Mexico moves to nationalize lithium mining

Shortly after the controversial Constitutional bill submitted by President Andres Manuel López Obrador (AMLO) to overhaul the Mexican power sector was rejected by Congress, AMLO's administration submitted—and the Mexican Congress passed—a reform to Mexico's Mining Law that materially changed the lithium mining regulation and projects outlook (the Lithium Reform).

The Lithium Reform was submitted, discussed, passed, published and became effective in just a few days. Among other regulatory changes, as of April 21, 2022:

• Lithium is now expressly classified as a strategic mineral, which means that lithium exploration, exploitation and use are deemed a matter of public interest (utilidad pública) expressly reserved in favor of the people of Mexico (el pueblo de México).


• No concessions, licenses, contracts, permits or authorizations for the exploration, exploitation or use of lithium will be granted to private parties. Instead, those activities are to be entrusted to a new federal public instrumentality (organismo público descentralizado) to be created for these specific purposes and to "manage and control" lithium value chains.

The Lithium Reform has been widely criticized by political parties not aligned with AMLO's administration and other private players in the mining industry who have questioned whether the Mexican government has the expertise, funds and capabilities to develop a lithium value chain and have raised budgetary concerns for the new federal public instrumentality to operate. The latter is expected to be clarified within the next few days. The Lithium Reform provides that, within 90 business days as of April 21, 2022, AMLO shall issue the relevant administrative order that formally creates the new public instrumentality.

Days before the Lithium Reform was formally passed, AMLO publicly announced that all existing lithium concessions would be subject to review by the Mexican government. This is particularly relevant since the transitory provisions of the Lithium Reform expressly provide that "laws and regulation contrary to the Mining Law [as amended by the Lithium Reform]" are to be repealed.

Any actions by the Mexican government seeking to revoke, cancel or reverse a concession validly granted or any other expropriation or eminent domain actions may give grounds to the affected party seeking judicial and/or arbitral relief. While these and other potentially adverse actions should, of course, be reviewed on a case by case basis, any such governmental actions may be construed as unconstitutional and/or contrary to international treaties to which Mexico is a signatory (including but not limited to the CPTPP and other bilateral or multilateral investment treaties, which could open the door for companies that currently hold lithium concessions to demand compensatory damages to the Mexican government through investment arbitrations).

Similarly, the Lithium Reform may potentially impact contractual relationships entered into by investors and/or mining companies prior to its enactment, potentially triggering claims for breach of contract, early termination, force majeure events, change in law and/or material adverse effect provisions. Relevant parties should review whether any contractual changes or notices are necessary, required or convenient to preserve their interests as applicable in each case.

While Mexico's lithium potential has not been as explored as other countries in the region, according to publicly available information, the state of Sonora in Northern Mexico holds one of the world's largest lithium reserves.