africa profile disputes focus

7/23/2019 Africa Profile Disputes Focus

1/63

DetailfromS

eaHookbyTrevorBell

Africa ProleDISPUTES FOCUS

AUTUMN 2013

One of the few bright spots on the gloomy global economic horizon.

GEORGE SOROS


2/63


3/63

Contents

Africa Profile Disputes Focus 01

A life in law 02

Doing business in Africa How investors canprotect their interests and manage disputes effectively 04

Country profiles 08

Botswana 09Armstrongs

Congo-Brazzaville 13John W Ffooks & Co

Ghana 17Bentsi-Enchill, Letsa & Ankomah

Guinea 21John W Ffooks & Co

Kenya 25

Anjarwalla & Khanna

Morocco 29Bennani & Associs LLP

Mozambique 33Fernanda Lopes & Associados

Nigeria 37Udo Udoma & Belo-Osagie

Tanzania 41ADEPT Chambers

Uganda 45MMAKS Advocates

Useful information 51

Our Africa practice 52

Our experience Highlights 53

Partner contacts 54


4/63

Africas rise

Africatomorrow

Africatoday

Collective GDP in 2020USD2.6 trillion

Collective GDP

USD1.7trillion

FDI in 2015

USD150billion?

FDI

USD46billion

Consumerspendingin 2020

USD1.5trillion?

Consumer spending

USD0.8trillion


5/63

01

Africa Profile Disputes FocusForeword by Chris Saul, Senior Partner, Slaughter and May

A warm welcome to ourAfrica Profile: Disputes Focus, which presents aninsight into dispute regimes across 10 key African jurisdictions (Botswana,Congo-Brazzaville, Ghana, Guinea, Kenya, Morocco, Mozambique, Nigeria,Tanzania and Uganda).

The value of African inward investment has grown threefold in the last10 years, reaching more than USD182 billion in 2012. As internationalcompanies continue to invest in Africa, it is likely that we will see anincrease in the number of disputes arising. Whether you are already

operating, or looking to invest, in one of these jurisdictions, we hope thatthis guide will be a useful starting point in understanding the litigation,arbitration and alternative dispute resolution procedures in place. Ouraward-winning Dispute Resolution group is on hand should you requiremore in-depth advice.

Slaughter and May has been active in Africa for a number of decades andwe have considerable knowledge of working across the continent. We have,for example, advised the Government of Botswana on a broad range ofwork over a period of nearly 30 years and in the past year have advisedclients in 17 African countries. Our expertise encompasses many different

sectors and we work on all types of transactions, projects and disputes.Close relationships with market-leading law firms across the continentmean that we provide cross-jurisdictional legal advice that genuinelyreflects what global means for our clients.

In producing this guide we have drawn on the combined knowledgeand experience of our Africa team and leading lawyers in each of thejurisdictions covered. I extend my sincere thanks to all of the contributorsfor their efforts on this publication.


6/63

02

A life in lawInterview with Ian Kirby, Judge President of the Court of Appeal, Botswana

What attracted you to the law?As a schoolboy I enjoyed acting, English and Latin it was my teachers whodirected me towards a career in law.

Where did you do your legal studies?At Rhodes University, Grahamstown, South Africa.

What brought you to Botswana, and when?After graduating in 1968 I had differences with the then South African

Government as a student leader. This led to differences with the SmithGovernment in Rhodesia as well. So, in February 1969, I booked a singleticket on the mixed goods train (as it was called), taking all my possessionsin a black tin trunk, and left for an interview in Gaborone, Botswana. I hadmoney for only one nights stay but, happily, I was offered a job as AssistantState Counsel by the new Botswana Government. I have lived in Botswanaever since, where I met and married my wife, Gwithie, and where we haveraised our family.

What area of law particularly interests you, and why?Having dabbled in business at some stages of my career, I have developed

an interest in commercial and taxation law, but I also had a strong familylaw practice. Since joining the Court of Appeal, my interest in constitutionallaw has grown as we are the guardians of the rule of law, based on thenational constitution.

How do private practice and government work compare and contrast?Was your experience of private practice helpful preparation forgovernment work?As a private practitioner in Botswana in the 70s and 80s, there was noroom for specialisation. The few practising attorneys dealt personally witha full range of clients widows, estates, distressed companies, unhappy

marriages, entrepreneurs and societys misfits and offenders. This gaveus a sympathetic insight into the problems of the public. In government,we dealt largely with other government departments in a less personalenvironment but at a time of huge enthusiasm from members of thequite small public service engaged in building a successful Botswana. Thepersonal experience of peoples problems that I had gained as a privatepractitioner did help both in my court work for government and in variousof the tasks I was assigned, including the drafting of the Public ServiceCharter, which sets out the principles governing the conduct of those inpublic service.


7/63

03

What inspired you to go into government work?I have been inspired by the determination of all fourof Botswanas Presidents to strive modestly andunselfishly for the peace, stability and progress of ourcountry, without any thought of enriching themselves.So, after 20 successful years in private practice andafter seeing my family educated, I resolved to return togovernment service so as to also contribute in a smallway to this effort.

What were the most interesting aspects of yourgovernment work, and why?As Attorney General, I was given the job of pilotingamendments to the Constitution to redefine the roleof this office. At that time (a colonial legacy), theAttorney General was a bit like Pooh-Bah, the LordHigh Everything Else from the Gilbert and Sullivanopera The Mikado he was a member of Cabinet, amember of Parliament, the Chief Legal Adviser to theGovernment, the Director of Prosecutions, responsible

for deciding whether or not to indict each criminal,an Accounting Officer responsible for handling theDepartmental Budget and for piloting governmentreforms, and a Director of major companiesrepresenting the government; he also bore overallresponsibility for parliamentary legal drafting andfor the Deeds Registry, as well as for law reporting.In addition, the Attorney General was expected toact as lead counsel in major litigation involving thegovernment.

It was all a bit much to cover all the bases aminimum 16-hour day, including weekends, wasrequired. Happily, by the time of my departure, theConstitution had been amended. The Attorney Generalwas no longer a Member of Parliament, there was aconstitutionally protected and independent Directorof Public Prosecutions and the Deeds Registry and lawreporting functions had been moved elsewhere.

Another highlight was taking part (with Slaughterand May) in renegotiating the Jwaneng and Orapa

Diamond Agreement with De Beers at a pivotalmoment in Botswanas development.

What attracted you to the bench?Becoming a judge was the fulfilment of a boyhooddream. After the hurly-burly of the Attorney GeneralsChambers, I was able to return to studying the lawand also, with the benefit of a wider experience, tohelp solve peoples personal problems from a moreobjective viewpoint. I am interested both in peopleand in the processes of good governance, and being ajudge enables me to encounter both on a daily basis.

You were Botswanas first Judge President of theCourt of Appeal. What challenges did this bring?I was actually the first citizen Judge President. Mypredecessors had all been visiting judges, though verydistinguished ones, from other countries, doing the jobon a part-time basis. My challenge was to transformthe court over time into a more representative andpermanent body (although we still have valued foreignmembers) with its own court premises, staff andbudget, while retaining the historic high standards

and reputation of the court. This is work in progress. Areal challenge is that, in a small community like ours,major cases tend to be personalised by interest groupsand the press in a way not experienced by visitingjudges. Fortunately, successive governments havefully respected the rule of law and even unpopularjudgments have always been promptly implemented.

What is the most testing situation you have faced ina life in the law?It was my period as Attorney General, but looking

back the hard work was certainly worth it and theexperience has enabled me to see things from thepoint of view of both the government and theindividuals it serves.

What do you regard as your greatest achievement?Being able to play a small part as a member, atdifferent times, of the executive, the legislature andthe judiciary in the development of a just system oflaw in a peaceful Botswana.

What do you do to relax?I enjoy fishing, reading, wildlife conservation and mygrandchildren.


8/63

04

Doing business in Africa How investors can protecttheir interests and manage disputes effectivelyArticle by James Stacey, Partner, Dispute Resolution, Slaughter and May

Foreign Direct Investment (FDI) into Africa is increasing. The continentsglobal share of FDI has grown from 3.2% in 2007 to 5.6% in 2012; the sizeof the African economy has more than tripled since 2000 and the region asa whole is expected to grow by 4.0% for 2013 and 4.6% for 2014. In 2012,of the eight fastest growing economies in the world, five were in Africa andthis trend is expected to continue.

Despite the many attractions of investing in Africa, certain difficulties andconcerns remain. Regime change or changes to the political environment

have the potential to alter significantly the relationship between investorsand the host State leaving investments vulnerable in the process. Inaddition to physical expropriation of assets, investors will frequently beconcerned about the potential for less direct but equally damaging changes, for example changes to the fiscal system, which have the effectof penalising the foreign investments and causing them to cease to beeconomically viable.

Any prospective investor should have in place a comprehensive plan tomitigate these dangers via commercial and diplomatic channels. However,the prospective investor will also want to feel confident that they can

fall back on robust, legal mechanisms if required, both to protect theirinvestments and to resolve effectively and satisfactorily any disputes thatmight arise.

