Esq mag 001 final by ESQ Law Mag

Vol. 5 Issue Vol.1 5 Issue 2

THE SOLICITORS’ TOOLKIT (STK) By Nigerian Legal Technologies Company, Lawpavilion

L EGAL PR ACTICE

HOGGERS & HUGGERS: Why Independence Doesn’t Mean ‘Treat All Firms The Same’

Call for Nomination Nigerian Legal Awards

Matthew Wood:

INVESTING IN NIGERIA The The Changing Rules of Project Financing in Africa

Opportunities Outweigh The Risks

Growth of Private

Asue Ighodalo, Partner, Banwo & Ighodalo and Chairman NBA Section on Business Law

Kem Ihenacho, Partner, Latham & Watkins LLP N1,000 N1,000 $5.99 $5.99 £3.99 £3.99 w w w.esqlaw.net

ESQ LEGAL PRACTICE 1 Finance Finance Marketing Marketing Management Management Technology Technology Spor Spor ts ts LifLestyle if estyle

2 ESQ LEGAL PRACTICE

w w w.esqlaw.net

...celebrating excellence in the Nigerian Legal profession

September 18th, 2015 Lagos, Nigeria www.esqnigerialegalaward.com · Entries/Nominations & Sponsorship Enquiries 0701.671.4842, 0803.526.9055 or awards@esqlaw.net · Event Enquiries & Table Bookings 0701.671.4842, 0803.526.9055 or awards@esqlaw.net

w w w.esqlaw.net

ESQ LEGAL PRACTICE

Inside

YEMI OSIBAJO, SAN: Senior Law Firm Partner Emerges Nigeria’s Vice President 10 ARE EXCHANGE 12-14 CONTROL RESTRICTIONS NOW IN FORCE IN NIGERIA? Hoggers and Huggers – Why Independence Doesn’t Mean ‘Treat All Firms The Same’ 22-23

INVESTING IN NIGERIA

Opportunities Outweigh The Risks Asue Ighodalo, Partner, Banwo & Ighodalo and Chairman NBA Section 74-77 on Business Law

HELPING TO LIGHT UP THE CONTINENT

CHRISTOPHER ALEXANDER 26-27 SAPARA-WILLIAMS, Nigeria’s First Lawyer

A REVIEW OF GHANA’S LOCAL 28-29 CONTENT POLICY FOR THE DOWNSTREAM SECTOR

4 ESQ LEGAL PRACTICE

w w w.esqlaw.net

ESQ LEGAL PRACTICE

Inside WHY SUSTAINABLE INVESTMENT REMAINS CRITICAL TO COMMERCIAL SUCCESS IN AFRICA 34 THE SOLICITORS’ TOOLKIT (STK) by Nigerian Legal Technologies Company, Lawpavilion 36-37

Into AFRICA: The Growth of Private Equity in Africa

30-32

Kem Ihenacho, Partner, Latham & Watkins LLP

39-40 MATTHEW WOOD , The changing rules of project financing in Africa 45-46 SUPPORTING BUSINESS 48-47 TEMPLARS HOLDS INTERACTIVE SESSION ON PIONEER STATUS 42-44 IS ‘SMALL FIRM’ STILL FASHIONABLE TODAY? – Alex Muoka, Chairman NBA, Lagos Branch 52-58 ESQ NIGERIAN LEGAL AWARDS 6 ESQ LEGAL PRACTICE

w w w.esqlaw.net

Dedicated to Providing Outstanding Service to Our Clients in Africa w w w.esqlaw.net

Â ESQ LEGAL PRACTICE

Mark

Molyneux

contributors

Mark is a Partner specialising in commercial litigation. He provides advice to a wide range of clients including corporates, financial institutions and high net worth individuals on disputes including, contractual and outsourcing disputes, contract termination, warranty claims and fraud, bribery and compliance. He has significant experience of leading large, complex and high value litigation both in the English High Court and in International Arbitration, including claims supported by urgent injunctive relief and worldwide freezing injunctions. Recent work includes arbitration disputes under ICC, LCIA, SCC and UNCITAL rules and particular experience in disputes involving cross-border issues, advising on matters involving jurisdictions in Europe, Africa and South and Central America. Mark has a particular interest in East Africa and is heavily involved in the firm’s Africa Business Group advising on a number of compliance issues in the region. He is also responsible for Addleshaw Goddard’s approach to eDisclosure. winning praise for his robust approach to disputes, commercial acumen and pragmatism” Chambers (2012)

8 ESQ LEGAL PRACTICE

Education Qualification & University – LLB Law at University of Leeds / LPC at College of Law York Law Society qualification date - 2002

Funke

Agbor

Mrs. Funke Agbor is a former President of Women’s International Shipping and Trading Association (WISTA) Nigeria. A member of the Nigerian Bar Association (NBA) and the International Bar Association (IBA,) Agbor holds an LLB from the University of Lagos, BL and LLM from the University College, London. She is the head of Shipping and International Trade Unit at Adepetun, Caxton-Martins, Agbor & Segun Law Firm ACAS-LAW Agbor acts primarily for ship owners, P&I Clubs and their agents or correspondents, insurers, charterers, receivers and government agencies. She is the General Editor, Nigerian Journal of Maritime Law and Committee Member of the Maritime Seminar for Judges. She is also a member of the Chartered Institute of Arbitration (CIA).

Matthew

Wood

LEG AL PR ACT ICE

Publisher Lere Fashola Business Director Funmi Ekibolaji Advisory Board Olurotimi Akeredolu SAN Gbenga Oyebode MFR Kayode Sofola SAN Prof Mrs Yinka Omorogbe Kofo Dosekun Soji Awogbade Dr. Bayo Adaralegbe Editorial Consultant Seun Abimbola Head of Legal Services Adekemi Edema Asst Editors Toju Falere Ben Oritsemisan Umuteme James Alabi Finance Officer Oyindamola Olaosebikan Subscription Manager Tayo Gabriel IT Hassan Maude Graphics ESQ Creative Studio Photography ESQ Studio Programme Officer Funmi Ekibolaji Advert & Subscription Enquiries 08035269055 advert@esqlaw.net subscription@esqlaw.net Website esqlaw.net esqseminars.net Published by Legal Blitz Plot 2, Ayodele Fanoiki Magodo GRA Phase 1 Isheri, Lagos Nigeria Comments, advice and other enquiries to editor@esqlaw.net

w w w.esqlaw.net

Editorial

Out of Nigeria And A Toast To A New Africa

t’s been a while that we saw each other and I am happy that you are able to pick up the latest edition of our magazine and read again. All thanks to all those hopeful and encouraging people who will never stay awake to see us go into distress. Whilst designing this edition, my mind wanders to the numerous found clients and friends I have had the pleasure of meeting over the years either through our magazine or through our trainings/seminars or conferences. Starting back in November 2007, I looked at the past years and never could have imagined the journey that was ahead. Those dreams of being the voice of the legal profession in Nigeria and that great desire to celebrate the best of Africa while preparing African lawyers for the challenges of globalization. Starting in Lagos and then other parts of Africa and Asia, I have been busy meeting many incredible lawyers and consultants all of whom have the same vision that the team has here at ESQ. Africa and its growth plans pro-

w w w.esqlaw.net

vide our focus. With an incredibly welcoming rendition of a traditional click song from the car stereo, Lucky, at the airport in Ghana, Kenya, South Africa, Abu-Dhabi, Dubai International Trade Centre, Eko Hotel and Suites I knew we still have a great role in developing African legal practitioners.& the profession Along with over 900 other likeminded individuals from across Africa and Europe, at the just concluded Nigerian Bar Association Section on Business Law Conference, my Legal Adviser, Adekemi ran back to me to express the strong expectation that awaits us in the new Africa that we desire. Well, the new president finally resumed office and has been up and about in his desire to chart a new course for Nigeria…..where then do I begin? The SBL conference is a hub for lawyers, bankers, regulators and investors with an interest in Nigeria and indeed Africa, all with one common goal, to effect change, generate jobs and funding into the continent through collaborative efforts. The numerous workshops and lectures were well attended, and that

coupled with the fact that almost everyone had a cocktail party or two made for an incredible networking platform, one that we perhaps at times struggled to keep pace with!! The networking and meeting structures have enabled us to look at our own business and have resulted in us deciding to restructure our magazine and align it with the new realities with a view to addressing our client’s growth strategies and assist with implementing their plans. Over the last few months, I have developed relationships with Partners and Lawyers at almost all of the major Law firms in Nigeria, London and of course, other parts of Africa. The conversations I have with them are always enlightening and inspiring. This appears to reflect the profession as a whole, but the people I talk with represent the true spirit of entrepreneurialism. They are all fully aware of the shifts in the African soil with many law firms jostling for a piece of the African adventure that is beginning to gather momentum. It was pleasing to see Norton Rose, Clifford Chance, Berwin Leighton and Paisner and others make remarkable presence at the SBL, either as sponsors, speakers or exhibitors etc. Their presence at such a wholly African lawyers’ event signifies the new partnerships that are emerging. SBL 2016 is quickly approaching and having earned our wings for business networking I am confident many flight plans will be more aligned to the pace of the three days in Nigeria. In this edition, our focus is on Africa and the emerging threats and opportunities. Taking a clue from a recent research by Redstone Consultants titled “Africa and International Law Firms: Friends or Foes”? Ben Umuteme takes a look at the opportunities and the risks of globalization on the business of lawyers in Africa. According to Ben, the emerging

interest in Africa offers huge opportunities to African lawyers much more than the perceived treats that many nay sayers are forecasting. Over the past year we have talked to many general counsels and other senior in-house lawyers about their role and status, about the commercial value that in-house legal teams contribute to a company, about how that value can be measured and expressed, the risks and compliance duties imposed on them and the challenges of leadership and management related to their work. This research is being compiled into a book titled “The Courageous Gatekeepers: How leading General Counsel are shaping tomorrow’s Nigerian Companies”. We therefore present you some key advice from our interviews and research. This year has progressed with many law firms accepting that we have been doing our research and had taken a great deal of time to listen and understand the local market and indeed apply our skills to assist with their growth plans. The Nigerian Legal awards held in September 2014 took us to another level with a great acceptance of our ability to listen and identify with the biggest players in the Nigerian legal profession and as a result we embarked on another marathon of meetings which was brought to a great conclusion this week to launch the nominations for the 2015 edition of the award. This edition represents the new ESQ. We have created some new interesting columns and also brought back some old ones. From Legal Icon column where we celebrate the past heroes of our profession, to the African Stars where we explore the life of the African Legal Icons, James Alabi takes you on a tour of the happenings in the legal market and various experts present interesting articles and resources on key developments around Africa. So once again, welcome to another edition of ESQ Legal Practice Magazine.

ESQ LEGAL PRACTICE

News

Yemi Osibajo SAN: Senior Law Firm Partner Emerges Nigeriaâ&#x20AC;&#x2122;s Vice President F ollowing a successful election, Senior Partner of Simmons Cooper Partners and Professor of Law, Prof Yemi Osibajo has emerged Vice President of the Federal Republic of Nigeria. Yemi Osibajo is the senior partner at SimmonsCooper Partners. He is a professor of law and a former Lagos state attorney-general and commissioner for justice. He is also a senior advocate of Nigeria (SAN). Yemi was educated at the University of Lagos, Nigeria (LLB, 1978) and the London School of Economics (LLM, 1980). He was admitted to practice before the Supreme Court of Nigeria in 1979. He has authored several books on civil procedure in Nigerian superior courts, rules of evidence and justice reform. Yemi has 31 years of litigation experience including significant trial and appellate work. Yemi supervises the commercial litigation group at SimmonsCooper Partners (SCP), a leading commercial litigation and corporate commercial firm in Nigeria. With a multijurisdictional competence spanning Nigeria, the United States and the United Kingdom, SCP fuses sound legal counsel with superior advocacy, and personal and responsive service. SCP provides a very comprehensive and integrated range of litigation, transactional, advisory and several support services to a vast array of clients. Yemi has conducted very

1 0Â E S Q L E G A L P R A C T I C E

important constitutional and precedential cases before the Nigerian Supreme Court. Some of these include fiscal disputes between the federating units and the federal government; disputes regarding the ownership and control of oil and gas resources; town and physical planning disputes between the federating units and the federal government; an international territorial jurisdictional dispute in the West African sub-regional court; shareholder disputes involving a multinational, private investors and stateowned investment corporations, and energy disputes arising from multinational participation in power projects in Nigeria. In other cases, Yemi has advised and represented clients in a broad range of commercial and corporate issues including securities litigation, investments and divestments, joint ventures, oil block acquisitions, product liability, fiduciary duties of directors, intellectual property, and corporate valuations. He is also involved in statutory and regulatory appraisal representation before the legislature and federal and state agencies. While in public office as attorney general, Yemi was credited with undertaking far-reaching significant judicial reform in Lagos state, addressing critical areas as judgesâ&#x20AC;&#x2122; recruitment, remuneration, training and discipline. In addition, he addressed access to justice for the poor by establish-

ing appropriate institutions in the Office of the Public Defender and the Citizens Mediation Centre. In honour of his contributions to legal reform and the development of law in Nigeria, a compendium of essays on Nigerian constitutional law was compiled. The authors of these essays were senior lawyers and law professors with a foreword provided by a past chief justice of Nigeria. Yemi is a member of the International Bar Association and the British Institute of International and Comparative Law and has served in the Nigerian Body

of Benchers and the Council for Legal Education of Nigeria. He was an independent director of CitiBank Nigeria and an ethics adviser to the board of the Africa Development Bank. He has also served in various capacities within the United Nations Organisation. Yemi speaks frequently at several commercial litigation events locally and internationally. He is actively involved in the pursuit of legal education reform in Nigeria. The Editorial Board of ESQ Legal Practice Magazine congratulates Professor Osibajo for this well deserved victory. w w w.esqlaw.net

w w w.esqlaw.net

ESQ LEGAL PRACTICE 11

Article

Are exchange control restrictions now in force in Nigeria?

n late 2014, following persistent and continuous record drops in the price of crude oil globally the value of the currencies of virtually all oil dependent countries began to experience significant downward pressure. Losing more than 7.5% of its value in 2014, and around 13% compared to its value in midJune 2014, the Naira was one of the worst hit of these currencies. Since pressure began to mount in October 2014, the Central Bank of Nigeria (“CBN”) has been employing a cocktail of measures, ranging from direct intervention through the sale of foreign exchange to official devaluation and the introduction

1 2 E S Q L E G A L P R A C T I C E

of various restrictions on the sale and use of foreign currencies to check the depreciation. After an initial devaluation of circa 8.4% in 2014 had failed to check the depreciation in the value of the Naira, the CBN in February 2015, closed both its retail and wholesale auction windows, effectively ceasing its routine direct intervention in the Nigerian foreign exchange market in a bid to end speculation fueled by the widening gap between the CBN and interbank exchange rates. Prior to the closure of the retail and wholesale auction windows, the CBN had revised the foreign exchange trading position required to be

maintained by banks at the close of business on each day and imposed time limits for utilization of foreign exchange procured from the CBN interbank markets. The CBN also sought to limit the categories of eligible transactions for which foreign currencies could be procured directly from the CBN. Still, neither the closure of CBN intervention windows nor the other restrictions were able to fully stem the depreciation. Rather the gap between the interbank and the parallel market foreign exchange rates, widened. The CBN then turned to domiciliary account positions

in Nigeria, requesting that commercial banks supply details of their corporate and individual domiciliary accounts. At the time, the CBN had sought to allay concerns about imposition of restrictions on the use of domiciliary accounts by stating that it would neither restrict access and application of funds held in domiciliary accounts in Nigeria, nor engage in other capital controls. Since then, however, the CBN has, by circulars issued in February and more recently in April, 2015, backtracked on its commitment not to restrict application of funds held in domiciliary accounts. First, by a circular dated February 20, 2015, the CBN sought to clarify that “unfettered access” to funds in Export Proceeds Domiciliary Accounts (the account into which export proceeds are to be repatriated) meant that such funds could only be used for either (i) financing eligible and other related trade transactions (supported with appropriate documentation); or (ii) sold to authorized dealers (banks) for eligible transw w w.esqlaw.net

Article actions only. The main impact of this was that exporters with funds in such accounts were essentially barred from selling those funds to affiliates and or third parties. As a follow-on from the February circular, and in a bid to checkmate the “dollarization” of the Nigerian economy, the CBN on April 17, 20151, issued a further circular (the “Circular”) to deposit money banks, warning the public that it is “illegal” to “price” or “denominate” the cost of any product or service (visible or invisible) in any foreign currency in Nigeria. Further, the Circular stated that “no business offer or acceptance” should be consummated in Nigeria in any currency other than Naira. Finally, the Circular specifically advised deposit money banks to desist from the collection of foreign currencies for payment of domestic transactions on behalf of their customers and the use of their customers’ domiciliary accounts for making payments for visible and invisible transactions “originating and consummated” in Nigeria. More than all of the previous measures, these last two circulars, which effectively fetter the use of and access to funds in domiciliary accounts in Nigeria have thus far been the source of serious concern for account holders and businesses and leave many unanswered questions in their wake. Legal issues raised by the Circular mainly hover around: (i) whether indeed the CBN has power to make pricing and or denominating costs of products or services in foreign currency in Nigeria illegal; and (ii) what impact (if any) the new rules will have on transactions and arrangements concluded prior to the issuance of the circular but in respect of

w w w.esqlaw.net

which payments are yet to be made. On a preliminary note, in order to address Issue (i), it is noteworthy that the Press Release which was issued prior to the Circular, simply sought to reinforce the position of the law with respect to the use of foreign currency for making payments in Nigeria. In this regard, the Press Release refers to Section 20 of the Central Bank of Nigeria (Establishment) Act, 2007 (“CBN Act”) which stipulates that the Naira is the “legal tender in Nigeria…for the payment of any amount” and reiterates that failure to comply with the relevant provisions of the CBN Act is an offence punishable by conviction of 6 (six) months, or a fine. Where the language in the Press Release is relied on without more, then it could be interpreted that Nigerians living in Nigeria are prohibited from paying for goods and services in Nigeria with foreign currency even where same are sourced from their domiciliary accounts. In fact, from the relevant provisions of the law highlighted above, it is clear that the intention of the law is that no person be allowed to refuse or reject the Naira in Nigeria. Further, the offence actually Prior to April 17, 2015 (circa 1st week in April), the CBN issued an official press release titled “The Use of Foreign Currency as a Medium of Exchange in Nigeria” (the “Press Release”) to clarify the position of the law as it relates to the use of foreign currency in Nigeria. The Circular of April 17, 2015 built on the statements contained in said Press Release and further expanded on same. 3 prescribed under Section 20(5) of the CBN Act, highlighted above (i.e. refusing to accept a Naira payment) presupposes that an offer to pay in Naira

must have been made to the relevant person and such offer has been refused. For the avoidance of doubt, the Press Release did not state that foreign currency transactions between willing parties are prohibited, (although this lacunae was subsequently cleared up by the Circular), but rather, reiterates the position of the CBN Act that a person cannot demand payments in foreign currency, rather than the local currency, (the Naira). Now on the strength of the Press Release alone, it may have been argued that, whilst the CBN is empowered by Section 20(5) of the CBN Act to prescribe the circumstances under which foreign currency may be used as a means of exchange in Nigeria, the Press Release did not impose any restriction on the use of foreign currency other than as prescribed in the CBN Act, to wit, in circumstances where the person making the payment insists on paying in Naira. Indeed, relying specifically, on Memorandum 16 of the Central Bank of Nigeria Foreign Exchange Manual, 2007 (“Forex Manual”), issued pursuant to the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, Cap F34 Laws

of the Federation of Nigeria (“LFN”), 2004 (“FEMMA”), which provides that “payment in foreign exchange for products and services provided by a Nigerian company to another Nigerian company is optional, it may be argued that in all cases where the payer opts to make the payment in foreign currency, and such funds are from his ordinary domiciliary account or offshore sources only, then he can freely enter into contracts to so pay in foreign currency. However, the foregoing can no longer be the case as the Circular expressly makes it “illegal” to “price” or “denominate” the cost of any product or service (visible or invisible) in any foreign currency in Nigeria. More importantly, the Circular states unequivocally that the statements therein supersede the provisions of Memorandum 16 of the Forex Manual and Paragraph (XI) Section 4.2.1 of the Monetary, Credit, Foreign Trade and Exchange Policy Guidelines for Fiscal Years 2014/2015. In addressing particularly the statements in the Circular, it is important to note that the main statute that regulates foreign exchange transactions in Nigeria remains the FEMMA. The FEMMA contains general

ESQ LEGAL PRACTICE 13

Article

provisions as regards dealings in foreign exchange but provides that transactions in the foreign exchange market shall be as prescribed by the CBN. The FEMMA also specifically provides that the CBN shall supervise and monitor the operation of the foreign exchange market to ensure its efficient performance. Based on these provisions it is arguable that the CBN does have extensive powers in relation to the regulation of foreign exchange transactions in Nigeria. As regards domiciliary accounts, the FEMMA specifically provides in section 17(3) that “Except as provided under any other enactment or law, a person making an application to open a domiciliary account under this Act [FEMMA] shall not be obliged to disclose the source of the foreign currency sought to be deposited in the account.” This provision may be construed in at least two diverging ways. On the one hand, it can be restrictively interpreted as implying that the freedom from obligations to disclose sources is only applicable in respect of funding for the establishment of the domiciliary account whilst the holder of the account may be obliged to disclose subsequent funding sources. Alternatively, it can be interpreted 4 broadly as applying to all funds to be deposited in a domiciliary account whether or not In relation to the establishment of the account. It would appear that CBN has adopted the more restrictive interpretation of the section as the new restrictions in relation to the use of funds in domiciliary accounts effectively require banks to request information

1 4 E S Q L E G A L P R A C T I C E

in relation to the sources of such funds. Given the difficulties likely to result from the implementation of the circular, it is not infeasible that the CBN’s interpretation of the FEMMA and the circular issued pursuant thereto may subsequently be challenged by aggrieved account holders. Even assuming that the CBN does indeed have the requisite authority to impose such restrictions on the operation of domiciliary accounts in Nigeria, the Circular does not provide any guidance as to the commencement of the new restrictions and whether or not there are any grandfathering arrangements in relation thereto. In the absence of specific provisions in this regard, it would appear that the CBN’s expectation is that the circular take immediate effect. The absence of any specific grandfathering provisions implies that contracts and arrangements which were concluded prior to the issuance of the circular but in respect of which payments are only to be made subsequently, could potentially be facing a “change of law” or “force majeure” event which triggers an automatic variation of payment terms. The effect of this in individual cases will vary with the actual contractual terms and the specific circumstances. It is thus difficult to draw any broad conclusions in this regard. In some cases, parties may be able to revise payment terms and arrangements such that payments can be made between offshore accounts of the relevant parties, as this does not appear to be restricted by the Circular. However, in many other cases, the applicable currency for pay-

ment will need to be changed in order to ensure compliance with the Circular. Premised on the foregoing, parties may thus need to expressly agree the applicable exchange rate and or benchmark for determination of the exchange rate for payments. In this regard, it is pertinent to note that the Circular appears to focus on the currency for pricing and payment but does not preclude parties from indexing such prices or payments to a particular foreign currency. CONCLUSION In summary, whilst parties remain free to enter into contracts any obligation to pay in foreign exchange, is now unenforceable. Furthermore, it is pertinent to note that while the provisions of the recent Circular go some way to alter the manner of operation of domiciliary accounts in Nigeria, there does remain some window for parties to hedge against foreign exchange risks (albeit to a somewhat more limited extent) in structuring, agreeing and implementing pricing and payment terms for Nigerian contracts. Parties to Nigerian contracts thus need to carefully examine their particular circumstances to identify remaining available options, which are not prohibited by the new rules. Notwithstanding the foregoing, we envisage that there is likely to be significant push back from account holders in relation to the new rules. Further, as the CBN continues to explore options to defend the Naira and check speculation, it is not unlikely that there may be further revisions to the rules and restric-

tions regarding the operation of domiciliary accounts. We would thus strongly recommend that parties thread with caution in making any adjustments to payment terms and contracts. BANWO & IGHODALO Banwo & Ighodalo (“B&I”) is a full service commercial law firm known for providing innovative, competent, cost-effective and welltimed solutions. B&I is frequently ranked as one of the leading law practices in Nigeria and the Firm has advised, and continues to provide legal advisory support in its chosen areas of practice.

w w w.esqlaw.net

LawPavilion is Africa’s leading partner to investors, as far as information on legal framework in the continent is concerned. Over the last ten years, we have worked round the clock to develop information tools that radically empower investors, solicitors and business people in Africa. Our Solicitors’ Toolkit, dubbed as “the Central Bank of Commercial Law and Practice”, is the foremost hub for Legislations, Directives, Policies, Guidelines, Decided Cases, Forms and Agreements usually required by Solicitors and In-House Counsel with interests in Africa.”

LAWPavilion

Solicitors’ Toolkit Powering investments into Africa

For more information, visit www.lawpavilion.com/stk LAWPavilion

Law reports

w w w.esqlaw.net

LAWPavilion

Case manager

LAWPavilion

Court manager

LAWPavilion Solicitors’ Toolkit

ESQ LEGAL PRACTICE 15

News

US law firm Shearman & Sterling plans first African office opening

S law firm Shearman & Sterling is preparing to open an office in Egypt, marking the firm’s first foray into Africa with plans for an international arbitration and projects practice. Shearman, which has a fivepartner office in Abu Dhabi handling project finance and arbitration work, and a satellite operation in Dubai, is hoping to extend its on-the-ground presence in Egypt as investors return to the country after the revolution in 2011. Preparations are at a late stage, with the firm currently finalising plans for an associated office, with foreign firms banned from practising without a tie-up with a local entity. Local authorities are still to approve the plans, with strict guidelines in place that regulate the percentage of local lawyers making up an office in the country. Influential founder of the firm’s international arbitration practice and Paris chief, Emmanuel Gaillard, is spearheading the plans and is set to manage the launch. A partnership vote will not be

required, with the plans only needing approval from the firm’s executive and policy committees. Yas Banifatemi, who alongside Gaillard secured the recordbreaking $50bn Yukos arbitration award against Russia last year, is a member of the policy committee and has worked on cases for the Egyptian state and governmentowned companies. Shearman has nine other partners with a substantial practice in Africa. Gaillard and Banifatemi are currently handling four arbitrations against state-owned oil and gas companies, Egyptian Natural

Gas Holding Company and Egyptian General Petroleum Corporation, as well as the Egyptian government, in claims worth over $8bn following the cancellation of a deal to export gas to Israel. Legal Business understands that, should the authorities give approval, Paris-based arbitration counsel on those arbitrations, Mohamed Shelbaya, will relocate to the new office, which will initially focus on the oil and gas sector. The office will also help service Shearman’s Algerian client base, including state-owned oil company Sonatrach, which Gail-

lard and Banifatemi successfully defended in 2012 from a $3.6bn claim from Spanish energy majors Repsol and Gas Natural. There has been a sharp rise in the number of investor-state claims in North Africa following the Arab Spring and power supply issues that have led governments to scrap export deals, following pressure to supply the local market first. Egypt has signed 100 bilateral investment treaties, among the most of any state, protecting investors from expropriation and government action that may impact on profit.

