TFM will carry its activities in compliance with environmental standard. It notably undertakes to take adequate measures to protect the environment and the public infrastructure used beyond normal industrial use, to mitigate by adequate measures the damage which could be cause to the environment and to the public infrastructure used beyond normal industrial use, to comply with the legislation in force on the date of the original convention concerning dangerous waste, damage to natural resources and protection of the environment, to restore used sites and the excavated plots of land in compliance with the rules and uses internationally accepted in the mining industry, to comply with the provisions of the Forest Code and to set up a system for the purification or treatment of used or residual water from the mines and plants.
TFM has the obligation to set up a system for the purification or treatment of used or residual water from the mines and plants which are released from the areas foreseen in the works program.
The government, after notifying TFM in writing, will have access, for review and control, to the accounting books and ledgers and financial statements of TFM. These reviews and controls must take place within a period of 3 years following the end of such fiscal year. The government will notify TFM within 60 days following the completion of these reviews and controls of its comments for any possible differences or mistakes discovered.
TFM will arrange for an annual external audit of its fiscal year accounts in a form consistent with International Financial Reporting Standards. Within 3 months after the approval of the annual external audit report by the Board of Directors, TFM will send to the competent state authorities and to its shareholders, such audit reports with its possible comments and remarks.
Financial obligations - community or commodity funds
TFM will undertake to create a fund jointly managed by TFM and concerned local authorities to assist the local communities affected by the project with development of local infrastructure and related services such as those pertaining to health, education and agriculture. This fund will be financed by payments from TFM at a rate of 0.3% of the net sales revenues of production.
The tax and customs regime applicable to the project shall be only as set forth in the provisions of Title IX of the Mining Code as existing on the date of this agreement, and as from the entry into force of this agreement except as applies to the transitional measures for the 2005 fiscal year set forth in Appendix B of this agreement.
TFM, its shareholders and affiliates and its contractors, will give priority to the employment of Congolese personnel. They may however employ expatriate personnel for positions requiring a high level of qualification or specific professional experience.
TFM undertakes to implement a policy of technology transfer, subject to normal confidentiality provisions. This encompasses a transfer of operational and management techniques. For this end, TFM undertakes to supply the personnel with the training necessary to undertake their work competently and with the opportunity to learn new techniques which will allow them to progress in the future into more complex and demanding posts. TFM may request secondments from Gecamines.
To the extent that this lies in its control or influence, the government will use its best efforts to enable TFM to avail itself of all existing infrastructure (water, electricity, rail, roads, airport and so forth) at the most favorable terms and conditions of service possible, which will have to be negotiated with the providers of such service.
The government and Gecamines, Lundi Holding and TFM consent to submit to the International Center for Settlement of Investment Disputes any dispute arising out of or relating to this agreement for settlement by arbitration pursuant to the convention on the settlement of investment disputes between states and nationals of other states of 18 March 1965.
The arbitration tribunal will consist of three arbitrary and the arbitration will be held at Washington D.C. in the English language, with simultaneous translation into French.
In case the ICSID would declare itself not to be competent, all disputes, controversies or claims shall be settled in accordance with the rules of arbitration of the International Chamber of Commerce by 3 arbitrators appointed in accordance with such rules. The arbitration shall be held in Geneva, Switzerland. The arbitration will be held in the French and English languages. The arbitral award shall be in writing and in the French and English languages and shall be final and binding on the parties.
All date and information provided to or received by the government and Gecamines, Lundi Holding and TFM with respect to this agreement, the other parties and or the property, will be treated as confidential and will not be disclosed without the prior written consent of the other parties (which consent will not be unreasonably withheld) to any other person whatsoever, except to affiliates, or as required to effect a third party sale, as required to procure financing or as required by law or any regulatory authority having jurisdiction. Where disclosure is required by law or a regulatory authority having jurisdiction, a copy of the information required to be disclosed including without limitation any press release, will be provided to the other parties within as reasonable a time limit as possible before such disclosure. No party will be liable to the other parties in respect of any interpretation, opinion, conclusion or other non-contractual information included by the party in any report or other document provided to the receiving person whether included by negligence or otherwise.
Any question relating to this agreement will be governed by the laws of the Democratic Republic of Congo and, if necessary, supplemented by the principles of international commercial law applicable to the case.
In the event that a law or regulation adopted in the Democratic Republic of Congo after the date of the original convention contains a system or provisions more favorable than any of those provided in this agreement, then such system or such provisions will be immediately applicable at the option of TFM in place of the corresponding system or provisions in this agreement.
The state guarantees for the whole duration of the agreement the stability of legislation and regulations which are in force on the date of the original convention and, in particular with respect to judicial, land, fiscal and customs, commercial, monetary, social, employment, health and mining legislation matters, and in matters of residence and work conditions for foreigners. No legal or regulatory provisions effective after the date of the original convention may entail a restriction or reduction of the special advantages of this agreement or hinder the exercise or the rights resulting from this agreement.