Our strength in Africa - Freshfields Bruckhaus Deringer
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Our strength in Africa Why Africa? Africa offers many exciting opportunities. Having been a leader in mobile technology for a long time, Africa will experience a lot more innovation taking place and we expect to see its technology being exported all over the world. B
Our strength in Africa Robust drivers of growth (such as rapid population growth and urbanisation) and rich diversity in the political, social and economic circumstances of African countries continue to attract the attention of international investors. We have been helping our clients play a role in the unfolding Africa story for many years. We assist them in every African country and across sectors and industries to grow, strengthen and defend their investments. Due to our global experience, we’re likely to have come across and handled similar situations in other markets. We bring this experience to the table, and combine it with local counsel expertise and on-the-ground transaction support, using the creativity you would expect from Freshfields anywhere in the world.So whatever the job, we’ll deliver the quality and service to get the job done to international standards. ‘He wins praise for his ability to “lead efficient, business-oriented and consistently great work”.’ Chambers Global Shawn der Kinderen South Africa born and raised, qualified to practise in South Africa, England and Wales and the Netherlands – an M&A/private equity lawyer with extensive experience across Africa. ‘He is an experienced adviser on transport, petrochemical and mining projects.’ Chambers Global Gabriel Mpubani Uganda born and raised, qualified to practise in Uganda and England and Wales – a project finance lawyer with more than 15 years’ experience of working on some of the largest and most complex energy, mining and infrastructure projects in Africa. Freshfields Bruckhaus Deringer LLP 1
Our strength in Africa What clients say about our Africa practice ‘They are always prepared ‘Freshfields delivers to go the extra mile, a critical competitive feel part of the team and differentiator for our are a joy to work with.’ business.’ ‘They bring a ‘They provide a seamless, combination of bright single point of contact, people, individual drive service and analysis and substantial transaction and solve complex experience, all blended, legal issues with the with a pragmatic and technical rigour you would commercial approach.’ expect but delivered in the most commercial, business-friendly way.’ 2
Our strength in Africa ‘A highly dependable team that blends exceptionally well with other in-house and external firms to deliver a winning team in complex corporate transactions spanning many different African jurisdictions.’ 3
Our strength in Africa Working across Africa 54 countries, each with its own laws, challenges and opportunities. We can quickly assemble Instead of competing with a winning team that is the best local lawyers, we right for each mandate. bring them into our team. There is no ‘one-size-fits-all’ solution. You need We know our local counsel colleagues the best legal advice in each country, not just in from having worked together on previous one or two of the continent’s largest economies. mandates. But there’s so much more to On this basis, we decided that having an office these relationships, including: in only one or two countries in Africa would not • r egular update calls/meetings to discuss help us to provide you with the best legal advice local developments; across the entire continent. Instead it would • secondments; make us a competitor of the best local firms that both we and our clients want and need to engage. •k nowledge sharing and training opportunities; That would deny us and our clients access to the •A frica StrongerTogether conferences best local lawyers, including the local knowledge for our Africa network firms; and and connections that are so essential to investing • global partner and sector conferences. on the continent. Through our StrongerTogether programme, In short: we invest in these relationships to we have created a network of Africa’s top ensure they offer the same seamless service law firms. Rather than recommending that our clients have come to expect from our ‘best friends’, we recommend the best Freshfields offices across the world. lawyer for the job. So whatever the mandate, we’ll build the right team for you. Access to the Access to best local lawyers global experts StrongerTogether and their local and experience knowledge and connections One highly collaborative team 4
Our strength in Africa Our ultimate goal is simple: your investment should achieve high growth and low risk. 5
Our strength in Africa How can we help? 6