Norton Rose Fulbright Advises GT247.COM On First Fractional Share Rights Platform In South Africa

lobal legal practice, Norton Rose Fulbright, has advised South African online trading company GT247.COM on Africa’s first ever EasyEquities product which allows investors to hold Fractional Share Rights over JSE listed shares. Previously only high net worth sophisticated investors had access to the blue chip top 40 stocks, leaving the rest of the market to trade lower priced stocks. The Easy Equities platform now permits users to choose fractional exposure to any JSE share for amounts as small as ZAR10 per transaction. A team of six Norton Rose Fulbright lawyers in South Africa advised on the appropriate regulatory treatment of the product, custodial and nominee structures, collateral holding structures and issues around clearing and settlement. The team prepared the full suite

1 6 E S Q L E G A L P R A C T I C E

of customer friendly agreements for the EasyEquities online trading platform. Bridget King, director in the Johannesburg office of Norton Rose Fulbright, commented: “The EasyEquities product is a unique product because it provides an opportunity for all South Africans to invest in JSE listed shares. The truly innovative feature of this product is the way it combines share ownership in respect of whole shares with Fractional Share Rights purchased by investors who do not have enough funds to buy a whole share. It has been a rewarding challenge for the Norton Rose Fulbright team to be involved, especially in negotiating the regulatory hurdles associated with bringing the new product to market.” Charles Savage, CEO of EasyEquities’ holding company

Purple Group stated: “Our objective is to make investing available to all South Africans, no matter how much or how little they have to put away. Fractional Share Rights help us to do that, and together with our unique fee structuring model, EasyEquities is the most affordable investment platform in South Africa. We are proud of our achievement in launching EasyEquities which has captured the attention of the public. It has been a true team effort between us

and all of our advisers in bringing this product to market” EasyEquities won the Accenture Innovation Index 2014. The Index measures, recognises and rewards innovation businesses across South Africa, and attracts brands from a wide variety of sectors. EasyEquities took top honours for the Most Innovative Concept, recognising their innovative approach to investment, which makes buying shares on the JSE affordable, easy and flexible. w w w.esqlaw.net

News

Actis launches USD1.9bn pan-African renewable energy platform

ctis has launched a pan-African renewable energy generation platform, Lekela Power in partnership with wind and solar developer Mainstream Renewable Power which will own 40% of the platform. Lekela Power is the eighth such energy platform Actis has created, following a proven replicable strategy of aggregating energy assets into scalable regional platforms. This focused approach was most recently demonstrated in the development of Ostro Energy, a renewable energy platform which Actis launched in India last week. Actis’s other energy platforms include Globeleq Mesoamerica in Central America, Aela Energía in Chile, Atlantic Energias Renováveis in Brazil and Mexico’s Zuma Energía. This latest platform is another example of Actis replicating a proven strategy in a high-growth sector and meeting the increasing demand for domestic infrastructure in emerging markets. Torbjorn Caesar, co-head of Energy at Actis, says: “Lekela completes our Fund 3 platform strategy. Controlled platforms allow investors to choose optimal projects and financing

structures, and reduce development risk. This model also allows shareholders to capture value as the platform achieves scale, resulting in higher exit valuations.” Lekela Power will provide between 700 and 900MW of wind and solar power and will be funded over three years through a combination of equity and debt. Three wind projects in South Africa, which were announced on Thursday 12 February, will form the bedrock for the platform. These are located in the Northern Cape and have a combined generation capacity of 360 MW. Lekela also has a pan-African pipeline of projects, including the 225MW Ayitepa wind project in Ghana, wind and solar projects in South Africa and 100MW of wind and solar power in Egypt, where the company has recently been awarded projects in the country’s new feed-in tariff programme. Commenting on Lekela, Lucy Heintz, Partner, Head of Renewable Energy at Actis, says: “With soaring demand and funding constraints, Africa’s need for renewable energy is pressing. In South Africa for example, currently 95% of the

country’s electricity is generated by coal-fired power stations. While the region has significant natural and fossil fuel resources a lack of long-term investment has led to a reliance on emergency and short-term diesel generation. An improvement in the regulatory regime in many African countries has opened up the sector for further investment. Drawing on our deep understanding of the renewable energy sector, we are looking forward to unlocking the country’s formidable renewable resources and meeting some of the urgent demand.” Barry Lynch, Mainstream’s Managing Director, Onshore Procurement, Construction and Operations adds: “We are

delighted to be working on our third collaboration with Actis which once again draws on Mainstream’s world-class portfolio of wind and solar projects and our track record delivering them into commercial operation on time and on budget. Mainstream has advanced new projects in Ghana as well as pursuing exciting opportunities for Lekela in other parts of Africa.” Since 2002, Actis has deployed in excess of USD1.9 billion in 27 energy transactions, totalling ~14GW across 21 countries and providing energy access to over 30 million people. This latest platform follows two previous successful partnerships with Mainstream in South Africa and Chile.

Dentons expands its Africa presence with Johannesburg office opening

entons is set to open a new office in Johannesburg to expand its presence in Africa, weeks after merging with Chinese firm Dacheng. The new office will join Dentons’ current Cape Town offering in South Africa, which opened in April 2014 through a combination with local firm KapdiTwala and is led by managing partner Noor Kapdi (9 April 2014). Kapdi will be leading the team in the Johannesburg office supported by two fee-earners, the firm confirmed, while maintaining his responsibilities in Cape Town. Dentons’ plan is to grow its numbers in the new office to 25 feeearners over the next three years. Dentons global chairman Joe

w w w.esqlaw.net

Andrew said: “Following the news of our combination with Dacheng, our expansion in South Africa further underscores our commitment to bringing clients comprehensive solutions that are simply not available elsewhere.” The firm’s UKMEA profits rose by 33 per cent in the first results after its tripartite merger between SNR Denton, Salans and Fraser Milner Casgrain (8 November 2012). Profit grew from £27.7m to £37m in 2013/14 (5 February 2015). This news comes after Dentons created the world’s largest firm through a merger last month with Dacheng (22 January 2015), which Dentons’ global chair Joe Andrew decribed as a “once-in-a-lifetime opportunity”. ESQ LEGAL PRACTICE 17

News

Norton Rose Fulbright is appointed international legal counsel on MoZiSA, a milestone regional interconnector project

lobal legal practice, Norton Rose Fulbright, is advising the Southern African Power Pool (SAPP) on the development of the regional interconnector transmission line between Mozambique, Zimbabwe and South Africa (MoZiSA) that will result in improved trade within the Southern African region. That involvement begins with the initial feasibility phase and continues right through to financial close. The project will develop, construct and operate a 400kV transmission system over 935km through the proposed MoZiSA link made up of beneficiary countries: Mozambique, Zimbabwe, and South Africa. MoZiSA is sponsored by the member countries’ national power utilities, Electricidade de Mocambique, Zimbabwe Electricity Supply Authority and Eskom and will take about two years to complete. Steven Gamble, senior lawyer in our Africa Group in Harare, comments: “The unprecedented growth in the utilisation of electricity in Southern Africa in the last 10 years is largely a result of the boom in prices of natural resources. Until recently the region enjoyed a long period of excess generation capacity and sufficient transmission facilities to carry power from the generation facilities to the custom-

ers.” “But, since 2007 the region has run out of excess generation capacity and many regional transmission lines are congested. There is a will among the various SAPP member utilities to cooperate in developing new generation and transmission facilities to increase the efficient utilisation of sustainable and other sources of energy that exist throughout Southern Africa, and to bring development to the people of the region.” Richard Metcalf, partner in London comments: “I’m delighted that we are able to be involved in this historic mandate. It will undoubtedly be a game-changer in terms of connecting power generators and consumers across the region with a resulting stimulus of economic activity for all participating countries.” The cross border Norton Rose Fulbright team is being led from Zimbabwe, Johannesburg and London. Steven Gamble is working with partner Jackie Midlane and associates Zaida Kathrada and Malibuye Cossie in Johannesburg. The London team is led by partner Richard Metcalf. Norton Rose Fulbright is part of an advisory group on this project comprising KPMG, GIBB and TAP. For further information please contact:

Africa Candice Collins, Business Communications Manager Tel: +27 (0)11 685 8630; Mob +27 (0)79 892 9369 candice.collins@nortonrosefulbright. com London Meeta Vadher, PR Manager Tel: +44 (0)20 7444 3097; Mob: +44 (0)7595 886 276 meeta.vadher@nortonrosefulbright. com Notes for editors Norton Rose Fulbright is a global legal practice. We provide the world’s pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia. Recognized for our industry focus, we are strong across all the

key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare. Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact. Norton Rose Fulbright US LLP, Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP and Norton Rose Fulbright South Africa Inc are separate legal entities and all of them are members of Norton Rose Fulbright Verein, a Swiss verein. Norton Rose Fulbright Verein helps coordinate the activities of the members but does not itself provide legal services to clients.

Mootis.com - New Social Network For Lawyers Following its successful launch in the UK in January 2015, Mootis, the social networking and microblogging platform for lawyers and anyone interested in law, is launching in South Africa. Natural progression The site was launched in the UK by barrister and Queen’s Counsel, Bill Braithwaite QC and over the last three months, thousands of lawyers and firms have signed up and are now mooting. Rather than being restricted to 140 characters, Moots can be up to 500 words. Videos can be uploaded and polls can also be conducted. In South Africa, users will be able to sign in as individuals while

1 8 E S Q L E G A L P R A C T I C E

advanced company profiles are also available. All aspects of the site are free of charge and users can register or connect with LinkedIn, Twitter or Facebook. A dedicated App will be launched next month. Commenting on the launch, Bill Braithwaite QC said, “Since launching in the UK, we have received a great deal of interest from lawyers in South Africa so it is a natural progression to launch a dedicated platform. “One of the advantages of Mootis is that users can follow firms and individuals by location as well as their specialist area of law, so it can be tailored to specific countries or used as a global resource.” In terms of the legal profession, he

says the site will appeal to two audiences - those already registered with sites such as Twitter and LinkedIn and those who are yet to engage with the world of social media. Key features In developing the site, the Mootis team analysed social media sites throughout the world. As a result, it has a range of features regular users of social media will be familiar with as well as some unique aspects. • Moots can exceed 140 characters (up to 500 words) - enabling users to express their opinion with more authority, weight and substance. • Upload and share video blogs, documents, images and audio.

• Register as a new user on the Mootis sign up page or log in through Twitter, LinkedIn or Facebook. • Register as an individual or organisation. Organisations can invite all their people to join their Mootis page. • Keep on top of all the very latest trending legal topics. • Search and connect with people by name or import existing contacts from other social media networks / invite contacts via email. • Send and read other users updates - either publicly, or privately. • Integrate with other main social media sites. • Daily updates from Mootis direct to user’s email account. • Create polls and surveys. w w w.esqlaw.net

News

ENSafrica expands its African footprint in Tanzania

s part of our continuing efforts to better our service offering to our clients, we are delighted to announce that ENSafrica has, on 1 May 2015, joined forces with attorneys from one of Tanzania’s most prestigious law firms, Rex Attorneys, to form ENSafrica | Tanzania. We recognise that Tanzania is an important jurisdiction for those doing business across Africa due to, among others, its stable business environment, its abundance of natural resources and the forecasted growth of its annual GDP over the next five years. ENSafrica | Tanzania will be based in Upanga in the country’s commercial capital, Dar es Salaam, and will provide a full-service offering, covering a wide range of business areas, including mining; oil, gas and energy; banking and financial services; competition; employment; IP; telecommunications; insolvency; legislative and regulatory regime review; as well as commercial litigation and arbitration. Rex Attorneys was estab-

Ambassador Mwanaidi Sinare Maajar (left) and Dr Alex Thomas Nguluma (right) lished on 1 February 2006, following the merger of two of the leading corporate law firms in Tanzania – Maajar, Rwechungura, Nguluma & Makani Advocates and Epitome Advocates. It is regarded as a premier firm and maintains a position of pre-eminence in Tanzania. Ambassador Mwanaidi Sinare Maajar, a seasoned corporate and mining law prac-

titioner who was previously Tanzania’s High Commissioner to the United Kingdom and Tanzania’s ambassador to the United States, will be Chair of ENSafrica | Tanzania, and Dr Alex Thomas Nguluma, a renowned senior corporate and tax law practitioner, will be Managing Partner. ENSafrica now has offices in Burundi, Mauritius, Namibia,

Rwanda, South Africa, Tanzania and Uganda, which operate as one firm across Africa, affording our clients a world-class service, fast turnaround times and an extremely cost-effective offering, wherever they choose to do business. If you have any questions about the above, please do not hesitate to contact us.

CBN clarifies Currency Substitution and Dollarisation of the Nigerian Economy

Chike Obianwu

Partner T: +234 1 271 9766 E: chike.obianwu@templars-law.com

w w w.esqlaw.net

he Central Bank of Nigeria (CBN) has made further clarifications on some of the provisions of its 17 April, 2015 circular on Currency Substitution and Dollarisation of the Nigerian Economy. In a new circular dated May 21, 2015 issued by the Director for Banking Supervision on the same subject of Currency Substitution and Dollarisation of the Nigerian Economy, the CBN reiterated that the pricing of goods and services in Nigeria shall continue to be in Naira only, and that it is a criminal offence to refuse the Naira as a legal tender for payment in the exchange of goods and services in Nigeria. The CBN however provided

a list of revenue-generating government agencies as well as businesses permitted to conduct business payments/receipts in foreign currency. According to the new circular, these agencies and operators include: the Federal Inland Revenue Service, the Nigerian Ports Authority, Nigeria Maritime Administration and Safety Agency, the Federal Airport Authority of Nigeria, the Nigeria Airspace Management Agency, the Nigeria Shippers Council, Operators in Oil and Gas – including Oil service companies, Operators in Maritime and Aviation Industries, Licensed operators in Export Processing and Free Trade Zones. In addition, the CBN circular

stated that holders of domiciliary accounts are allowed to make payments to and from their accounts according to existing regulations, but emphasized that CBN foreign exchange intervention funds and funds obtained from the interbank foreign exchange market are not permissible for deposit into domiciliary accounts. The new circular which was intended to supersede the controversial circular of 17 April was most likely issued in response to various reactions and representations that followed in the aftermath of the release of the 17 April circular. Templars will continue to monitor this subject and update you on any further developments. ESQ LEGAL PRACTICE 19

News

Managing Partner, Oghogho Akpata speaks on the regulatory and industry responses in Nigeria to the global plunge in oil prices

UNE 2015, London – Oghogho Akpata, Managing Partner at Templars, on 4 June 2015 delivered an incisive paper on the regulatory and industry responses in Nigeria to the sharp decline in oil prices globally. The occasion which was the 5th edition of the Oil and Gas Law conference organised by the Institute for Energy Law (IEL) and International Bar Association’s Section on Energy, Environment, Natural Resources and Infrastructure Law (SEERIL), took place at the Waldorf Hilton Hotel, London, England. Oghogho who represented the African region on a panel made up of other renowned experts from Europe and Asia spoke on diverse topical issues including the depletion of Nigeria’s revenue and foreign reserves, the attempt by the Nigerian Government to claw back certain pioneer status incentives initially granted to com-

2 0 E S Q L E G A L P R A C T I C E

panies in Nigeria, recent efforts by the Central Bank of Nigeria to stabilise the Naira and Nigeria’s foreign reserves through its “dedollarization” and utilisation of export proceeds directives, the impact of the oil price plunge on mergers and acquisitions and fund raising in the Nigerian oil and gas industry. The IEL/SEERIL Oil and Gas Law Conference is a biennial event, which attracts legal professionals from Africa, Europe and the United States, and provides a forum for discussion of current issues in oil and gas law around the world. Other topics this year include: Mastering parallel litigation, arbitration, regulatory and criminal proceedings, Frontier shale opportunities, Alternative forms of finance for oil & gas companies and Mature basin legal challenges.

w w w.esqlaw.net

News

UCT launches new course to bridge gap between law and business skills

awyers and legal advisors working in Africa should be good managers and great leaders, with a comprehensive understanding of the business world’s complexities and shifting paradigms of emerging market economies. There is an urgent need for those in legal practice to add the skills of leadership to their understanding of the law. Fortune magazine has noted that law firms have an unusually high turnover of associates - around 20 percent each year compared to three percent at Fortune’s 100 Best Companies to Work For. Associates leave their jobs because “work quality standards are not being met”. In emerging markets that alter and shift even quicker than the constantly changing global

economy, legal practitioners, if they want to lead, should be formally trained to manage others. Irena Wasserfall of UCT’s Faculty of Law says: “At law school, students are not prepared or equipped in any way to take up a management role and yet they are often placed in management positions when they join a large law firm or enter the corporate arena. This involves managing people, managing change, strategic planning and unit financial management; areas they have not been exposed to at law school.” The need for legal practitioners to learn effective business skills has prompted the Faculty of Law’s Professional Development Project at UCT - managed by Wasserfall - to collaborate with the UCT Graduate School of Business (UCT GSB) to design a course - the first

card is coming at no cost to lawyers and would be used for future payments of Bar practicing fees and all NBA conference fees.

of its kind in Africa - to help legal practitioners on the continent become successful leaders in emerging markets. Wasserfall says: “Only Harvard and Georgetown universities have recognised the gap in this type of skills development for people in the legal field, but the Dollar/ Rand exchange rate has put these overseas courses out of reach of the average associate in a law firm or junior legal advisor in a company. Large firms and corporates tend to fund the attendance of these courses at prestigious US universities for their senior partners and directors, but are not willing to incur the expense for more junior employees. Clearly, there is an urgent need to provide this training on our continent.” The new UCT course offers the additional benefit of providing insights that are key to emerging markets. The UCT GSB has for the past decade been developing insights into this market place and training managers and leaders to be effective in these contexts. According to Bruce MacDonald, director of the Programme for Management Development at the GSB, the continent is in “desperate” need of managers who are capable of dealing with the particular

opportunities and challenges that set Africa apart from the rest of the world. “But education on the continent has to be tailored to the requirements of emerging market economies with different needs and demands - and stressors,” MacDonald says. Professional assistants, associates and partners in law firms, as well as corporate or legal advisors to government will need to learn critical new skills if they are to manage and lead effectively in African legal practice. “Legal practice today is a client service industry and in order to compete, you have to adapt. The legal profession is not immune to the changes happening in all other sectors. Companies, especially in emerging market economies, deal with uncertainty, unstable markets and changing conditions, and legal practitioners need to have the tools that will help them to not only handle, but thrive, in these conditions,” Wasserfall says. For more information about the Developing Leaders in African Legal Practice course, please contact the Executive Education department through the GSB call centre on 0860 UCT GSB or email execed@gsb.uct. ac.za . The course will run from 27 July to 8 August 2015.

NBA Introduces Unified Multipurpose Identification (Umid) Card he Nigerian Bar Association (NBA) is set to commence the issuance of a Unified Multipurpose Identification (UMID) Card to the members of the NBA. This was made known in a statement issued by the NBA General Secretary Mazi Afam Osigwe dated 2nd June 2015. Features Known as the NBA Bar Card, the UMID card will serve as an identity card containing personal details of the bearer like name, passport photograph and enrolment number, as well as be a smart card for e-banking transactions on ATMs, POS and other online platforms. The good news is that unlike the lawyers’ stamps/seals, the w w w.esqlaw.net

Eligibility To be eligible a lawyer must have: 1. Paid his/her Bar practicing fees for the year; and 2. Been verified with his/her data enrolled in the NBA database. How to Apply Eligible lawyers can apply by visiting http://sidios.com/nbaformsubmission.aspx For more information please call 08034755035 or mail john.demide@ nigerianbar.org.ng or visit www. nigerianbar.org.ng ESQ LEGAL PRACTICE 21

Article

Hoggers and Huggers – Why Independence Doesn’t Mean ‘Treat All Firms The Same’

Friends or foes n February, Redstone released the findings of their research into the often challenging relationships between independent African law firms and their global counterparts. We entitled the report “African and International law firms – friends or foes”, recognising the tension in managing relationships between these players: the research shows that African firms now see international law firms as their greatest competitors – more so than local firms or African law firm networks. At the same time, most African firms are highly reliant on referrals from these same firms – typically somewhere between a quarter and three quarters of the local firm’s revenues depend on this pipeline of work. Global firms’ interest in Africa is escalating fast. Many of them are looking to find ways of establishing a presence in Sub-Saharan Africa – or strengthening the presence they already have. Understandably, that is causing some disquiet amongst the African firms. Many, but not all, want to remain independent. But the strategic thinkers are looking at South Africa and the rest of the world - the pattern of develop-

2 2 E S Q L E G A L P R A C T I C E

ing markets is greater alignment between global and local firms which will come to the rest of Africa sooner or later.

Hoggers and Huggers For the time being though, the market is very fluid. Perhaps too much so. When we explored the experience of African firms’ working with the global players, we found some marked differences. Some global firms strongly adhere to the notion that international clients want only to instruct global firms. They are doubtful that African firms will have much success in attracting work directly from such clients. They see the client relationship as “theirs” and would be very averse to exposing the client directly to African lawyers. Such global firms see it as their role to select the African firm as a subcontractor only. Unsurprisingly, the African counterparts suspect these firms of hogging not just the relationship, but the fees as well. We are going to refer to these firms as the “Hoggers”. At the other end of the scale, we have global firms that we shall refer to as the “Huggers”. Huggers believe that building relationships with African firms is a long term

game that requires a long term plan. They have spotted what the Redstone research shows: growing numbers of international clients are instructing African firms direct. At the moment, the proportion of work this accounts for is small – but it seems certain to grow. Huggers nevertheless know that there will remain distinct roles for global firms and African ones, where each adds value to the international client. Rather than wait until the clients figure this out, Huggers are taking the initiative, bringing African firms into the client relationship and, in some cases, sitting down with the client to negotiate who does what and for what fee. When we ask African firms about Hoggers, they describe them like this: Poor and/or slow communications: “Reluctance to share information” “Lack of transparency” Unfairness: “The feeling that fees should not be comparable because we are in Africa!” Poor sharing of work and profits Attitude: “They treat you like you are an idiot” Disrespect: “Unjustified sense of superiority and bossiness” Patronising approach: “Dictat-

ing opinions and strategy” Aggressive and unrealistic: “No consultation on deadlines” Instructions received from trainees who remain the sole point of contact: “Main jobs with juniors who are clueless” Repetitive requests for quotes as opposed to seeking to develop a relationship. And when they describe Huggers, they describe them like this: “Good distribution of the work.” “Fairness with fees.” “Partnering attitude.” “Clarity of instructions.” “Respect for each other’s qualifications, particularly our expertise and experience within our jurisdiction.” “Take time to give feedback.” The need for focus One might suppose from this, that African firms have become highly selective about which global firms to build a long term relationship with. But Redstone’s research suggests the opposite. With the aim of remaining “independent”, most African firms mistakenly believe they need to treat all global firms equally. This has two real downsides: First, it spreads the African w w w.esqlaw.net

firm too thinly when it comes to relationship management. It means all the relationships are too shallow and not sufficiently well co-ordinated. Secondly, it suggests disloyalty to global firms. Some global firms are dismayed that they have, in their view, invested in a relationship that they expected to be a “best friend”, only to discover the African firm is happy to be “best friends” with every other firm. Redstone would strongly advocate a different approach: That African firms think hard about which global firms they want to have that close relationship with – and to focus on a smaller number of these. There is a fear that this will somehow turn off the tap of referrals from the others. Lessons from other markets suggest this is unfounded. The Hoggers won’t be inclined to send more work to firms just because those firms pay them regular visits or see them at conferences. Huggers on the other hand are looking for more cooperative working arrangements and ways of deepening trust and understanding. With that deepening relationship will come

a greater share of the pie for those African firms willing to commit. The Huggers are organising themselves to manage relationships in the way that has become the norm in these firms for key clients and for local partner firms. African firms should start to do likewise. That means: Selecting a small number of global firms to be the focus of management attention. Getting to understand those firms’ strategic aims – what are their goals for markets, key clients etc? Finding out who the key people are and ensuring that your team knows theirs. Don’t just rely on the random process of some of your people knowing theirs. Start to monitor and discuss referrals – both ways. Look not just at the number of referrals, but the size and profitability of those projects. Make clear what your targets and expectations are. Monitor your performance standards with these firms. Give them the “gold standard” in terms of responsiveness and attention – and make sure all your

people are on side with this. Do regular reviews with the global firm – what do they think of the service and commitment you are providing and what pay-back will they offer? Look at ways that you can develop business together. Introduce the firm to clients and contacts they don’t know and make sure the global firm does the same with their international clients. Look at ways of doing joint marketing. Think about mutual investment strategically. And be clear about the expected pay-back. None of this just happens! It requires leadership and attention to detail. How will all this evolve? No one has the African market crystal ball. But careful consideration of how other legal markets have developed offers good insights into how Sub-Saharan Africa will evolve. It seems certain that there will be a growing number of international firms with a significant presence, not just in South Africa, but in fast growing parts of the continent too. Models will vary, but there is little doubt that we are in a time of

Article

courtship. African firms may end up being the bride – but for now we are at the dance. Prospective brides will do well to watch out for the handsome suitor who dances well – but whose intentions are not very honourable. Hoggers and Huggers may be easier to describe than they are to spot on the dance floor.

Redstone Consultants Redstone focuses on professional and financial services. Throughout the world, we advise and support firms in relation to strategy, management and business development. We work in the legal, accountancy, property and financial sectors. As well as working with global firms, Redstone also works with national and regional firms and founder-led firms in developing parts of the world. Our consultants have advised clients in over 30 countries. Article by Stephen Blundell – Redstone Consultants stephen.blundell@redstoneconsultants.com www.redstoneconsultants.com Redstone Consultants 145-157 St John Street London EC1V 4PW +44 (0)20 7193 3683

Law Report “ChickenGate” duo sentenced for bribing public officials in Kenya and Mauritania

wo former executives of Sussex printing company Smith & Ouzman Ltd have been convicted of bribing foreign officials in the first case of its kind in the UK. In order to obtain contracts worth over £2m for producing electoral ballot papers, the company paid £395,074 in bribes to public officials in Kenya and Mauritania. The case was dubbed “ChickenGate” because of the use of the word ‘chicken’ to mean ‘bribes’ in email exchanges. In February, a Judge at Southwark Crown Court gave marketing director Nicholas Smith a three year sentence, while his father and chairman Christopher Smith was handed an 18 month suspended sentence. The payments took place before the Bribery Act 2010 came into force and therefore the pair were convicted of the old offence of corruptly agreeing to make payw w w.esqlaw.net

ments contrary to section 1(1)of the Prevention of Corruption Act 1906. Smith & Ouzman targeted Kenya following the 2007 post election political and humanitarian crisis which cost hundreds of lives. Judge Higgins described the crimes as ‘cynical, deplorable and deeply anti-social’. He also emphasised the destructive effect of corruption in third world countries where ‘integrity and confidence in electoral systems are undermined’ with potentially ‘catastrophic’ consequences. The company was convicted of the same offence and will be sentenced later in the year. Confiscation proceedings will also take place meaning that Smith & Ouzman may lose the financial benefit they gained from the corrupt payments in terms of the value of the contract, in addition to payment of an unlimited fine.

