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Mapping the Nigeria Gaming Industry (1): Legal & Socio – Cultural factors By Yahaya Maikori

Mapping the Nigeria Gaming Industry (1): Legal & Socio – Cultural factors By Yahaya Maikori

by | Apr 25, 2016 | Uncategorized

Photo Credit – www.financialnigeria.com 

In
recent times there has been lots of excitement about the African gaming market
for reasons which are not farfetched, given its demographic asset, which presents
a growth opportunity for many companies. Of the 53 African countries Nigeria is
undoubtedly the largest market by virtue of its population making it the
preferred investment destination for most gaming companies, but beyond the
excitement about the industry and its prospects, what is the value of Nigeria’s
gaming industry? Do we have any supporting data? As always we have looked to
companies like PWC and a host of other institutions to guide us. For example
PWC’s 2015 – 2019 gaming outlook while projecting that gaming revenues were up
by 17%, based its projections on only 3 licensed casinos in Nigeria. In reality
casinos occupy the lowest rung of the Nigerian gaming ladder, PWC’s gaming
outlook distorts the impact of the industry and how it permeates our economic
life. A cursory look at the assumptions indicates a lack of understanding or
appreciation of the industry.

Our industry is grossly misconceived
and this misconception manifests itself in frequently asked questions like “do
Nigerians’ gamble?” “Is gambling legal in Nigeria” etc.? The National lottery
Act defines lottery to”… include games of chance or skill”; though the
definition may be unwieldy it definitely expands the frontiers of the industry
beyond what it is traditionally known. If the NLRC definition is anything to go
by then it means that even the “Ayo Ayo’ played across Africa forms part of the
industry and it predates any form of contemporary gaming device, which
currently exists in Africa.
 The legality of
gambling in Nigeria has been questioned severally partly because of controversy
surrounding the1977 slot machine prohibition act; the act was not meant to
prohibit gambling in general, the law simply sought to regulate indiscriminate
littering of slot machines across the length and breath of the country. On
whether Nigerians gamble or not, that depends on the class you belong to. The
truth is that the generality of our people are casual gamblers but we are
certainly active when it comes to mobile based wagering, raffles draws, promos
etc. At the lower end of the spectrum pools betting and lottery has been part
and parcel of our lives from colonial times. Though we are a religious set of
people our religious sensibilities ironically endear us to the fundamental
principles of gambling, the concept of miracles, sowing a seed and reaping
large and immediate rewards.
 Traditionally
gaming has been stigmatized in our climes but casinos and slot institutions
have been the biggest victims of our selective moralization of the industry,
while raffle draws and similar schemes have become widely accepted without so
much thought as to the underlying fact that they are laundered forms of gambling.
If the NLRC’s definition is anything to by it means that even the video games
played with consoles or preloaded on the phones of our 133million mobile
subscribers or those played on desk /laptops, promos, raffle draws by corporate
organizations i.e. telcos , banks, fmcgs etc. form a significant portion of the
industry ,though they run into billions of Naira every year they have never
been considered as part of the industry.
 In
general we may have our reservations about sports betting we however subconsciously
rationalize this type of wagering because it is tied to our passion for sports,
in any case sports betting cannot survive on its own, it piggy bags on sports
events. Interestingly while we consider Lotteries a form of gambling it has
never really been stigmatized maybe because of its historical and religious
roots.
 Now
that we have defined gambling in accordance with Nigeria’s law; as well as
established that almost all Nigerians are involved at some level , what is the
size of the gaming industry in Nigeria? How does it contribute to our GDP? Was
is ever captured during the rebasing of the economy? If it was under which
subsectors was it captured? under ICT, entertainment or tourism?
Re-Invigorating Members’Commitment through Small Claims Arbitration, ODR & Institutionalization of Mentorship – Ahmed Adetola-Kazeem

Re-Invigorating Members’Commitment through Small Claims Arbitration, ODR & Institutionalization of Mentorship – Ahmed Adetola-Kazeem

by | Apr 25, 2016 | Uncategorized

Ed’s Note: This is the text of the Speech delivered by Ahmed
Adetola-Kazeem, MCIArb (UK) delivered at
the AGM of the Chartered Institute of Arbitrators, Nigeria Branch on 21st March
2016. Same was published by the author on www.linkedin.com on 22nd April, 2016. 
Photo Credit – www.thelaw.tv 
By the records of
the Chartered Institute of Arbitrators, Nigeria has the fastest growing branch
of the institute and ironically, has the lowest record of dues payment
worldwide. As at 15th of October 2015, out of a total of 1241 members only 319
paid up their dues. 144 Associates out of 755, 118 Members out of 379 and 57
fellows out of 107 paid. The percentage of members who did not pay their dues
in the period under review was 74.2%. When I was inducted as a member in 2010
about a 100 of us were inducted, less than 10% of that number are active
presently. Many members, particularly young members are very enthusiastic when
they join the institute, but with time their interest starts to wane. When
asked about the reason for their loss of interest, they complained of
non-inclusion and the lack of practical experience in arbitration practice. In
summary, most members are disenchanted and see no reason why they should keep
paying their dues without any meaningful gain or any hope of one. Some view the
established arbitrators as a clique or worst still, a cabal who do not want
outsiders within their ranks.