This article seeks to outline some key considerations for any prospectiveinvestor looking for greater substantive protection for their investment thanwould be offered by a typical investment agreement with the host State.It also examines the procedural protection offered by ICSID arbitration bycomparison with a commercial arbitration clause.

INVESTMENT PROTECTION THE OPTIONSBilateral Investment TreatiesA Bilateral Investment Treaty (BIT) is an international treaty between twoStates that establishes the terms and conditions for FDI by investors ofone State in the other host State. In particular, a BIT will identify a rangeof minimum protections that investors from that State will be providedwith in respect of their investments in the host State. The fact that theseprotections are provided for in an international treaty means that the hostState is prevented from unilaterally amending the investment protections.


9/63

05

The most common investment protections offered toinvestors by BITs include:

protection against expropriation of the investorsproperty without compensation by the hostState. This can include direct expropriation, eg theinvestors property is actually taken by the State,and indirect expropriation, eg where legal title tothe investment is not affected and property is not

taken but changes implemented by the host Stateeffectively prevent the investment being used inany meaningful way;

most favoured nation provisions, which requirethe host State to provide investors from onejurisdiction with no less favourable treatment thaninvestors from any other jurisdiction. This mightbe combined with national treatment provisions,requiring no less favourable treatment than givento local investors;

fair and equitable treatment, which is a broadconcept used to uphold the investors right toprocedural fairness and freedom from harassment;

free transfer of funds, which guarantees that theinvestor will be able to transfer funds out of theinvestment and host State; and

full protection and security, which requires thehost State to adopt all reasonable measures to

physically protect investments from attack.

Over 400 BITs exist between African countries anddeveloped countries. Examples of African countriesthat have BITs with the UK include the Congo, Ghana,Kenya, Morocco, Mozambique, Nigeria, Tanzaniaand Uganda. A full list can be found in the Usefulinformationsection of this publication on page 51.

All BITs are different, and some may prove to be moreadvantageous to proceed under than others, both in

terms of the substantive protection they offer and interms of dispute resolution clauses (addressed furtherbelow). Any pre-investment due diligence shouldtherefore consider and assess the scope of protectionpotentially available to investors by the host Statepursuant to the various BITs to which that State is aparty. The prospective investor should consider carefullyhow best to structure any investment to ensure thatthe investor is able to take advantage of the BIT that

offers the most favourable and suitable provisions.

Foreign investment legislationWhere there is no BIT in place, it may be possibleto seek protection of investments pursuant to thenational investment laws of the host State.

For example, Guinea does not have a BIT with the UKbut it does, nonetheless, provide certain protections toinvestors: Guineas Investment Code 1987 guaranteesthat the government will not, except for reasons

of public interest, take any steps to expropriate ornationalise foreign or locally held assets or businesses.

Similarly, to encourage FDI, the Government of Ghanapassed the Ghana Investment Promotion Centre Act1994 (GIPCA 1994). This governs investment in allsectors of the economy except minerals and mining,oil and gas and certain free zones. GIPCA 1994 givesinvestment incentives and guarantees in relation totaxation, transfer of capital, profits and dividends. Italso provides guarantees against expropriation.

While such foreign investment legislation cantherefore provide significant protection, there area number of shortcomings when compared withthe protection offered by a BIT. Investors remainvulnerable to sovereign risk, in particular the riskof unilateral retraction, ie that the host State willunilaterally retract the protection offered. Further, thescope of protection is typically limited to expropriationof assets, by comparison with the broad protectionoffered by BITs.


10/63

06

ARBITRATION THE OPTIONS

ICSID arbitrationICSID administers and provides facilities for theconciliation and arbitration of internationalinvestment disputes between investors and States.

ICSID was established pursuant to the ICSIDConvention, a multilateral treaty formed by the

Executive Directors of what is now the World Bank. Theaim of the ICSID Convention is to promote economicdevelopment through the creation of a favourableeconomic climate. The ICSID Convention came intoforce in 1966 and currently has 158 signatories,of which 149 have ratified the Convention (theContracting States).

Of 54 African States, 48 have signed the ICSIDConvention and 44 have ratified it. As of 30 May 2012,of the 44 African Contracting States, 27 had been

involved in 84 ICSID proceedings, corresponding to24% of all proceedings under the ICSID Convention.

So, what is the attraction of ICSID arbitration? Insummary:

arbitration proceedings pursuant to the ICSIDConvention are self-contained, de-localisedand independent of the intervention of anyoutside bodies. The seat of the arbitration willnot determine the governing procedural law

and domestic courts have no power to stay orotherwise intervene in the proceedings;

ICSID proceedings are not threatened by the non-cooperation of a party. If one of the parties fails toact, the arbitration can still continue through to afinal decision;

ICSID awards are final and binding. The abilityof either party to review a decision is extremelylimited under ICSID rules and, if there is a review, itwill be decided by an ICSID-appointed committee,not a local court;

if a State were to fail to comply with an award, thiswould be a breach of the Convention; and

the Convention provides for its own enforcementsystem. All awards are recognised as final inall States party to the Convention. Further,monetary obligations arising from ICSID awardsare required to be enforced like final judgments ofthe local courts in all States that are party to theConvention.

Only Contracting States and nationals of ContractingStates can participate in an ICSID arbitration underthe ICSID Convention. However, this is not in itself

sufficient. The dispute must be a legal dispute arisingdirectly out of an investment. In addition, there mustbe written agreement between the Contracting Stateand the national to submit their dispute to ICSIDarbitration. In respect of this latter requirement:

BITs will generally contain an offer by theContracting State to settle investment disputeswith investors of the other State through ICSIDarbitration. Commencing arbitration counts asaccepting this offer; there is no need for any

further agreement; and

in the absence of a BIT, the investor shouldconsider whether it is possible to negotiatean ICSID clause into a particular investmentagreement. If so, the investor should beparticularly alert to the scope of claims thatthe State agrees should be covered by ICSIDarbitration, whether there are any expresswaivers of sovereign immunity contained in thecontractual agreements and, if so, their scope.


11/63

07

Non-ICSID arbitrationBITs and foreign investment legislation will typicallyprovide investors with an option to elect for a classiccommercial style arbitration rather than only allowingthe investor to arbitrate pursuant to ICSID. Thus, forexample, investors might be offered an arbitrationunder the UNCITRAL Rules or institutional arbitrationrules, eg the rules of the ICC or the LCIA.

Non-ICSID arbitrations are subject to the samedifficulties associated with any ordinary commercialarbitration, eg the risk of delay by a reluctant party,the seat of the arbitration determining the governingprocedural law and the role of the domestic courts.Nevertheless, these remain an important option,particularly for investors who, despite the disputewith the host State, intend to remain within thejurisdiction and wish to avoid the perceived highstakes option of commencing an ICSID arbitrationagainst that host State.

CONCLUSION

A combination of the substantive protections offeredby BITs and the procedural protection offered byICSID arbitration provides a powerful and compellingpackage for prospective investors. The soft measuresshould not, of course, be overlooked: establishing aconstructive dialogue with the government of the hostState from the outset is essential. However, investors

should take comfort from the additional protectionthat will be available from a considered and structuredinvestment.


12/63

08

Country profiles

p29

p17p37p21

p25

p41

p09

p

45p13

p33

Botswana 09

Congo-Brazzaville 13

Ghana 17

Guinea 21

Kenya 25

Morocco 29

Mozambique 33

Nigeria 37

Tanzania 41

Uganda 45


13/63

09

CapitalGaborone

Official languagesSetswana, English

Population

2 million

CurrencyPula (BWP)

KEY FACTS ARMSTRONGS

Sipho ZigaT +267 395 3481E [email protected] www.armstrongs.bw

Botswana

OVERVIEW

The law of Botswana is based on civil law principles rooted in Roman Dutchlaw inherited in the late 18th century from the Cape Colony, now part ofSouth Africa.

However, Botswanas judicial system was modelled on the English judicialsystem as a result of its having been a British protectorate. The proceduralaspects of both civil and criminal law, together with the law of evidence, aretherefore based on English common law principles. The primary source ofprocedural law in Botswana is statutory, namely, parliamentary legislationand delegated legislation (such as in the form of the Rules of Court 2011).

Established in 1974, Armstrongsisa leading corporate and commercialfirm that offers an extensive range ofservices across all major commercialsectors. The firm has been a pioneerin many of the commercial sectorsin Botswana and has developed aformidable reputation in the areas ofcapital markets, banking and finance,commercial litigation and the mineralsand resources sectors.

Sipho Zigais a partner and Headof the Commercial Department.Particular areas of expertise includethe minerals and resources sectors. Inaddition to his M&A practice, Siphoadvises multinational companies andinternational law firms on the law andregulatory environment in Botswanawith regard to securities, financialinstruments, derivatives and swaps.