Director of the SFO, David Green CB QC commented: “This case marks the first convictions secured against a corporate for foreign bribery, following a contested trial. The convictions recognise the corrosive impact of such conduct on growth and the integrity of business contracts in the developing world.” The sentences make clear that the SFO are willing to take robust action against business of all sizes. SMEs should be just as prepared as larger corporates and household names to face thorough investigation when suspected of bribery offences. What can you do? • Conduct regular assessments of your organisation’s exposure to bribery risks. Risk assessments should be periodic, informed and documented. • Show top level commitment

•

to preventing bribery from management down. Maintain and implement effective anti bribery and corruption policies and procedures which are proportionate to the size and type of business. Undertake regular staff training to ensure understanding of bribery prevention. Conduct due diligence in respect of third parties who act on behalf of your organisation.

For further information please contact: Mark Molyneux, Partner mark.molyneux@addleshawgoddard.com

ESQ LEGAL PRACTICE 23

Article

Helping to Light Up the Continent

he African Legal Support Facility (“ALSF”), hosted by the African Development Bank, discusses how, since 2010 it has been providing legal support for African governments in the negotiation of complex commercial transactions. The Facility was established to address the asymmetric negotiating capacity of African governments when dealing with international investors. The Facility provides technical legal assistance to African countries to strengthen their legal expertise and negotiating capacity. The ALSF grants and advances funds to African countries for legal advice from leading international legal counsel. The ALSF’s goal is to ensure fair and balanced negotiations. The Facility has approved assistance for 60 projects for African states. Almost 70% of the projects are related to contract negotiation or to build the legal foundations required to properly negotiate contracts. The three sector focuses of the ALSF are: (i) extractive resources, (ii) infrastructure (including energy and PPPs), and (iii) debt (including bond issuances and sovereign guarantees). Legal counsel supported by the ALSF are currently advising African Governments on transactions valued at more than USD 18 billion. A significant proportion of which is in the power sector.

2 4 E S Q L E G A L P R A C T I C E

The lack of access to electricity in Africa is well documented, as is urgent need to raise the level of investment in African power sector. “Africa accounts for over a sixth of the world’s population, but generates only 4% of global electricity”. The direct link between power supply and economic development is driving the momentum for change in sub Saharan Africa and the need to light up the continent is beginning to be addressed. This is however a long process with many challenges. As a consequence the negotiation of power purchase agreements (PPAs) and other related agreements is becoming one the key areas for which African governments are seeking from ALSF intervention. In May 2014, the United States Government, through USAID and its “Power Africa Initiative”, entered into a partnership with the ALSF to help expedite Power transactions. In addition, it is an opportunity to build capacity on the continent and for national experts to enhance their legal skills and build international and cross-regional networks. The collaboration has produced a knowledge management tool entitled “Understanding Power Purchase Agreements.” It defines a PPA and breaks down the financial and other main provisions in a PPA (termination, events of default etc.) into digestible, easy to read concepts, including

risk allocation and the mitigation. The online version can be found via the following link: http://cldp.doc.gov/programs/ cldp-in-action/details/1378 This project brought together a group of experts on PPAs to draft a reference handbook that can be used by both public and private sector stakeholders to streamline the PPA negotiation process. Experts from 4 continents (Africa, Asia, Europe, and North America), including bankers, lawyers, and engineers, came together to develop this handbook. Government decision-makers, officials involved in the negotiation of PPAs and others interested in or in need of an introduction to the process of

negotiating a PPA and the core contract terms that make a PPA “bankable” will find this resource very valuable. This is the first in what is planned to be a series of knowledge management tools and workshops in addition to the funding of legal counsel to support transformational projects such as the Ethiopian based 1000 mw Corbetti power plant – which will be the largest geothermal plant in Africa. This is an exciting time in Africa’s history and the ALSF remains poised to do its part. Article by Stephen Karangizi, Director - The African Legal Support Facility email: s.karangizi@afdb.org www.aflsf.org

w w w.esqlaw.net

ESQ LEGAL PRACTICE 25

Legal Icon

CHRISTOPHER ALEXANDER SAPARA-WILLIAMS, Nigeria’s First Lawyer T

oday, every year, thousands of brandnew ‘ochara tuntun’ lawyers graduate from the various laws schools in Lagos, Abuja, Kano, Yenagoa, Enugu and in Yola. More than 70,000 of these ‘tear rubber’ members of the learned profession have been produced by Nigerian law schools but have you ever wondered who the first Nigerian lawyer was? The first Naija lawyer to wear that wig? You want to hazard a guess? Well, you’ve seen the title already...lol! Today, the focus is on Nigeria’s very first indigenous lawyer, HONOURABLE CHRISTOPHER ALEXANDER SAPARA-WILLIAMS. His words: “The legal practitioner lives for the direction of his people and the advancement of the cause of his country.” These memorable words adorned the chambers of one of Nigeria’s fiercest lawyers, Chief Gani Fawehinmi, SAN. BIRTH AND EARLY DAYS Although he was born on the 14th of July, 1855 in Sierra Leone, SaparaWilliams had his roots in Ijeshaland (he was of the Ilesha subgroup of the Yorubas, found mainly in Osun and some parts of Oyo State, he fondly referred to his native hometown as ‘Ijesha wa’ meaning ‘our Ijesha’). He was the elder sibling of

2 6 E S Q L E G A L P R A C T I C E

Dr. Oguntola Odunbaku Sapara, a well-known medical doctor. His parents were Alexander Charles Williams (Orisha Saparoda or Sapara Senior), a liberated slave and Nancy Johnson from Egbaland. They had three kids, one girl and two boys: Clementina Mary Anne (later married Honourable Charles Foresythe, once the Colonial Treasurer of the old Lagos government but she later died in labour in 1877 and the disaster so touched her brother, Oguntola, who decided to study medicine with special emphasis on midwifery), James and our dear lawyer, Christopher, the elder son. EDUCATION In 1871, he attended CMS Grammar School and later, the Wesley College, Sheffield, United Kingdom. Sapara-Williams was a law student at the Inner Temple, London, United Kingdom and after graduation, he was back in Nigeria where he started his practice on the 13th of January, 1888 in Lagos State (then the Lagos Colony). Have you noticed that today, the reverse is the case? Nigerians actually study here and leave the country to go and work abroad. LOVE, MARRIAGE AND FAMILY He was married to Danko

Sapara-Williams. LEGAL PRACTICE On the 17th of November, 1879, he stamped his name in the annals of history as the first Nigerian lawyer

when he was called to the English Bar. As an advocate, Sapara-Williams clearly distinguished himself and his knowledge of the customary law was indeed breath-taking, even if the law was not w w w.esqlaw.net

Legal Icon in writing. On the 30th of January, 1888, he joined as a member of the Nigerian Bar Association (NBA) and on the 30th of August 1888, (124 years ago), he enrolled at the Supreme Court, Lagos as the first Nigerian barrister. It will also interest you to know that from 1900 to 1915, he was the Chairman of the NBA, which remains till date, one of Nigeria’s most influential bodies. It must however be noted that even though Sapara Williams was a pioneer in the field, there were some other contemporaries who also practiced law with him. But owing to the very low number of lawyers as at that time, people with no legal training but were a bit literate and had a passing knowledge of the English Law were regularly chosen to work as attorneys. Sapara-Williams handled popular cases such as Cole vs Cole and the AttorneyGeneral of Southern Nigeria vs John Holt and Company. These were some of the most celebrated cases of the time and he also practised law in Accra, Ghana. POLITICAL CAREER As hinted earlier, SaparaWilliams also dabbled into politics and left his mark. He was the one who proposed that the ‘the present boundary between the Colony and Protectorate of Southern Nigeria and the Protectorate of Northern Nigeria be readjusted by bringing the southern portion into Southern Nigeria, so that the entire tribes of the Yorubaspeaking people should be under one and the same administration.’ Although Lord Lugard, the GovernorGeneral did not support this move, his input to the final conclusion was more than slight. He was also instrumental to the decolonization of the country. In 1905, he was in the United Kingdom

w w w.esqlaw.net

where he made various proposals to the Colonial Office to make the necessary changes in their policies. Among others, he called for the construction of a training college for teachers in Lagos. And later, he also questioned the Seditious Offences Ordinances of 1909, which muzzled the press and clamped down on critics of the colonial authorities. He stated that: ‘Freedom of the Press is the great Palladium of British liberty ... Sedition is a thing incompatible with the character of the Yoruba people, and has no place in their constitution ... Hyper-sensitive officials may come tomorrow who will see sedition in every criticism and crime in every mass meeting’. Although the British still went ahead with the ordinance, making it a law, his voice was already heard. His political and nationalist struggles did not end there. He allied with Herbert Macaulay to start the Anti-Slavery and Aborigines Protection Society in Lagos on the 30th of August, 1910. This gave Macaulay a stronghold in attacking the British imperialists.

Madam Sapara, who was around 70 years at the time and feared for Gomez’s life. They were successful in getting an injunction restraining the Lagos State government from exhuming the bodies. ACHIEVEMENTS AND LEGACY During the reign of Owa (King and Paramount Ruler) Tayero of Ijeshaland, he was warmly received by the people of Osu, a village located about fifteen kilometres to the south of Ilesha. From there, he was taken with much fanfare to the family compound at Anaye Street, Ilesha. It was there he was conferred the title of the Lodifi of Ilesha by the Owa. Upon becoming a lawyer, Sapara Williams did not become solely engaged in his legal practice. He also took active parts in the political events dominating as at that time under the British colonial rule as can be seen above. When there was the

Amalgamation of 1914, Sapara Williams was one of the members of the Legislative Council. Others included seven British officials (one of whom was the Governor chairing the council), two Nigerians (Sapara Williams was one) and two British serving in non-official capacity. Overall, he was a Member of the Legislative Council from October 1901 until he died in 1915. A brilliant lawyer, jurist, advocate, legislator, politician and a powerful orator, he utilized law as a force for positive social change. NB: I must chip in that more legal giants would later emerge from Sapara-Williams’ Ilesha area. These included other people like Justices Kayode Eso, Olayinka Ayoola, Funmi Adekeye (all of the Supreme Courts and others like Pa Bandele Aiku, Felix Fagbohungbe, Aluko Olokun and of course, the legendary Cicero himself, the late Chief James Ajibola Idowu Ige (Bola Ige).

DEATH Death came knocking on the 15th of March, 1915. But according to another Nigerian legal luminary, Pa Tunji Gomez, Sapara-Williams was buried at the Ajele Stadium (which was then used as a burial ground, other people buried there include Bishop Ajayi Crowther), something happened long after his burial. There was a case against the military governor of the state over Ajele Stadium and the government decided to exhume the bodies of those buried there to make way for other constructions and no one was willing to challenge the khaki boys until Pa Gomez took up the challenge with the late lawyer’s daughter,

ESQ LEGAL PRACTICE 27

A review of Ghana’s local content policy for the downstream sector

n October 2014, the Ministry of Energy’s Draft Local Content Policy (“Policy”) was released for the downstream sector. Its goals included attracting increased local value-added investments, creating more job opportunities and indigenizing knowledge, expertise and technology. This policy is intended to complement the upstream Petroleum (Local Content and Local Participation) Regulations 2013 (L. I. 2204) which were passed into law in November 2013. In this article we will set out the various provisions of the Policy for the downstream sector under the categories of Equity, Implementation and Training, before making some observations on the Policy as a whole and discussing concerns. Equity The Policy stipulates that the operating, maintenance and repair workforce should be Ghanaian except where local expertise is lacking. No solely foreign owned company is Energy and Natural Resources A REVIEW OF GHANA’S

2 8 E S Q L E G A L P R A C T I C E

LOCAL CONTENT POLICY FOR THE DOWNSTREAM SECTOR Allowed to operate as a Bulk Distribution Company in Ghana and fronting (see later) will be investigated. Ghanaian goods must be used in logistic and supply chain activities regardless of price. Where there is foreign participation in logistics, it shall not exceed 40%. On future change of ownership, existing Oil Marketing Companies must revert to 60% Ghanaian ownership. Retailing and fuel stations should also be 100% Ghanaian owned. Mining and aviation companies are required to give first consideration to Ghanaian downstream companies supplying them fuel. Bids with higher local content must be given priority where bids are equal in any bidding process. At commencement of any downstream activity, local content should be at least 50% and should increase by 10% yearly in accordance with the Policy or regulations. Implementation Jointly-owned companies should submit Local Con-

tent Participation Plans to the regulator detailing roles, responsibilities and equity participation of each partner and transfer E-BULLETIN No. 2 1 March 2015 Strategies to locals. Foreign entities engaged in supply to companies in Ghana will be required to incorporate in Ghana and enter into joint venture partnerships with Ghanaian companies. Application for exemption is open to foreign companies where, due to the nature of goods, the minimum local content participation is impracticable. Training Capacity building by training and development of locals is key under the Policy. Non–indigenous downstream players should carry out staff development programmes for promotion of technology transfer. There should also be an employment and training sub-plan in the local content plan. Where Ghanaians cannot be employed due to lack of training, every reasonable effort should be made to

supply training – locally or otherwise. Companies must also include such training in their employment and training plan, and are expected to enter into strategic partnerships to transfer knowledge. Further observations Deterrent to foreign investment? There is a thin line between improving local content and implementing what might be perceived as ill-timed protectionist policies. While the local participation aims are laudable and widely supported in the industry, policy makers should consider the deterrent effects on FDI, if the implementation plan is too sudden or harsh. Ghana has a pressing need to tackle current economic challenges facing the downstream industry, and will hope that this policy does not have the effect of turning away investment. The industry requires heavy capital to tackle problems with pipeline infrastructure, storage facilities, port infrastructure and distribution facilities. That said, it is unlikely that foreign investors will be deterred solely as a result of local content initiatives. Nevertheless, a w w w.esqlaw.net

framework to ensure locals are not left out2. There is a proposed Energy Bill and a Draft National Energy Policy. Observation of the Proposed Bill however shows that it fails to provide clear monitoring and enforcement measures. A lack of adequate monitoring, compliance and enforcement will expose the Ghana Policy to two additional risks: fronting and cronyism. Fronting of foreign companies as local entities is a common problem with local content regulation, and can only be detected if there is a rigorous due diligence and enforcement regime. Cronyism – usually to the benefit of those who are close to the government – requires independent oversight to ensure detection. Neither of these feature in the Policy.

local content policy must be sensitive to the need for growth, at the same time as seeking to enforce such regulation. Is Local Content reserved for Ghanaians or ECOWAS nationals? The wording of the Policy apparently focuses only on Ghanaians, and there is no consideration for the ECOWAS Free Movement of Persons Protocol that is supposedly being implemented by the Government. The focus appears heavily weighted towards increasing the equity share of Ghanaians in the sector. Policy goals clear; but query practical application/monitoring? The document (and industry) could benefit from more information on the Policy’s practical application. For instance, there is no reference to how compliance with the policy shall be ensured – will we go the Nigerian way and have an independent enforcement board? The Nigerian Local Content Act (2010) is monitored by the Nigerian Content Development and Monitoring Board (the w w w.esqlaw.net

“NCDMB”). While Nigerian Local Content implementation has received a mixed reception, the NCDMB has received praise from the recently elected president of OPEC who, towards the end of 2014, announced that the Nigerian Local Content Act had enhanced job creation and indigenous expertise, and had grown local content generally from 3-5% to a significant 12-18%. There was also mention of $5bn of new investments made by Nigerian service companies in the last 4 years1. The NCDMA has clearly played its part, and may provide useful instruction on how Ghana can proceed with a practical implementation framework. Another objective in the Ghanaian policy is the provision for a transparent and rigorous monitoring and reporting system to ensure the delivery of Policy goals. However the draft does not mention a specific framework or plan for the monitoring of downstream operations. This problem has also been noted in Kenya. Commercial oil production in Kenya is expected to begin in 2016 and the government is putting in place a legal

Anti-competitive pricing should be scrapped The policy direction mandating a preference for Ghanaian entities in the provision of goods and services to the downstream sector „even if they are more expensive, is vague (unlike the upstream rules which specify 10%) and contradicts all business reasoning, even if it is a typical provision of local content regulations internationally. Provisions should be more focused on maintaining competitive quality of locally produced goods with those that are internationally produced, rather than allowing for uncompetitive pricing. Such a policy also contradicts another policy objective: to increase capabilities and international competitiveness of Ghanaian businesses. A policy creating a form of monopoly for Ghanaian industries is perhaps inevitable, in order to allow the industry a leg up towards achieving international competitiveness. Since the industry has already successfully

attained a high percentage of Ghanaian ownership, care should be taken to ensure such a monopoly is not overgenerous or abused. Commencement values and annual increments The draft policy proposes a 50% local content value in the provision of goods and also states that the local content percentage contribution must increase by 10% each year thereafter or as the regulations may prescribe. There is no specific mention of what will be done in the alternative in the event that the proposed percentages are not met due to capital inadequacy. What happens if at commencement the proposed targets cannot be met? Conclusion Perhaps two salient messages emerge from the above. When seeking to implement laudable local content initiatives, it is important to be sensitive to the local economy and its stage of development, and to avoid “reinventing the wheel”. Ghana has a huge amount to learn from Nigeria and other countries which have evidently benefited and suffered from the implementation of such policies. It is key that at this important stage in the growth of the industry, the implementation of this Policy is alive to the challenges of the business climate and learns the lessons of Ghana’s neighbours. Article by Korieh Duodu, Joanna Okuley and Adu Ampofo References 1. Nichol and Kendrick, “Nigeria : Local content Update for the Oil and Gas Industry, 10th February, 2015 2. EU- Africa Chamber Commerce, ‘Rewriting the Rules for Kenya’s Emerging Energy Economy’, 24th April, 2014

Bentsi-Enchill, Letsa & Ankomah is a law firm regulated by the Ghana General Legal Council. This occasional e-bulletin is not intended to constitute legal advice and represents the opinions of the authors only. For further information please email kojo.bentsi-enchill@belonline.org. To receive e-bulletins or to unsubscribe, email belanews@ belonline.org. Firm Address: No. 4 Momotse Avenue, Adabraka, P. O. Box 1632, Accra, Ghana Tel: + 233 - 302 – 208-888, Fax: +233 - 302 – 208-901 bel@belonline.org www.belonline.org ESQ LEGAL PRACTICE 29

Into AFRICA: The Growth of Private Equity in Africa Kem Ihenacho, Partner, Latham & Watkins LLP 3 0Â E S Q L E G A L P R A C T I C E

w w w.esqlaw.net

Private Equity in Africa

frica today, no doubt has been radically different from Africa of 25 years ago. Tell us what you’re seeing and how you see Africa in the next five years? While the extractive industries still continue to attract foreign investors and dominate the headlines due to the size of investments in that sector, we are seeing significantly increased investment focus in other areas outside of the extractive industries. The “rise of the African consumer” is a well-known narrative, and many international investors are exploring investment opportunities at various stages along the value chain to that consumer. For example, in financial services, fast moving consumer goods, retail, real estate, telecoms, health, technology and so on. I think this trend will continue over the next five years and beyond. Also, as Africa’s infrastructure still lags behind, I am also reasonably confident that we will see more infrastructure projects getting done to address this “gap”. Finally, we are starting to see an increasing interest in African opportunities from our clients based in the US, and from regional trade bodies there. I think this trend will continue. All of the above presents fantastic opportunities for African law firms and international law firms focused on the continent. In my humble opinion, there has never been w w w.esqlaw.net

a better time to be an African lawyer! And the opportunities for us will continue to increase. This is why we at Latham & Watkins will continue to invest in our Africa practice. What sets African private equity apart? I think what attracts investors is the very significant growth prospects in the sectors and businesses which they are looking to invest in. Even without applying significant leverage to a business, high returns can be made. Some have argued that the traditional model for private equity does not work for African SMEs. Do you agree? My view on this is that one finds many different types of investor and investment model underneath the banner of “private equity”. Within the industry you will find growth and venture capital investors, investors willing to hold on to assets for a longer period than others to create further value, and investors with flexibility to invest across the entire capital structure of a business. This presents various different options for SMEs. The role of the development finance institution is under debate. As the countries they serve increasingly become “engines of global growth”. How do you react to this? I think development finance institutions still have

an important role to play in private equity and beyond. In the private equity context, they can provide credibility and momentum in a fundraising, particular for first time fund managers - stimulating investment from other sources. Outside of the PE world they still play an important role in the development and financing of infrastructure projects. The need to close Africa’s infrastructure gap and to implement projects that improve the living standards of local communities means that no source of available funding can be ignored. That said I think the debate around their role and their investment model is a healthy one and it is important that we continue to examine this and the impact their investments have on the communities which should benefit from them. Nearly four out of five of the fund managers investing in Africa are based outside the continent. What is the impact of this on African Private Equity? I think this is simply a reflection of the stage the industry is at in terms of its evolution; and the position is evolving further. A number of those fund managers may have their headquarters outside of Africa but increasingly will have investment professionals who spend a significant amount of time in, or are actually based on, the continent. Also there

are an increasing number of fund managers who are headquartered in the major cities on the continent and are attracting investors from both international and domestic markets. Indeed we are advising a number of African fund managers based on the continent looking to raise debut PE and infrastructure funds. In addition, we have seen that a number of African countries are increasing the amount of public pension money which can be deployed into the alternative asset class (which includes PE). As a result of all of this, the profile and understanding of the private equity industry continues to increase on the continent. Are the Investors attitude changing? I think what is happening is that investors are increasingly able to look behind the headlines and become more aware of what is actually happening on the ground in Africa. I think the improvements in information flows allows them to make more informed judgements on both the risk and the reward of investing in businesses on the continent. What are the Key investment sectors and regions? On the PE side as stated, above, there is keen interest on investments which have a consumer related element to them, for example fmcg, financial services, telecoms. ESQ LEGAL PRACTICE 31

Private Equity in Africa There is also a keen interest in the infrastructure sector, and also real estate. Having said that, the extractive industries will continue to attract significant FDI because of the capital-intensive nature of the projects in that sector. In terms of regions, East Africa is one to watch. The recent discovery of massive deposits of natural gas in Mozambique and East Africa has led to the development of some of the largest projects â&#x20AC;&#x201C; mostly natural gas liquefaction projects. The region will become one of the largest global suppliers of LNG. This will not only change the global energy supply map, but will boost economic activity, growth and room for diversification of the economies in that region. Deal making in Africa â&#x20AC;&#x201C; where do the opportunities lie? [Please consider combining this with 8 above.] How will you assess the trends of investments in African infrastructure? As previously noted, African infrastructure lags behind the rest of the world. There will need to be massive inflows of funds into this sector to create impact. Of primary importance in this sector will be the power industry, given its key role in underpinning development and economic growth in any economy. Even within this sector, there are moves to upscale investments in renewable energy so as to focus on the production of clean energy. However, the challenge will be to convince all countries to prioritize clean energy projects over fossil fuel projects. How are new types of investors helping to bridge the Africa infrastructure gap? They are coming up with creative ways to assist Governments to put in place structures and regulations that will facilitate the development of infrastructure projects. For example, the public private partnership (PPP) model is being embraced across the continent. Many PPP projects are being constructed across Africa. Many of these investors are

3 2Â E S Q L E G A L P R A C T I C E

providing the equity capital (either alone or as part of a consortium) and facilitating debt financing without which many of these infrastructure projects would not be constructed. What is the role of sukuk bonds in African infrastructure projects? Sukuk bonds have the potential to increase the sources of funding for the development of infrastructure projects. However, it should be noted that while some African countries have created the regulatory framework for sukuk bonds issuances, many do not yet have that framework. This will clearly have an impact on the take up of sukuk bonds in Africa. How do sovereign wealth funds access opportunities in African infrastructure? Some sovereign wealth funds tend to focus on those opportunities that are in countries with which they (or their home governments) have a strategic relationship. This in turn means they will have access to opportunities that are not (or are not as easily) available to other investors. Typically, this would be developed on a government to government basis. However, some sovereign wealth funds also access opportunities like other investors, i.e., through competitive tender. What are the key Africa investment risks ? First, I would say that in my opinion none of the risks in Africa are unique to Africa. They are found in many other markets across the globe and they vary in significance from country to country and sector to sector. In the PE context, one challenge we find very often with businesses in emerging markets is that the assets of the founders and the business are often very much intertwined and this can make it challenging to identify and isolate the investment parameter of the business. This is not a function of any wrongdoing by the founders, but is simply a reflection of how many successful, fast

growing, family led businesses evolve. In the project finance context, risks like change of law, political instability, expropriation and dispute resolution are high on the radars of many foreign investors. What is the Right Way to Measure Risk in Africa? It is important to keep in mind that in this continent of more than 50 countries, there is a risk of over-generalization. What might be a risk in one African country may not pose any concerns in another African country. Ultimately, it is essential to conduct an identification and mitigation exercise in which you identify all possible risks that may occur and then consider how to mitigate against each element of risk. Then you allocate the risk to the party that is best-suited to manage that risk. In conducting this exercise, one of the key elements that guide the measurement of these risks is precedent, i.e., whether any such risk has previously occurred and how it was dealt with in the country in question. To take change of law as an example, if a particular country has modified its mining code and sought to modify resulting mining concessions several times, then it is more likely that this risk may recur. If on the contrary a country has a track record of re-

solving disputes between international and domestic investors in an objective and impartial fashion and its judicial system is robust and adequately protects private rights, then the issue of submission to dispute resolution in the local courts becomes less of an issue. Proper due diligence, including risk identification and development of a sound mitigation strategy, is an essential pre-condition of any prudent foreign investment decisionmaking process. These should not give cause to major concerns in my opinion. On liquidity, it is possible to sell secondary interests in funds although I accept the market is perhaps not as readily available as a listed security. That said I would have thought that most pension funds would be long term holders of investment assets. On transparency and benchmarks, as an investor in a PE fund there is significant and regular reporting of its performance at both a fund and portfolio company level and so investors including pension funds have very good access to information about their investment and its performance. Pension funds globally are big investors in private equity and overcome these concerns.

w w w.esqlaw.net

ESQ LEGAL PRACTICE 33

Why sustainable investment remains critical to commercial success in Africa

William Pollen,

Programme Director for Invest in Africa

nvest in Africa (IIA), a private sector organisation focused on tackling common challenges faced by business in Africa, asked industry leaders to share their thoughts on how to be successful on the continent. The answers indicate how imporant it is for businesses to adopt a long term mindset and place sustainability at the core of any investment proposition. However, what does it mean to invest sustainably? From the outset it is clear businesses need to adopt a long term mindset and place sustainability at the core of any investment in Africa. However, what does it mean to invest sustainably? Sustainable or ‘social’ investment has moved on from old notions of ‘corporate social responsibility (CSR)’ in which projects outside the core business of the company were undertaken to generate good will amongst host communities. In this regard, it is no wonder that CSR came to be viewed by some as an ‘addon’ to an investment decision, and something that detracted from the overall profitability of that venture. Where sustainable investment differs is that it makes good business sense. It encompasses ideas of local employment and local procurement, meaning it must be at the forefront of any investment decision because in many cases

3 4 E S Q L E G A L P R A C T I C E

it will define, rather than detract from, long term profitability. Rosalind Kainyah, Managing Director of Kina Advisory summarises sustainable investment: “It’s not a nice to do, but a need to do. The way to sell it to shareholders is to show that if these things are not done and done effectively, it can impact the business and affect the bottom line. So it’s not simply an additional cost, or a case of philanthropy as CSR might have been viewed in the past, but a necessity, and in fact critical, in order to ensure the required return on investment and profit.” A core part of any sustainable investment is a company’s approach to what is commonly referred to as local content, generally defined as the percentage of goods and services procured and skills developed in a country. According to EY’s Creating Shared Value in Africa, local content is simply the translation of investment into meaningful economic and social development increasing wealth, international competitiveness, job creation and supportive industries. However, since the economic downturn in 2008, the level of local content legislation has risen dramatically on the continent, across all industries. Ray MacSweeney, Director in EY’s Strategy Practice, pointed out that almost half the countries in Africa are currently reassessing their local content legislation, making it more prescriptive and more detailed. The savvy investor is not only compliant but proactive when investing sustainably. They understand that developing local skills and increasing the capacity of local suppliers improves the working environment for all, creating a win-win situation. Peter Stokes, managing director of Concord Equity, observes: “Making provisions for issues such as providing train-

ing to meet skills shortages or infrastructure development are practical requirements to achieve a successful and sustainable project. Make it a cornerstone of your investment approach and embrace it because you need it, not only because you are obliged to do it. In doing so, you align your interests with those of the government and the community, which can be used to your benefit as part of your competitive advantage.” Businesses understand the importance of sourcing locally, but ‘how to do it efficiently’ remains the issue. To support businesses maximise their efforts, IIA recently launched the African Partner Pool (APP) - an online business directory connecting international companies to quality, validated local businesses from across Ghana’s economy making both the local procurement process cheaper but also helping business demonstrate their commitment to the local economy. Launched in October 2014, The APP allows suppliers in Ghana to promote their products and services to buyers across sectors. Buyers can also share upcoming tenders with relevant suppliers filtered by location, experience or product code via the Tenders Notice Board.