Our strength in Africa Africa is a place of great opportunity, but also risk. We help you identify and mitigate that risk by thinking ahead. A few things to consider when you are Are you a (potential) key stakeholder planning to invest in a long-term project? • Are there any upcoming changes in law? •A re there local content rules you need to • Do you really know your local counterpart? comply with? How will that affect your ability Are there any associated risks? to efficiently manage the business and what impact would that have on cost? To what • Was the local company’s permit properly extent is the government linked to or even granted? Is it open to challenge or review? invested in the provider of local content? Could that prevent you from operating your business or substantially increase costs? •W hat restrictions would apply to increasing your stake in the local company? Are there • What about bribery and corruption? Are local ownership rules that prevent majority processes in place to prevent such behaviour? ownership by a foreign party? • What about access to skilled labour? Are you •H ave you considered your position should you able to get work permits for expats who would need to exit the project at any stage? Would be seconded to the local business? you be able to get your cash/investment back? • How is the business taxed? Is the government Do you need government/third-party consents clamping down on foreign investors by to sell your shares? imposing unexpected taxes and/or penalties? •W hat about exchange control regulations, • What about expropriation risk? For example, imposing restrictions on moving cash are there any plans by the local government in and out of the country? Is it possible to reclassify the land on which your to pay dividends? What about other forms manufacturing plant is situated? of cash extraction (such as shareholder loan repayment, licence fees for IP and • What investment treaties exist to protect management fees)? you against expropriation and other risks of adverse governmental measures? •W hat if the government decides to no longer Have you structured your investment support the project? What impact could that to attract this protection? have on your investment? •H ow exposed is the company to currency fluctuations? Both in relation to debt financing or material contracts (for example, if they are dollar denominated). 7
Our strength in Africa All these questions represent real risks that can have a significant impact on the decisions you make. Are you looking to raise capital? Are you having to defend your position? • Have you considered potential sanctions • Have you considered impending changing risks and how these impact on any capital laws that may affect whether to litigate markets issuance? or not? • Are all authorisations in place from all • How might the political landscape change, relevant bodies to allow the raising of capital? and do you know key decision-makers at • Have you considered all political risks? the right bodies? Do parties with political influence (for example, the African • Have you considered the long-term information Development Bank) have a vested interest disclosure requirements following the issuing in your investment? of shares or bonds? • What are your options in the event that a • Are your cash flows exposed to either dispute arises? Consider local courts versus currency or commodities fluctuations? international arbitration. What about expert If they are, are you able to service debt determination of certain key issues? coupon or maturity payments? • What are your obligations in the event that • Have you considered how debt provisions a dispute arises? For example, disclosure of may impact the way you run your business? sensitive information or appearance before a local court. ‘Their Disputes and Tax teams • Consider risk of claims brought outside of the contract and based on local law (who we have used most for our (for example, tort or criminal claims). Africa-related work) stand out Can those be avoided in any way? from the competition: they have •W hat happens if the host state’s actions affect your investment but you do not have developed a deep understanding a contract with the host state, or that contract of the local regulatory and only provides for the submission of disputes to local courts or tribunals? Can you rely on contractual frameworks that protection under investment treaties or we operate under and the local investment laws? • How can a judgment be enforced against your operational challenges we face.’ local counterpart or the local government? Client quote Are the relevant countries party to the New York Convention allowing enforcement of arbitration awards? 8
Our strength in Africa We work actively with you to not only identify the risks, but figure out ways to solve them or reduce your exposure. 9
Our strength in Africa Responsible business in Africa 10
Our strength in Africa We strive to contribute to growth and prosperity across Africa through our pro bono and community investment programmes. We support human rights, access to justice and environmental initiatives. Recent examples include the following: International Lawyers for Africa Freshfields Reforestation in We are proud to be one of the founding members East Africa Programme of International Lawyers for Africa (ILFA), which has been providing Africa’s most promising Freshfields has been carbon-neutral since 2007, up-and-coming lawyers with three months’ offsetting its emissions through various projects: work experience in an international law firm biomass projects in China, Turkish wind farms, for the past 10 years. Through the programme, and efficient cook stoves and LifeStraw water we have hosted lawyers from Botswana, purification in Kenya. In 2015, the firm made Cameroon, Kenya, Namibia, Nigeria, Sudan, a commitment to remaining carbon-neutral Tunisia, Uganda, Zambia and Zimbabwe. Former for the next 10 years and launched its offset ILFA secondees have gone on to senior legal project, Freshfields Reforestation in East Africa positions in their home countries in Africa in Programme (REAP). Freshfields REAP is a major corporations, government departments community reforestation project based in Kenya and