14/63

10

COURT STRUCTURE

Industrial Court

Court of Appeal

MagistratesCourt

Small ClaimsCourt

CustomaryCourt of Appeal

CustomaryCourt

High Court

The Botswana court structure has retained a Customary Court also known as a kgotla as an informal forum tosettle smaller, less serious disputes between parties within a village or community. Disputes brought in that courtwill be headed by the village Chief and be decided in accordance with the rules of equity. However, the parties to adispute have the unilateral right to request that the case is reallocated from the Customary Court to an appropriatecommon law court with competent jurisdiction.

ENFORCEMENT OF FOREIGN JUDGMENTS

Enforcement of foreign judgments is not automatic and requires the permission of the High Court in accordancewith the Judgments (Reciprocal Enforcement of Maintenance Orders) Regulations 1966 (1966 Regulations).

Judgment creditors from those countries listed in the 1966 Regulations may apply to the High Court up to sixyears from the date of the judgment or, where there are appeal proceedings against the judgment from the dateof the last judgment in those proceedings, to have the judgment registered in the High Court. Upon hearing theapplication (and after satisfying itself as to the legitimacy of the foreign judgment), the court may order that thejudgment be registered. Once registered, the judgment will have the same force and effect as a domestic judgment.

Judgment creditors from all other countries, ie those not listed in the 1966 Regulations, require leave from thePresident of the Court of Appeal granting the court permission to register the foreign judgment (see Section 3,Judgments (International Enforcement Act) 1981).


15/63

11

ARBITRATION

The Arbitration Act 1959 (AA 1959) governs arbitration in Botswana. The procedure for domestic arbitrationsis set out in the Rules for the Conduct of Arbitrations 2003, published by the Botswana Institute of Arbitrators.Gaborone, the capital of Botswana, is the most popular national seat of arbitration. Some of the most popularinternational seats of arbitration include London, Paris, New York and Geneva.

The enforcement of domestic awards is governed by Section 20, AA 1959. The successful party must apply to courtto enforce the award in the same manner as for a court judgment.

The recognition and enforcement of foreign arbitral awards is governed by the Convention on the Recognition andEnforcement of Foreign Arbitral Awards 1971 (REFAA 1971). Under the REFAA 1971, only those arbitral awards madein countries that are both signatories to the REFAA 1971 and have reciprocal arrangements in their national courtsfor the enforcement of Botswanan arbitral awards and that are considered commercial under Botswana law canbe enforced in Botswana. The word commercial is not defined in the REFAA 1971 and is therefore given its ordinarymeaning, ie a commercial award would include awards in respect of disputes relating to persons and businessesengaged in commerce, merchandising, trade and sales.

OTHER FORMS OF DISPUTE RESOLUTION

Mediation is currently only provided for in labour disputes under the Trade Disputes Act 2010.

However, the Administration of Justice Department recently announced that it was in the process of introducingCourt Annexed Mediation based on the American model. This consists of confidential and informal negotiationsheaded by a neutral third party, the mediator, who facilitates negotiations between the parties to a dispute toassist them in settling without resort to the courts. Under the American model, subject to the agreement of theparties, the courts have the power to refer disputes for mediation either before or after proceedings have beenissued depending on the circumstances of the case. Factors that the courts will consider include the complexityof the case, the extent of the disagreement between the parties and the likelihood of a settlement being reached.Judges and magistrates are currently being trained in Court Annexed Mediation and it is envisaged that attorneys

will receive training in the near future.


16/63

12

BOTSWANA LEGAL STOP PRESS

The Competition Act 2009 (CA 2009), which came into force on 14 November 2011, puts in place a legalinfrastructure for the control of mergers that take place in Botswana.

A merger that exceeds the prescribed thresholds (BWP 10 million in respect of asset turnover and 20%in respect of market share) may not be implemented without the approval of the Competition Authority,a newly appointed government agency established under the CA 2009. The Competition Authority has

wide powers, which include the ability to direct the parties to restore the conditions of competition thatexisted before the merger. It also has the power to examine whether minority interests may give rise to acompetition concern.

Since the implementation of the CA 2009, commercial transactions have been significantly delayed dueto the relatively low merger thresholds in the CA 2009 and there being insufficient guidance, case law andreliable market information to enable the Competition Authority to take speedy decisions once notified of arelevant merger situation. The CA 2009 has also been criticised on the basis that it lacks clarity in respect ofthe right of merging parties to challenge adverse decisions.


17/63

13

CapitalBrazzaville

Official languageFrench

Population

4.3 million

CurrencyCentral African franc (CFA)

KEY FACTS JOHN W FFOOKS & CO

John FfooksT +261 20 224 3247E [email protected] www.jwflegal.com

Congo-Brazzaville

OVERVIEW

The legal system in Congo-Brazzaville is based on the French civil lawsystem, with statutes contained in a series of codes. Court procedure isgoverned by Law 51-83 of 21 April 1983 relating to the Congolese Code ofCivil, Commercial, Administrative and Financial Procedure.

John W Ffooks & Cois a multilingualinternational law firm. It has officesacross Francophone Africa includingGuinea, Congo-Brazzaville and theCentral African Republic and its HeadOffice is in Madagascar. The firmspecialises in commercial and businesslaw, including finance, project finance,intellectual property, minerals, mining,oil and gas, environmental law,privatisation, telecommunications andbanking law.

John Ffooksis the Senior Partner ofJohn W Ffooks & Co. He qualified asa solicitor with a Magic Circle firmand has lived and worked as a lawyerin Madagascar for over 10 years. Hehas travelled and worked extensivelyacross Francophone Africa. Johnspractice focuses on natural resources,telecoms/IT and banking (bothregulatory and transactional) work. Hehas particular experience of complexmultijurisdictional transactions in theM&A and public markets fields.


18/63

14

COURT STRUCTURE


Enforcement of foreign judgments is not automatic. Congo-Brazzaville does, however, have a bilateral treaty (alsoknown as a bilateral convention) with France that binds both countries on judicial matters. To enforce a foreignjudgment, an exequatur judgment is required from the president of the competent court where the defendant isdomiciled or in the country in which the foreign judgment must be executed.

Foreign judgments involving claims up to CFA 1 million (approximately USD2,000) must be referred to the Court of

First Instance and enforcement of the judgment must be authorised by the President of the Court of First Instance.Where the claim exceeds CFA 1 million the matter must be referred to the County Court and enforcement of theforeign judgment must be authorised by the President of the County Court.

An exequatur decision rendered as enforceable by the relevant court applies across the entire Congolesejurisdiction, rather than only in the location where the debtors assets are situated.

Courtof First

Instance

CommercialCourt

AdministrativeCourt

CountyCourt

LabourCourt

MilitaryCourt

Court of Auditors(Brazzaville)

Appellate Court(Pointe-Noire)

Appellate Court(Brazzaville)

Appellate Court(Dolisie)

Supreme Court(Brazzaville)


19/63

15

ARBITRATION

Congo-Brazzaville is a member of the Organisation pour lHarmonisation en Afrique du Droit des Affaires (OHADA).The Common Court of Justice and Arbitration (CCJA) is the usual arbitration court of OHADA countries.

The Uniform Act on Arbitration 1999 (UAA 1999) governs arbitration law in OHADA countries and applies toany arbitration governed by domestic or international law. The UAA 1999 prevails over local arbitral procedure,including on the recognition and enforcement of arbitral awards made in other OHADA countries.

The recognition and enforcement of awards made in other OHADA countries are subject to the provisions of theUAA 1999. Awards rendered pursuant to the CCJA rules require exequatur permission before they are enforced.As Congo-Brazzaville is not a signatory to the 1958 Convention on the Recognition and Enforcement of ForeignArbitral Awards (New York Convention), recognition of international arbitral awards from non-OHADA countries isnot automatic. Such awards may, however, be enforced in Congo-Brazzaville subject to an exequatur given by theCourt of First Instance (for claims up to CFA 1 million) or the County Court (for claims exceeding CFA 1 million).


Mediation

Parties can choose to mediate at any point during proceedings. This must be by agreement and cannot be orderedby the court. The parties appoint a mediator who is independent and impartial, and who must not be a judge or anarbitrator.

While there is currently no specific regulation governing mediation between private entities and individuals inCongo-Brazzaville, mediations involving a public body and an individual are governed by Law No 9-98 dated 31October 1998 and by Decree No 2002-252. In such cases, the mediator is appointed by the Council of Ministers bydecree for a term of three years, a term that can subsequently be renewed. For mediations involving public bodies,the mediator cannot be a member of the government, Parliament, the Supreme Court, the Economic and SocialCouncil, the Superior Judicial Council or a local council.

ConciliationConciliation is a process available to individuals and corporates in which the parties use a conciliator (anadjudicator), appointed by the parties and who meets with them separately, in an attempt to resolve theirdifferences. Parties may undertake conciliation of their own volition or on the initiative of the court.


