Legal experts say ARECOMS had no power to suspend cobalt exports
An analysis of the Mining Code argues the export ban exceeded the regulator's statutory mandate and could be annulled by the courts
As the Democratic Republic of Congo's cobalt export suspension stretched into its sixth month, a legal analysis published on 4 August 2025 argued that the regulator behind it, ARECOMS, never had the statutory power to order the ban in the first place.
The legal argument
The analysis, circulated among mining lawyers through the IR Global network, pointed to Article 16 of the DRC's Mining Code, which specifies which state authorities hold enforcement powers over the sector. ARECOMS — the Authority for the Regulation and Control of Strategic Mineral Substances Markets, created by presidential decree in November 2019 — is not named among them. Under Congolese administrative law, the analysis argued, a public authority may act only within the powers explicitly conferred on it by law; anything beyond that constitutes an abuse of authority.
ARECOMS' founding mandate, the lawyers contended, covers market regulation and administrative and technical oversight of strategic minerals — not the power to halt exports outright. That competence, they said, falls exclusively to the Ministry of Mines, meaning the export suspension could in principle be challenged and annulled by Congo's administrative courts.
Why it matters
The critique went beyond a technical legal point. If the suspension — and by extension the quota system that would later replace it — rested on shaky legal ground, that created a standing risk for both the state and the companies complying with it. The analysis warned the arrangement exposed the DRC to liability claims from miners who suffered losses during the ban, undermined investor confidence in a sector that depends on regulatory predictability, and risked jurisdictional conflict between ARECOMS and the Ministry of Mines over who actually controls cobalt exports.
For companies such as CMOC, Glencore and Eurasian Resources Group, the finding offered a potential avenue to contest quota allocations or export conditions they considered unfair — though none is known to have pursued a court challenge given the political sensitivity of confronting the regulator directly while still needing its cooperation to export.
What happens next
The authors recommended that Congo clarify ARECOMS' legal authority through amended legislation or updated Mining Code provisions, rather than leave the quota system that followed the ban exposed to the same challenge. No such legislative fix had been enacted by the time ARECOMS moved from suspension to a formal quota regime later in 2025, leaving the underlying legal question unresolved even as the policy itself evolved.
Sources
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