New Law for the Banking of the Mining Sector in Colombia

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In recent years, the banking sector has generally refused to provide financial services to entities and individuals in the mining industry, arguing that they involve a high-risk activity due to money laundering and other illicit activities. This discrimination has affected all the mining sector participants, from producers to traders and service providers, including companies with significant experience and even subsidiaries of companies that are listed on recognized stock exchanges. On the other hand, the position of the financial sector has obstructed the development of a governmental policy to stimulate the formalization of mining operations.

As a result, on December 30, 2021, Law 2177 was issued by the Colombian Congress bringing new rules for the Colombian mining sector to access to the services provided by the financial and insurance system (the "Law"). This law introduces new conditions to ensure that the entities supervised by the Financial Superintendence ("SFC") and/or the Superintendency of Solidary Economy ("SES”) allow different actors in the mining sector (such as titleholders, authorized miners, traders, processing plants, miners applying for formalization, etc.) to access banking and financial services as long as these have risk management measures aimed at implementing standards in connection to of transparency, regulatory compliance, business ethics, prevention of money laundering and financing of terrorist activities.

According to Article 6 of the Law, entities in the financial sector may only refuse to provide products and services for objective reasons, which must be duly informed in writing to the applicant, on the basis that the mere fact of being part of the mining sector is not considered an objective reason.

Additionally, this Law sets forth that the rejection of an application for banking and financial services will give the applicant the right to request such financial services from the Colombian Agrarian Bank, this entity will in turn send the applicant's information to the SFC and the SES so they can determine whether there was bad faith, contumacy or an irregular conduct from the mining entity that rejected the application for financial services in the first place. The creation of barriers for the beneficiaries of the Law to use financial services and/or any acts of discrimination against them, may result in the imposition of fines by the SFC and/or the SES.

Finally, this Law determines that the mining authority must provide the financial sector entities with all the documentation required to verify the identity and/or information provided by any interested parties. In more general terms generally, the Law also provides that:

  1. Through Findeter, Bacoldex or the National Guarantee Fund (Fondo Nacional de Garantías), the government may grant bank guarantees to circular, green or any other mining projects that meet the sustainable development goals.
  2. Financial entities must provide training for the mining sector on the process of accessing / requesting financial products and services, and in regulatory compliance measures, risk management, business ethics practices, prevention of money laundering and financing of terrorist activities.
  3. Financial institutions are allowed to grant the beneficiaries of the Law, credit instruments with preferential interest rates.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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