20/63

16

CONGOBRAZZAVILLE LEGAL STOP PRESS

The authorities are beginning to interpret very strictly the withholding tax and VAT provisions in productionsharing contracts with Western oil companies.


21/63

17

OVERVIEW

Ghana is a common law jurisdiction. Its legal system is based on the 1992Constitution. The 1992 Constitution is also the supreme source of law inGhana and all other laws must be consistent with its provisions.

Other sources of law include: Acts of Parliament, subsidiary legislationmade under the powers conferred by either the 1992 Constitution(known as constitutional instruments) or statute (known as legislativeinstruments), common law, doctrines of equity and rules of customary law(the rules of law which, by custom, are applicable to particular communitiesin Ghana). As in England, the litigation system in Ghana is adversarial.

Ghana

CapitalAccra

Official languageEnglish

Population

24.2 million

CurrencyCedi (GHS)

KEY FACTS BENTSIENCHILL, LETSA& ANKOMAH

Ace Anan AnkomahT +233 302 221 171E [email protected] www.belonline.org

Ace Anan Ankomahis ManagingPartner and Head of the Litigation andDispute Resolution Practice Groupat Bentsi-Enchill, Letsa & Ankomah.He has 21 years experience in legalpractice and is a member of theGhana Bar Association and the ICCInternational Court of Arbitration.Aces practice encompasses domesticand international litigation, arbitrationand other forms of alternative disputeresolution.

Bentsi-Enchill, Letsa & Ankomahis a private partnership, incorporatedunder the laws of the Republic ofGhana. The practice was startedby Kojo Bentsi-Enchill as a solepractitioner with two associatesin 1988, and incorporated in 1990when he was joined by Divine KwekuLetsa. The firm is committed toproviding high quality legal services tocorporates on all the main aspects ofcorporate law.


22/63

18

COURT STRUCTURE

High CourtCivil and criminal jurisdiction

Circuit CourtCivil and criminal jurisdiction

District CourtCivil and criminal jurisdiction

Court of Appeal

Supreme Court

Regional TribunalsLimited criminal jurisdiction,

eg serious economic fraud

against the State

Juvenile CourtCivil and criminal jurisdiction


Foreign judgments are enforced on the basis of reciprocity in accordance with the Courts Act 1993 (Act 459).Currently, those countries with reciprocal arrangements with Ghana include Brazil, France, Israel, Italy, Japan,Lebanon, Senegal, Spain, the United Arab Emirates and the United Kingdom.

Where there are reciprocal arrangements, a foreign judgment is enforceable in Ghana if it is final and conclusivebetween the parties. A judgment will be final and conclusive if it: (1) is final in the court that delivered thejudgment; and (2) cannot be annulled in the country that issued it. For enforceability (although not registration)purposes, a first instance decision will be regarded therefore as final and conclusive even though that decision isbeing appealed or is subject to appeal in the jurisdiction in question.

The judgment of the foreign court must be registered within six years of the date of the judgment (or in the caseof an appeal, after the last judgment given). However, a foreign judgment will not be registered if, at the date ofthe application to enforce the decision, it has been wholly satisfied or is not capable of enforcement in the foreigncountry in which the judgment was given.

Where the judgment of a foreign court is not enforceable on the basis of reciprocity, fresh proceedings(enforcement proceedings) may be instituted in Ghana and the foreign judgment relied upon in evidence.


23/63

19

ARBITRATION

Arbitration is governed by the Alternative Dispute Resolution Act 2010 (Act 798) (ADRA 2010), which provides thatall matters may be referred to arbitration except matters that relate to: (1) the national or public interest; (2) theenvironment; (3) the enforcement and interpretation of the 1992 Constitution; or (4) any other matter that by lawcannot be settled by an alternative dispute resolution method (eg a criminal prosecution).

Under the ADRA 2010, arbitration may be initiated by a party to a valid arbitration agreement or by an order ofa court if the court finds that a valid arbitration agreement exists or if it thinks the dispute can be arbitrated and

the parties agree to arbitration. The ADRA 2010 largely reflects the UNCITRAL Model Law, although it is morecomprehensive. Certain provisions of the ADRA 2010 reflect those contained in the English Arbitration Act 1996.

Ghana has an Alternative Dispute Resolution Centre, which serves as the main national arbitration institute. It alsohas private arbitration bodies such as the Ghana Arbitration Centre as well as arbitration bodies operating withinregistered associations such as the Association of Certified Mediators and Arbitrators (GHACMA). In addition,there is the National Labour Commission, a statutory body set up to resolve industrial and labour disputes witharbitration as one of its dispute resolution mechanisms.

The arbitration centres most commonly specified in agreements governed by Ghanaian law, where arbitration isselected as the appropriate forum, include the London Court of International Arbitration (LCIA), the Permanent

Court of Arbitration (PCA) and the International Centre for Settlement of Investment Disputes (ICSID).

Both domestic and foreign arbitration awards may be enforced, by leave of the High Court, in the same manner asa court judgment. Foreign awards must have been given in a country with which Ghana has a reciprocal agreementor under any international convention on arbitration to which Ghana is a party (Ghana is party to the 1958Convention on the Recognition and Enforcement of Foreign Arbitral Awards). The High Court will only grant leave ifthere is no appeal pending against the award in any court under the law applicable to the arbitration. Certain otherlimited requirements must be met: for example, the party must have been properly represented and the awardmust deal with the issues submitted to arbitration. The courts decision on enforcement is, however, subject toappeal by the normal court appeal process.


MediationUnder the ADRA 2010, a party to any agreement may, with the consent of the other party, submit any disputearising out of that agreement to mediation. The Ghanaian court may also refer an action pending before it tomediation if it is of the view that the action may be resolved best through mediation. The court can make thatreferral at any stage of the proceedings. For litigation commenced by writs in the Commercial Division of the HighCourt, there is a mandatory 30-day mediation by a judge when pleadings close. Only where the mediation fails willthe judge set down the issues for trial. The matter is then tried by another judge.


24/63

20

Customary arbitrationThe ADRA 2010 also provides for customary arbitration. Customary arbitration commences when a party refersthe dispute to a person jointly appointed by the parties who is asked to assist in resolving the dispute. Paymentof the arbitration fee or token to the arbitrator constitutes consent to submit to customary arbitration and theappointment of the arbitrator. The arbitrator is not obliged to apply any legal rules of procedure, but must applythe rules of natural justice and fairness.

Industrial and labour disputesIndustrial and labour disputes are mostly settled either by or through the National Labour Commission, which

employs common alternative dispute resolution methods such as negotiation, mediation and arbitration. Mostpetitioners to the National Labour Commission are employees who are unable to meet the cost of litigation.

GHANA LEGAL STOP PRESS

Any international business or economic transaction to which the government is a party must be approved bythe Ghanaian Parliament. This applies to major economic transactions between the Ghanaian Governmentand a foreign party. The Ghanaian Supreme Court has: (1) urged Parliament to specify what constitutes a

major economic transaction; and (2) held that the corporate veil may be pierced to ascertain whether theparties are the government and a foreign party. Legal advice should thus be sought when concluding anagreement with a Ghanaian party in which the State has an interest.


25/63

21

CapitalConakry

Official languageFrench

Population

10.1 million

CurrencyGuinean franc (GNF)

KEY FACTS

Guinea

OVERVIEW

The legal system in Guinea is based on the French civil law system andcustomary law. Customary law applies in circumstances where there isan absence of provision in statutory law, especially in cases concerningpersonal status (ie marriage, succession and womens rights).

Court procedure is governed by Decree D/98/N100/PRG/SGG, dated 16June 1988 on the civil, economic and administrative procedure code.

JOHN W FFOOKS & CO

John FfooksT +261 20 224 3247E [email protected] www.jwflegal.com

John W Ffooks & Cois a multilingualinternational law firm. It has officesacross Francophone Africa includingGuinea, Congo-Brazzaville and theCentral African Republic and its HeadOffice is in Madagascar. The firmspecialises in commercial and businesslaw, including finance, project finance,intellectual property, minerals, mining,oil and gas, environmental law,privatisation, telecommunications andbanking law.

John Ffooksis the Senior Partner ofJohn W Ffooks & Co. He qualified asa solicitor with a Magic Circle firmand has lived and worked as a lawyerin Madagascar for over 10 years. Hehas travelled and worked extensivelyacross Francophone Africa. Johnspractice focuses on natural resources,telecoms/IT and banking (bothregulatory and transactional) work. Hehas particular experience of complexmultijurisdictional transactions in theM&A and public markets fields.


26/63

22

COURT STRUCTURE

Court of AppealCompetent to enforce foreign judgments

Appellate Court(Conakry)

Appellate Court(Kankan)

In Prfectures where no Court of First Instance

competent to hear claims not exceeding GNF 50 million

Court of First Instance

Supreme Court


Enforcement of foreign judgments is not automatic in Guinea. However, they have the status of res judicatainGuinea and, once a judgment has been given in a foreign country, the parties are barred from raising the same issueagain before the Guinean courts unless material new evidence becomes available. A foreign judgment must alsonot be contrary to public policy in Guinea.

