 2005)

As a member of the Union Internationale des Avocats (UIA), he sits on the Transport (air, land and sea transport), Energy and Natural Resources Law Commission and participates in the Commission on Companies Law, Merger and Acquisition and in international arbitration and litigation law and practice. He is also an active member of the International Bar Association (IBA), the European Attorneys Association ( EAA) Steering Council for Relations with Africa and co-founder of the Association of Attorneys for Excellence (APEX). He is the founder and chief editor of Juricongo, the online review of DRC law and DRC law portal (www.juricongo.com).

In his law practice, Mr. Emery Mukendi Wafwana actively works in the fields of mining and hydrocarbons law, air law, commercial law, companies law, fiscal law, sureties law and in the practice of judiciary, administrative and arbitral litigations.

Mining Law-in this practice, Mr. Emery Mukendi Wafwana is manifestly known, both at national as well as at international level, for his assistance to the DRC Government (with the financial assistance of the World Bank) in reforming the tax, customs, legal as well as change framework for the mining sector. In this regard, he drafted the draft Mining Code, the Mining Regulations and Decrees governing the Statutes, Organization and Functioning of the Mining Cadastre including that of the Commission on the Validation of mining and quarry rights. He assisted the DRC Government (Ministry of Mines) in defending the Draft Mining Code to the National Assembly and Legislative Council -Transition Parliament (ACL/PT) on 30 April-23 May 2002).

Mr. Emery Mukendi Wafwana further conducted legal studies on private-public partnerships and within the framework of mining contracts for a harmonious transition to the enforcement of the new mining and fiscal regime governing DRC mining sector (2001-2002). He advised the Government of the DRC (Economic and Finance Commission -ECOFIN) on the issue of the validity of mining contracts and on the legal, fiscal, customs and change regimes applicable to these contracts subsequent to the promulgation of the new mining code (2004).

Mr. Emery Mukendi Wafwana has conducted for the DRC Government, with World Bank funding, the evaluation of 37 mining partnership agreements and others concluded between GECAMINES and third parties on certain mining deposits in Katanga. During the same mission, he conducted a due diligence on the validity and conformity of Exploration Permits, Exploitation Permits, Tailings Exploitation Permits held by joint venture companies created between GECAMINES and private investors on said deposits. He further analyzed, examined and made significant observations on the financing contracts between GECAMINES and private external donors. He finally prepared the draft standard contracts on lease agreements; mining permits transfer agreements, mortgage agreements, and on contracts conditions (2004-2006). Very recently, he has advised GECAMINES in the negotiation of more than 20 partnership agreements (2008).

Conversant with the subtleties of the mining code and the mining regulations including those of the functioning the mining administration i.e. the Mining Cadastre (CAMI), Mr. Emery Mukendi Wafwana boasts the privilege to ably provide assistance in inter alia the procedure for the granting, renewal, transformation, renouncement (partial or full), extension, mutation (transfer, lease, transmission, option contract) of mining and quarry rights. He has assisted and advised several companies in disputes relating to mining permits and quarry authorization.

Mr. Emery Mukendi Wafwana has issued several publications on mining law including DRC Mining Law-Principle of the Management of the Mining Sector (Bruylant-Juricongo, 2005), Outline of the New Mining and Quarry Code, seminar on the contribution of the mining sector to the swift resumption of the economic activity in the Democratic Republic of Congo, Kinshasa, Grand Hôtel, 22-23 April 200 à préciser; Conventional Mining Regime: Mining Convention or Preliminary Agreement, in Juricongo no.1, May-June, pp. 14-22; Exploitation of Hydrocarbons under DRC Law, in Juricongo no.6, Kinshasa,March-april 2000, pp.14-23; State Shares in Mining Companies, speech delivered at Kinshasa International Fair on the occasion of Mining Days in 2000, organized by the Ministry of Mining (DRC); Ownership of Illegally Extracted Mining Substances, an address made to the legal café at the University of Kinshasa (UNIKIN), School of Law in August 2000,etc…

Air Law-In the practice of air law, Mr. Emery Mukendi Wafwana has been and still is the legal adviser to public and private companies operating in this sector. He has advised and assisted theses companies in securing exploitation licenses, authorizations to import aircrafts, to build and ensure official recognition of private aerodromes and in their disputes over civil air liability. Amongst his publications on this fields are the following: Zaïre Civil Aviation: socio-legal considerations and future perspectives, Kinshasa, NTOBO, 1995, 203 pages; Recognition of a Technical Expert in Navigability, in Aviation and Development, Vol I/00, Kinshasa, November 1997, p.20; Civil Responsibility for Aircrafts, Aviation and Development, Kinshasa, May 1998;Exploitation of international air services, in Aviation and Development, Vol I/007, Kinshasa,October 1998; Yamoussoukro Decision: Progressive Liberalization of African Airspace, Juricongo, no. 7, Civil Liability on Aircrafts, Aviation and Development, Kinshasa, May-June, 2000.

Commercial-companies-investment law -In his practice of commercial law, companies law and investment law, Mr. Emery Mukendi Mukendi legally counsels and advises several companies in investment issues in the DRC inter alia in joint venture agreement with some state-owned companies, the approval of projects under the regime of the investment code (formerly known as the Investments Commission and currently as the National Agency for the Encouragement of Investments -ANAPI). He has advised and assisted international companies in acquiring administrative permits and authorizations for their establishment in the DRC depending on the field of activities as well as in the incorporation and establishment of their subsidiaries and branch offices in the DRC. He has advised and assisted several companies in the drafting and implementation of general assembly extraordinary meetings minutes, board of directors meetings or management board meetings, single managers decisions etc.

Legal evaluation of projects -In an effort to fund or acquire certain projects in the DRC or in order to list the projects of some companies incorporated in the DRC in the international stocks exchanges (Toronto, London, Perth, etc), Mr. Emery Mukendi Wafwana has conducted several conformity, validity and authenticity evaluations on behalf of the said commercial companies and those of various mining permits (mining, land and other licenses) which they hold in order to ensure the realization of sureties of all sorts including mining and land mortgages, pledges or warranties for company shares and stocks constituting the capital of loaning companies and those whose projects are listed in international stocks exchanges markets.

Mr. Emery Mukendi Wafwana has published legal opinions on diagnosed issues or other major legal issues encountered during the examination of cases submitted to him and he has corrected or had them corrected by preparing strategies and legal opinions on the issues. He has advised and assisted several companies in the drafting of loans agreements, mortgage agreements (land and mining mortgages), pledge or security agreements for shares and stocks as well as the settlement of certain disputes likely to compromise the funding of project or that of acquiring interests in the project.

Litigation -In addition to his capacity as a legal counsel, Mr. Emery Mukendi Wafwana has been practicing legal litigation for 15 years. In administrative litigation, he has represented and still represents his clients both in the preliminary claim proceedings as well as in jurisdictional proceedings before the administrative chambers of the Courts of Appeal and the Supreme Court of Justice. He has advised and still advises several companies in the settlement of fiscal and para-fiscal disputes with DGRAD or DGI before the Tribunals of High Instance and before Courts of Appeal. He has also represented and advised certain clients in disputes before domestic and foreign courts and before arbitral courts.

Mr. Emery Mukendi Wafwana holds an LLD in Economic and Social Law from the University of Kinshasa. He lectures in Mining Law at the School of Law of William Booth University in Kinshasa, DRC.