Although I strongly suggest you to read the whole text (pages 99 – 130 in Ocacasa 4 file, translation previously posted), it’s worth summarizing up the incident and the corresponding legal arguments. To this end, let me first introduce some definition and legal principles:
- Administered. Those individuals or companies (like Macusani Yellowcake SAC) who at some point of time pretend to initiate a procedure before a certain public entity (like INGEMMET), for which they can be required to present some documents or make some payments complying with terms and deadlines established by law.
- Nullity of acts. According to Article 149 of the Unified Ordered Text (TUO) of the General Mining Law (LGM), “The mining authority will declare the nullity of acts, ex officio or at the request of a party,
in the event of a substantial defect, returning the processing to the state in which the vice occurred, but the tests and other actions that does not affect the said nullity will subsist.” (emphasis added)
- Reception units are not able to qualify documents. According to Article 133 of the TUO of the LPAG, “The documentary reception units guide the administrator in the presentation of their applications and forms, being obliged to receive them to initiate or promote the procedures, without
in any case being able to qualify, deny or defer their admission. (...)" (emphasis added)
- Requirements for payment and accreditation of the right of validity and penalty. As stated by Article 37 of the TUO of the LGM, “In order for the aforementioned accreditation to be declared admissible, a written request will be submitted, in which it will be necessary to:
(i) attach the original receipts of the entire deposit due in the accounts authorized by the INGEMMET; and,
(ii) identify the right for which the payment is made. (...)" (emphasis added)
- Informalism principle. Stated on paragraph 1.6 of Article IV of the Preliminary Title of the TUO of the General Administrative Procedure Law (LPAG): "The rules of procedure should be interpreted
in a favorable manner to the admission and final decision of the pretensions of the administered, so that their rights and interests are not affected by the requirement of formal aspects that can be corrected within the procedure, provided that said excuse does not affect the rights of third parties or the public interest." (emphasis added)
- Motivation requirement. Article 3 of the TUO of the LPAG indicates motivation as one of the requirements of validity of administrative acts: "The administrative act must be duly motivated in proportion to the content and in accordance with the legal system." That is, from a jurisprudence point of view, an administrative act is adequately motivated only when factical and juridically analogue cases are discussed.
The incident can be described and legally reasoned as follows:
1. Macusani’s representative entered INGEMMET’s facilities at last day of term in working hours (before 4:30pm) and waited in line to be attended by the documentary reception unit, while other Macusani’s employee went to the bank to pay for the validity rights.
2. Macusani’s representative was attended by INGEMMET’s servant at the documentary reception unit (Virginia Vasquez), who received the payment accreditation request but, as the Macusani’s representative didn’t have the bank receipts (vouchers) yet, Vasquez added the observation “NO DEPOSITS ATTACHED” to the proof of reception, through SIDEMCAT system.
3. Macusani’s representative received the vouchers from the outside after 4:30pm, when INGEMMET’s facilities were already closed, and went back to the documentary reception unit to attach the 22 vouchers. Virginia Vasquez revised the 22 vouchers and accepted only 14 of them, because the balance (8) had payment hour after (at the bank) 4:30pm, and then changed (through SIDEMCAT) the observation from “NO DEPOSITS ATTACHED” to “ATTACHES 14 ORIGINAL VOUCHERS OF PAYMENT OF RIGHT OF VALIDITY”. Here Vasquez qualified Macusani’s documents and by doing so she violated Article 133 of the TUO of the LPAG.
4. The same day Macusani filed a complaint on INGEMMET’s Complaint Book, denouncing the breach committed by servant Virginia Vasquez.
5. After receiving Vasquez’ report, INGEMMET responded to Macusani’s complaint, arguing that Macusani’s representative didn’t carry the receipts when she entered INGEMMET’s facilities, so Vasquez wasn’t obliged to receive them. Here INGEMMET violated the law again by imposing requirements not stated on Article 37 of the TUO of the LGM and thus breaking the informalism principle. If INGEMMET’s servant was still attending then it’s not clear she shouldn’t attend Macusani’s representative, and if there is any doubt of this then the most favorable interpretation (to Macusani’s interests) should be chosen.
6. It should also be mentioned that the cases used by INGEMMET’s (expiration) Resolution don’t apply as jurisprudence to this case, because they are not factical and juridically analogue and thus the said Resolution suffers from defects of invalidity due to a deficiency in its motivation, an essential element for the validity of any administrative act.
For the aforementioned, and according to Article 149 of the TUO of the LGM, the mining authority (Mining Council) should declare the nullity of the said Resolution and
return the processing to the state in which the vice occurred, that is, the 22 vouchers should be accepted and, consequently, the payment of the right of validity of the 32 Macusani’s mining claims should be taken as paid.
After reading Macusani’s arguments I see they are sounder than I initially thought, so the odds of INGEMMET’s Resolution being revoked are now higher, rising imo from around 60% to almost 90%. Also, now it’s clearer for me why the company didn’t inform the market about this incident; interpreting it as a “clerical error” is not as a forced interpretation of facts as I thought and the arguments are sound enough to assume the final rule will be favorable.
Listening to his interventions (1), you’ll note Henry Luna (INGEMMET’s President) is in favor of the project, understand its importance and has clearly stated its urgency, so you could ask, why does INGEMMET insisted on this and didn’t accept Macusani’s complaint? Well, the fact that he is the President of a public entity does not mean in Peru that everyone there will act as he wants; public servants at all levels (including INGEMMET’s legal department) have some sort of “autonomy” and by interfering the processes Mr. Luna would be clearly breaking the law. I think these affairs have been discussed between Minem (Ministry of Energy and Mines), INGEMMET and Macusani, and although everyone knows the rule will be favorable, there’s no way of “skiping” steps, which is indeed what Alex Holmes have said when asked.
Just to finish let me highlight three of the four lawyers who will represent Macusani Yellowcake in this process:
Daniel Jesus Palomino Seguin
https://pe.linkedin.com/in/danielpalomino?trk=public_profile_browsemap_mini-profile_title https://www.munizlaw.com/fotos/Daniel%20Palomino%20Segu%C3%ADn_1.pdf Melissa Moran Farro
https://pe.linkedin.com/in/melissa-mor%C3%A1n-farro-51a544144 https://www.munizlaw.com/fotos/Melissa%20Moran.pdf Marco Pereda Zevallos
https://pe.linkedin.com/in/marco-pereda-zevallos-5aa38a178 As you can see by following the links, it seems Macusani will be represented by the “Estudio Muniz” law firm (2), which has vast experience in mining matters (3). So don’t worry, we’re in good hands.
(1)
https://stockhouse.com/companies/bullboard/post?symbol=v.plu&postid=29146806 (2)
https://www.munizlaw.com/ (3)
https://www.munizlaw.com/transacciones-y-procesos.asp?id=263