A judgment creditor must apply to the Court of Appeal for permission to enforce a foreign judgment. The Courtof Appeal can grant an exequatur decision regarding the foreign judgment, making it enforceable in Guinea. Theapplication must include the original foreign judgment, the original summons and a certificate from the clerk ofthe relevant foreign court evidencing that there is no appeal pending in respect of the judgment in the foreignjurisdiction in question.


27/63

23

ARBITRATION

Guinea is a member of the Organisation pour lHarmonisation en Afrique du Droit des Affaires(OHADA). TheCommon Court of Justice and Arbitration(CCJA) is the usual arbitration court of OHADA countries. The UniformAct on Arbitration 1999 (UAA 1999) governs arbitration in OHADA countries and prevails over local arbitralprocedure as well as in the recognition and enforcement of awards.

Arbitral awards rendered pursuant to the provisions of the CCJA Arbitration Rules have the status of res judicatainGuinea. However, they still require an exequatur before they can be enforced. Non-OHADA international arbitral

awards may be enforced in Guinea subject to an exequatur given by the court. This means that the award can bechallenged through the local courts by third party proceedings or annulment action. However, the award cannot besubject to opposition, appeal or appeal in cassation.


MediationParties can choose to mediate at any point during proceedings. This must be by consent and cannot be ordered bythe court. The parties appoint a mediator who is independent and impartial, and who must not be a judge or anarbitrator.

There is currently no specific regulation governing mediation between private entities and individuals in Guinea.However, mediations involving a public body and an individual are governed by organic law (that is, laws votedon by Parliament that update and amend the Constitution). The mediator is appointed by the President of Guineain a Decree of the Council of Ministers for a term of seven years, a term that is not subsequently renewable. Themediator is a high-ranking official who has served in public office for at least 30 years.

ConciliationThis is a process available to individuals and corporates where a conciliator, who meets with each party separately,is appointed to help the parties settle their dispute. Conciliation is not permitted where the dispute is between apublic body and an individual. The parties can choose to use conciliation to try to resolve their dispute or the court

can refer parties to conciliation.


28/63

24

GUINEA LEGAL STOP PRESS

In 2011, the government introduced a new mining code. This, together with the governments plans for avariable royalty outlined at the beginning of 2013 and the mandatory percentage stakes taken by the Statein mining projects (which the State has the option to increase), have all contributed to the slowdown ofactivity in Guineas mining sector.


29/63

25

CapitalNairobi

Official languagesSwahili, English

Population

43.5 million

CurrencyKenyan shilling (KES)

ANJARWALLA & KHANNA

Aisha AbdallahT +254 (0)703 032 000E [email protected] www.africalegalnetwork.com

KEY FACTS

Kenya

OVERVIEW

The Kenyan legal system is based on English common law. English

statutes and decisions up to and including 12 August 1897, when Kenyawas declared a British Protectorate, are binding on the Kenyan courts andcannot be challenged. English law judgments delivered after 12 August1897 are merely persuasive, although the trend has been to follow Englishjurisprudence unless local circumstances require departure from this, forexample in land law.

The principal sources of law in Kenya are the Constitution, statutes and caselaw. The Constitution of Kenya 2010 (2010 Constitution) is the supremesource of law (ie it is binding on all persons and overrides any othercontrary legal provision or rule) and customary law is the lowest source

of authority (ie it provides guidance in civil cases provided that it is notinconsistent with any written law). As in England, the litigation system inKenya is adversarial and each court has its own procedural rules.

Anjarwalla & Khanna is Kenyaslargest corporate law firm with officesin Nairobi and Mombasa. It is amember of the Africa Legal Network,an alliance of independent top-tierAfrican law firms. Many of the firms

lawyers are recognised as leadinglawyers by the international legaldirectories and the firm continuesto be praised for its ability to handlecomplex transactions and provideexceptional client service.

Aisha Abdallah is a partner in thefirms Litigation Group in Nairobi. Sheis dual qualified as an advocate of theHigh Court of Kenya and as a solicitorof England and Wales. Aishas practicecovers all aspects of commercial

litigation and includes ADR. She hasextensive specialist experience ofcommercial and property disputes(including fraudulent land transactionsand landlord and tenant issues) as wellas of competition issues, employmentdisputes and insolvency.


30/63

26

COURT STRUCTURE

Supreme CourtAppellate jurisdiction in respect of decisions from the Court of Appeal concerning

the Constitution or matters of general public importance.

Exclusive original jurisdiction to hear and determine disputes relating to presidential elections.

May give an advisory opinion on any matter concerning any Kenyan countys legislation at the

request of the national government, any State body, or any county government.

Resident Magistrates CourtsCriminal and civil jurisdiction

for small claims

Other courts/tribunalsestablished by Act of

Parliament

Courts MartialJurisdiction to prosecute offences under

Kenya Defence Forces Act 2012

Court of Appeal

Environmentaland Land Court

Original jurisdiction to determine

all disputes relating to the

environment and land.

Appellate jurisdiction in respect of

matters within its specialist jurisdiction.

Industrial CourtOriginal and appellate jurisdiction

to determine all disputes relating to

employment and labour relations.

High CourtUnlimited original jurisdiction in

civil and criminal matters.

Jurisdiction over interpretation

of the Constitution.


The Foreign Judgments (Reciprocal Enforcement) Act, Cap 43 (Rev 2012) governs the enforcement of foreignjudgments originating from countries with which Kenya has mutual recognition arrangements, although certain

types of judgments are excluded, eg judgments in insolvency, matrimonial and tax proceedings. The countries withwhich Kenya currently has reciprocal arrangements for the enforcement of judgments comprise Australia, Englandand Wales, Malawi, Rwanda, Seychelles, Tanzania, Uganda and Zambia.

To enforce a foreign judgment, the judgment creditor must make an application to the High Court to register thejudgment. The judgment debtor will then have 14 days to set aside the registration, failing which the judgment canbe enforced in the same manner as a local High Court judgment. However, judgments against the government(including injunctions and orders for specific performance) cannot be enforced except in constitutional casesinvolving enforcement of the provisions of the Bill of Rights.


31/63

27

There are no statutory provisions for the enforcement of foreign judgments in the absence of reciprocity. This maymean that parties have to commence fresh proceedings in Kenya to enforce a judgment.

ARBITRATION

The Arbitration Act 1995, based on theUNCITRAL Model Law 1985, provides the framework for domestic andinternational arbitration, and local arbitral case law follows English case law on issues such as the availability ofinterim relief.

The most popular arbitral institution is the Chartered Institute of Arbitrators (Kenya Chapter), which has its ownrules and members. Additionally, the recently enacted Nairobi Centre for International Arbitration Act 2013establishes the new Nairobi Centre for International Arbitration. The most popular seats of arbitration are Nairobi,London and Johannesburg. Nairobi is often selected as an arbitral seat by East African parties, even where neitherparty to the dispute is a Kenyan body.

Domestic arbitration awards are enforceable upon registration of the final award at the High Court. Foreign awardsare enforceable pursuant to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards(New York Convention), subject to the reciprocity reservation, ie that the award was made in another contractingState to the New York Convention.


Chapter 21, Civil Procedure Act 2010 (CPA 2010) requires courts and tribunals to promote ADR. This includesarbitration, mediation and conciliation. In addition to the arbitral institutions above, ADR providers include theDispute Resolution Centre and the Mediation Training Institute.

MediationMediation is formally recognised, although not regulated, by the CPA 2010: the High Court has power, either on itsown motion or at the request of parties, to refer disputes to mediation or other forms of ADR. There are also draft

Court Mandated Mediation Rules, although these have not been expressly incorporated into the CPA 2010.

ConciliationIn employment law, the court can also refer trade disputes to conciliation. Conciliation is not formally recognised ingeneral legislation but, within employment law, this practice is well established.


32/63

28

KENYA LEGAL STOP PRESS

The 2010 Constitution has created a new legal landscape. It introduced a Bill of Rights that is designed toprotect civil, political, economic and social rights and elevates consumer rights to the level of fundamentalrights; it requires the integration of human rights into all legal and policy frameworks. It also provides forstructural reform of the legal system, including the establishment of a new Supreme Court, parliamentaryoversight of senior judicial appointments and ongoing vetting of judicial officers.


33/63

29

BENNANI & ASSOCIS LLP

Mehdi M BennaniT +212 522 95 96 00E [email protected] www.bennaniassocies.com

CapitalRabat

Official languagesArabic and Berber

Population

32.8 million

CurrencyDirham (MAD)

KEY FACTS

Morocco

OVERVIEW

The Moroccan legal system is based on a civil law regime that includes acomplete system of rules, largely codified, that are applied and interpretedby judges. Case law has an interpretative and/or complementary role withregard to legislation.

