Through Agreement No. MAE-MAE-2026-0057-AM (published in Official Gazette No. 288 of May 20, 2026), the Minister of Environment and Energy issues the guidelines that set minimum, mandatory, and uniform parameters for the structuring, negotiation, and execution of Commercial Agreements entered into by ENAMI EP, including Master Commercial Agreements and Specific Commercial Agreements, as well as all instruments derived from these models for mining projects. Their application must ensure technical, economic, and legal consistency, guaranteeing the State’s adequate participation, the project’s sustainability, and the protection of the public interest.
- Structure of the associative model
The guidelines provide that associative models must be structured in an integrated and coherent manner, including at least one Master Commercial Agreement and one or more Specific Commercial Agreements, without prejudice to execution contracts or other complementary instruments depending on the nature of the project. The Master Agreement sets out the general terms governing the relationship between ENAMI EP and its counterparty, while the Specific Agreements regulate the concrete execution of activities within defined areas or projects. All instruments must be consistent with one another and with the technical, economic, and environmental studies supporting the project, as part of a single, integrated associative scheme.
- Minimum clauses of the Master Commercial Agreement
The Master Commercial Agreement is mandatory and must regulate the ENAMI–counterparty relationship in an integral, coherent, and verifiable manner, ensuring legal certainty, traceability, and control of the associative scheme. At a minimum, it must include: the parties; background; interpretation rules; legal nature; representations and warranties evidencing legal, technical, and economic capacity; purpose; obligations (technical, economic, environmental, social, and labor); definition of costs; a periodic information delivery regime (at least semiannually, complete and verifiable); the minimum committed investment; integrity, anti-corruption, and compliance policies; monitoring and control mechanisms; designation of administrators; assignment of rights only with ENAMI’s prior and express authorization; confidentiality; rules for valuation of mining assets; know-how transfer and training; term; termination events and unilateral termination; dispute resolution under Ecuadorian law; contractual domicile; communications; express acceptance; and identification of concessions and areas of interest without implying recognition or granting of mining rights.
In addition, it must include annexes with the project-specific development (obligations, national workforce, budgets and closure/abandonment, assignment and transfer linked to valuation, mechanisms of economic participation in favor of ENAMI, negotiation minutes, translations, and any other necessary documents). These provisions are binding, and their interpretation must prioritize the public interest and the State’s objectives in mining.
- Minimum content of the Specific Commercial Agreement
Specific Commercial Agreements must detail the execution of the mining project, including the technical description of activities, scope, schedule, and phases, and must establish specific technical, environmental, social, economic, and safety obligations, with a clear allocation of responsibilities for obtaining and complying with permits and licenses.
They must set the mandatory minimum investment and its execution schedule, verification mechanisms, the methodology for valuing the project by an independent qualified third party, and ENAMI’s economic participation mechanisms, which may include cash or in-kind payments, equity participation, compensation for assignment and transfer, and schemes based on production or revenues, in addition to statutory mining royalties.
The instrument must provide that the counterparty bears all project costs, delivers complete information generated, includes occupational health, risk management, and mine safety clauses, and incorporates a regime of sanctions, penalties, and termination events.
It must also include mandatory minimum elements such as execution (technical, legal, social, environmental, and economic), environmental responsibility, environmental permits, social responsibility, environmental, technical, social supporting documentation, sanctions and unilateral termination, occupational health, and risk identification, valuation, minimization.
It must further include a methodology to determine the assignment and transfer value and the amount payable (in-kind, cash, equity package) in addition to an NSR in favor of ENAMI (separate from statutory royalties), semiannual access to and delivery of project information, and an express allocation of valuation costs to the counterparty.
- Economic parameters and project valuation
Every associative model must guarantee ENAMI’s adequate economic participation through objective, verifiable, and technically supported mechanisms. Valuation must be performed in stages with sufficient technical support, preferably at the economic evaluation or feasibility stage, and must be prepared by an independent qualified third party in accordance with international standards. The economic scheme may include upfront payments, compensation for assignment, profit participation, production/revenue participation mechanisms, administrative fees, or other equivalent mechanisms, without prejudice to statutory royalties.
- Mandatory requirements and non-negotiable conditions
The guidelines establish mandatory conditions: identification of the ultimate beneficial owner; prohibition on guaranteeing the granting of mining rights; obligation to comply with environmental, mining, and labor regulations; application of international good practices; prohibition on assignment without ENAMI’s authorization; mineral traceability; delivery of true, complete, and timely information; and anti-corruption and compliance clauses.
All instruments must be subject to Ecuadorian law and provide for dispute resolution mechanisms: within Ecuadorian territory for Master Agreements, and international arbitration for Specific Agreements.
A differentiated list of non-negotiable requirements is provided. For the Master Agreement, these include: prior payment of a subscription right equivalent to 10% of the total committed investment (non-refundable), exclusion of international arbitration, detailed definition of exploration expenses, prohibition on assignment before valuation, obligation of means (no guarantee of areas), identification of the beneficial owner/corporate structure, anti-corruption clauses with immediate termination, and ENAMI’s right to conduct technical and financial audits.
For the Specific Agreement, these include: compliance with the minimum committed investment, valuation in the economic evaluation sub-phase supported by a feasibility report, valuation by an independent QP selected through a process under Ecuador’s public procurement system, establishment of a perpetual NSR in favor of ENAMI defined by the QP at the assignment and transfer stage, an administrative fee not lower than the conservation patent, complete information delivery, assumption of all project costs, a stepped arbitration clause with prior mediation before the Office of the Attorney General of the State, permanent ENAMI supervision, application of international best practices, and express submission to Ecuadorian law.
- Control, monitoring, supervision, and consequences of non-compliance
ENAMI will exercise ongoing control over the execution of associative models, verifying compliance with the technical, economic, environmental, and social obligations assumed by the counterparty. To that end, ENAMI may request information, conduct audits and inspections, and carry out other oversight actions in accordance with applicable regulations. Failure to meet the minimum parameters enables the application of measures set out in the relevant instruments, including sanctions, enforcement of guarantees, or termination, as applicable.
- Mandatory nature and prevalence of the guidelines
The provisions of these guidelines are mandatory for ENAMI and its counterparties in the structuring, negotiation, execution, and performance of Master and Specific Commercial Agreements, execution contracts, and any instrument within the scheme. Consequently, no instrument may be approved, executed, or performed without prior verification of full compliance with the minimum parameters, which are binding and prevail over any contrary provisions.
- General provisions, review of prior agreements, and effectiveness
The agreement applies mandatorily to ENAMI for the execution of Master and Specific Agreements. Commercial agreements and other associative models signed before the issuance may be subject to review, renegotiation, or modification to harmonize their terms with this instrument and/or where technical, economic, or public-interest circumstances so justify. This will be carried out through dialogue tables convened by ENAMI with the counterparty or commercial partner, and adjustments must be formalized through the execution of the relevant addenda. The agreement must be interpreted in accordance with the Constitution, the Mining Law, applicable regulations, and the public interest, and where not provided herein, the mining regulations and Ecuadorian legal system apply.
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This information is a summary of legal developments of interest and therefore cannot be considered as provided advice. If you have any questions, please contact the AVL team.