Building local capacity is addressed by IIA’s Business Growth Hub: a library of best practice guides written by industry experts on how SMEs can strengthen their business and gain competitive advantage. Suppliers will also have the opportunity to apply for a practical Business Excellence Programme (being delivered in partnership with the AfDB) offering bespoke training, mentoring and coaching. The APP represents a win-win solution for buyers and suppliers by removing a layer of the prequalification process: saving time and money, whilst giving local businesses a greater chance of winning business from new clients and becoming successful over the long term. Evidently there is no magic formula for commercial success in Africa. But listening to those who have seen it all and done it all – it is undeniable that if you are planning for long term profitability you must have sustainability at the heart. Article by William Pollen, Programme Director for Invest in Africa. william.pollen@investinafrica. com w w w.esqlaw.net

w w w.esqlaw.net

ESQ LEGAL PRACTICE 35

s the practice of Law continues to evolve with ever increasing roles for Solicitors and In-House Counsel, today’s Solicitor/In-House Counsel hold significantly more demanding and often complex roles where strategic guidance and legal advice is provided to Clients and Client-Companies. A recent study commissioned by the Solicitors Regulation Authority (SRA) in the UK (2014) on the duties/functions of Solicitors/InHouse Counsel revealed that employers consider the benefits of having an in-house legal team to not only be in terms of strategic input and expertise, but also as a means of reducing billable legal fees spent on corporate legal matters whilst also improving the efficiency of managing internal legal affairs. It is a fact that at least 44% of the work of a Solicitor consists of drafting commercial agreements on a myriad of legal matters ranging from domestic affairs to complex transactional documents. More recently, In-House Counsel have also been required to significantly enhance their research and drafting skills to sufficiently handle more of the legal

3 6 E S Q L E G A L P R A C T I C E

The Solicitors’ Toolkit (STK) by Nigerian Legal Technologies Company, Lawpavilion work emanating in the ordinary course of business in the companies that engage them. An understanding and appreciation of the peculiar needs of commercial/transactional lawyers cum Solicitors and In-House Counsel influenced the decision by Africa’s foremost Legal Technologies Company, Grace Info Tech Limited, developers of the award winning LawPavilion Electronic Law Reports, LawPavilion Case Manager and LawPavilion Court Manager to come up with a novel solution – The LawPavilion Solicitors’ Toolkit. The Solicitors’ Toolkit (STK) is a unique software application containing diverse contents suited principally for Solicitors, In-House Counsel and Legal Advisers to businesses or companies operating in Nigeria and Africa at large. The STK was designed and developed

based on extensive research and deliberations with leading commercial/transactional Solicitors/In-House Counsel who highlighted the peculiar needs of that group of legal practitioners. The STK contains at present, Laws of the Federal Republic of Nigeria (including all amendments up to 2014), Subsidiary Legislations, Regulations/Directives/ Policies and Guidelines from Government agencies and Parastatals. It also contains selected Laws of States, Annotated Forms and Precedents, Sample Letters, Decided Cases from the High Court of Lagos State, High Court of the Federal Capital Territory (FCT), Federal High Court, National Industrial Court and Tax Appeal Tribunal. As with any other Tool kit, the STK is not just a compilation of contents, it is the Central Bank of Corporate/

Commercial Law and Practice in Nigeria boasting of an intuitive search engine that searches through all contents to bring refined results that drastically reduce research and drafting time whilst equipping the Solicitor or In-House Counsel with the most current and up to date information required. To reiterate the uniqueness of the STK, a few features will be highlighted and enunciated below: Annotated Forms and Precedents Drafting of commercial and corporate documents is one of the most important and fundamental tasks undertaken by Solicitors and In-House Counsel. However, more often than not, faulty or badly drafted commercial documents have been at the root of many disputes ending in expensive litigation for the parties involved. The STK, w w w.esqlaw.net

through its Annotated Forms and Precedents is a refreshing departure from most precedent books or platforms. The Annotated Forms and Precedents contains: an introductory note, relevant clauses, potential contentious clauses/issues, relevant Statutes, relevant Case Law and the Draft Agreement Template. An interesting benefit of the Annotated Forms and Precedents is that it has been designed in a manner that the draftsman needs not “copy and paste” the original template. The original agreement template can be edited and saved either as word document or exported as ‘pdf’ and sent as email attachment whilst the original template remains unchanged and ready to be amended as needs be. Thus, a user of STK has as many versions/templates of the same or similar agreement as his clients demand. There is also no need to log out of the application before an edited document is exported and sent to a 3rd party recipient. The edited document is also automatically encrypted to prevent unlawful or unauthorised tampering without the author’s consent.

be abreast of these decisions in order to properly advise and guide his clients. Myriad of commercial cases from the High Court of Lagos State, High Court of the FCT, Federal High Court and National Industrial Court have also been analysed and included in the STK. The impact and effect of the pronouncements of Courts on businesses and labour relations cannot be underestimated or discountenanced. Regulations/Guidelines/ Directives/Policies of MDAs With one of the most developed Stock Exchange and Financial Markets in Africa, Nigeria has several Ministries, Agencies, Directorates, Parastatals and Institutions saddled with amongst others, responsibility for issuing Guidelines and Directives for the section of the economy or industry that such Agency oversees. Some of the very notable Institutions with a penchant for being very active in issuing Guidelines or Directives are

the Central Bank of Nigeria (CBN), the National Electricity Regulation Commission (NERC) and the Nigerian Communication Commission (NCC) amongst several others. The STK consolidates as many Guidelines, Policies, Directives and Regulations as are available on its platform thereby saving Solicitors and In-House Counsel from having to visit various websites or offices to obtain the most current directive from the MDAs. Intuitive User-Friendly Search Engine The mantra is no longer to “work hard” but to “work smart” and this mantra underscores the efficiency and speed of the search engine in-built with the STK. With a search box on the dashboard of the application and on every page of the application, it is easy for users to quickly enter relevant search parameters into the search box and get results in seconds. The search engine using proprietary algorithms

searches through all the contents of STK to bring refined and comprehensive results based on search parameters entered. The STK is a first of its kind in the Nigerian and indeed African legal space targeted at Solicitors and InHouse Counsel who are particular about having consistent access to correct, concise and updated information required to properly advise clients in making business decisions. The LawPavilion Solicitors’ Toolkit will be showcased specially at the IBA convened “Investing in Africa Conference – Opportunities for Businesses and the Lawyers Who Counsel Them” with LawPavilion as Headline Sponsor. The Conference will hold at the prestigious Millennium Broadway Hotel, New York between 24th – 26th June 2015. More information on the Solicitors’ Toolkit is available at www. lawpavilion.com/stk

Analysed Decided Cases from the High Court of Lagos State, High Court of the Federal Capital Territory (FCT), Federal High Court, Tax Appeal Tribunal and National Industrial Court With the advent of a new administration and declining oil revenues, one of the areas that is likely to receive more attention from Governments at the State and Federal levels is taxation of corporate entities. This informed the decision to include judgments of the Tax Appeal Tribunal across various divisions in the STK. Landmark cases such as Addax Petroleum vs FIRS (2012) wherein the Tribunal decided on whether a foreign company with no assessable profit can be liable to pay tax in Nigeria are featured in the STK. It will be imperative for any Solicitor or In-House Counsel to w w w.esqlaw.net

ESQ LEGAL PRACTICE 37

3 8Â E S Q L E G A L P R A C T I C E

w w w.esqlaw.net

Interview

Matthew Wood,

The changing rules of project financing in Africa

frica has become the new bride for International law firms. I understand that your firm White and Case pioneered this new African romance in SA in 1995. Why the interest in Africa? W&C: White & Case is a pioneering international law firm and a leader in the emerging markets. An increasing number of multinationals and financial institutions are doing business in Africa and the call for bank finance and project finance support is strong and growing. The Firm has been advising clients on complex, cross-border legal issues in the region for more than 30 years and we are proud to be associated with many of the headline transactions in Sub-Saharan Africa to date. A strong Johannesburg office is fundamental to our strategy in Africa – it acts as the Firm’s hub in sub-Saharan Africa, offering on-the-ground local law and international law advice for clients in Africa, and those outside of Africa investing there, especially in resource-rich jurisdictions such as Nigeria, Ghana and Mozambique. The recent growth of our Johannesburg office is testament to our desire to maintain our pre-eminent market position in Africa and build on the strong foundations that we have there. Click here for White and Case Africa Practice Brochure Are clients’ demands different in a globalised marketw w w.esqlaw.net

Matthew Wood is a partner in the Energy, Infrastructure, Project and Asset Finance group of the International Law Firm, White and Case. He is based in Abu Dhabi in the UAE. Prior to moving to the UAE in 2010, Matt spent eight years in the Project Finance Group of the firm in London, and has also previously undertaken a six-month secondment within the legal department of BNP Paribas in Paris. Lere Fashola met with him in his office in Abu Dhabi recently and he shares his thoughs on the changing rules of project financing and its implications for Africa. place? W&C: Yes. As our clients’ business activities have become increasingly global, so too is their need for cross-border expertise. Our clients value both the breadth of our global network and the depth of our local, US and English law capabilities. It is being said that there is a huge infrastructure financing gap and African governments are spending about $45 billion per year in infrastructure which leaves a financing gap of $48 billion. How, from a project finance perspective, can the challenges of this huge infrastructure financing gap be addressed? W&C: The key is “bankability” rather than simply availability of funds. Too many host governments and developers of projects fail to anticipate the requirements of their financiers or the established balance of risk sharing between the various participants in a project. There is no shortage of schemes

being announced across SubSaharan Africa but relatively few are successfully financed and implemented. Better awareness of the boundaries of risk sharing, especially in more fledgling jurisdictions or sectors, and an appreciation of the importance of seeking specialist external advice in the early structuring of projects will contribute to a greater volume of realised projects. The trend is positive and we remain very optimistic for the prospects of governments and developers closing the funding gap in the coming years. How will you assess the changing landscape for project financing today and how will this affect projects in Africa and especially Nigeria? W&C: There are several ways in which the project financing landscape is changing. First, the sources of international investment (on the sponsor side) will become more

diversified – moving from more emerging markets originated/ focused institutions to include a larger proportion of US and European “blue chip” investors. This reflects the development of the market and the changing perceptions of risk in a developing market such as Nigeria. Second, the diversification of the project finance market is already happening at a rapid speed – from the traditional “safe harbour” of upstream oil & gas and LNG towards the downstream petrochemical and infrastructure sectors. Power is, as a necessity, also a fundamental source of growth in the regional project finance landscape where this private sector led, IPP market effectively did not exist five years ago. Third, the sources of finance for such projects are broadening, even in the context of constantly fluctuating local bank liquidity. Today, the development banks are still leading the way, especially away from the upstream oil & gas sector. Coupled with this, we expect to see the export credit agencies growing in significance, particularly in the short to medium term as the diversification finds its feet. However, the medium to long term trend will be for the gradual entry of Nigerian project finance deals into the international commercial bank domain – as these institutions gain confidence in the market and seek growth away from the relatively saturated and low-growth mature markets of the US, Western Europe and the ESQ LEGAL PRACTICE 39

Middle East, coupled with the current challenges in the Russian market. Finally, there is rapid process of learning, development of experience and increasing sophistication in the domestic market, both on the sponsor and lender side. With this, we see a growing appetite among the local developers of projects and the local financiers to embrace project finance as a product and to participate alongside the international investors discussed above on an increasingly visible scale. Which obstacles do you identify as being particularly prominent in your focus markets – be it from a regulatory, legal or perhaps even cultural standpoint? W&C: While this depends to a very large extent on the particular jurisdiction, common obstacles faced in emerging markets would generally

4 0 E S Q L E G A L P R A C T I C E

include (a) lack of experience and familiarity with international financing requirements, (b) regulatory ambiguity or uncertainty, (c) bureaucratic challenges and “red tape”, (d) broad based “political risk” or a concern for government interference or inconsistency and (e) local law issues surrounding the taking of security, enforcement of judgments and the absence of exposure of local courts and lawyers to cross-border transactions, especially from a financing perspective. I am aware that you have been involved in some major financing transactions in Nigeria recently. Could you give some details of one successful case study/story with us about your experience as a finance lawyer involved in Africa? W&C: I was extremely fortunate to be involved with the ground-breaking Indorama Eleme fertiliser project which reached financial close in early

2013, within 6-months of work commencing on the financing – which is almost unheard of in the project finance market, particularly for a project of its kind in Nigeria. We represented a diverse mix of lenders comprising seven development banks and a syndicate of leading international and local commercial banks, led by IFC, AfDB, Stanbic and Standard Chartered. Working closely with a phenomenally committed and knowledgeable team from Indorama and their counsel, matched by a very experienced and pragmatic core group of lenders, was undoubtedly the proudest moment of my career to date. The project is anticipated to be the first in a wave of petrochemical projects utilising competitively priced feedstock gas and a commitment from both the government and international oil companies to promote the growth of a down-

stream market in Nigeria. The impact of the Indorama Eleme project on the Nigerian economy is enormous, reducing dependence on imported fertilisers and promoting the essential development of the agricultural sector. It is hugely significant in generating confidence in the private sector project finance market in the country and the Sub-Saharan Africa as a whole. What do you do outside the firm to enrich your life? W&C: My wife, Nneka, and I have two boys aged 4 years and 6 months respectively – between the two of them, this keeps us on our toes most of the time! I am a long-suffering England cricket and Tottenham Hotspur supporter and like to watch as much sport on TV as possible. I enjoy relaxing listening to an eclectic mix of Nigerian artists, including Fela, D’banj, 2Face and Naeto C!

w w w.esqlaw.net

ESQ LEGAL PRACTICE 41

IS ‘SMALL FIRM’ STILL FASHIONABLE TODAY? – Alex Muoka, Chairman NBA, Lagos Branch 4 2 E S Q L E G A L P R A C T I C E

here is the legal market currently? What does it mean for small firms? I think the legal market is in a state of flux at the moment. There has always been a variety of legal work that supports all sizes of law firms. There is big-ticket legal work that engages the bigger firms and specialized practitioners. There is general work (both litigation and corporate/ commercial) that is bread and butter for all categories of firms. There are high-profile litigation briefs like election petition cases, big land disputes and complex commercial litigation that is routinely reserved for senior advocates. There is still a lot of niche work that is both specialized and wellpaying for small firms and highly competent solo-practitioners. With the constant expansion of the legal services supplier base, more and more pressure is being put on the bigger (and therefore highly leveraged) firms in terms of a seemingly shrinking legal market and reduced earnings. The market has also become more sophisticated and discerning and clients are increasingly demanding more value for their money. I believe that small firms will continue to be relevant. The competitive and sophisticated legal market means that firms which are aggressive and nimble can better adapt to the dictates of the market and the pressure to price services more realistically. Could you share with us some of the challenges facing small law firms today? There are many challenges facing small law firms today. For reason of time constraint, I will dwell on only four – quality of recruits, capital, lack of expertise, and the problem of small numbers. The most important resource in a law firm is the people – the highly skilled lawyers providing service to clients. Small law firms are generally not able to attract and retain the better qualified and more proficient law graduate hires who default to the bigger firms. Small firms, therefore, spend more time and energy trying to groom (and make do with) average hires (and sometimes downright incompetent juniors). This, naturally, results in expensive mistakes with client work and increased work pressure for the firm owner/s or seniors. Capital is an ever present challenge both in terms of start-up w w w.esqlaw.net

Bar Leader Interview capital and the ability to attract debt financing for expansion, projects and even normal operations. This of course, limits firm growth and potential. Small firms have to grow incrementally by re-investing meager profits rather than exponentially. Due to their small size, skills and expertise are often in short supply. Small firms tend to focus on general practice areas that require average or basic legal skills. They lack the advantage of teams of specialized highly trained practitioners that larger firms can deploy on assignments and special projects. This necessarily limits the kind of work that small firms can take on. Again, the lack of numbers means that small firms suffer a significant key-man risk and do not have built-in redundancy. The absence of the principal or managing partner has an immediate impact on the firm’s operations and income. A lawyer or administrative staff who is out of the office (ill or on vacation) has no back-up/ replacement, and work may be delayed or left undone. As globalization continues to influence law practice in Nigeria, causing a recent influx of international law firms who do deals in our legal market, what should Nigerian law firms do in order to retain relevance against all odds? I think that Nigerian law firms should take the lessons that globalization has to offer and up their game. A number of Nigerian law firms have long adopted this attitude. Rather than fight globalization or bemoan their fate, the partners opted to improve skill sets, re-brand, re-position their firm and offer the kind of first class service that the global law firms are offering. They chose to ‘think global and act local’. We have a number of local companies that are going regional and international. These companies generally take along with them on their expansionist drive competent local advisers such as lawyers that they have come to rely on. Thus, Nigerian law firms are exporting their services abroad and themselves ‘globalizing’ legal practice. In addition to this, there are several government initiatives that Nigerian law firms can take advantage of such as the local content requirements in the oil and gas industry which are being extended to other industries. The challenge therefore is for Nigerian law firms to position themselves w w w.esqlaw.net

as players in the sectors and showcase the expertise and structure that would ensure patronage. How much of your agenda did you achieve as Chairman of the NBA Lagos Branch? When I campaigned for this office in the first half of 2013, I presented a five-point agenda in my manifesto. I have not been able to achieve everything, but I think that we have made some modest gains. In the area of Leadership, I have tried to provide quality leadership by example and give direction and motivation to those members of the Executive Committee who saw their election as a call to genuine service. We have also had some modest success in fostering a harmonious and effective Bar/ Bench relationship with the Lagos State Judiciary, and are trying to establish a similar rapport with the Lagos Divisions of the Court of Appeal, the Federal High Court and the National Industrial Court of Nigeria. In the area of Institutional Reform, we have changed the obsolete computer systems in the Branch Office and established an effective communication system riding on an electronic platform. So far we have had constraints with re-starting the Branch Secretariat Building project, however, we have grown the Branch dedicated building fund from approximately =N=12,000,000 to over =N=30,000,000 in less than two years – so we have ensured that there is adequate seed money to jump-start the building project. We have established a framework for the Branch Membership Database, and would have pursued an Identity Card Scheme but for the National Bar Card Scheme which we considered makes Branch Card schemes unnecessary. I have always been passionate about Capacity Building and over time have ensured that members have information on and access to regular continuing legal education programmes in various practice areas. Only recently, the Branch partnered with the Nigerian Institute of Advanced legal Studies to mount a training workshop on Brief Writing and Advocacy Skills which was availed to members at a fraction of the cost of similar workshops. Of course, over the last two years, we have had a robust engagement with the corporate sector and big business, and have involved them in the programmes of the Branch –

particularly as sponsors for some of our social events. We have also sought to enlighten members on tax and other regulatory compliance issues to ensure that they are not caught napping. I confess that I have not been able to fulfill all my promises in the area of welfare of members. I had wanted to institutionalize training and empowerment schemes, and an internship and mentorship programme for young lawyers. I have not been able to do this. However, we did assiduously pursue the Branch group medical and life insurance scheme and drove compliance from under 250 members to well over 2500 members in the last one year. Finally, members will attest to a fact of a structured branch social calendar with periodic cocktail events, lunch meetings/ lectures, and award-winning thematic dinners. What are some of the challenges you have faced during your administration? I think that the major challenge I have faced during my time as Chairman has been the quality and commitment of a number of members of the team that I have had to work with. Bar administration is serious business and I have always believed that the bar should be led by people who are successful in practice or part of a well-run firm and who have decided to devote time, energy and resources to serving the bar association. Sadly, this is not often the case. We have a lot of good, well-intentioned and progressive minded people, but they would rather face their own practices or

businesses than devote time to the bar association. Leadership at the associations is thus generally left to people who have time…and who, therefore, are not necessarily of the caliber, and enthusiastic disposition that sacrificial service requires. As a result, we tend to have a bar leadership that appears topheavy, but with not very much being done because a number of officers are merely placeholders along for the title and the ride but unwilling to commit to actually serving the members. At the end of the day, a few people are left doing the work of many, and yet at the same time having to juggle and deal with the politics and banana peels that are part of the process of leadership in these parts. I must place on record the tremendous support I have received from some members of the Branch Executive Committee and several members of the Branch – without them we would have achieved nothing. Of course, if all hands were rowing the boat in the same direction (instead of some rowing in the opposite direction and not merely just sitting still) we would have much more to show for it. Another major challenge has been the mentality of retrogression that some of us subconsciously have. We are not only resistant to change, we actually physically fight it. There is too much of a mindset of ‘lets do things the way we have been doing them and are used to doing them’. I always ask – ‘why?’ Isn’t there a better way of doing this thing? Can we not innovate? Give

ESQ LEGAL PRACTICE 43

Bar Leader Interview me a good reason why we must do something in a particular way and don’t tell me we must do it that way because we have always done it that way. What has this current administration done to encourage young lawyers? Under my watch, the Branch has several times sponsored young lawyers to conferences, paid their registration fee for workshops, and facilitated or negotiated generous discounts for members for other workshops or training programmes. We have also interceded on behalf of young lawyers who have reported issues with their seniors/ employers, and have been able to successfully place a few young lawyers in law firm positions. What qualities are relevant if a person must lead right? When I campaigned for this office in 2013, I suggested that the qualities that should be expected of the chairman of the most powerful and important branch of the Nigerian Bar Association are: ‘qualities of leadership, of integrity, of charisma, of erudition, of competence, of quiet dignity, of gentlemanly comportment, a capacity for work, preoccupation with excellence, and an ability to inspire others to action.’ I still think that these are the relevant qualities for the right leader. What advice will you give leaders of other NBA branches in order to have a successful administration? I must be quick to state that my tenure has not ended and therefore the jury is still out on whether it has been a successful one or not. Nevertheless, I will allow that having led the largest and most vibrant branch of the Nigerian Bar Association - boasting of ‘over 3,000 members including a large number of senior advocates, senior lawyers, lawyers in large multi-disciplinary practices, lawyers in multinationals and large corporations, and numerous solo-practitioners – with diverse backgrounds, interests and aspirations’ – with equanimity for almost two years, I must be doing something right and should have a few tips to pass across! Without a doubt, effective branch leadership requires sacrificial service to members. Leaders of NBA branches must be committed and selfless. I believe that leading is best done by serving

4 4 E S Q L E G A L P R A C T I C E

so the leader should be seen to be sincerely serving the members. The good leader must be prepared to place commitment to the branch and NBA above his practice or business – for the period of his time in office. He must be perceived as being approachable, warm and empathetic. He must be patient and tolerant of diverse views and critical opinions, and also be undeterred by detractors. How are you positioning your law firm in the current legal market? I run a small litigation and corporate/ commercial practice law firm of about six lawyers. The goal has been to build a boutique law firm that is well respected and successful in its niche areas and to then position the firm for expansion by merging with other firms or well-rooted organic growth. In practical terms, I have been on more or less a four-year sabbatical from the firm (I was Secretary of the Lagos Branch for two years before I was elected as Chairman). The firm has managed well without my day-to-day presence – many thanks to our indefatigable Head of Chambers who has an excellent work ethic and incredible administrative skills. On my return, the intention is to focus on practice, re-structure, and face the next stage of growth. Over the years, the firm has developed a good reputation for quality legal work. We want to build on that reputation, expand our manpower base and cultivate new areas of legal work. What more should we expect from Alex Muoka after a successful stint as chairman of the Lagos Branch of the Nigerian Bar Association. Well, I really do not know what to say to that. My tenure does not end till mid-July, and I think that it would be presumptuous of me to judge and say that it has been successful. The verdict would have to come from others. Suffice to say that when I finish my term of office in July, I intend to re-focus on building the law firm. I also want to pursue a couple of personal dreams that I have not had time to explore over the last four years – including some book projects that well-meaning seniors and friends have encouraged me to do. I have thoroughly enjoyed serving, and if along the way the opportunity comes for further service to the profession I will of course make myself available. w w w.esqlaw.net

Supporting Business THE FIRM Paul Usoro & Co, (“PUC”), helps businesses and organisations grow by offering sound legal direction, excellent operational leadership and innovative solutions that enable the organizations and businesses connect seamlessly with their medium and long term objectives. We recognise that in today’s world, superior knowledge of the global trends and the legal, regulatory and operational framework that drive successes are key to long term growth and we support our clients to reach that goal. We are a full-ser vice Law Firm, providing comprehensive legal services to leading companies, international organisations and institutions as well as public agencies and governments. Our people are recognised amongst Nigeria’s pre-eminent lawyers and are widely reputed and respected for their deep insights, professionalism and focus. Our passion for excellence drives us to deliver the best in all that we do. PUC not only has the requisite expertise and experience but also adequate financial and human resources and the infrastructure to provide realtime best-in-class services to its clients. Headquartered in Lagos, Nigeria, with a burgeoning branch office in Nigeria’s w w w.esqlaw.net