law firms. and Uganda. The project empowers small groups of subsistence farmers and aims to reverse the Pro bono effects of deforestation, drought and an insecure supply of food. Farmers are invited to join Freshfields works on an increasing number with neighbouring farmers to form small of high-profile pro bono mandates in Africa, tree planting groups (clusters) and collectively for example: plant trees on their land. Training is provided • we are providing advice to the American Bar on conservation farming methods, nursery Association’s Center for Human Rights in development, agroforestry techniques and support of its work for a human rights attorney health education to support farmers in as well as a human rights activist who are being attaining sustainable food sources, encourage prosecuted by the Government of Angola; diversification of income and build capacity. • we conducted an analysis of certain legislation in Swaziland for consistency with international human rights standards as part of advice to the American Bar Association’s Center for Human Rights; and • we advise Redress in relation to the enforcement of reparations ordered in favour of victims of the regime of the former president of Chad, Hissène Habré. 11
Our strength in Africa Our credentials A track record that speaks for itself. AB InBev on its acquisition Ajinomoto, Japan’s largest of SABMiller, giving food company, on its landmark M&A/global AB InBev a significant acquisition of a one-third footprint in Africa. stake in Promasidor, the financial investors +$1.5bn pan-African food group active in 36 countries across Africa. Bertelsmann, a leading global Airtel on a $1.45bn investment in Cargill on its agreement with media, services and education Airtel Africa by six leading global Archer Daniels Midland (ADM) company, on its initial disposal investors including Warburg to launch a 50-50 joint venture considerations and the business Pincus, SoftBank, Temasek and regarding a soya bean processing combination of significant parts Singtel. This deal was one of plant in Egypt. of its customer relationship Africa’s largest cross-border services management (CRM) M&A transactions in 2018. business, with the pan-African Saham Group. Neptune Energy Group on its MTN Group on the exchange The Abraaj Group on various acquisition of ENGIE E&P of its 51 per cent stake in INT deals including Tunisie Telecom, International, with upstream Towers Limited, the Nigerian Java House, Indorama, oil and gas assets in a wide telecom tower operator, Fan Milk and Saham Finances. range of jurisdictions including for an additional stake in IHS, North Africa. the largest independent tower operator in EMEA by tower count. 12
Our strength in Africa Tullow Oil on its potential NewAge (African Global Energy) farm-out of an interest in the on its floating LNG projects Tweneboa, Enyenra and Ntomme in Congo and Cameroon. Projects (TEN) Development and Production Area and Wawa Discovery Area, offshore Ghana. Egyptian Refining Company The sponsors, including Shell, The RT Global Resources-led (ERC) on ongoing matters ChevronTexaco, NNPC, VRA, consortium, in relation to the related to the development SoToGaz and SoBeGaz, on the design, construction and and financing of its West African Gas Pipeline operation of a greenfield crude hydrocracker refinery project project, a complex pipeline oil refinery in Uganda. in Mostorod, Cairo. transaction in Nigeria, Benin, Togo and Ghana. Sonker Bunkering Company Standard Bank of South Africa A bidding consortium on the on the development and and Nedbank Capital as lenders Nairobi-Nakuru-Mau Summit financing of its proposed on the project financing of Toll Road PPP Project in Kenya. Bulk Liquids Terminal and the Walvis Bay LNG-to-Power FSRU terminal project at Project in Namibia. Sonker Port, Egypt. 13
Our strength in Africa Successfully represented A consortium of Korean East Mediterranean Gas and companies, including Posco its foreign shareholders against Daewoo, in ICC arbitral Dispute resolution the Arab Republic of Egypt and proceedings in connection its state-owned entities in four with the construction and parallel arbitration proceedings operation of a power plant arising from a high-profile dispute in Madagascar. concerning the Peace Pipeline between Egypt and Israel. Diversified telecoms group Republic of Kenya in ICSID Total and Repsol in ICC arbitral A diversified telecoms group proceedings brought by WalAm proceedings against the Algerian in multiple proceedings after the withdrawal of a national oil company, Sonatrach, (including a Lagos venue licence to develop geothermal in relation to the imposition UNCITRAL arbitration) energy issued under Kenya’s of an exceptional tax targeting regarding its interest in Geothermal Resources Act. foreign investors. the Nigerian operations of a leading global telecoms company. An international oil company An ExxonMobil subsidiary Defending a major international Tullow in an ICSID contractual and Shell subsidiaries in a oil company in LCIA arbitration arbitration arising from its successful $2bn claim against (London seat, English law) against high-profile dispute with the NNPC relating to the allocation claims totalling nearly €90m, Ugandan Government on capital of oil and the application relating to the termination gains tax payable in respect of of a contractual stabilisation of a contract to provide a Tullow’s farm-down of certain provision in a PSC. semisubmersible drilling rig PSA interests to CNOOC and Total off the coast of Libya. in 2012, which was successfully settled in 2015. 14