Court procedure is governed by Dahir (Royal Decree) No 1-74-447, whichapproves the text of the Moroccan Code of Civil Procedure 1974 (CCP 1974),as amended by Dahir No 1-11-149, BO No 5978, dated 15 September 2011.

Bennani & Associs LLPofferscutting-edge business law expertiseto listed and unlisted companies aswell as public entities. The firm isbased in Casablanca and provideslegal solutions for Moroccan andforeign companies seeking efficient,committed business partners whocan offer informed advice adapted toa clients specific needs and marketdemands.

Mehdi Bennaniis a founding partnerof Bennani & Associs LLP. He wasadmitted to the New York Bar in

2001 after graduating from Hassan IIUniversity School of Law (Casablanca)and then receiving an LLM fromHarvard Law School in 1998. Mehdiadvises clients on M&A, joint ventures,real estate, national and internationalcontracts as well as financingtransactions. He has worked for several

years with a number of prestigious USlaw firms, including Curtis, Mallet-Prevost, Colt & Mosle LLP and BryanCave LLP. His international experienceenables him to act on complexinternational transactions. He is fluentin French, English and Arabic.


34/63

30

COURT STRUCTURE

Supreme Court

CriminalChamber

SocialChamber

(Employment)

CommercialChamber

CivilChamber

ProximityJustice

(Civil

litigation not

exceeding

MAD 5,000)

FamilyChamber

AdministrativeCourt

Commercial CourtFirst Instance Court

Personal Status andSuccession Chamber(Family and probate)

Financial Crimes Chamber(Corporate crime

eg bribery, corruption,

money laundering)

AdministrativeAppeal Court

CommercialAppeal Court

Appeal Court

AdministrativeChamber

CommercialChamber

Criminal ChamberSocial Chamber(Employment)

Personal Statusand Succession

Chamber(Family and probate)

Civil Chamber

Criminal Chamber


In civil and commercial matters, judgments emanating from the courts of countries that are signatories to treaties

on judicial co-operation and enforcement are automatically recognised in Morocco (and therefore have theauthority of res judicata), subject to the judgment in question satisfying certain conditions, including the existenceof a bilateral treaty. Countries with which Morocco currently has bilateral treaties are Algeria, China, Egypt, France,Germany, Kuwait, Poland, Romania, Senegal, Spain, Syria, Tunisia, Turkey, the United Arab Emirates and the UnitedStates.

Judgments from countries that do not have reciprocal enforcement arrangements with Morocco are enforceable inMorocco only after they have been recognised by the relevant First Instance Court in the judgment debtors homeState or in the place where the judgment will be executed, as relevant.


35/63

31

ARBITRATION

Arbitration in Morocco is governed by Law No 08-05, dated 30 November 2007, which amended Articles 306-327,CCP 1974. It takes into consideration the various international organisations regulations and recommendations (egUNCITRAL, ICSID, etc), but allows parties to adapt the CCP 1974 to suit their dispute. It is preferable not to presenta dispute before a court and an arbitral tribunal at the same time. Disputes relating to personal rights and capacity,decisions of public bodies and matters of tax law cannot be referred to arbitration.

Arbitration may be in the form of an ad hoc arbitration submitted to one or more arbitrators or to an institutional

arbitration, in which case the arbitration will be governed by the rules of the chosen institution. The most populararbitral institution in Morocco is the Moroccan Court of Arbitration. The most popular seat is Casablanca.

A domestic arbitral award must be recognised by order of the President of the Court in the territorial jurisdiction inwhich the arbitral award was rendered before it can be enforced.

As regards the enforcement of international arbitral awards, Morocco has ratified the 1958 Convention on theRecognition and Enforcement of Foreign Arbitral Awards (New York Convention). To establish the existence of theinternational award, the prevailing party must produce to the Moroccan judge the original (or true copy) arbitrationagreement or arbitration clause, and the award. If these are not in Arabic, they must be translated into Arabic bya sworn translator approved by the Moroccan courts. The judge who receives the request for enforcement of the

award shall not address the substance or merits of the dispute, but only ensure that the award is not contrary tonational or international public policy under the New York Convention.


Mediation is provided for in Articles 327-55, CCP 1974. Matters that cannot be referred to mediation includecriminal matters, matters of public policy and disputes relating to personal rights (other than those rights thatrelate to trade or commerce).

Disputes that are subject to a mediation agreement or mediation clause cannot be brought before the court until:

(1) the mediation process has been exhausted; or (2) the mediation agreement or mediation clause has beenannulled. The duration of the mediation is initially determined by the parties and must not exceed three monthsstarting from the date on which the mediator is appointed. The initial duration of the mediation may subsequentlybe extended by the parties by common agreement. Law No 08-05 does not limit the number of extensions theparties can agree. Therefore, the parties may extend the duration of the mediation as many times as desired.


36/63

32

MOROCCO LEGAL STOP PRESS

Under Articles 166 and 171 of the 2011 Constitution, legislation relating to the Competition Board iscurrently being amended. Draft Law No 20-13 (the Draft Law) will amend Law No 06-99, dated 5 June2000, on freedom of pricing and competition. It will also establish the Competition Board as an independentconstitutional institution. Currently, the Competition Board only has advisory powers. However, if the DraftLaw is enacted, the Competition Board will have greater powers to enforce the current competition law inMorocco, including the power to impose sanctions (eg fines). The Draft Law was recently put before the

Finance and Economic Development of the House of Representatives and it is anticipated that enactmentwill occur towards the end of 2013 or in early 2014.


37/63

33

Mozambique

FERNANDA LOPES & ASSOCIADOS

Fernanda LopesT +258 21 496 974E [email protected] www.africalegalnetwork.com

KEY FACTS

CapitalMaputo

Official languagesPortuguese, Makua-Lomwe,Swahili, other indigenouslanguages

Population24.5 million

CurrencyMetical (MZN)

OVERVIEW

The civil law system adopted in Mozambique is derived from Roman lawand is based on the legislation published in the Official Gazette. Case law isused to clarify any ambiguities on the face of the law or arising in relation tothe application of the law to the facts of a particular case. Court procedureis governed by the Code of Civil Procedure 1961 (CPC 1961).

Fernanda Lopes & Associadosis a full-service corporate andcommercial law firm with a strongpresence in Mozambique andan office in Lisbon. The firm hasparticular expertise and knowledgein the mineral resources, energy,transport and infrastructuresectors and regularly advises majorinternational corporations seekingto operate in Mozambiques vibrantinvestment climate. The firm is thesole Mozambican member of theAfrica Legal Network.

Fernanda Lopesis the ManagingPartner of Fernanda Lopes &Associados. She practises in bothMozambique and Lisbon. Her privatelaw practice focuses on corporatelaw and M&A, banking, infrastructureprojects, property, cross-bordermatters and litigation across a rangeof business sectors. On the public lawside, Fernanda has drafted legislationon Mozambiques finance system(enforced in 2002) and in relationto procurement in the State ofMozambique (enforced in 2005). Sheis a member of the Portuguese BarAssociation and the Mozambican Bar

Association.


38/63

34

COURT STRUCTURE

DistrictCourts

CriminalCourts

Appeal Courts

Supreme Court

AdministrativeCourts

ProvincialCourts

FamilyCourts

TaxCourts


Mozambique does not have any reciprocal arrangements for the enforcement of foreign judgments and foreignjudgments are not automatically enforced.

Under the CPC 1961, foreign judgments (and arbitral awards) are subject to review and confirmation by the relevantcourt in Mozambique. This involves the court analysing the foreign decision to make sure: (1) the document isauthentic; (2) the decision is understandable, logical, final and cannot be appealed; (3) the decision was made by acompetent court in accordance with the rules of that jurisdiction; (4) the case is not pending in another jurisdiction;(5) the defendant has been summoned; (6) the decision is not contrary to the public policy of Mozambique; and(7) in cases where the decision was made against a Mozambican, the decision is not contrary to the applicableMozambican law. Once the foreign judgment has been confirmed by the court it can then be enforced as if it were

a domestic judgment.

ARBITRATION

Disputes, other than those relating to excluded matters (see below), may be submitted to arbitration in accordancewith Articles 1 and 5 of the Law on Arbitration, Conciliation and Mediation, Law No 11/99, dated 8 July 1999(LACM 1999), which governs arbitrations in Mozambique (Article 68, LACM 1999) and is modelled on UNCITRAL.The parties are free to establish the arbitration process and to appoint the arbitrators. Alternatively, the rules ofthe Mozambique Centre for Arbitration and Conciliation (CACM) will apply. Since the LACM 1999 came in force,arbitration has become popular and is seen as comparable to litigation as a mechanism for resolving disputes.


39/63

35

Matters excluded from arbitration include: (1) disputes for which the court has exclusive jurisdiction, eg disputesrelating to leasehold property, including the termination of leases; (2) disputes subject to a specialist arbitrationregime that has not been repealed by the LACM 1999, eg arbitration on public administration matters; and(3) disputes relating to inalienable rights (Article 5(2), LACM 1999), eg criminal, family or tax matters.