Federal Capital, Abuja and a number of foreign correspondent law firms, our global outlook enables us to offer first class professional services that meet the needs of international and local business communities and organisations. We offer our clients the rewarding legal partnership required to become and remain leaders in their respective fields. We earn their trust through consistent delivery of timely personalized services that enable them blaze the trail in their businesses and activities. HISTORY PUC was established in 1985 primarily to provide comprehensive legal services, both as transaction lawyers and advocates, to corporate clients. We currently operate out of three offices in Nigeria and maintain correspondent-

relationships with Law Firms in major commercial cities of the world including the United Kingdom, United States of America, Canada, Russia, several European countries including France and Germany, several Middle East and Asian countries including United Arab Emirates and Hong Kong, amongst others. Starting out in general practice, over the years, we have expanded into niche practice areas such as Communications, Transport Law (with emphasis on Maritime and Aviation), Energy and Environmental Law, Banking and Finance, Project Finance, Labour and Industrial Relations, Corporate Restructuring, and Mergers and Acquisitions, amongst others. PUC is quick to identify new and evolving practice areas and takes leadership in developing

We offer our clients the rewarding legal partnership required to become and remain leaders in their respective fields. We earn their trust through consistent delivery of timely personalized services that enable them blaze the trail in their businesses and activities.

them in the best interest of our clients. With our offices in Lagos, Abuja and Uyo (in the Niger Delta), we are wellplaced to serve the needs of the very significant and large pool of our clients in any part of Nigeria. OUR PEOPLE With 35 full-time lawyers and projected expansion, PUC is one of Nigeria’s largest corporate legal firms and has a trove of some of the brightest and best legal minds. We pool together more than 100 years of practice strengths in commercial legal practice generally as well as the niche areas that we specialize in. We place great emphasis on constant honing of our lawyers’ skills and therefore encourage and fund structured skills development programmes for them including management and business development trainings, post graduate degrees and short courses and programmes in relevant specialized fields of practice. The Firm is led by our Senior Partner, Paul Usoro, a Senior Advocate of Nigeria and Head of the our Advocacy and Alternative Dispute Resolution Practice Group who is widely acknowledged as Nigeria’s foremost authority on Communications Law, a most renowned, knowl ESQ LEGAL PRACTICE 45

edgeable and strategic litigator. Paul’s personal integrity and professionalism as well as his talents and skills in strategy development and planning and corporate management make him much sought-after for Board appointments. As at 2012, he serves as Director on the Boards of several public and blue-chip private companies including PZ Cussons Nigeria Plc, Airtel Networks Limited and Premium Pensions Limited. He is the Chairman of Marina Securities Limited and was appointed in 2011 by the President of the Federal Republic of Nigeria to the pioneer Board of the Nigeria Electricity Bulk Trading Plc. CLIENTELE Our Work Environment Our clientele consists of leading organisations in all the sectors of the Nigerian economy including governments, mostly Federal and States and their agencies. We also serve the regulatory authorities in some of the economic sectors such as the Nigerian Communications Commission, National Pension Commission, Securities & Exchange Commission, Nigeria Deposit Insurance Corporation, amongst others. We number amongst our clients foreign multinationals and giant corporations such as ExxonMobil Corporation Inc. of the United States of America and also a number of multilateral Development Financial Institutions including the World Bank and the African Export-Import Bank. We

4 6 E S Q L E G A L P R A C T I C E

do represent and work for high net-worth individuals most of whom are connected to the corporate organisations and companies that we serve. As part of our Corporate Social Responsibilities, PUC provides pro bono litigation and advisory legal services and some of such litigation as at 2012 are pending before the National Industrial Court and various States and Federal High Courts. PUC is structured in a manner that allows its lawyers to choose their career paths in the two broad areas of advocacy and transactional practices and while collaborative work on assignments between the two Groups is encouraged, lawyers do not combine day-to-day work schedules in the two broad practice areas. Indeed, no lawyer in PUC simultaneously belongs to the two Practice Groups, save for Paul and one or two others who have oversight responsibilities for the entire Firm. PUC awyers therefore do not experience scheduling conflicts between adjourned dates for litigation matters and transaction meetings and activities and are able to focus and give their best to our clients in the two broad Practice groupings. This demarcation also helps the lawyers to develop specialized skills in their preferred practice areas and sharpen their focus in serving the clients better. Our superior back-end services enable our lawyers to deliver superb services

round the clock. PUC has invested massively in her law library, which as at 2012 has over 6000 books, Journals and Conference and Seminar Resource materials. Our automated library is manned by two full-time trained Librarians. We also have a fully developed and wellmanaged accounting and administration department headed by a Chartered Accountant, Adetunji Adeshina. In addition, we have invested in cuttingedge technology and deployed appropriate hardware and software packages to enhance the efficiency of our overall Practice. Our trained and professional in-house ICT specialists and network administrators ensure the integrity of our Information Technology equipment. SOME PRACTICE AREAS • Advocacy & Alternative Dispute • Resolution • Banking & Finance • Communications • Corporate Restructuring, Mergers

• • • • • • •

and Acquisitions Energy & Environmental Law General Commercial Practice Labour and Industrial Relations Project Finance Transport Law (with emphasis in Maritime and Aviation)

CONTACT: Paul Usoro & Co Legal Practitioners, Notaries, Arbitrators Plot 1668B Oyin Jolayemi Street, P O Box 71605, Victoria Island Lagos, Nigeria. Tel: 234 (01) 271 4842-5 Fax: 234 (01) 271 4846 Orji Uzor Kalu House Central Business District, Abuja, Nigeria. Tel: 234 (09) 623 2182 1, Umoren Lane, P.O. Box 2212 Uyo , Akwa Ibom State, Nigeria. Tel: 234 85 203690 A3, Ahmadu Bello Way, PO Box 2650 Kaduna, Nigeria. Tel: 234 (62) 214 400 E-mail: info@paulusoro.com

w w w.esqlaw.net

ESQ LEGAL PRACTICE 47

s d l o h s r a l p m Te n o i s s e s e v i t c a inter s u t a t S r e e n o i on P T

he session was led by a 5-man panel, which included 3 Partners from Templars â&#x20AC;&#x201C; Dipo Komolafe (Tax Advisory), Adewale Atake (Dispute Resolution) and Chike Obianwu (Finance), along with Ajimola Olomola, KPMG Partner,

4 8Â E S Q L E G A L P R A C T I C E

Tax Regulatory & People Services; and Dr. Abiola Sanni, an advocate of the Supreme Court of Nigeria and Associate Professor of Law with specialty in Tax Law at University of Lagos. The panellists began the session by explaining the background of the Pioneer

Status grants and analysing current developments by the Nigerian Investment Promotion Commission (NIPC) and Federal Inland Revenue Service (FIRS) to rescind on benefits of the tax holiday. The entire attendants of the session were given an opportunity to discuss the effects of these develop-

ments to businesses and investor confidence, as well as appropriate methods for dealing with the issues. The session collectively examined the scope of powers of the NIPC in light of the provisions of the Industrial Development Income Tax Relief Act (IDITRA), and if proper procedures for inclusion of pioneer industries under the IDITRA w w w.esqlaw.net

had been followed. Also scrutinized was the extent to which affected businesses could seek legal recourse under the doctrine of legitimate expectation, and how retroactive application of the Pioneer status withdrawals measures up against the legal requirement for administrative

w w w.esqlaw.net

bodies to be fair and reasonable. Templars routinely organises sessions on topical issues with relevant industry professionals to unearth prevailing challenges in the Nigerian business environment, and reflect on practical ways to remedy them.

Â ESQ LEGAL PRACTICE 49

Healthy Living

Eat Banana, Live and Enjoy Healthy Life T

here is no limit to the length of days man can live, as long as God permits. Man has been given the freedom to enhance his life and living by productively and reasonably using everything around him. Thus, living a healthy life is something that must be desired and not negotiated. Banana is one of the traditional fruits known for their delicacy and deliciousness; but more than these, bananas in all its species have sweeping nutritious benefits and grand health values. In other words, eating banana is more than its inducing and sweetening the taste bud. In terms of physical structure, banana is described and characterized by its elongated and usually curved feature; it contains lax mushy and sweet creamy flesh, and a smooth skin; it grows in bunches and comes in different species. Generally, banana at the unripe state is green, and yellow when ripe. Other species show various colours such as green when unripe, and purple when ripe. From the human skull, which harbours the brain and the sense organs, to the heart, the intestines, and down to the abdominal region, banana works through all human body parts to build for and against, to improve, and to repair. In other words, it works both for physical and mental growth of human beings, regardless of their age. It performs generally similar roles in humans while at the same has specific functions it carries out in the bodies of men and women at every age. Thus, eating banana offers one a litany of limitless values and paybacks. Scientists in a bid to reemphasize the all-important merits of banana to the inclusive development of human body have in recent times researched further to explore other new beneficial

5 0 E S Q L E G A L P R A C T I C E

areas outside the untapped traditional values that eating banana adds, on the one hand, to the growth of the interior body organs, and on the other hand, to the overall growth of the human person. GENERAL BENEFITS • Banana improves the eyesight; especially, it maintains nocturnal vision. • It reduces the risk of cardiovascular attack; that is, it prevents hypertension • Bananas contain the tryptophan in it which is used in medicines for the patients of depressions. People who eat banana feel less tension and stress as compared to another. This is a very important benefit of banana that it makes your brain relax and you will comfortably even in odd situations. • Banana contains iron, magnesium and calcium

•

• •

in large amount which are helpful in building strong bones and muscles. Nutrition presents in Banana is also good for the treatment of Type-II diabetes. It also helps to control and reduce the level of sugar in the body. Banana is also useful to reduce the swelling and losing weight. During dieting mostly banana is highly instead of other healthy diet. Banana is a rejuvenating fruit in the sense that it replaces energy and power dissipated during physical and energy-consuming work. Banana is anti-tired agent to make the body stronger. Banana is useful to in the event of joint pain and muscle cramping. Banana protects the body against kidney cancer and as well provides the

•

• •

•

macular cells in the body to improve sight. Banana helps to protection from the itching & irritation especially in the season of summer. The eating of Banana controls the blood sugar and prevent from chronic diseases because banana contains the magnesium and potassium in very large quantity. Banana is very useful to reduce high fever and high temperature. Bananas have a rich quantity of B-vitamins which help to build strong aversion for smoking. In other words, eating banana helps smokers to lose their appetite for smoking. Banana aids digestion and respiratory system.

w w w.esqlaw.net

ESQ LEGAL PRACTICE 51

AWARD BIBLE

NIGERIAN

LEGAL AWARDS 5 2 E S Q L E G A L P R A C T I C E

w w w.esqlaw.net

ABOUT THE ESQ NIGERIAN LEGAL AWARDS

NIGERIAN

LEGAL AWARDS

The ESQ Nigerian Legal Awards sets out to recognise the important contribution the legal business community makes to the development of the Nigerian economy. The award will honour outstanding law firms and legal professionals in Nigeria and in the diaspora. The Award reflects pre-eminence in key transactions, practice areas, and achieve¬ments over the last eighteen (18) months, including notable work, strategic growth, excellence in client service, and contribution to the legal profession. The award is based on the legal deals or unique contribution to legal business in Nigeria within a period of twelve to eighteen months. The 2014 edition of the award enjoyed the sponsorship of Forte Oil Plc, MTN, Grace InfoTech Limited (Publishers of Law Pavilion), CleanBubble Drycleaners and Asiri Ewa. Over seventy deals were reviewed by the judges last year and the law firms, Templars, Banwo & Ighodalo, Odun¬jinrin & Adefulu, Sefton Fross, Alliance Law Firm, Paul Usoro & Co, Aluko & Oyebode and Kola Awodehin won different categories of the Deal based awards, with Aluko and Oye¬bode winning the much coveted Law Firm of the Year Award. His Excellency, Governor Babatunde Raji Fashola, Aare Afe Babalola, Mrs. Funke Adekoya SAN, Mr. Wale Tinubu, Chief J.K Gadzama SAN, Mrs. Funke Aboyade and the Coun¬cil Members of the Section on Business Law also won the Editor’s Merit Award Categories for their achievements and contributions to legal practice. The awards will be presented at a formal glittering and memorable ceremony holding in Lagos on 18th Septem¬ber 2015. The ceremony will be hosted by some leading entertainers in Nigeria.

ENDORSEMENT The ESQ Nigerian Legal Awards repre¬sent the most esteemed category of Legal Awards in the history of the Nigerian Legal business. It is organised by Legal Blitz Limited; Publishers of Esq Legal Practice Magazine, and has been endorsed by the Nigerian Bar Association Section on Busi¬ness Law, the British Nigerian Law Forum, and the Nigerian Lawyers Association (US).

w w w.esqlaw.net

ESQ LEGAL PRACTICE 53

NOMINATIONS, SELECTION AND CRITERIA WHO CAN BE NOMINATED AND WHO CAN NOMINATE? Any Nigerian lawyer may be nominated for the Award. An interstate lawyer can be nominated if he or she has sufficient nexus with the Nigerian Legal System. All Nigerian Lawyers or Lawyers of Nigerian Descent practicing outside Nigeria may also be nominated as well as International Law Firms with significant nexus with Nigeria. See categories of the Awards for details. On the other hand, the Corporate Counsel Award Categories are open only to General Counsel and in-house legal teams of organisations registered in Nigeria, under the Companies and Allied Matters Act (CAMA). See categories of the Awards for details. TIME COVERED BY THE AWARD The time period covered by entries should be the past 12-18 months. Law firms and in-house legal departments can only submit one entry for each category. All enquiries about the award can be sent to awards@ esqlaw.net HOW WILL NOMINATIONS BE MADE? All submissions must be sent electronically to awards@ esqlaw.net. HOW WILL NOMINATIONS AND DATA BE GATHERED. Law firms will be requested to www.nigerianlegalawards. Com, fill nomination forms and submit same with

WHO ARE THE

their deal sheets for a period not exceeding 12 - 18 months. This document will be submitted electronically Interested in-house teams must visit www.nigerianlegalawards. com, complete an entry form and submit it online. Submissions from in-house teams should chart the teamâ&#x20AC;&#x2122;s progress over the course of the year (January 2014- June 2015) There is a mandatory requirement of a 500-word covering statement, which indicates reasons they should win any specific category. This 500-word document is the most important document, as the judges will use it to assess the law firms being nominated. This year, while the award will consider a particular landmark transaction, the judges will take cognisance of the track record of the firm in the particular practice area for a period of not less than 5 years. The 500 word document represents the entry and it must reflect on how the firm/organisation meets all the criteria set for the particular category of the award.

JUDGES

To shore up the credibility of this award, we have carefully appointed seasoned General Counsel and Business Leaders with vast experience in their chosen sectors who will be appraising the various nominations and select the winners. The Panel of Judges for the Practice Based Deals Category will be chaired by Dr Adesegun Akin-Olugbade, OON, Executive Director/General Counsel, Africa Finance Corporation. Other members of this panel include; Mr Dapo Otunla, General Counsel, Notore Chemicals and Industries Ltd; Mrs Ngozi Okonkwo, Chief Legal Officer, OANDO Plc; Ms Tinuade Awe, Head of Legal and Regulatory Division, Nigerian Stock Exchange; Ms. Nankunda Katangaza, Former Head of International Policy, Law Society of England and Wales; Mrs Toyin Sanni, MD/CEO, UBA Capital and Chairperson of the Capital Market Operators; Mrs Nike Laoye, Chief Legal Counsel, Eco Bank Plc and winner of the Legal Team (Financial Services) at the maiden edition ; Prof (Mrs) Yinka Omorogbe, Former General Counsel of NNPC; Mr Dayo Okusami, Executive Director/General Counsel, Zircon Nigeria Limited; Mrs. Helen Anatogu, Former Corporate Attorney West Africa, Microsoft Corporation Mrs. Chioma Madubuko, General Counsel, DANGOTE Industries; Dr. Mark Ighiehon, Fellow, Aberdeen University Centre for Energy Law; Ms Nike Olafimihan, General Counsel/ Company Secretary, Shell E & P, Nigeria; Ms Rotimi Oghenerume, General Manager, Commercial Legal, 5 4Â E S Q L E G A L P R A C T I C E

MTN; Mrs Kemi Shaba, Legal Manager, Multichoice Nigeria; Mr Babatunde Akinyanju, Former Chairman, British Nigerian Law Forum, UK; Ms Remi Aiyela, Publisher, NOG Intelligence Mr. Ned Mojuetan; Mrs Abimbola Izu, Legal Adviser/ Company Secretary, Skye Bank Plc; Dr. Mirian Kachikwu, General Counsel, Seplat Petroleum Development Company Plc; Dr. Jumoke Oduwole, Legal Consultant and Lecturer, Commercial Law, University of Lagos; Mrs. Fola Akande, Company Secretary/Chief Counsel (West Africa), Cadbury Nig. Plc; Mr. Adeyemi Johnson, CEO Open Spaces Compliance, UK Mr. Osilama M. Otu, Company Secretary/Legal Adviser, Zenith Bank Plc. Ms. Ibiyemi Solanke, Legal Counsel, Orange UK. JUDGES FOR CORPORATE COUNSEL AWARDS The Panel of Judges for the Corporate Counsel Awards Category is chaired by Mr. Gbenga Oyebode MFR of Aluko and Oyebode. Other judges include Senator Udoma Udo Udoma of Udo Udoma and Belo-Osagie, Dr. Nechi Ezeakor of El-Value Advisory (Former General Counsel of Fin Bank Plc), Mr. Asue Ighodalo of Banwo and Ighodalo, Dr. Gbolahan Elias SAN of G. Elias (Barristers and Solicitors), Dr. Konyinsola Ajayi SAN of Olaniwun Ajayi LP and Mr. George Utomi of George Utomi and Partners, among others.

w w w.esqlaw.net

Meet the Judges for the practice Based Award for Law Firms

Adesegun Akin-Olugbade,

Adenike Laoye, Chief Legal

Abimbola Izu, Legal Adviser

Counsel, Eco Bank Limited

Akinleye Olagbende,

Babatunde Akinyanju,

Chioma Madubuko, Com-

Nankunda Katangaza, Former

Marian Kachikwu, Company

Dayo Okusami, Executive Direc-

Ngozi Okonkwo, Chief

Yinka Omorogbe, Former

General Counsel Forte Oil

Secretary /General Counsel, SEPLAT Petroleum Development Company Plc

w w w.esqlaw.net

Former Chairman, BritishNigeria Law Forum

tor/ General Counsel, Zircon Marine Services Ltd

& Company Secretary, Skye Bank Plc

Michael Otu, General

Executive Director & General Counsel, African Finance Corporation

pany Secretary & Legal Adviser, Dangote Industries

Legal Officer, Oando Plc

Counsel, Zenith Bank Plc

Head International Policy, Law Society of England and Wales

General Counsel, NNPC

Â ESQ LEGAL PRACTICE 55

Meet the Judges for the practice Based Award for Law Firms

Adeyemi Johnson, CEO,

Remi Aiyela, Editor-in-Chief,

Jumoke Oduwole, Legal

Dapo Otunla, General Coun-

Toyin Sanni, CEO, UBA

Eyitemi Ned Mojuetan

Open Spaces Compliance

sel, Notore Chemical Industries

NOG Intelligence

Capital

Consultant and Lecturer, University of Lagos

WHAT WILL THE JUDGES DO? • Judges will be given a score sheet that lists the criteria and invites them to mark each entry against them. • There will also be a day conference where judges are expected to meet and debate who should win and why. • This panel will shortlist three deals under each category. • The shortlisted contenders in each category will be announced on the award website. • The final decision is made by the judges when they meet, and their decision will be final. • We believe this exercise will help to ensure all the judges approach the process in a consistent manner.

5 6 E S Q L E G A L P R A C T I C E

w w w.esqlaw.net

WHAT WILL THE JUDGES LOOK FOR? The panel of judges will be looking for entries which showcase the firm’s distinction in each category and consistency in providing excellent service in that category, while focusing on a single deal that sets new standards in the delivery of legal services under the various categories and demonstrates the market-leading position and considerable value to the needs of commerce, good governance and economic well-being of the nation. Key factors in selecting the winners for the Practiced Based Awards will be evidence of: - Market Context - History of the Client Relationship - Technical Innovation - Innovation in Client Service - Innovation in pricing - Measurable Outcomes - Any Additional Relevant Information Nominees should stand out from their colleagues and should have made significant impact in relating to the category. Particular note will be made of the nominees’ impact in Nigeria and for Nigeria - ‘Putting Nigeria on the map’. For all awards, achievements outside of the category will be taken into account, including non-legal work, contributions to the community and pro-bono work.

Key factors in selecting the winners for the Corporate Counsel Awards will be evidence of: 1. A case, deal or internal project which demonstrates: a. Excellence in leadership b. Innovation, either in transactional work or regulatory or compliance issues c. Efficient management of external advisers (please detail outside counsel and recent history of panel reviews) d. How the legal function underpins the organisation’s strategy e. How the team has made the legal function integral both to the decision making process of the company and also to the overall company strategy 2. Full details of: a. Who the team reports to b. Organisational structure c. Yearly spend and how it is managed including use of procurement 3. Details of the unique challenges faced by the particular sector in which the team operates, and how these are overcome

PRIZES & BENEFITS WHAT ARE THE BENEFITS OF BEING NOMINATED? - Recognition in front of peers and industry leaders - An endorsement of personal/firm achievements - A competitive and marketable edge that can generate new business - A way to boost team morale - An opportunity to take pride in personal/firm achievements. WHAT HAPPENS AFTER NOMINATIONS HAVE BEEN MADE? We will take steps to verify the authenticity of the various nominations. Please note that during this exercise, clients or their in-house counsel may be contacted. We therefore advise all entrants to kindly ensure the details they are sending are true and verifiable in order to avoid any embarrassment this exercise may cause. Timetable for the Award will be announced later. 1. June 29th, 2015: Opening of nominations for the Legal Awards. 2. July 31st, 2015: Deadline for submission of entries for the w w w.esqlaw.net

Legal Awards 3. August 3rd 2015: Judges Evaluation Begins 4. Between September 1st - 11th, 2015: Judges Conference 5. September 18th, 2015: Awards nite (Awards Presentation, dinner & entertainment) PLEASE NOTE: That there is no payment attached to nominations for any of the categories. The decision of the judges are final and no discussion will be entered into. Only nominations received before the deadline will be reviewed. WHEN WILL THE SHORTLIST BE ANNOUNCED? Short-listed nominees will be informed in writing after the votes by the judges have been collated. WHEN IS THE AWARD TAKING PLACE? The Awards ceremony will take place on Friday 18th of September, 2015 in Lagos. ESQ LEGAL PRACTICE 57

GENERAL POINTS TO NOTE 1. All nominations will be submitted online. 2. Nominators will be asked to provide supporting documentation: 3. Which must be in the form of a 500 word profile encapsulating why the nominee should win the award? 4. Nominees are also expected to list other law firms that worked on the deals enetered. Please e-mail your submission to awards@esqlaw.net Please send only one submission per category per e-mail (multiple e-mails are allowed) Please mark the subject line of your e-mail as follows: ESQ Awards/Category/Firm Name e.g. ESQ Legal Awards /real estate/Lere Fashola & Co LLP

AWARD CATEGORIES PRACTICE BASED PRACTICE BASED AWARD Section: Deals - Banking &Finance Team of the Year - Capital Market Team of the Year - Mergers &Acquisition Team of the Year - Corporate Restructuring Team of the Year - Intellectual Property Team of the Year - Oil and Gas Team of the Year - Private Equity Team of the Year - Power Team of the Year - Project Finance Team of the Year - Telecommunication Team of the Year - Dispute Resolution Team of the Year - Real Estate Team of the Year SECTION: GENERAL AWARD - Young Lawyer of the Year - CSR Law Firm of the Year - Deal Maker of the Year - Law Firm of the Year - Diaspora Lawyer Award CORPORATE COUNSEL AWARDS 1 General Counsel of the Year 2. In- House Team of the Year i. Oil and Gas sector ii. Power sector iii. Investments Banking Sector iv. Banking Sector v. Capital Market Sector vi. Manufacturing Sector vii. Telecommunication sector viii. Infrastructure and Construction Sector ix. Information Technology x. Pharmaceuticals Sector xi. Insurance Sector xii. Maritime/Shipping Sector

5 8Â E S Q L E G A L P R A C T I C E

w w w.esqlaw.net

Article Alibaba and counterfeit goods

Robyn Muller

rmuller@ENSafrica.com

t’s been widely reported that various luxury brand owners have brought legal proceedings in the USA against Alibaba, the Chinese online shopping giant that recently listed on the New York Stock Exchange. The claim is that Alibaba has knowingly made it possible for companies to sell counterfeit products on its platform. The reports suggest that it’s possible to buy “Gucci bags” on Alibaba for between US$2 and US$5 (as long as you’re prepared to buy in bulk, 2000 or more please!), which is quite cheap if you consider that original Gucci bags apparently retail for some US$795. It’s also said that “Gucci watches” can be had for anything between US$10 and US$80 – once again, vast quantities need to be bought, at least 300, and anything up to 200 000, per month. But an interesting proposition nonetheless, if you consider that the real thing sells for some US$960. There’s no way of knowing how this will play out. Alibaba believes that the complaint has no basis, and recently indicated that it has a “zero tolerance policy” towards counterfeits. Reports suggest that the company has spent some US$160-million in 2013 and 2014 – and employs more than 2000 people – to tackle the counterfeit goods issue. The company apparently uses data mining technology to track suspiw w w.esqlaw.net

cious behaviour and run checks. It’s reported that the company works closely with Chinese law enforcement agencies, and that this co-operation has led to the arrest of some 400 suspects from 18 different counterfeit rings, and shut down over 20 stores and factories. The company also apparently works closely with brand owners, which may explain its public response to the legal proceedings brought by Kering SA, the holding company of a number of luxury brands: “Unfortunately Kering Group has chosen the path of wasteful litigation instead of the path of constructive co-operation.” Alibaba is not the only online retailer that has had to react to the counterfeiting scourge. eBay, for example, has its Verified Rights Owner Programme (VeRO). How this works is that a company that feels that its intellectual property rights have been infringed sends a letter called a “Notice of Claimed Infringement” to eBay, which, if it thinks that the complaint is valid, sends a “Violation Notice” to the alleged infringer, informing it that the listing has been removed. This system came up recently in a UK court case, Cassie Creations v Simon Blackmore and Mirrorkool Ltd. The person who received the Violation Notice denied that there was an infringement and argued that the Notice of Claimed Infringement was an unjustified threat that entitled it to bring legal proceedings. Mr Blackmore and Mirrorkool Ltd,

in response, applied to strike out the case. The court, at the interim hearing, held that the letter might well be an unjustified threat, and said that the matter should go to trial. eBay certainly seems to have been successful in its attempt to curb counterfeiting. The company claims that less than 0.025% of all the goods listed on its platform are counterfeits, and it says that it handles over 92% of counterfeit goods complaints within 12 hours of receiving the complaint. Brand owners and online retailers have good reasons for wanting to deal with counterfeiting. In the same way that a brand owner can suffer loss of sales and reputational damage from counterfeiting, an online retailer doesn’t want to acquire a reputation for being a counterfeiters’ paradise. Brand owners have certainly had to adapt in order to tackle online counterfeiting. In 2014 Richemont, the luxury goods company that owns brands like Cartier and Montblanc, made legal history in the UK. In the case of Richemont v British Sky Broadcasting and Others, the company sought an order requiring five major UK ISPs to block certain websites that sold counterfeit Richemont products. The court, to the surprise of many, held that a UK court has jurisdiction to make such an order, both as part of its inherent jurisdiction, and because of European law. Brand owners have to become

increasingly innovative when it comes to dealing with counterfeiting. Here are just two examples: • Christian Louboutin has established a website called Stopfake on which people can post counterfeiting tip-offs – the thinking seems to be that those who are loyal to the brand will be keen to help put an end to counterfeits that are available at a fraction of the price. • NEC, the Japanese electronics company, has devised a pattern recognition system that helps companies to spot fakes: The brand owner takes a picture of its product with a smartphone with a special lens; the surface pattern or “fingerprint” is saved to Internet servers; and shops that receive goods can then take photos and use the servers to verify that the goods they’ve received are real. In South Africa, online shopping is still relatively small, which means that most anticounterfeiting activity takes place in the world of bricks and mortar. South African brand owners are, of course, assisted in their quest to stamp out counterfeits by the Counterfeit Goods Act, a piece of legislation that allows brand owners to enlist the aid of police and customs authorities to seize goods that are thought to be counterfeit, in order to bring civil or criminal proceedings. But clearly things are changing – and South African brand owners and online retailers will need to adapt to these changes.