Our strength in Africa Integrated Diagnostics Holdings MTN Group, a mobile telephone and the selling shareholders network operator headquartered (The Abraaj Group and Dr Hend in South Africa with operations Securities El Sherbini, CEO of the across Africa and the Middle East, company) on its IPO and listing on its $1m notes issue. on the London Stock Exchange. Vivo Energy on its IPO on Standard Bank of South Africa Dis-Chem Pharmacies, the London Stock Exchange (acting through its corporate a leading pharmacy and a secondary inward listing and investment banking group in South Africa, on the Main Board of the division) as arranger and the on its IPO and listing Johannesburg Stock Exchange. other dealers on the update on the Johannesburg of its EMTN programme. Stock Exchange. PPC, a South Africa-based Liquid Telecommunications Barclays, JP Morgan Securities cement company with on its $600m bond issue and on and Standard Bank as operations in South Africa its $180m tap offering. Liquid underwriters on the $750m and a number of other Telecom is one of the largest sovereign bond tap issue by countries in Africa, on its multi-country, open access the Republic of Kenya. ZAR 4bn rights issue. fibre network and data centre operators in Africa. 15
Our strength in Africa Our Africa team Co-heads Shawn der Kinderen Gabriel Mpubani Co-head of the Africa Group Co-head of the Africa Group T +31 20 485 7624 T +44 20 7716 4101 E shawn.derkinderen@freshfields.com E gabriel.mpubani@freshfields.com M&A/global financial investors Omar Pringle Giles Pratt Andrew Murphy Corporate Data and intellectual property People and reward T +1 212 277 4056 T +44 20 7716 4339 T +44 20 7785 2708 E omar.pringle@freshfields.com E giles.pratt@freshfields.com E andrew.murphy@freshfields.com Stephen Revell Haris Meyer Hanif Helen Buchanan Corporate Finance Tax T +852 2846 3483 T +971 4 509 9149 T +44 20 7716 4884 E stephen.revell@freshfields.com E haris.meyer-hanif@freshfields.com E helen.buchanan@freshfields.com Pervez Akhtar Michael Hilton Eelco van der Stok Corporate/global financial investors Mining Tax T +971 4 509 9191 T +971 2 652 1702 T +31 20 485 7635 E pervez.akhtar@freshfields.com E michael.hilton@freshfields.com E eelco.vanderstok@freshfields.com Rob Cant Sam Newhouse Natasha Good Corporate/global financial investors Oil and gas Telecoms, media and technology T +971 4 509 9195 T +44 20 7785 5773 T +44 20 7832 7659 E rob.cant@freshfields.com E samuel.newhouse@freshfields.com E natasha.good@freshfields.com Bruce Embley Graham Watson Corporate/global financial investors Oil and gas T +44 20 7832 7426 T +44 20 7832 7263 E bruce.embley@freshfields.com Eg raham.watson@freshfields.com Projects Alex Carver Thomas Ng Projects and infrastructure Projects and infrastructure T +44 20 7832 7045 T +852 2913 2617 E alex.carver@freshfields.com E thomas.ng@freshfields.com 16
Our strength in Africa Projects Pascal Cuche Tim Pick Projects and infrastructure Projects and infrastructure T +33 1 44 56 44 87 T +44 20 7832 7115 E pascal.cuche@freshfields.com E t im.pick@freshfields.com Dispute resolution Rafique Bachour Sylvia Noury Erin Miller Rankin Antitrust and regulatory Arbitration Dispute resolution T +32 2 504 7243 T +44 20 7785 5467 T +971 4 509 9139 E rafique.bachour@freshfields.com E sylvia.noury@freshfields.com E erin.millerrankin@freshfields.com Thomas Janssens Kim Rosenberg Noah Rubins Antitrust and regulatory Construction disputes Dispute resolution T +32 2 504 7546 T +971 4 509 9190 T +33 1 44 56 29 12 E thomas.janssens@freshfields.com Ek im.rosenberg@freshfields.com E noah.rubins@freshfields.com Ben Juratowitch Matthew Bruce William Thomas Arbitration Dispute resolution Dispute resolution T +33 1 44 56 33 43 T +44 20 7785 2758 T +44 20 7832 7073 E ben.juratowitch@freshfields.com E matthew.bruce@freshfields.com E william.thomas@freshfields.com Amani Khalifa James Kennedy Geoff Nicholas Arbitration Dispute resolution Disputes and investigations T +971 4 509 9171 T +44 20 7832 7475 T +44 20 7832 7773 E amani.khalifa@freshfields.com E james.kennedy@freshfields.com E geoff.nicholas@freshfields.com Securities Peter Allen Duncan Kellaway Finance Securities T +44 20 7832 7110 T +44 20 7832 7022 E peter.allen@freshfields.com Ed uncan.kellaway@freshfields.com Andrew Hagan David Ludwick Securities Securities T +44 20 7832 7434 T +44 20 7832 7126 E andrew.hagan@freshfields.com E david.ludwick@freshfields.com 17
freshfields.com This material is provided by the international law firm Freshfields Bruckhaus Deringer LLP (a limited liability partnership organised under the law of England and Wales) (the UK LLP) and the offices and associated entities of the UK LLP practising under the Freshfields Bruckhaus Deringer name in a number of jurisdictions, and Freshfields Bruckhaus Deringer US LLP, together referred to in the material as ‘Freshfields’. For regulatory information please refer to www.freshfields.com/support/legalnotice. The UK LLP has offices or associated entities in Austria, Bahrain, Belgium, China, England, France, Germany, Hong Kong, Italy, Japan, the Netherlands, Russia, Singapore, Spain, the United Arab Emirates and Vietnam. Freshfields Bruckhaus Deringer US LLP has offices in New York City and Washington DC. This material is for general information only and is not intended to provide legal advice. © Freshfields Bruckhaus Deringer LLP, June 2019, 07877
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