Supreme Court Ruling a Win for Mining Industry

Mexico’s Supreme Court has struck down an appeal filed by the Federal Executive, the Congress of the Union, and the Ministry of Economy against a judgment issued by a district court that challenged the Fifth Transitory Article of the decree that reformed, among others, the Mining Law. 

That earlier judgment protected the plaintiff against the transitory article and ordered the authorities not to apply the legal provision to his detriment. The authorities decided to file the appeal for review against that judgment.

“In short, the Supreme Court's decision sets a positive precedent for the mining industry, since the court confirmed the favorable criteria obtained in a previous instance by a federal judge. Consequently, this ruling will serve as a precedent to be considered by judges when resolving similar matters.” said Joel Gonzalez, senior partner at ALN Abogados.

The Fifth Transitory Article establishes that the applications in process for the granting of new mining exploration and exploitation concessions must be rejected. In this regard, the Supreme Court confirmed the decision issued by the district judge, and resolved that such a transitory provision violates the principle of non-retroactivity of those who had filed their concession request prior to the reform, and therefore, ordered the competent authority – in this case, the Ministry of Economy, through the General Directorate of Mines – to process the plaintiff’s application in accordance with the legislation in force at the time it was filed, without applying the provisions of the Fifth Transitory Article of the new law, which provides precisely for the rejection of such applications.

“Clearly, this is a victory for the mining industry, and therefore, a positive result in terms of the defense of their interests, since the Supreme Court directly orders the mining authorities to safeguard the concession applications filed prior to the reform, and to resolve them based on the Mining Law prior to the reform, and not on the new Mining Law, which, as is well known, establishes a different mechanism for the granting of mining concessions,” Gonzalez noted. 

The appeal is the first the Supreme Court has resolved against the reform to the Mining Law, published on May 8, 2023.

The decision by the Supreme Court sets an important precedent for the application of the current Mining Law, since it recognizes the violation of the law regarding the principle of non-retroactivity, establishing that applications filed before the entry into force of a new law must be resolved in accordance with the rules in force at the time of filing.

“In view of the favorable criteria obtained by the Supreme Court, we expect that in the next few months the unconstitutionality action filed against the decree that reforms the Mining Law will be resolved, which, if favorably resolved, would declare the unconstitutionality of the decree and therefore, the non-application of the decree to the mining companies in our country, which is precisely what we have been fighting for since its publication,” Gonzalez said.