ESQ LEGAL PRACTICE 59

6 0Â E S Q L E G A L P R A C T I C E

w w w.esqlaw.net

The Stars of Africa

KRISHNA SAVJANI, OBE SC SAVJANI & CO.

eading Malawian lawyer, Krishna Savjani was born in Jamnagar, India. According to personal testimony, Savjani’s father, Haridas Manji Savjani, came to Malawi in 1933 at the age of 16. He started his own business just before the Second World War and successfully took risks in importing goods during w w w.esqlaw.net

wartime when shipping was at risk. He went to India at the end of the Second World War to get married. Krishna Savjani came to Malawi as a nine-month-old baby. He attended Sir Robert Armitage High School in Limbe where, according to personal testimony, he arranged for the school to

invite eminent politicians like Kanyama Chiume and Henry Chipembere to come and debate. Krishna Savjani was called to the Bar at Gray’s Inn in July 1969. In 1977, he established the law firm Savjani & Co. and he is the Sole Equity Partner at the firm He was appointed Senior Consul, an appointment made by the President of Malawi. Senior Counsel is the equivalent of Queen’s Counsel in England. He is a member of the four-person Advisory Committee (comprising the Chief Justice, the Attorney General, the President of the Malawi Law Society and Mr. Savjani) on the appointment of Senior Counsel. Mr. Savjani became its member in July 1999 when it was established. He was involved in the drafting of its rules. Krishna Savjani has been Honorary Legal Adviser to the British High Commissioner in Malawi since 1994. Krishna Savjani acted as Chairman of the Malawi Stock Exchange from 2000 to 2010. Initially involved in the working committee to consider the need for a stock exchange, Krishna Savjani subsequently played an active role in drawing the listing rules. He was also previously Chairman of the Listing Committee. Krishna Savjani was one of the members of the Presidential Commission of Inquiry, in 1994, into the

so-called Mwanza Motor accident resulting in the death of three senior Cabinet ministers and one Member of Parliament in 1982: Dick Matenje, Twaibu Sangala, Aaron Gadama, and David Chiwanga. The Commission was appointed soon after the fall of Kamuzu Banda when Malawi changed from a one party state to multiparty. Mr. Savjani has acted as spokesman for the Asian community in Malawi from 1971. He was awarded Order of the British Empire by Queen Elizabeth II in 2003. According to a global directory of lawyers, who have interviewed parties in Malawi and elsewhere Krishna Savjani has been described as “equally at home in the boardroom and the courtroom”. Clients admire his combination of local understanding and international experience and praise his “ability to plan ahead”. Mr Savjani has also been described as “superb” and “clever”. He is widely assessed by the market as “the country’s leading commercial and banking lawyer”. He is sought out for the most complex matters and praised for the speed and depth of his advice: “He is an astute man, methodical and a deep thinker”. Corporate investors appreciate his discreet approach and in-depth knowledge of the Malawian market.

ESQ LEGAL PRACTICE 61

The Stars of Africa

AWARDS & ACCOLADES

• • • • • • • • • • • • • • • • •

Order of the British Empire (OBE) awarded by Her Majesty Queen Elizabeth II Senior Counsel – appointment made by the President of Malawi Honorary British Consul since 1998 Honorary legal advisor to the British High Commission Listed as Malawi’s leading lawyer in Chamber’s Global and as the only lawyer in Band 1. A member of the four person Advisory Committee (comprising the Chief Justice, the Attorney General, the President of the Malawi Law Society and Mr. Savjani) on the appointment of Senior Counsel Chairman of the Malawi Stock Exchange from 2000 to 2010 Chairman of the Giants Group of Malawi Chairman of the Board of Governors of South End Primary and Secondary Schools Trustee of the Friends of Sick Children Chairman of Ameca Healthcare Trust AREAS OF EXPERTISE Banking, project and structured finance and securitization Corporate / mergers and acquisitions / share sales / restructuring Commercial Capital markets, listings (bonds, bonus issues, rights issues) Mining

RECENT EXPERIENCE •

•

Ongoing representation of Paladin Africa Limited, Malawi’s only major mining company in matters involving financing, taxation, labour and various environmental and mining issues Press Corporation Limited and Presscane Limited – ongoing representation in issues concerning shareholder disputes regarding a Joint Venture Introduction of Capital Gains Tax on Sale of Listed Shares. Until June 2011, capital gains on sale of shares of listed companies held for more than 12 months were exempt from income tax. The Malawi Government introduced capital gains tax on capital gains on sale of shares of listed companies irrespective of the period held (in effect with retrospective force), and this resulted in a lot of advisory work. Globe Metals and Mining Limited. Advising in relation to a transaction whereby a Chinese state

6 2 E S Q L E G A L P R A C T I C E

•

owned enterprise acquired majority shareholding in an Australian mining company which in turn has a mining company in Malawi. Cane Products Limited. Advised the board of directors of the company on cash flows and dividend issues in the context of the complaint by minority shareholder regarding non-declaration of dividends, and threat to commence winding up proceedings. Lynas Africa Limited. Completing the acquisition of mining licence for rare earths and other assets from the previous licence holder. NICO Holdings Limited. Amending and restating trust deed in relation to employee share ownership plan and amending the trust rules. Packaging Industries (Malawi) Limited. We advised minority shareholders of this company in relation to the proposed basis of acquisition and valuation of shares of minority shareholders as part of de-listing the company from the

•

Malawi Stock Exchange. Resulted in the majority shareholder offering more for the minority shares. Mining Development Agreement with the Government. Advising a mining company on the scope of the duty exemptions under the development agreement with the Malawi Government and also on the effect of various stability provisions in the development agreement. Malawi Distilleries Limited. Advising in relation to applicable excise duty on cane spirits, limitation periods in respect of claims by the Malawi Revenue Authority and the powers of the Authority to levy distress for excise. Also advised on past conduct that created legitimate expectations which can be protected by judicial review proceedings. Tea. Advised a major tea company in relation to exchange control and customs and excise issues in the context of export of tea. w w w.esqlaw.net

Destination Africa

HOPE RISING FOR MALAWI Malawi a country blessed with vast mineral resources has a legal system based on English common law which gives comfort to investors as it is well known. Malawi also has its own legislation. Malawi’s Constitution is the supreme law of the land. Malawi’s judicial system includes the Supreme Court of Appeal, the High Court and subordinate magistrates courts. “The High Court has established a commercial division to deal with commercial matters. Malawi also has an Industrial Relations Court, dealing with employment matters. However, for a variety of reasons, it can take a long time to progress cases through the courts.” Subject to a few exceptions, all cases commenced in the High Court or any subordinate court must first undergo mandatory mediation and, if this fails, they w w w.esqlaw.net

are handled by the court system. Economic reforms bearing fruit According to Krishna Savjani, Malawi has made great progress over the past year in upgrading conditions for doing business. He says, “Things have begun to change for the better since April 2012 and positive economic reforms have been introduced. The government’s new economic recovery plan should result in an attractive investment environment, and continued political stability and consistent economic policies both before and after the next elections in May 2014, along with the ongoing economic reforms, has further improved the investment climate.” Krishna Savjani cites mining, energy, irrigation, commercial farming and agro-processing as sectors with outstanding develop-

ment potential in Malawi. The country’s extensive mineral deposits, include bauxite, heavy mineral sands, monazite, coal, uranium, precious and semiprecious stones, limestone, niobium and rock aggregates. Agriculture, which remains key to the country’s economic growth and wealth creation, is currently dominated by subsistence farming, but commercial farming, which would in turn benefit and expand the agro-processing sector has excellent growth prospects. The challenge is to create an environment that will encourage and facilitate commercial farming. To make the most of these advantages, Malawi needs significant investment in its infrastructure, from roads and power grids to power generation and water supplies. Krishna Savjani points out, “Malawi has inadequate

and poorly maintained power-generation capacity, so the government actively supports investments in energy generation and supply. It is also promoting public-private partnerships in energy generation and distribution.” While challenges remain, Malawi is on the right track, Krishna Savjani believes. He says, “Investment in infrastructure, including transport systems and utilities, is a prerequisite for the growth of the Malawi economy. Political stability and sound and consistent economic policies, and the implementation of the government’s economic recovery plan, should result in increased infrastructure investment, which will in turn promote investment in the potential growth sectors.”

ESQ LEGAL PRACTICE 63

Use of private jets for commercial purposes

here are currently an estimated 201 private aircraft in operation in Nigeria, of which 111 are Nigerian registered and 90 foreign registered. Under the Nigeria Civil Aviation Act, aircraft may carry passengers or cargo for reward only on such journeys as are permitted in accordance with a licence, permit or other authorisation issued to the air carrier by the Nigerian Civil Aviation Authority (NCAA). The operator of a private aircraft must obtain a flight operations clearance certificate (FOCC),a maintenance clearance certificate (MCC) for its aircraft and a valid permit for non-commercial flight. It has come to light that some private aircraft owners in Nigeria have been carrying out commercial activities in contravention of their NCAA certificates. Following this discovery the minister for aviation, Osita Chidoka, established a three-man committee – chaired by the senior special assistant to the president on aviation reforms, Victor Iriobe – to carry out a two-week investigation in February 2015. The committee’s mandate was to investigate the operations of all foreign-registered, privately owned aircraft with FOCCs and MCCs issued by the NCAA operating commercial charters instead of their authorised private (not for hire or reward) operations in Nigeria. Penalties for breach of licence Pursuant to the findings and recommendations of the committee, the minister of aviation

6 4 E S Q L E G A L P R A C T I C E

directed that any FOCC/MCC certificate holder in Nigeria that is engaged in commercial charter services will face the revocation of its certificate by the NCAA and a penalty of $100,000 before the release of its aircraft, effective from March 1 2015. This date has now been postponed until June 2015. Wider consequences of breach of licence The use of private aircraft for commercial services results in loss of revenue for the government because the operators of such services do not pay the same charges and taxes that are ordinarily payable by commercial airlines. Private aviation is also held to less stringent safety and reporting standards than commercial aviation, and as such it is possible for such aircraft to carry out illegal activities which may go unreported. Reasons for commercial use of private aircraft There are legitimate reasons for using private aircraft for commercial purposes, including the following. Offsetting high operating and maintenance costs The costs of purchasing and maintaining private aircraft run high. For example, it costs an average of $50 million to purchase a private jet; further, the fixed annual costs of maintaining medium-sized private jet are approximately $700,000 to $4 million – whether or not the jet is being utilised. Therefore, owning

a private jet is cost effective only for very high-frequency users: the average owner must fly over 400 hours per year to make ownership as cost effective as chartering. It is therefore no surprise that individuals who own private aircraft choose to charter them out in order to recoup the costs of operating and maintaining them. Flexibility for customers Private aircraft provide flexibility for customers; they are often used by business individuals hoping to avoid the use of local commercial airlines, whose services are frequently delayed or cancelled. Comment The NCAA penalties against private aircraft for breach of their certificates are justified, as parties are acting outside the ambit of their permits. However, a betterregulated regime for private aircraft operators might prove more efficient, as this would ensure that such aircraft are for purpose and could even create an additional source of revenue for the NCAA. Possible improvements to the regime could include the following. Certification of private aircraft to carry out commercial activities In countries such as the United Kingdom and the United States, private aircraft are often used for charter services and are required by law to satisfy the relevant aviation authority that they are competent to operate for commercial purposes. For example,

in the United Kingdom, a private aircraft owner must obtain an air operator certificate from the Civil Aviation Authority, which permits it to charge for the carriage of passengers and cargo on its aircraft. Such a regime could be implemented in Nigeria, where private aircraft are certified to carry out charter services subject to certain restrictions and oversight by the NCAA. Imposition of relevant taxes and charges One way of tackling the situation would be to impose the relevant taxes and charges on private jets whose owners wish to carry out commercial services and certifying such aircraft for commercial use. Safety and reporting standards The NCAA could additionally ensure that private air travel is held to the same safety standards as commercial flights - for example, by mandating private aircraft to undergo periodic safety checks by trained engineers to satisfy their airworthiness and requiring adequate information about every commercial flight undertaken by private operators, including a list of every passenger on board each flight and the purpose of the flight. For further information on this topic please contact Timeyin Bob-Egbe at George Etomi & Partners by telephone (+234 1 462 1660) or email (timeyin.bob-egbe@geplaw. com). The George Etomi & Partners website can be accessed at www.geplaw.com.

w w w.esqlaw.net

Article International Arbitration - Where will Africa resolve its disputes, London, Paris, Mauritius, Lagos, Kigali, Nairobi or somewhere new?

lobalisation and the increase in international business and trade in and out of Africa over the past few decades has led to more complex commercial relationships between international parties, and in turn, more complex cross-border disputes emanating from the continent. As a result businesses trading in Africa have to think carefully about how and where to resolve any such disputes. The perceived benefits of arbitration over litigation for transnational disputes include confidentiality, flexibility, neutrality and the relative ease of international enforcement. Unlike traditional court proceedings, the parties to arbitration are usually subject to some duties of confidentiality. In addition, parties have some autonomy in tailoring the procedure to their needs and selecting a tribunal with expertise relevant to the particular dispute. They are able to choose a neutral location, law and procedure. One of the most persuasive reasons for choosing international arbitration is the ability to enforce awards internationally as many African countries are signatories to the New York Convention. However, Africa currently lacks an established international arbitration centre based within the continent for businesses to settle its commercial disputes. International businesses and investors continue to favour traditional and well regarded institutions such as the International Chamber of Commerce (‘ICC’) based in Paris, and the London Court of Arbitration (‘LCIA’) based in London. These institutions have the benefit of ‘tried and tested’ arbitration rules, judiciaries who understand and uphold arbitral awards and robust arbitration statutes and precedent which underpin the process. Over the past two decades, African countries have begun to recognise the importance of effective dispute resolution mechanisms for investment and business opportunities based within the continent. In the same way that Singapore

w w w.esqlaw.net

and Hong Kong have established destination centres for dispute resolution in Asia, countries such as Mauritius, Nigeria, Rwanda and Kenya are now making a concerted and sophisticated effort to encourage parties to resolve their disputes in Africa by investing in arbitration institutions and facilities and by introducing robust arbitration legislation. We examine some of the options below: Mauritius Mauritius has perhaps made the most public and vocal strides to become the pre-eminent location for African international arbitration. It benefits from a stable democratic government and a mature legal system supported by good infrastructure. In 2008, the Mauritian International Arbitration Act was enacted, based on the UNCITRAL Model Law which seeks to harmonise arbitration legislation. The Mauritian legislation has adopted several ‘best-practice’ features derived from the English Arbitration Act, the UNCITRAL Model Law and other Model Law jurisdictions. In 2011, the Mauritius International Arbitration Centre (MIAC) joined forces with the LCIA to establish the LCIA-MIAC Arbitration Centre. The centre is an independent arbitral institution run with the support of LCIA andwith access to the LCIA database of arbitrators. All of this provides Mauritius with a robust legal framework and procedural regime to entice the international business community, meaning it is well placed to become Africa’s dominant seat of arbitration. What Mauritius needs now is to start seeing disputes being heard in MIAC and persuade users that all of the investment will pay off. Lagos As the largest economy in Africa, which some of the most exciting growth and business opportunities, Nigeria rightly has a loud voice when it comes to expressing a view on how and where African businesses should resolve their disputes. Nigeria offers a sophisticated and expe-

rienced legal community which is well used to using commercial arbitration to resolve in international and domestic commercial disputes relating to oil and gas, construction and infrastructure projects. The applicable legislation at federal level is the Arbitration and Conciliation Act 1988 which incorporates the UNCITRAL Arbitration Rules. More recently, Lagos State has enacted its own legislation in the hope of becoming the commercial arbitration hub of West Africa. Despite these strengths, parties engaged in international commercial contracts with Nigerian entities continue to need persuasion not to use foreign arbitration seats such as London and Paris and that concerns about the strength of its economy, political structures and judicial independence are part of the historical problems, not the future growth story. Kigali Rwanda has made considerable efforts to attract international business and reform its legal system and is working hard to be seen as a fair and independent country for international arbitration. In 2008, Rwanda enacted arbitration legislation based on the UNCITRAL Model Law and in 2012 the Kigali International Arbitration Centre (KIAC) was established, aiming to attract arbitration opportunities from countries in East Africa and beyond. Particular features of the centre and the arbitration rules include significantly lower fees than traditional centres such as London or Paris, in the hope that Kigali will become a viable option for international dispute resolution. Rwanda benefits from relative political stability, good governance and a low crime rate which all serves to facilitate its prominence as a centre for international arbitration. However, like other centres it needs to overcome inter-country parochialism, to persuade businesses and government to write KIAC clauses into their contract, and start to obtain the referrals that will initiate a forward momentum.

Nairobi In 1995, Kenya adopted the UNCITRAL Model Law and in 2013, legislators established the Nairobi Centre for International Arbitration (NCIA). The main objective of the NCIA is to provide an independent and non-profit centre with a broad mandate for domestic and international arbitration. In recent years, Nairobi has seen rapid growth in foreign investment and has established itself as a regional commercial hub. However, challenges facing Nairobi include a lack of experienced arbitrators and the need to persuade other African countries and business that it offers the most compelling forum for disputes to be heard. Despite the significant progress made by African countries in advancing their international arbitration offerings, major multinational businesses continue to have reservations about settling their disputes in Africa. Concerns remain over the varying quality of underlying arbitration laws, issues over neutrality and a lack of experienced arbitrators as well as administrative problems such as delays and backlogs. There remain question marks over judicial independence and ongoing problems with corruption, which Mauritius and Kigali have arguably done most to rectify. Fundamentally, until African businesses and governments begin to resolve their disputes using African arbitration centres,international parties will continue to prefer the established centres in Europe and Asia. African governments must seize the initiative and incorporate African arbitration clauses into their contracts in order to persuade others to follow suit. If Africa can capitalise on the investment it has made and the systems in place, benefits for local businesses and economies will be tangible. And of course it will be good for lawyers too! Article by Mark Molyneux, Partner – and Josie Procter, Trainee, of Addleshaw Goddard mark.molyneux@addleshawgoddard. com ESQ LEGAL PRACTICE 65

ESQ Law Report

Failure to pay full purchase price nullifies land sale contract Under Nigerian law, there is a long-established principle that where there is an agreement for the sale of land but the purchaser has not paid the full purchase price of the property, there is no valid sale of that land.(1) There is also no valid sale even if the purchaser is in possession of the property, as possession cannot defeat the title of the vendor.(2) The parties to an agreement to sell a property are free to decide whether the purchase price should be paid at once or instalments. Where the parties agree the period within which the full purchase price must be paid, the purchaser must comply; if no period is fixed by the parties, the balance of the purchase price must be paid within a reasonable time. In any case, the purchase price is the consideration that passes from the purchaser to the vendor in order for the contract to be valid. In a recent case the Supreme Court dealt with such a situation and seized the opportunity to reiterate the legal position.

he appellant, a limited liability company, had three shareholders: the respondent, the respondent’s former husband (Mr Gbajabiamila) and Mrs Ebie. The appellant was the registered owner of the property situated at 26 Sobo Arobiodu Street, GRA, Ikeja, Lagos State. In 1983 the appellant experienced financial difficulties and the board of directors passed a resolution to sell the property. The respondent and Gbajabiamila, as directors of the appellant, offered to purchase the property and their offer was accepted by the appellant. Consequently, on June 21 1983 the appellant as vendor and the respondent and Gbajabiamila as

6 6 E S Q L E G A L P R A C T I C E

purchasers executed a deed of assignment in which the payment of N150,000 as consideration was acknowledged, although there was no evidence that the agreed purchase price had been paid. The parties did not seek to obtain the governor’s consent to the transaction because of the cost. The respondent later persuaded Gbajabiamila to transfer his share in the property to her, and he agreed. To avoid the costs of obtaining the governor’s consent twice – first to the transfer of the property by the appellant to the respondent and Gbajabiamila, and second from Gbajabiamila to the respondent – the parties agreed to transfer the

property directly from the appellant to the respondent alone, notwithstanding the existence of the first deed transferring the property to the respondent and Gbajabiamila jointly. In pursuit of this objective, on December 5 1988 the parties executed another deed of assignment to transfer the property from the appellant to the respondent. The second deed could not be tendered in evidence because Gbajabiamila testified that he had destroyed it as he had received no consideration from the respondent for the transfer of his share in the property. The appellant approached the High Court for a declaration that it was entitled to the grant of a

certificate of occupancy in respect of the property and an injunction restraining the respondent from further acts of trespass on the property. The respondent counterclaimed for a declaration that she was entitled to the grant of a statutory right of occupancy in respect of the property. The trial court granted all of the appellant’s claims and dismissed the respondent’s counterclaim. The respondent successfully appealed to the Court of Appeal, which set aside the lower court’s judgment by dismissing the appellant’s claim and ordered the respondent’s counterclaim to be tried anew, while joining Gbajabiamila as a defendant to the counterclaim. The appellant appealed to the Supreme Court. Decision Before the Supreme Court, the appellant argued that the first deed was superseded by the second deed. The appellant relied on Gbajabiamila’s evidence to argue that the purchase price had not been paid in respect of the second deed and that the second deed had been discharged by breach of the respondent’s failure to pay the purchase price. The appellant also w w w.esqlaw.net

ESQ Law Report contended that the first deed was a registrable instrument under Section 15 of the Land Registration Act of Lagos State and had not been registered; hence, the document was inchoate. Further, since the consent of the governor was not sought and obtained in accordance with Section 26 of the Land Use Act, it was null and void and incapable of transferring the property. The appellant further argued that failure to pay the purchase price of the property was a fundamental breach of the contract of sale. The respondent also argued that execution of the second deed meant that the parties no longer relied on the first deed. The respondent contended that both the first deed and the second deed contained acknowledgment of consideration. She emphasised the fact that the first deed showed that the sum of N150,000 was collected by the appellant as consideration for the assignment of its interest in the property. In a unanimous decision the Supreme Court allowed the appeal. It agreed with the appellant and affirmed the decision of the trial court, while setting aside the decision of the Court of Appeal. The Supreme Court held that the second deed did not supersede, discredit and contradict the first deed on the grounds that the second deed – by which Gbajabiamila purported to convey his interest in the property to the respondent – had been breached by the respondent by her failure to pay the agreed purchase price. The court found that there was clear evidence from Gbajabiamila that the respondent had failed to pay the purchase price of his share of the property and that he had destroyed the second deed. The court held that had the second deed been in existence, it would have conveyed the property directly from the appellant to the respondent, since the first deed had been abandoned and discarded when the parties agreed to execute the second deed. w w w.esqlaw.net

It held that the second deed was aborted when the respondent breached its terms by failing to pay the agreed sum to Gbajabiamila, and that failure to pay the purchase price under a contract for the sale of land is a fundamental breach which goes to the root of the contract. It also held that the first deed, having been abandoned, had no binding effect on the parties. The Supreme Court then held that in view of the fact that the first deed had been abandoned and the second deed had been breached by the respondent and destroyed by Gbajabiamila, the parties returned to the status quo before execution of the first deed. In effect, there was no sale of the property by the appellant to the respondent and Gbajabiamila jointly or to the respondent alone. Comment The Supreme Court’s decision confirms the position of Nigerian law on the effect of non-payment of the full purchase price in a contract for the sale of land: it constitutes a breach that goes to the root of the contract. Thus, where the parties to a contract of sale

of land have agreed that the purchase price be paid in instalments, the purchase price must be fully paid by the purchaser when due if a time limit was agreed by the parties and/or within a reasonable time if no time limit has been agreed. However, the Supreme Court’s reasoning in holding that the property should revert to the appellant company deserves further scrutiny. It could be argued that since the Supreme Court did not pronounce on the effect of failing to obtain the governor’s consent on the validity of the first deed, the property should have reverted to the respondent and Gbajabiamila jointly when the sale evidenced by the second deed was held to have been breached by the respondent. This is even more so since the appellant acknowledged receipt of the purchase price of N150,000 on the first deed. The Supreme Court appears to have relied on the evidence of both parties that they had agreed to execute the second deed and that such deed should supersede the first deed in holding that the first deed had been abandoned, and thus had

no binding effect. In effect, it appears that the Supreme Court unwittingly permitted the appellant to benefit from reneging on the initial transaction evidenced by the first deed for which it had received consideration, while depriving the respondent from the joint ownership under the first deed without compensation for her contribution to the N150,000 paid for the joint purchase of the property from the appellant. An alternative option, which was open to the Supreme Court and which would have accorded more with the legal position, would have been to declare the first deed void for lack of consenf from the governor.(4) For further information on this topic please contact Funke Agbor or Adetoyese Latilo at ACAS - LAW by telephone (+234 1 462 2094) or email (fagbor@acas-law. com or alatillo@acas-law.com).The ACAS - LAW website can be accessed at www. acas-law.com. Endnotes (1) Odusoga v Ricketts (1997) 7 NWLR (PT 511) 1. (2) Odufoye v Fatoke (1977) 4 SC 11 and Manya v Idris (2001) 8 NWLR (PT 716) 627. (3) Nidocco Ltd v Ggajabiamila (2013) 14 NWLR (Pt 1374) 350. (4) UBN Plc v Ayodare & Sons (Nig) Ltd (2007) 13 NWLR (Pt 1052) 567.