Domestic arbitral awards are binding and enforceable in the same way as court judgments (Articles 43 and 49,LACM 1999). As regards the enforcement of foreign arbitral awards, these are enforceable with the recognition ofthe Supreme Court. However, this will depend on the existence of reciprocal arrangements between Mozambiqueand the State in which the arbitral award was made. Although party to the 1958 Convention on the Recognition

and Enforcement of Foreign Arbitral Awards (New York Convention), Mozambique has reserved the right to applythe New York Convention on the basis of reciprocity. If the arbitral seat is outside Mozambique, the award will notbe enforceable as a court decision made in Mozambique territory, since local arbitration law is only applicable toarbitrations held in Mozambique territory (Article 68, LACM 1999).


The LACM 1999 also provides for mediation and conciliation. Neither of these processes is common inMozambique; it is customary for Mozambican parties in dispute to negotiate between themselves informally. Ifa negotiated agreement cannot be reached, it is unlikely that formal mediation or conciliation would succeed so

the dispute is normally referred directly to litigation or arbitration. Both mediation and conciliation are entirelyconfidential, ie evidence produced during the mediation or conciliation cannot later be used before a court orarbitral tribunal.

MediationMediation is governed by Article 60/2, LACM 1999. Mediation cannot be ordered by the court, but at the startof a case the judge will ask the parties if they are open to mediation. If they agree, the court proceedings will besuspended pending mediation. The mediator is appointed by the President of the CACM. If the parties do notbelieve their dispute can be resolved through mediation, the court proceedings will continue.

If mediation is successful, the parties submit the agreement to the judge who will then accept it and conclude the

court proceedings. An agreement reached through mediation is binding. If, after a pre-agreed timeframe, the judgehas not received notification of an agreement, he or she will assume that mediation has been unsuccessful and thecourt proceedings will resume.

Mediation, conducted by the CACM, is popular in the resolution of labour disputes.

ConciliationConciliation is governed by Article 60/3, LACM 1999 and involves the parties negotiating through communicationwith each other and a third party. The conciliator, appointed by the President of the CACM, chooses the locationand timing for the discussions. A lawyer is not required, although the parties may choose to instruct one if they sowish. If conciliation is successful, the parties sign an agreement, that is then binding.


40/63

36

MOZAMBIQUE LEGAL STOP PRESS

The new Competition Law 10 of 2013 (Competition Law 2013) came into force on 10 July 2013, andapproval for the accompanying rules is expected by early October 2013. The Competition Law 2013 appliesto most economic activities in Mozambique, whether conducted by private or public companies, establishesmerger control and prohibits anti-competitive practices. It also establishes an independent regulatory body,the Competition Regulatory Authority, responsible for enforcing the Competition Law 2013. Breaches of theCompetition Law 2013 are currently punishable by fine or sanction; however, it is expected that they will

ultimately carry criminal liability.

The Competition Law 2013 increases the burden on corporates conducting business in Mozambique.However, it is largely based on pre-existing European legislation so those used to conducting business inEurope should already be familiar with most of the requirements. It remains to be seen how the CompetitionLaw 2013 will fit with the business model in Mozambique.


41/63

37

Nigeria

CapitalAbuja

Official languagesEnglish, Yoruba, Ibo, Hausa

Population

166.6 million

CurrencyNaira (NGN)

KEY FACTS UDO UDOMA & BELOOSAGIE

Uzoma AzikiweT +234 1 462 2307 10E [email protected] www.uubo.org

OVERVIEW

Nigerias legal regime is a mixed legal system consisting of commonand customary law that co-exist in the manner of two rivers that flowseparately without mixing.

Court procedure is governed by various civil procedure rules, including

the High Court of Lagos State (Civil Procedure) Rules 2012, the FederalHigh Court (Civil Procedure) Rules 2009, and the National IndustrialCourt Rules 2007.

Uzoma Azikiweis a partner andHead of the Litigation, Arbitrationand Alternative Dispute Resolutionteam at Udo Udoma & Belo-Osagie.He provides advice on maritime,aviation, employment and energymatters. His specialisations includeadvising multinationals on oil, gas andenvironmental matters, the provision,manning and maintenance of vessels,cabotage issues, telecommunications,construction, administrative andconstitutional law. He trained as aninternational commercial arbitratorwith several Nigerian and internationalarbitration organisations, including theICC Institute of World Business Law,the Chartered Institute of Arbitrators

in the UK and the Chartered

Institute of Arbitration in Nigeria. Heobtained a Diploma in InternationalCommercial Arbitration from St AnnesCollege, Oxford.

Udo Udoma & Cohas evolvedfrom its initial focus on oil andgas matters into a multi-specialistfull-service firm geared to facilitatecorporate and commercial business inNigeria and across Africa. The firmscorporate practice is supported by adedicated litigation and alternativedispute resolution team, and by acompany secretarial department, AlsecNominees Limited, which providesa full range of company secretarialservices.


42/63

38

COURT STRUCTURE

MagistratesCourt

High Court

Sharia/Alkali Court

Court of Appeal

Supreme Court

Industrial Court

CustomaryCourt

CustomaryCourt of Appeal

ShariaCourt of Appeal

OtherTribunals


All foreign judgments must be registered with the Nigerian court before they can be enforced. The enforcementprocedure will then depend on whether there is a reciprocal enforcement regime with the foreign jurisdiction inquestion.

English judgments are enforced under the Reciprocal Enforcement of Judgments Act, Cap 175, Laws of theFederation of Nigeria 1958. This applies only to English judgments and judgments from Her Majestys dominions; itdoes not apply to Commonwealth judgments.

Judgments emanating from other foreign countries will be recognised where the Attorney General of the Federationof Nigeria is assured of reciprocal enforcement arrangements in those States. Where a judgment originates froma country with which Nigeria has no reciprocal enforcement arrangements, fresh proceedings (enforcementproceedings) may be instituted in Nigeria and the foreign judgment relied upon in evidence.


43/63

39

ARBITRATION

The statutes that regulate arbitration in Nigeria include the Arbitration and Conciliation Act, Cap A18, Laws ofthe Federation of Nigeria 2004 (ACA 2004), and the Arbitration Law of Lagos State (Law No 10 of 2009 of LagosState). Under Section 7(1), ACA 2004, the parties can specify the procedure for appointing arbitrators; for example,the parties can mandate an institution to appoint the arbitrators or agree that the arbitration be conducted underthe rules of a chosen institution.

The most popular recognised arbitral institutions in Nigeria are the Chartered Institute of Arbitrators UK (Nigeria

Branch) and the Regional Centre for International Commercial Arbitration, Lagos. The most popular internationalarbitral institutions are the International Chamber of Commerce Court of Arbitration (ICC), the London Court ofInternational Arbitration (LCIA) and the Regional Centre for International Commercial Arbitration (RCICA). Themost popular arbitral seat is Lagos.

Nigeria is a signatory to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards(New York Convention), which is incorporated into the ACA by Section 54(1). For domestic arbitral awards andawards from a New York Convention country, the party applying to enforce an award applies in writing to the HighCourt and is required to file a duly authenticated original award, or a certified copy of it, together with the originalarbitration agreement (Section 51, ACA 2004).


MediationMediation is governed by either the contract between the parties or the relevant civil procedure rules. For example,under Order 3 (Rule 11) and Order 25 (Rule 6) of the Lagos State High Court (Civil Procedure) Rules 2012, the courtis empowered to refer appropriate cases to the Lagos Multi-Door Court House (established in 2002 as a public-private partnership between the High Court, Lagos State and the Negotiation and Conflict Management Group) orany other appropriate ADR institution for resolution.

Labour disputes can be referred to mediation for resolution under the Trade Disputes Act, Cap T8, Laws of the

Federation of Nigeria 2004.

ConciliationConciliation is governed by Section 55, ACA 2004. Section 55 enables parties to an international commercialagreement to agree to settle their disputes by conciliation under the conciliation rules in the Third Schedule, ACA2004.


44/63

40

NIGERIA LEGAL STOP PRESS

There are various views as to the validity, or otherwise, of arbitration statutes enacted by some NigerianStates depending on how one interprets the Constitution of the Federal Republic of Nigeria 1999. This hasprompted various stakeholders to lobby the National Assembly to pass an Act establishing an ArbitrationCommission to regulate arbitration and encourage foreign parties to arbitrate in Nigeria. This is in the faceof opposition from other stakeholders who believe the resultant Bill the National Alternative DisputeResolution Regulatory Commission Bill 2011 is unnecessary, unconstitutional and offends the principles

of ADR. Objectors argue that to regulate ADR in the public domain offends the principles on which ADR isbased, ie that it should be private. There is also debate over whether increased regulation would encourage(or discourage) foreign investors to submit disputes ADR in Nigeria.