ESQ LEGAL PRACTICE 67

6 8Â E S Q L E G A L P R A C T I C E

w w w.esqlaw.net

or the past few years, calls for the U.S. and China to cooperate on security and development issues in Africa have been increasingly popular. American and Chinese think tanks have been keen on identifying common ground and issue areas in Africa in which the two powers can work together. In fact, in a 2014 study by the China Institute of International Studies, Chinese scholars identified “an urgent need” for China and the U.S. to coordinate on African affairs. Brookings even hosted a U.S., Africa, and China trilateral dialogue in 2013 to explore potential opportunities for collaboration. The Council on Foreign Relations and Center for Strategic and International Studies have also devoted much attention to the issue. These calls have not been futile: The most recent U.S.China Africa Consultation hosted in Beijing in late 2014 discussed cooperation around the Ebola crisis and other common threats on the continent. However, despite the rhetoric and enthusiasm, people might be disappointed at the reality, which is that exemplary cases of successful cooperation between Washington and Beijing on the continent remain scarce. The few examples of w w w.esqlaw.net

The Limits of U.S-China Cooperation in Africa collaboration are on issues of the “lowest common denominator” (most basic and least controversial), such as the flaring crisis in Sudan/ South Sudan and severe non-traditional threats such as the Ebola outbreak. Upon examining the American and Chinese perspectives on cooperation in Africa, more realistic expectations as to what the two powers can and will jointly do for a better Africa might be warranted. The logic of U.S.-China cooperation in Africa is a sound one. Both Beijing and Washington have important political and economic interests in promoting peace and development of Africa. The two countries’ vested interests in Africa, particularly in commercial investment, make peace and stability imperative. In addition, as two responsible powers, the countries carry a shared moral obligation to Africa. In cases such as South Sudan, both the U.S. and China stand much to lose if the crisis continues to

fester. Furthermore, a stable and prosperous Africa will provide both the U.S. and China more investment and trade opportunities, which can enhance the momentum for their cooperation. Nevertheless, while scholars and media reports on both sides have produced numerous papers and analysis on what the U.S. and China “could” or “should” do to cooperate in Africa (as listed above), concrete cooperation that the two countries are in fact pursuing or planning to pursue is yet to develop quickly. The fundamental cause of inadequate U.S.-China cooperation in Africa is an underlying sense of zerosum competition between the two powers on the continent. Essentially, the U.S. and China are yet to see each other as genuine cooperation partners or friendly forces on many important issues due to their diverging perceptions and national interests. On the U.S. side, a 2014 RAND study accurately captures the current

U.S. perspective and reflects the U.S.’s concern around China’s expanding influence in Africa and about the U.S. losing in the Africa game. After listing details of China’s expanding engagements in the continent and how they undermine U.S. influence, the report recommends that the U.S. counter Chinese efforts such as the Forum on China Africa Cooperation (FOCAC) by cultivating relations with a wider range of African countries. Following the same line of thought, President Obama took a swipe at China during the 2014 U.S.-Africa Leaders Summit by differentiating the U.S. approach from those that “look to Africa simply for its natural resources … and simply want to extract minerals from the ground …” Although the president did not mention China by name, the comments were clearly aimed at Beijing. Such a competitive theme is also popular in China. As summarized by a 2013 report by the China Acad ESQ LEGAL PRACTICE 69

emy of Social Sciences, “the strengthening of the West’s influence in Africa means that China will face more difficulties in achieving its strategic interests in Africa … The West’s current campaign to deepen their influence presents more strategic competition to China … China should focus more on a competitive strategy in Africa.” Chinese analysts are keen to study how the U.S.’s Africa strategies might affect or undermine Chinese political and commercial interests on the ground. Some have suspected that the American interventions in Mali, Sudan, South Sudan, and Libya were indeed targeted at undercutting Chinese economic interests in those countries. To counter American criticism of China’s resource-centric economic engagement, China has also grown increasingly adept at attributing such disapproval to Americans’ “sore loser” mentality. Other than the strong sense of competition, another key factor that hinders U.S.-China cooperation in Africa is the different approaches and standards the two countries have adopted on issues such as foreign aid and development assistance. While China does not allow political issues such as democratic or authoritarian systems to interfere with its pragmatic ties with African countries, the U.S. has strong value-oriented policies that prevent Washington from engaging regimes with poor human rights records. On the technical level, China views devel-

opment and foreign aid as practical policy instruments to promote political friendship and economic cooperation, while the U.S. attaches clearly stated goals, stringent conditions, and strict criteria to its development programs. In reality, these vast differences significantly limit the potential for U.S.China cooperation. As noted above, within this broader context, the most notable cooperation between the U.S. and China seems to occur only on issues of the “lowest common denominator.” South Sudan is a good example. China has major oil investments at stake in the security crisis in South Sudan, while the U.S. has a vested interest in the success of a country that became independent from a referendum that Washington supported. Out of their shared interests, both the U.S. and China have participated in the peace process and have been jointly pushing for the end of the conflict. As a demonstration of such mutual commitment, Washington and Beijing listed Sudan/South Sudan as a key issue to work on together. Specific agendas include calling for parties in the South Sudan conflict to carry out the May 9 agreements, jointly supporting the U.N. Mission in South Sudan and the Intergovernmental Authority on Development’s (IGAD) mediation efforts, as well as coordinating various consultations to support peace. However, even in such a dire situation, U.S.-China cooperation is affected by the

countries’ dissimilar views of Sudan and of the need for sanctions. On the one hand, China argues that including Khartoum in the negotiation process is imperative given the key role Sudan plays in the conflict. However, such a proposal, which would necessitate negotiations with the Sudanese dictator President Omar al-Bashir, could hardly be considered an option in American domestic politics. On the other hand, the U.S. recently proposed a draft resolution to impose sanctions on South Sudan in order to push for a ceasefire. However, China has serious doubts about how the sanctions might affect China’s existing interests, such as the oil arrangements. Thus, these positions reveal divergent concerns, goals, interests, and desired outcomes on both sides. The other “lowest common denominator” area where people can find more signs of U.S.-China cooperation is health. In Liberia, the two countries have successfully worked to establish centers for disease control cooperation as well as launched the U.S.-China Collaborative Program on Emerging and Re-Emerging Infectious Diseases. During the recent Ebola crisis, the two countries have cooperated on providing assistance, coordinating logistics, and building an Ebola treatment center. Inspiring as these cases are, it seems such cooperation only occurs on issues that present the most serious, unequivocal threats to the two countries’ interests and when the

importance of such interests significantly outweighs the competition side of the story. Beyond these basic areas, people looking for U.S.-China cooperation in Africa in issues such as development or infrastructure will be disappointed. The Inga 3 dam in the Democratic Republic of the Congo, arguably a case of mutual interest for the United States and China, is an example. Last year, Africa observers were excited by the report stating that the U.S. was considering cooperation with China to fund the project, which would help to realize President Obama’s ambitious Power Africa goals. China even extended an invitation to the U.S. for the joint development. However, such hope was soon dimmed when Power Africa Coordinator Andrew Hescowitz announced at the Power Africa Summit earlier this year that the U.S.-backed Power Africa initiative will not “officially” endorse the dam project because the U.S. does not want the Power Africa brand to be “tarnished.” Cooperation with China on the project is therefore ruled out. If these facts are indeed true, Africa watchers should perhaps adjust their high expectations for broad, extensive U.S.-China cooperation in Africa. Instead, the U.S. and China should focus their efforts on the basic and least controversial security crisis and non-traditional health challenges such as pandemics. Cooperation on such issues as politics, trade, development, and aid is unlikely to occur as long as the competitive perceptions of each other remain unchanged in Beijing and Washington. Rather than painting a grand vision of an all-round U.S.-China cooperation in Africa, all three sides will benefit much more by focusing on the basic issues they can realistically work on together. Yun Sun Nonresident Fellow, Global Economy and Development, Africa Growth Initiative Yun Sun is a nonresident fellow in the Africa Growth Initiative, focusing on China’s relations with Africa and U.S.-China cooperation on the continent.

7 0 E S Q L E G A L P R A C T I C E

w w w.esqlaw.net

ESQ LEGAL PRACTICE 71

7 2Â E S Q L E G A L P R A C T I C E

w w w.esqlaw.net

Law Firm Profile

Legal Practitioners & Arbitrators 6B Bendel Close, off Bishop Aboyade Cole Street, Victoria Island, Lagos. www.rosberglegal.com

osberg Legal Practitioners & Arbitrators is a full service commercial law firm committed to delivering pristine services to its clients. The four year old firm delivers personalised and qualitative legal advisory and representation in real time to match-up with the fast-paced commercial environment of today. It strives to understand its clients’ businesses which enable it to deliver tailor made and relevant advice and representation. Rosberg is driven by the desire to attain perfection as it is reputed for paying attention to details. The firm’s core areas of practice are as follows: • Corporate/ Commercial • Information and Communications Technology • Energy • Intellectual Property • Maritime • Taxation • Debt Recovery • Real Estate • Immigration • Litigation, Arbitration and ADR Recent transactions handled by Rosberg include its role in advising in the construction of Aba Mega Mall which is a Public Private Partnership (PPP) transaction between Abia State Government and Greenfield Assets Limited. The PPP project whose first phase has just been commissioned by the immediate past governor of Abia State is valued at $300 million. Amongst other numerous transactions, the firm also recently advised in the establishment in Nigeria of the world class training w w w.esqlaw.net

firm, Dale Carnegie Training, with presence in all 50 of the United States and in over 80 countries. The strategic vision of the firm is piloted by the Managing Partner, Mr. Greg Nwakogo. He is a transactional lawyer with expertise in commercial litigation and Alternative Dispute Resolution. He is an experienced commercial and dispute negotiator, mediator and arbitrator. He represents organizations in his capacity as Barrister and Solicitor to negotiate the complex paper work necessary to running and owning a business, as well as those

involved in investments and divestments, Public Private Partnerships, financial and investment management transactions, intellectual property and communications law. Nwakogo is an Executive Committee member of the Chartered Institute of Arbitrators (UK) Nigeria Branch and the Chairman of its Young Members Group (YMG). He is also a member of Regional Coordinating Committee for Africa, Middle East and Turkey Chapter of the International Chamber of Commerce, Young Arbitrators Forum

(ICC YAF). He is a recipient of the Excellence Award by Nigerian Top Executives where he was rated in the top 4 percent of all Nigerian executives in the Law, Legal and Information Services Industry in the 2015 Publication and Rating. Whilst focusing on its vision of attaining perfection Rosberg’s medium term goal is to form strategic alliances that will position the firm as the leading full service corporate and commercial law firm in Nigeria.

ESQ LEGAL PRACTICE 73

Unveiling The Nigeria Potentials Opportunities Outweigh The Risks Asue Ighodalo, Partner, Banwo & Ighodalo and Chairman NBA Section on Business Law 7 4Â E S Q L E G A L P R A C T I C E

w w w.esqlaw.net

hat are the recent developments in business law in Nigeria? Probably the most topical in recent times are the Central Bank of Nigeria circulars on: (1) Currency Substitution and Dollarisation of the Nigerian Economy; and (2) Memorandum 26, Paragraph (5), Section (d) of the Foreign Exchange Manual – Unfettered Access to Funds in Export Proceeds Domiciliary Accounts. These circulars (despite their follow on clarifications) have greatly affected interpretations around contracts and transactions denominated in US Dollars and other foreign currencies. This also affected investor and business perception about our deregulated foreign exchange regime, and created some panic in the market. Also, the exposure draft of the FRC Corporate Governance Rules is causing corporates and investors some concern. It appears that in certain areas, we may be sliding back into the era of heavy handed regulation. This can adversely affect our investment climate. What are the recent deals in growth areas in Nigeria especially in the areas of Energy, Oil and Gas, Infrastructure, finance, IT, media and entertainment or consumer products/retail that you have worked on? ( “Laugh” ). I am sure you don’t expect me to answer that question by specifically naming deals. However, I know there are a number of sizeable transactions going on in the Energy, Infrastructure, Telecommunications, Financial Institutions and FMCG spaces. Also, interest in new transactions and direct investments heightened immediately President Jonathan conceded defeat.

Interview and well regulated will always engender investor confidence. Investor and operator confidence assures a deeper and more liquid market. Our capital market regulators have worked hard over the last few years to improve our standards and introduce international best practices. We are not exactly where we want to be yet, but we are slowly getting there. If we continue working hard at assuring transparency, If our regulators continue with their constant interface and exchanges with operators and investors, if there is a continuing improvement in market capacity, if costs are further reduced, and if innovative reforms are maintained to assure market integrity,our capital market will be deeper, more liquid and will effectively fulfil its primary role. Many “ifs”, I know and this just underscores that at the moment we are not quite there, but it’s work in progress. What is the role of institutional investors in deepening capital market operations in Nigeria? Our institutional investors have been too passive. It’s one thing investing in companies and products,it’s another thing paying attention

to how these companies are governed, how they are performing and the capacity of management. Offshore institutional investors are more active and sometimes lead the interrogation of management on certain corporate decisions or transactions. If our Institutional investors provide liquidity but are not doing enough to assure good governancewhich is the primary driver to building a sustainable market. Where are we in Nigeria in the area of company governance and shareholder activism? What will you proffer as the reforms needed in shareholder activism in Nigeria? Over the last eight years, there has been a remarkable improvement in our corporate governance regime. Well run and transparent companies, in a properly regulated even handed environment, will improve market confidence and attract investments. Our primary market regulators SEC, CBN, NAICOM, PENCOM,NSE have after the 2007/2008 crisis, paid detailedattention to how our companies are governed. Our retail investors are also becoming more active in a structured

way. As I said earlier, our institutional investors now need to step up to the plate. Coincidentally, my firm organised a very wellreceived breakfast seminar in April; the focus of which was the role and future of the activist investor, examined from the perspectives of the regulator, institutional investors (including private equity players) and minority/retail investors. Which sectors are poised to grow the most rapidly in the near and mediumterm in Nigeria? I will take a bet on infrastructure, agriculture, business tourism, power, IT and entertainment. What are the unique opportunities and challenges that lawyers must be mindful of as they counsel both seasoned investors and those relatively new to the Nigerian investment environment? I always say that an astute investor who has a good lawyer and a good financial adviser or accountant will rarely go wrong. As corporate or business lawyers, our role is to ensure we achieve our clients’ business or transaction objectives within the confines of the law. The

How will you assess the role of the Nigerian Capital Market in deepening investment regime in Nigeria? A market that’s transparent, fair, stable, capacitated w w w.esqlaw.net

ESQ LEGAL PRACTICE 75

knowledgeable, hardworking lawyer who has integrity, high principles, emotional intelligence and good bedside manners, will always have abundant opportunities. Our main challenges, advising our clients, include;ambiguous and conflicting laws and rules, market uncertainty, dwindling capacity and the poor unreflective fees. What recent trends can you observe in the area of investments in Nigeria, and how will this affect commercial enterprises and their lawyers Hopefully, we will see an improvement in our enabling investment environment. This will attract investment “feet” into the country. Expectedly in the first quarter of this year Foreign Direct Investment (“FDI”) declined by about one third compared to the same period last year. Thankfully inquiries and new investment transactions have picked up since April. We are receiving several inquiries from countries, institutions and entities that were previously averse to investing in Africa and Nigeria in particular. I expect an increase in internal and foreign investment from the third quarter of the year, except something goes terribly wrong. I believe investment focus will be on financial institutions, FMCG, power, entertainment, business tourism and IT. Any decline in investments and capital formation will have a contracting effect oncommercial enterprises and the economy. Commercial enterprises struggle badly at such times, this ultimately affects the work stream for business lawyers except for the extremely ingenious lawyer.Having said that, good litigators/dispute resolution and insolvency lawyers can thrive at such times. Who is funding Nigeria’s growth? Informally or formally

7 6 E S Q L E G A L P R A C T I C E

w w w.esqlaw.net

Interview

?Or the usual answers? I believe our growth is funded from mixed sources; but our primary areas/ sources of growth are in agriculture, entertainment, trade, the informal sector, FDIs, and services. Many investors have found, especially in recent years that when investing in Nigeria, the rewards often exceed the risks. This is especially true when the risks are carefully identified and deftly managed. What are some of the Specific risks to anticipate? Investments always carry a certain level of risk no matter how well structured and regardless the sophistication of the environment. However, in an emerging economy like Nigeria, such risks are more pronounced. This is often due to the uncertainty surrounding the political climate, substandard infrastructure, exchange rate volatility, high entry costs and inadequate regulatory framework. Nigeria has been able to attract foreign w w w.esqlaw.net

investments and retain internal investment due to its versatile population, growth opportunities and relatively high returns. How has the emergence of private equity funds affected investments in key sectors in Nigeria? PE firms have introduced alternative sources of investment funding, deepened the market, improved governance, increased competition and enhanced managerial capacity. I think when well managed and negotiated, particularlyas regards exit processes and management control the increase in PE funds in our market is an excellent development. International law firms continue to eyeAfrica with a couple of them actually present in some countries. How is this affecting law practice in Africa? I believe the ultimate impact differs from country to country. Generally however, I believe it is a good development, it improves

capacity and processes, increases competition and in the medium to long term it will greatly increase lawyer earnings. Clients will get much better service. Congratulations on your recent appointment as chairman of Sterling Bank Plc. You have now added another feather to an already intimidating profile, as you are Chairman of the Nigerian Bar AssociationSection on Business Law and a prominent member of the Nigerian Economic Summit Group (NESG) as well as a founding partner in what is reputed as one of the leadingbest commercial law firms in Nigeria. Considering the demands that all these place on you, what do you do outside your professional life and all these busy schedules to enhance your life? I am trying hard to spend more quality time with my family and my friends. My wife, in particular,my family and some of my friends have been extremely toler-

ant over the years. Sometimes I play golf, watch football, read books and magazines or I just sleep. What advise will you give the new Government in creating an enabling environment for investors? Make it easy for investors to come into Nigeria, cheap and quick for them to set up shop. Let us have certain and well thought through, unambiguous investment laws and policies. Avoid policy inconsistencies. Encourage alternative dispute resolution processes and arbitration andstrengthen our laws to make the outcome of such processes certain and more easily enforceable. The idea of the NIPC, a one stop investment establishment shop, was a brilliant one, proposed by the NESG, but its enabling law was not detailed enough and the implementation got mired in politics and civil service bureaucracy. Fixing these shortcomings would be a good place to start. Â ESQ LEGAL PRACTICE 77

The Courageous Gate Keepers Profile TONY BASSEY

he rapid pace at which corporate legal departments have changed in the past few decades is a topic several scholars have addressed as the position, influence and purview of the corporate lawyer-in particular that of the General Counsel –has evolved and continued to do so. Today’s In-House Lawyers straddles the world of business and law and therefore occupy a status that is unique among both lawyers and businessmen. CEOs and other business leaders look to GCs for far more than mere legal advice. Distinct from other senior executives and members of the board of director, the general counsel possesses and employs unique skills and qualities of mind that help executive team and directors to guide corporate enterprise to desired and ethical business results. It seems therefore that successfully executing one’s role as General Counsel requires significantly broader skill set than that associated with the traditional image of “top lawyer” in a company. According to Tony Bassey, former Legal Adviser of Guiness Nigeria Plc “the role of the inhouse counsel is not only challenging but also very interesting. In a typical day, you are most likely to run through a wide swath of the law. The major challenge include: perception,

commercial consciousness and tracking legal trends. Perception: In companies, most employees erroneously perceive the company lawyers as the “company police”, and this thinking shapes to a great extent the relationship between the lawyers and other employees. As a result, there is a hold-back on information which requires the in-house lawyer to manage employee relationships with openness and trust if success is to ensue. Commercial consciousness: As an in-house lawyer you are wearing two hats, one as a business man and the other as a lawyer. In that guise, you are to be an enabler of business and not a clog in the wheel whilst still mitigating legal risk. At times this may not be so clear cut or easy, nevertheless it is a delicate balance that an in-house counsel must learn to imbibe because as it is said, that in dance and as in life, you are only as good as your partner. A business does not envisage getting tied up in expensive litigation or arbitration with no end in sight, instead the business wishes to be protected to enable its continuance as a going concern while rewarding shareholders and impacting stakeholders. Tracking legal trends: It is quite easy for in-house lawyers to become oblivious of events and changes in the legal community. New laws may be enacted, old laws repealed and new approaches adopted to legal issues

but the in-house lawyer may be unaware of these. Unfortunately, only but a few law firms consider it good practice to regularly update their clients cum colleagues on trends in the legal community. The in-house counsel must be abreast of these trends if he truly wishes to succeed. I see myself basically as a solution provider who ensures that the engine of the business is well oiled and runs smoothly while in the same vein predicting the future through legal risk scenario mapping and mitigation.” Tony Bassey obtained his Bachelor of Laws degree (LLB) from the University of Uyo in 1998 and was admitted to practice law as a solicitor and advocate of the Supreme Court of Nigeria after successfully passing the Nigerian Bar examinations in the year 2000. He is an Associate of the Institute of Chartered Secretaries and Administrators (ICSA) and holds a joint Certificate on Negotiation and Leadership from Harvard Law School and Massachusetts Institute of Technology (MIT). Tony was the Legal Adviser of Guinness Nigeria Plc and Diageo Brands Nigeria Limited until September 2014. Prior to his elevation to the position of Legal Adviser, he was the Commercial Legal Counsel of the Company from 2010-2011. Tony joined Guinness Nigeria after two stints at Equity As-

surance Plc, where he held the position of Assistant Company Secretary, Controller Legal Services (Head of department) & Chief Compliance Officer (Feb. 2008 – Dec 2009) during the second stint and held the position of Assistant Manager, Legal/ Personal Assistant to the Managing Director from 2004 to 2005 during the first stint where he also acted as the Company Secretary for Energy & Special Risks Insurance Company Plc. His law career started in 2000 as an Associate in the law firm of G. A. Ikott & Co. in Eket, Akwa Ibom State, after which he undertook the mandatory National Youth Service Corps scheme as a Legal/Administrative Assistant in the Joint Interest department of Mobil Producing Nigeria Unlimited (ExxonMobil) between 2001 and 2002. He worked as an Associate in the firm of Iniedu & Associate from 2002 to 2004 before joining Honeywell Group Limited as Manager, Legal Services where he worked from 2005 to 2008.

ADEWONUOLA ADENIRAN Legal & Compliance Counsel West Africa Baker Hughes, Nigeria

or Adewonuola Adeniran, ‘relationship-building skills’ and, particularly, ability to ‘bridge the gap’ between legal and business operations are key ingredients for a successful career as an InHouse lawyer. By creating and preserving relationships trusted in-house legal advisors are better able to contribute meaning-

7 8 E S Q L E G A L P R A C T I C E

fully to the development of the business. Adewonuola, attended University of Lagos between January 1994 and December 1999 where she bagged a honours degree in Law. She was called to the Nigerian Bar in 2000. She was at one time or the other Legal & Compliance Counsel Sub-Sahara Geomarket - Baker

Hughes September 2012 - January 2014, Legal and Compliance Counsel Nigeria Geomarket Baker Hughes December 2009 - September 2012, Contracts Counsel - Baker Hughes July 2008 - December 2009, Assistant Manager Legal Services - Honeywell Group Limited, January 2005 - August 2006 w w w.esqlaw.net

The Courageous Gate Keepers Profile NIKE LAOYE

urrently leading over 23 lawyers working InHouse, Adenike Laoye says she’s “lucky that she is working with a team within the best quality set”. According to her, The role of an in-house counsel is extremely important and critical in any large regulated and customer service focused institution such as a bank. With particular reference to the banking industry, it is an essential and indispensable role. There is a lot of reliance and dependence on the Inhouse counsel for all nature of issues whether related to the Legal function or otherwise. The in-house counsel is usually inundated with all manner of requests with the expectation that he/she can solve any problem/ matter whatsoever. You always have to find the solution in a conclusive positive manner. Accordingly, the In-house counsel must always be adept in thetotal operations of the Bank in order to provide appropriate advice and solution. It is important to emphasize that the role of the In-house counsel is advisory

and even where the advice is not taken, for business reasons, you must still ensure protection of the Bank. The challenge for the In-house counsel, really, is to always be able to provide the appropriate advice, resolve issues and to make sure the Bank is protected at all times with minimal exposure to risk even where legal advice is not adhered to. As Chief Legal Counsel, there is also the task of ensuring that other legal officers within the team effectively carry out their tasks using the same standard, quality and zeal. Mentoring and training them is imperative, as the failure of one team member may result in the negative perception of the entire Legal Department. Indeed, the In-house counsel is the courageous gatekeeper and even more so when the role is combined with the role of the Company Secretary. I must mention that the In-house legal counsel’s role continues to evolve in line with market developments within any

particular industry. Adenike counsels that to cope with the various challenges, the In-House Counsel needs to adopt some or all of the following challenges • Excellent understanding of the business and industry • Excellent use of wisdom • Clear demarcation of duties/ streamlining of processes • Effective and efficient team • Strategic thinking • Simplified documentation • Clear Legal Guidelines / Workflow • Good working relationship with all internal customers/ stakeholders • Training of internal customers to engender understanding of legal issues • Clear and measurable Service Level Agreements • Good working relationship with effective External Counsel • Solution oriented Adenike Laoye attended Holy Child College, Ikoyi Lagos where she obtained her GCE O Levels. She preceded to the United Kingdom for her A levels at the

Sacred Heart School Kent. Adenike thereafter went to the Lagos State University to study Law and was awarded LL.B in 1990. She attended the Nigerian Law School Lagos in 1991 where she excelled and was awarded Dr. Odje’s prize for the Best student in Criminal and Civil Procedure. She started her working career as a Youth Corper in 1992 with Ecobank Nigeria and continued there as a legal officer from 1993. She has been in Ecobank since 1993, and is presently the Chief Legal Counsel and Company Secretary of Ecobank Nigeria Limited. Indeed, the Ecobank legal team won the maiden edition of Nigerian Legal Awards 2010 as the Corporate/Banking and Finance Team of the Year.

UZOMA UJA Company Secretary/Legal Counsel Lafarge Africa, Nigeria

e clear with outside counsel about expectations. Do you want a 10-page memo, or will a conclusory email suffice? Getting more than you need will result in explanations to management about larger than expected outside counsel bills. Getting less may not satisfy legal or business requirements. Keeping outside counsel expectations aligned with your and management’s expectations preserves all these valuable relationships and your role as a cost-conscious advisor. Lafarge Cement WAPCO Nigeria rebranded to Lafarge Africa w w w.esqlaw.net

in 2014, following a series of strategic transactions across Nigeria and South Africa. Previously Nigerian legal head, UzomaUja remains company secretary at the new entity, with a remit including M&A, project finance, compliance and competition. With over five years’ experience at the global brand, Uja previously had a long history in the financial services sector, working at First Inland Bank and First Atlantic Bank, in a variety of legal and compliance roles. Educated in Nigeria and the UK, Uja is also an associate member of the Chartered Institute of Arbitrators

(UK). Ms. UzomaUja is the Company Secretary of Lafarge Africa Plc. Prior to this, she was the Company Secretary/Legal Adviser of Lafarge Cement Wapco Nigeria Plc. She joined Lafarge Cement WAPCO in November 2010 as the Assistant Company Secretary/Legal Manager. Prior to joining Lafarge Cement WAPCO Nigeria Plc, she was the Team Leader in the Company Secretariat/Legal Department of First Inland Bank Plc [now FCMB] where she held several positions. She is a graduate of Law

from the University of Nigeria, Nsukka and was admitted to the Nigerian Bar in 2000. She obtained her Master’s Degree in International Business Law from the University of Leeds (UK). MsUzomaUja is an Associate of the Chartered Institute of Arbitrators (UK). ESQ LEGAL PRACTICE 79

The Courageous Gate Keepers Profile ADESEGUN AKIN-OLUGBADE, OON

Executive Director/General Counsel, African Finance Corporation

etting members of the Executive Management and other individual stakeholders to appreciate and understand that the responsibility of the in-house counsel is first to the Corporation and not to them as individual stakeholders is by far the biggest task of most gatekeepers. This was the view of Dr Adesegun Akin-Olugbade OON Executive Director and General Counsel, African Finance Cooperation. According to him, “The ability to simplify complex legal issues to non-lawyers and bring them to appreciate the importance of having sound legal frameworks and policies at the outset rather than expending considerable amount of money, time and energy in trying to fix a legal problem after it arises. IN-House lawyers must possess the ability to combine the role of an advisor on legal issues with executive responsibilities stemming from being a member of the Executive Management. There sometimes is friction and tension between both responsibilities. Combining stakeholder expectations of being a problem-solver with the necessity and obligation of articulating a legal opinion which expresses the legal realities without being seen as a pessimist, a naysayer or business preventer is the key to successful career. The other big task will be how to ensure a smooth relationship with your Legal Team and Outside Counsel. Every IN-House lawyer must be able to ensure a rigorous evaluation and selection process is adopted for the registration

8 0 E S Q L E G A L P R A C T I C E

of external counsel and that required legal services are procured based on the expertise of pre-qualified outside counsel. Pre-qualified outside counsel procured for particular assignments are actively engaged with adequate guidance about what is required. In case of conflict (very rare and almost non-existent), preference may tilt towards in-house counsel. Therefore, there must always be sufficient trust in their strong sense of professional judgement.” SEGUN ATTENDED.... 1. Educational background • Harvard Law School Sept. 1988 – Jun. 1991 • SJD Degree, PHD/Doctor of Juridical Science • Harvard Law School Sept. 1987 – Jun. 1988 • LL.M. Degree, Masters of Law Degree • King’s College London (University of London) Oct. 1984 – Sept. 1985 • LL.M. Degree (International Finance and Corporate Law) • Nigerian Law School Oct. 1983 – Jul. 1984 • B.L. Practice Diploma, Admitted to the Nigerian Bar • King’s College London (University of London) Oct. 1984 – Sept. 1985 • LL.B. (Honours) Degree, Bachelor of Laws Degree • Millfield School, Somerset, England Oct. 1978 – Jun. 1980 • “A” Levels • Igbobi College, Yaba, Lagos, Nigeria Jan. 1973 – Jun. 1978 • West African School Certificate Grade 1 • Corona School, Yaba,

Lagos, Nigeria Jan. 1966 – Dec. 1972 Primary School Education 2. Adesegun was at various times • Executive Director (Corporate Services) and General Counsel, Africa Finance Corporation (Jan. 2009 – Present) • General Counsel and Corporate Secretary, Africa Finance Corporation (Jan. 2008 – Dec. 2008) • General Counsel and Director, African Development Bank Group (May 2000 – Dec. 2007) • Division Manager, Finance and Administrative Affairs Division, Legal Services Department, African Development Bank ( Mar. 1997 – Apr. 2000) • Chief Legal Officer, African Export-Import Bank, Cairo, Egypt (Oct. 1994 – Mar. 1997) • Senior Counsel (Financial and Co-operation Affairs Division, Legal Department), African Development Bank, Abidjan, Cote d’Ivoire (Jul. 1991 – Oct. 1994) • Research Intern, (Treasury Department), African Development bank, Abidjan, Cote d’Ivoire (May 1990 – Nov. 1990) • Foreign Associate, Arnold & Porter, Washington D.C. (Jul. 1989 – Dec. 1989) • Research Assistant to Mr. Phillip Wellons, Harvard Law School (Nov. 1988 – Mar. 1989) • Summer Associate, Reichler, Appelbaum & Wippman, Washington D.C. (1988) • Junior Partner, O.B.

•

Akin-Olugbade & Co., Lagos, Nigeria (1986 – Aug. 1987) State Counsel, Federal Ministry of Justice, Lagos, Nigeria (1985 – 1986)

In his stint as General Counsel, Adesegun has been a part of the team that launched African Development Bank’s 30 year bond – longest tenor bond issued by a AAA rated institution in 1992; he was Involved in setting up the African Export-Import Bank in 1994; Co-wrote the legal documents of the African ExportImport Bank; Participated in developing the governing documents and statutes of the African Development Bank; was involved in the relocation process of African Development Bank from Abidjan to Tunis and largely creating a ‘new’ Institution in Tunis. Adesegun took part in African Development Bank’s first global bond issue; participated in establishing 5year term limit for the president of the African Development Bank; and was involved in the establishment of Africa Finance Corporation and overcoming the initial teething problems of the Institution. w w w.esqlaw.net

The Courageous Gate Keepers Profile TUNJI MAYAKI

Deputy Managing Director/Head of Legal, Addax Petroleum

o cope with the enomours challenges posed by the job, In-House Lawyers, must understand that their work is is essentially premised on having the right team in place. A team selected because they have shown or have the unbridled potential to be true professionals, good knowledge of the law, good technical knowledge relevant to the business, have the ability to provide crisp and fit for purpose legal advice, are keen to appreciate commercial issues, can work as a team having good interpersonal and communication skills. It then becomes easier to deploy the following strategies to manage the work load: • create the business environment that promotes great team spirit • Motivate the team by empowering and ensuring that individuals have a good sense of belonging and selfactualization. • Effective delegation. • Knowledge sharing schemes: structured and on

the job training, ‘lunch and learn’ events etc. • Mentoring, coaching, encouraging the team members, and providing and receiving constructive feedback. To balance the relationship with Legal Team and Outside Counsel, Tunji stated that “The balancing act has not been delicate as one may have expected, giving that there has been mutual respect, hinged on the fact that in-house counsel have been more than able to hold their own. Their particular and peculiar knowledge of their business areas has been of tremendous advantage, so it has been more of a symbiotic relationship. In the areas where regulation bars in – house counsel from taking the prominent role, proper monitoring of external counsel based on clearly defined assessment and performance evaluation criteria leaves no one in doubt on expected deliverables.” Educational background

Degree in Social Science’s (1982) and Law (1986), Called to the Nigerian Bar (1987). Business & Leadership Programs of both Harvard and INSEAD business schools. 3. Professional background Privileged to have been through top notch firms: • Law firm then known as Ajumogobia, Okeke, Oyebode & Aluko; • Pioneer VP Legal & Compliance Asset & Resource Management Company Ltd (ARM) • Senior Legal Counsel, Gas & Power, Shell International BV, The Hague, The Netherlands • Group Head of Legal & Coy Secretary, Shell Companies in Nigeria • Deputy Managing Director, Legal, Supply Chain Management & Regulatory Affairs-Addax Petroleum. • Tunji has been involved in several landmark achievements as General Counsel this ranges from the dis-

missal of controversial environmental claims which if successful would have significantly impacted the company’s bottom line, to agreements being reached that has secured Company’s licence to operate. While at Shell International BV, The Hague, The Netherlands where he served as Senior Legal Counsel, Gas & Power, Tunji had the opportunity of providing legal support to Shell’s global Gas & Power and construction projects in Nigeria, Western Europe, Russia, China & Mexico.

IRENE OTIKE-ODIBI

Company Secretary/Legal Advisor, FBN Capital, Nigeria

e responsive. Personnel shouldn’t feel like sending things to legal is sending them to a black hole. Respond to emails and telephone calls promptly, even if that response is that you won’t be able to substantively respond until the next week or so due to other priorities. Moreover, advice should be directly relevant to the questions asked. Unless specifically asked to expound broadly on a legal topic, keep advice targeted to the particular set of facts and issues. As investment banking and asset management specialist FBN Capital’s general counsel, Irene Otike-Odibi is ‘one of the best’, according to sources. She draws particular mention for w w w.esqlaw.net

her contribution to corporate governance and due diligence processes in the bank. A former Adepetun Caxton-Martins, Agbor & Segun senior associate, Otike-Odibi’s specialist expertise include private equity and joint ventures. Irene is the General Counsel and Company Secretary for the FBN Capital Group where she heads the Legal and Compliance units, responsible for drafting and reviewing transaction documents for each of the strategic business units of the organization. A seasoned professional with over 19 years of legal practice (with a particular bias for company and commercial law), Irene has worked in several top tier

commercial law firms in Nigeria, including Olaniwun Ajayi & Co and Aluko & Oyebode, where she gained extensive experience in project finance, capital market operations (particularly in collective investments), advising core investors in the privatization process, and mergers and acquisition. As a Senior Associate in the Commercial Law Group of Adepetun, Caxton-Martins, Agbor & Segun, she led various teams that conducted due diligence and provided advice to the firm’s international clients in various sectors of the economy including telecommunications and banking. Until recently, Irene was the Corporate Counsel in First

Funds Limited (now FBN Funds Limited), providing legal advice to the Company and served as Secretary to Board and Executive Committees. Irene holds an LL.B from the University of EastAnglia, Norwich and an LL.M in Corporate and Commercial Law from Queen Mary University, London. She was called to the Nigerian Bar in 1995. ESQ LEGAL PRACTICE 81

The Courageous Gate Keepers Profile DR EMMANUEL IBE KACHIKWU

General Counsel and Executive Vice-Chairman Exxon Mobil Nigeria

ne of Nigeria’s most respected in-house lawyers and an accomplished scholar and thought leader, Dr Emmanuel Ibe Kachikwu counsels that In-House lawyers should always set expectations with internal clients. Successful In-House Counsels understand the need to work with company personnel to set reasonable expectations of what will be delivered and when setting such expectations, avoid negative feedback such that when you deliver a great product but later than the client assumed it would arrive, or conversely, when you deliver right away but the work is less than the client was expecting you will not be tagged a misfit. GCs should actively keep team members and management informed. Even when handling matters that seem independently legal, it is important that the company understands the status of these matters so they can exercise proper judg-

ment about the next steps. Management shouldn’t have to guess where something stands or be left to incorrectly assume something is completed when it is not because unexpected issues arose. Don’t take things personally. Even if the company decides to do something you’ve said is unwise or not the best legal approach, there can be good business reasons for the chosen action. You’ve done your job by giving sound counsel and shouldn’t be offended if your advice isn’t taken. Of course, if you believe the chosen conduct presents unreasonable risks, make sure you’ve taken the matter up the ladder as much as you can. As Exxon Mobil’s Nigerian general counsel, he is responsible for its upstream and downstream businesses in the jurisdiction, one of the global oil and gas leader’s primary African focuses. He has overseen the nation’s compliance programs and advised on issues related to anti-corruption laws across

Africa. In addition to his current position at Exxon Mobil, he is also executive vice- chairman at Mobil Producing Nigeria. He has also established his own businesses in downstream petroleum, legal practice and publishing, and lectured in various institutions including Harvard University. He has three published law books on investment law and contracts and numerous articles in various journals. Kachikwu previously also worked as an investment attorney in the US and as Nigeria’s Texaco Upstream and Downstream general counsel. Apart from being the 11th Odogwu of Onicha Ugbo (The Warrior of OnichaUgbo. The Odogwu is the town’s defence minister, traditionally speaking), Emmanuel is also the Isagba of Onicha Ugbo and of Eze Chime kingdom. Dr. Emmanuel Ibe Kachikwu is a distinction graduate of Law from the University of Nigeria, Nsukka and

Nigerian Law School. He bagged a first class degree in Law and was best granduand and multiple awards winner from both Institutions. He thereafter obtained a Masters and Doctorate Degree in Law from Harvard Law School USA, with distinctions. He has worked as an Investment Attorney in USA, as General Counsel with Texaco Upstream and Downstream in Nigeria and is now Executive Vice Chairman of Mobil Producing Nigeria Unlimited and General Counsel for Exxon Mobil Nigeria affiliate Upstream and Downstream Companies in Nigeria.

DEFOLU OLUFON

General Counsel and Compliance Officer First Exploration and Petroleum Development Company, Nigeria

ecome a member of the team. Rather than being seen as a “necessary evil” that must be cleared before deals close or projects are completed, be seen as a valuable contributor to the team. Seek to manage risk instead of avoiding it. Most companies are about maximizing profit while lawyers are about minimizing risk. This difference can lead

8 2 E S Q L E G A L P R A C T I C E

to lawyers being seen as naysaying hindrances to profitmaking. Rather than shooting down ideas, if something seems problematic, explain the risks and how risk might be minimized through alternative approaches. Defolu Olufon has led First Exploration and Petroleum in some of the largest recent upstream acquisitions happening

in the region. Managing a small team of legal, compliance and commercial staff, Olufon has headed the legal function since the company was first established in Nigeria in 2012. An expert in anti-corruption matters, Defolu has been widely praised for developing the business’ sophisticated corporate governance program. w w w.esqlaw.net

The Courageous Gate Keepers Profile DAYO OKUSAMI

Executive Director/General Counsel Zircon Nigeria Limited

Drivers of enterprise risk With the growing volume, type and severity of enterprise risks, organizations today expect their legal department to provide proactive direction for risk management for the enterprise. In-house counsel must therefore collaborate with risk managers to map out the threats to the enterprise and develop a forward-looking approach. Determining which risks require the attention of limited resources within an organization is likely the most difficult, yet important, duty of

the general counsel. Traditional approaches to risk management are failing. For example, internal audit software is useful for managing and monitoring structured data, such as transactional data in financial systems, and may be helpful in detecting regulatory issues with a specific transaction or series of transactions. However, that software cannot parse unstructured data like email and other forms of electronic communications. Other traditional approaches often employed by organizations, such as periodic risk audits and

whistleblower training, while necessary and important, may not be effective in early risk detection. The changing nature of risk management demands greater involvement by in-house counsel, as well as greater alignment and collaboration with risk and compliance. This is the only way to ensure that the organization is appropriately focused on anticipated issues that could create problems going forward. Legal’s role in anticipating risk is not a one-time event; rather, it is now part of the core fabric

of enterprise risk identification. The next article in this threepart series will explore how legal departments are collaborating with risk and compliance teams to proactively monitor risk.

TOUN CANDIDE-JOHNSON

General Counsel & GM Management Services; Chief Compliance Officer, Total Upstream Companies in Nigeria

he legal team is already part of the company’s “competitive edge”. Once the legal team properly understands its client’s profile, strategy and objectives it can apprehend the mission of bringing these into fruition. To do this, the team must be skilled, innovative or indeed re-innovative (i.e. doing the same thing but in a different/ more efficient way), adequate in number and fully involved along the value chain. This, for me, gives the Company that competitive edge in its dealings with collaborators and competitors alike. While it is not possible to anticipate all risks in a territory, it is important to be able to identify a range of risksand prepare in advance to meet and mitigate such risks in as many scenarios as possible. However, a prudent General Counsel in Nigeria would already be aware of the many challenges, some of which are mentioned above. These challenges have attendant risks that can be effectively manw w w.esqlaw.net

aged by: (i) keeping abreast of legal (judicial and legislative), economic and political developments in the country; (ii) establishing and maintaining cordial relationships with colleagues and relevant authorities; and (iii) keeping the Company’s departments up-to-date with respect to applicable laws, regulations and policies, as well as encouraging exchange of information (to the extent possible) between related departments, which can aid anticipation of potential/future problems. Ultimately, there can be no limit to the different ways a General Counsel and the legal team can help the Company mitigate and manage business risks, provided that the team receives the correct information and remains dedicated to finding solutions. A General Counsel must keep a close-knit team of individual strengths which are recognised and developed, and ensure mutual support through regular exchanges. We basically divide the work

so that people can grow expertise in different areas. In addition, we meet every week to share knowledge, discuss matters of importance and debate tricky issues which may have arisen or been encountered by members of the team in the course of the preceding week. Our weekly meetings are important particularly because we are spread out over three locations. It is important to encourage a cooperative as opposed to competitive spirit amongst members of the team; each lawyer should understand the importance of his/hercontribution to the team. The General Counsel must lead by example. Olatowun Candide-Johnson: is the General Counsel & General Manager, Management Services Division – Total E & P Nigeria Limited. She is also the Chief Compliance Officer for the Total Upstream Companies in Nigeria. Mrs. Candide-Johnson has held other positions within the Nigerian affiliate as well

as at Group HQ in Paris where she held the position of Project Director with the New Business Division. Before working with Total, she was General Counsel, for the SDV (Scac Delmas Vieljeux) Group (consisting of Alraine Nigeria Limited, Wasa-Delmas Nigeria Limited and Transcap Limited) and before that, GM Administration at Alraine Nigeria Limited. Mrs. Candide-Johnson holds a Bachelor of Laws degree LLB (Hons)(Lond); BL and is an Associate of the Chartered Institute of Arbitration (Lond), ACI Arb. She is married with 3 children.

ESQ LEGAL PRACTICE 83

The Courageous Gate Keepers Profile DAPO OTUNLA Group General Counsel, Notore Chemical Industries, Nigeria

tay approachable. You should always be a pleasure to work with. Even when deadlines and workload are pressing, company personnel should feel comfortable contacting you to discuss important matters and ask questions. Having valuable guidance doesn’t help the company if personnel are hesitant to “bother” you to seek it. Although though much legal work requires deep concentration and those calls and door knocks derail your train of thought, remain able to politely switch gears and talk about the reason you were interrupted. Consider asking for a moment to jot down your immediate thoughts to “bookmark” your mental place before engaging with the caller / knocker. If you must have some uninterrupted time to concentrate on drafting or untangling a thorny issue, develop a method to let personnel know you’re momentarily unavailable. A simple door sign indicating a time frame when you are unavailable and when you will be available again can work wonders.

‘A very smart switch-on guy’, Dapo Otunla heads a lean three-strong team, supporting Notore Chemical Industries’ entire business operations. Otunla has made considerable changes to the company’s legal function since his arrival six years ago. Among his most tangible results has been the establishment of cohesive risk-management procedures. Otunla has impressive international transactional experience, having practised at the likes of Mayer Brown and King & Spalding LLP in the US. DapoOtunla is currently the General Counsel of Notore Chemical Industries Limited in which capacity he heads the Legal Department. He holds a BSc. (Honours) Degree in Political Science from the University of Ibadan and an LL.B. (Honours) Degree from Fourah Bay College, University of Sierra Leone. Dapo also attended a joint law and management programme at Northwestern University, Chicago, Illinois, USA and graduated with an LL.M. Degree (with Honors; Dean’s List) and a Certificate

in Management from Northwestern University’s School of Law and Kellogg Graduate School of Management, respectively. Dapo began his legal career at Olumide Sofowora’s Chambers, in Lagos, Nigeria and has practiced at several top-tier law firms in the world including McKee Nelson (then No.1 issuer and underwriter counsel for securitization transactions) in Washington, DC and culminating with Mayer Brown LLP (then No. 8 largest firm globally) in Chicago, Illinois. At McKee Nelson and Mayer Brown, Dapo represented most of the major global investment banks in a variety of transactions including several emerging market transactions. With respect to Nigeria, among other significant transactions, Dapo played an active role representing an international investment bank in a US$200 million loan facility to a Nigerian integrated energy group as well as a US$125 million loan facility to a Nigerian real estate development company. Dapo is admitted to

practice at the Bars of the Federal Republic of Nigeria and the State of New York, The Commonwealth of Massachusetts, the District of Columbia and the State of Illinois (Inactive Status) in the U.S. Dapo is the former Co-Chair of the Foreign Lawyers’ Committee and a former member of the Steering Committee of the International Law Section of the Boston Bar Association in the Commonwealth of Massachusetts, U.S. He is an inaugural member of the Nigerian Bar Association’s -SBL’s Committee on Products Liability and Consumer Protection. Dapo has a keen fascination with international affairs, developmental politics and travel.

FOLA AKANDE

Company Secretary/Chief Counsel West Africa Cadbury, Nigeria

olake Akande believes that In-House Counsel must ensure that they Understand the business. Understanding the industry segment in general and the specific client in particular will help you offer efficient, pertinent advice. A legal department that operates efficiently, knows

8 4 E S Q L E G A L P R A C T I C E

the company’s business and operations, and keeps in mind the company’s key objectives is a competitive advantage. Cadbury’s West African legal head and company secretary since 2012, Fola Akande has strong credentials, having previously worked at Standard Chartered Bank, since its

inception in Nigeria. Akande is well known for her commitment to the charitable sector; a pro bono adviser to the Eye Bank for Restoring Sight, she also assists Vocational Centre for the Blind. She is also a special member of the Chartered Institute of Arbitrators UK (M.CIArb w w w.esqlaw.net

The Courageous Gate Keepers Profile MICHAEL AGAMAH General Counsel and Company Secretary Keystone Bank, Nigeria

alancing legal and company secretarial functions at one of Nigeria’s leading commercial banks, Michael Agamah has a sterling reputation in the nation’s financial services industry. Previously general counsel at Bank PHB, Agamah’s varied experience has also spanned Spring Bank and Guardian Express Bank. In the view of his contemporaries, it is both Agamah’s meticulous approach and his nuanced understanding of risk management in the jurisdiction, which sets him apart. According to him, IN-House Counsel and Company Secretaries must ensure that they are heard at management meetings. As a lawyer, you often have the ability to see issues from both sides, and avoid the sometimes self-centric view that comes

with Type A senior management. Point out opposing views and seek common ground. Mr. Michael Agamah is a Non-Executive Director of the Company and the current Company Secretary and Legal Adviser of Keystone Bank Limited. A lawyer with over 22 years’ post-call experience, Agamahl is a member of the Nigerian Bar Association; a Fellow of the Institute of Chartered Secretaries and Administrators of Nigeria; an Associate of the Institute of Capital Market Registrars; a Member of the Society for Corporate Governance Nigeria; and a Member of the Chartered Management Institute of the United Kingdom. Agamah holds a Master of Science Degree in Corporate Governance of the Leeds Met-

ropolitan University, United Kingdom (2009); a Master of Laws Degree of the University of Lagos (1998); a Bachelor of Laws Degree from the University of Jos (1990), and a Bachelor of Science Degree in Political Science of the University of Calabar (1984). He is a member of the Advanced Management Programme Class 20 of the prestigious Lagos Business School; and is currently enrolled on the Doctorate in Business Administration Programme of Leeds Metropolitan University in the United Kingdom. His research interests include Corporate Governance, Risk Management, and Corporate Performance. Agamah had extensive practice experience with reputable law firms before joining Zenith Bank Plc as a Legal Officer in

1997. He left Zenith Bank Plc in 2000 to join the then Guardian Express Bank Plc as the pioneer Company Secretary/Legal Adviser, a position he held until the merger that gave birth to Spring Bank Plc on February 1, 2006. He moved to the then Bank PHB Plc in March 2010 as General Counsel, a position he held until the emergence of Keystone Bank Limited in August 2011. He is married and blessed with children.

LARA COKER

General Counsel/General Manager External Communications Shoreline Natural Resources, Nigeria

peak up. If you see something that doesn’t appear appropriate or sound, make sure the stakeholders are aware of it. Don’t assume that everything has been properly vetted. Ask questions in a neutral way. It is easier to prevent fires than put them out. Moreover, if things go south, consider how uncomfortable it will be to explain that you, as the legal advisor, noticed something didn’t seem quite right but didn’t speak up about it. Lara Coker was called to the Nigerian Bar in 1988, she also holds an LLM degree in Corporate and Commercial Law from Kings College, University of London. Lara had practiced as a Litigator and has

w w w.esqlaw.net

appeared extensively in all superior courts of records in Nigeria and was appointed as a Notary Public in 1998 by the Chief Justice of Nigeria. She now regards herself as a Business Advisor rather than a Lawyer, having worked in the Tax and Business Regulatory division of Arthur Andersen (now KPMG Professional Services) where she gained experience in proffering Tax and Business Regulatory advice to Clients of the Firm in diverse businesses. She is an Associate of the Chartered Institute of Taxation of Nigeria. Lara has extensive Company Secretarial practice having worked as the Company Secretary of a Listed Public Liability Company. Lara has

Senior Management experience from working as Group General Counsel to a holding Company with interest in diverse industries where she has had to negotiate and review business arrangements of the companies in the Group. Managing legal and external communications for the Nigerian exploration company, Lara Coker is praised for her strong business acumen. For some, one of her greatest achievements at Shoreline has been her move to firmly embed legal into the decisionmaking process at an earlier stage. Throughout her varied career, Coker has continually proven her versatility and capacity to master complex technical issues. She previ-

ously provided regulatory advice to diverse businesses across Arthur Andersen (now KPMG) and is an Associate of the Chartered Institute of Taxation of Nigeria. Coker has forged a strong reputation in Nigeria’s superior courts, and was appointed as a notary public by the Chief Justice of Nigeria in 1998.

ESQ LEGAL PRACTICE 85

Photo News

Faces at the SBL CONFERENCE DINNER 2015 held at the EKO Hotel & Suite, Victoria Island, Lago on 7th June, 2015

8 6Â E S Q L E G A L P R A C T I C E

w w w.esqlaw.net

Photo News

w w w.esqlaw.net

ESQ LEGAL PRACTICE 87

SUBSCRIBE TODAY

YES! I would like to subscribe to ESQ LEGAL PRACTICE MAGAZINE O R D E R D E T A I L S 1 Year

6 Months

3 Months

Name:......................................................................................................................................................................... Company/Firm:........................................................................................................................................................ .................................................................................................................................................................................... Address:..................................................................................................................................................................... City:........................................................... State:......................................... Country:............................................ Telephone:........................................................... Email:.........................................................................................

Payment Enclosed Saving off the cover price of N200 valid in Lagos only. Local taxes if applicable will be added to your order. Free delivery valid in Lagos only. For Telephone order, please call FUNMI: +234.816.930.9575 Mode of payment: Please do not enclose any payment now. We shall forward to you our invoice later. Fill and forward this form to LEGAL BLITZ/ESQ MAGAZINE . Plot 2, Ayodele Fanoiki Street, Magodo G.R.A Phase1, Isheri, Lagos.

8 8Â E S Q L E G A L P R A C T I C E

w w w.esqlaw.net

Vol. 5 Issue 2

L E GAL PR ACTICE

Call for Nomination Nigerian Legal Awards Matthew Wood:

The Changing Rules of Project Financing in Africa

Into AFRICA: The Growth of Private Equity in Africa Kem Ihenacho, Partner, Latham & Watkins LLP N1,000 $5.99 £3.99 w w w.esqlaw.net

Finance

Marketi ng

Management

LEGAL PRACTICE 89 Technology E S QSpor ts Lif estyle