45/63


46/63

42

COURT STRUCTURE

High Court High Court

TANGANYIKA ZANZIBAR

* Zanzibar retains Islamic courts, ie the Kadhis courts, which

adjudicate Muslim family cases.

Labour Court

Resident Magistrates Courts

CommercialCourt

Land Court

Magistrates Courts

Primary Courts

Kadhis Appeal Court*

Kadhis Court*

District Courts Military Court

Court of Appeal


Tanzanian courts are receptive to the enforcement of foreign judgments. These will be enforced where there is areciprocal enforcement agreement with the State in which the foreign judgment was given or where the judgmentis registrable. A judgment is registrable if it is final in the foreign country in which it was awarded and that countryis listed in the relevant Schedule to the Foreign Judgments (Reciprocal Enforcement) Act (Cap 8) (RE: 2002) as a

Scheduled Country. Most Scheduled Countries are African countries that have reciprocal enforcement agreementswith Tanzania. If a judgment is not registrable then fresh proceedings (enforcement proceedings) must be started inTanzania with the original foreign judgment submitted as evidence.


47/63

43

ARBITRATION

The Arbitration Act 1971 (AA 1971) governs enforcement of domestic and international arbitral awards. Schedule 2,AA 1971 applies the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards to whichTanzania became a signatory in 1965. The AA 1971 governs enforcement, rather than arbitral procedure, andpermits parties to select the rules (eg ICC, LCIA etc) that best suit their circumstances and disputes. There is also aproposed draft Tanganyika Law Society Bill to amend the AA 1971. This has been with the Attorney General since2006 and the details are not yet in the public domain. The impact on domestic and international parties thereforeremains to be seen.

The ICC, LCIA, Swiss Arbitration Association and ICSID are the most popular choices of arbitral institutions andrules, although parties are free to agree to use local arbitral rules. Traditionally, London, Paris and Geneva have beenthe most popular seats of arbitration, but increasingly arbitrations are taking place in local African jurisdictions dueto the increasing cost of, and visa difficulties that arise in relation to, European arbitrations.

Domestic and foreign arbitral awards are enforced by filing an application in the High Court and giving notice of theapplication to the other party.


Court-annexed mediationThis is where a neutral third party facilitates negotiations between the parties to help them settle. The mediationsession is informal and confidential, which means discussions between the parties cannot subsequently be referredto in court. Court-annexed mediation is compulsory in all litigation proceedings. After pleadings have been filedin court, the court orders the parties to mediate. If mediation is not successful, then the proceedings will resume.However, if an agreement is reached, the settlement agreement is filed at court and becomes enforceable underthe Civil Procedure Code (Cap 33, Order VIIIA).

Expert determinationExpert determination is only available for construction and insurance disputes. It is not commonly used overall and

the decisions are not enforceable.


48/63

44

TANZANIA LEGAL STOP PRESS

Following Dowans v TANESCOon appeals against foreign arbitrations and enforceability, the AA 1971 isbeing reviewed by the Law Society. In Dowans, the defendant, TANESCO, applied to the High Court to havean ICC arbitration award set aside. The High Court dismissed the application, stating that once parties hadsubmitted themselves to the arbitral process one party could not challenge an arbitral award simply becauseit did not yield a favourable result; it could do so only if the arbitral award contained an error. This judgmentclarified an area not currently regulated by the AA 1971.

A revised Arbitration Act is expected soon that should increase the confidence of multinational partiesengaged in arbitration against Tanzanian bodies in the enforceability of international arbitral awards.


49/63

45

MMAKS ADVOCATES

Ernest Sembatya KaggwaT +256 414 259 920E [email protected] www.mmaks.co.ug

CapitalKampala

Official languagesEnglish, Luganda

Population

35.6 million

CurrencyUgandan shilling (UGX)

KEY FACTS

Uganda

OVERVIEW

The Ugandan legal system is based on the Constitution of 8 October 1995(1995 Constitution), statute, rules of common law, equity and customarylaw. Customary law is derived from the customs and cultures of thevarious tribes in Uganda (some customs are particular to one tribe but notanother) and is recognised and enforceable so long as it is consistent withthe 1995 Constitution and is not contrary to equity and good conscience.Court procedure is governed by the Civil Procedure Rules SI 71-1 1964, asamended in 1994 and 1998.

Ernest Sembatya Kaggwais apartner in the Litigation team atMMAKS Advocates. He specialises indebt recovery and related litigation,representing banks and corporateentities. Ernest also advises onemployment matters, land transactionsand product liability issues. In addition,he handles company secretarialmatters and acts as company secretaryfor a number of corporates. He is anAdvocate of the High Court and amember of the Uganda Law Societyand the East African Law Society.In 2010, Ernest was seconded to

Stephenson Harwood LLP and EssexCourt Chambers in London.

MMAKS Advocatesis a highlyspecialised corporate and commerciallaw firm with particular expertisein banking and finance, real estate,mergers and acquisitions, capitalmarkets, employment and intellectualproperty work. It has been consistentlyranked as a leading commercial lawpractice by Chambers Global. It isalso ranked as a Tier 1 firm by IFLR1000, The Guide to the Worlds Leading

Financial Law Firms.


50/63

46

COURT STRUCTURE

Grade I Magistrates CourtCriminal jurisdiction: any matter except those where

the maximum penalty is death or life imprisonment.

Civil jurisdiction:limited jurisdiction for matters governed by

civil customary law and matters where the value

does not exceed UGX 20 million.

Grade II Magistrates CourtJurisdiction for matters situated in the county headquarters.

Criminal jurisdiction:any criminal matter in the

First Schedule to the Magistrates Court Act

(eg deception of witnesses and abuse of office)

Civil jurisdiction:matters where the value

does not exceed UGX 500,000.

Supreme Court

Court of Appeal

High Court

Chief Magistrates CourtCan hear any dispute relating to damage to property, trespass or conversion, any

dispute not exceeding UGX 50 million and any matter governed by civil customary law.

Appellate jurisdiction and enhanced powers (eg can pass any sentence except a death

sentence) over the Grade I and Grade II Magistrates Courts.


The procedure for the enforcement of foreign judgments is set out in the Reciprocal Enforcement of JudgmentsRules SI 47-1 (SI 47-1) and the Reciprocal Enforcement of Judgments Act, Cap 47 (REJA). The High Court hasjurisdiction for their registration.

The SI 47-1, in compliance with the REJA, applies only to judgments issued by the courts in England and Wales,Scotland, the Republic of Ireland, or in a part of the Commonwealth to which the REJA has been applied. Pursuantto the Foreign Judgments (Reciprocal Enforcement) (General Application) Order 2002 (FJ(RE)(GA)O 2002), theapplicability of the REJA was extended to include Botswana, Lesotho, Mauritius, New South Wales, Australia, theSeychelles, Sri Lanka and Swaziland.

The judgment creditor makes an ex parteapplication to court (a Notice of Motion) supported by an affidavit

seeking leave to register a foreign judgment, to which a certified copy of the judgment is attached. The court then


51/63

47

issues a permission order, specifying the period within which an application to set aside the judgment can bemade, on the judgment debtor. If the judgment debtor does not contest the order, the judgment is registered andexecuted as a judgment of the High Court of Uganda.

The law does not provide for the enforcement of foreign judgments where that judgment is issued by a State thatdoes not have reciprocal arrangements with Uganda. In these cases, enforcement proceedings relying on a foreignjudgment must be begun in Uganda.

ARBITRATIONDomestic and international arbitrations are governed by the Ugandan Arbitration and Conciliation Act 2000 (ACA2000), which is based on a modified version of the UNCITRAL Model Law 1985 (UNCITRAL Model). The UNCITRALrules are the most popular of the recognised arbitral institutions, perhaps because the ACA 2000 is based on theUNCITRAL Model. For reasons of cost, Ugandan parties tend to prefer to hold arbitrations in Kampala.

Domestic and international arbitral awards are binding and the Magistrates and High Courts have the power toenforce awards following written application by the parties or if the time period for an application to set aside theaward has elapsed (Sections 35-36, ACA 2000). The award is construed as an order of the court and the ordinarymethods of execution apply. There are no grounds listed in the ACA 2000 for refusing enforcement of an award

and, when the time for making an application to set aside has expired or an application has been made and hasbeen refused, an award will be enforced by the court in the same manner as a judgment of the court.

Uganda is party to the 1958 New York Convention on the Recognition and Enforcement of Foreign ArbitralAwards (New York Convention) and Part III, ACA 2000 deals with enforcing New York Convention awards. NewYork Convention awards that would be enforceable under the ACA 2000 are treated as binding for all purposeson the persons between whom they are made and can be relied upon by those persons by way of defence, set-off, or otherwise in legal proceedings in Uganda (Section 41, ACA 2000). New York Convention awards must berecognised and enforced in accordance with Section 35, ACA 2000. The grounds for refusal of recognition andenforcement in Article V of the New York Convention are not replicated in the ACA 2000, but can nonetheless

africa profile disputes focus

Documents