To
combat the gloomy picture painted above, there is need for the institute to
take concrete steps at ensuring that members have a sense of belonging by
creating opportunities for them to have practical experience in arbitration. If
there is a failure in this regard it will definitely come to hurt us. This
point was made by Late Hon. Justice Kayode Eso who stated in the foreword to
the book,Commercial Arbitration Law and International Practice in Nigeria that:
“…the
greatest threats to the sustainability and growth of commercial arbitration in
this country remain the dearth of reliable up-to-date literature on the subject
and the entry into the practice of ill-equipped individuals who lack
the learning, comportment and experience needed to harness the
benefits of commercial Arbitration. (Emphasis mine)
If the situation as
painted by the late learned jurist is to change, the Chartered Institute of
Arbitrators and other arbitral bodies must institutionalize mentorship and
create opportunities for young arbitrators to thrive by putting in place the
necessary structures for Small Claims Arbitration and Online Dispute
Resolution.
It
should be noted that the challenges painted above are not peculiar to Nigeria;
other jurisdictions face similar challenges and are trying to surmount them.Ciaran
Fahy wrote in his article titled: “Dispute Resolution in the Irish
Construction Industry: Future Trends”[2] that:
“In
my view arbitration as a process in Ireland, and indeed in other countries, is
in decline and the significant growth of other dispute resolution methods is a
testament to its shortcomings. In simple terms arbitration is
perceived, in my view rightly, as too slow and consequently too expensive. It
is by no means uncommon to find an arbitration on a one-year construction job
takes up to two years or so to find the cost associated with an arbitration are
a multiple of the award and even sometimes the amounts claimed. To me, that is
simply unacceptable.
However, I
believe the situation I have described above derives mainly from a lack of
expertise and also a lack of creativity on the part of those involved rather
than an inherent problem with the process itself. I have frequently
heard it said that the pool of arbitrators in Ireland is very limited and that
apart from a few individuals the quality is at best uneven. In my view that is
true but it is not the full truth of the situation since I believe the lack of
expertise extends across the full range of people involved in arbitration and
in particular it seems to me to apply to lawyers where, with a few notable
exceptions, the level of knowledge or understanding is limited.
In
order to rectify this I believe the two approaches are required. First, the
professional bodies involved in this area should recognize the need to provide
ongoing training at an increasingly high level not only to those who are or who
wish to be, arbitrators but also to those who themselves engaged in arbitration
work. I also think those who are involved in arbitration need to be
more creative in their approach and in that context I believe the two new
procedures published by Engineers Ireland are significant. To me, a dispute
involving a relatively small sum of money, and by that I mean anything up to
€250,000, should as a matter of course, be dealt with under a fast-track
procedure such as the Engineers Ireland 100-Day Procedure.” (Emphasis mine)
The writer above
painted the dire situation arbitration finds itself, he emphasized that lack of
expertise and creativity are reasons for the problems presently beleaguering
the practice of arbitration. In order to remedy this situation, the Chartered
Institute of Arbitrators and other arbitral institutions must build the
expertise of their members and encourage members’ participation through Small
Claims Arbitration, Online Dispute Resolution and Institutionalization of
Mentorship amongst other creative means.
I say forehand,
that the options are closely related but have their distinct features. An
attempt would be made to highlight the features of the various suggestions
within the time frame of this member’s forum. I believe a more comprehensive
discussion on the various suggestions will be made at future programmes or
conferences.
1.    
Institutionalizing Mentorship
Talks
about mentorship have become clichés. Everyone talks about it, but very few
people undertake to practice it in its real sense. It cannot be said that
mentorship in the field of arbitration is totally non-existent; it is at best
done on an ad hoc basis or in most cases theoretical, rather than practical.
The above thought was echoed by Joanna Steele in her paper titled “The
LMAA in the Twenty-First Century: Securing the Future for London Maritime
Arbitration”[3] where she said:
The experienced
arbitrator would along the line assess the competence of the young arbitrator
through oral and written assessment.
The young
arbitrator through the practical mentorship sessions will learn how to conduct
arbitral proceedings, how to draft orders and ultimately how to draft valid and
compelling awards. For the sake of emphasis, the mentorship programme should be
regulated and monitored by the concerned arbitral institution as is presently
done at the International Council for Commercial Arbitration (ICCA). Once a young
arbitrator has met some set criteria he or she may then be appointed as an
arbitrator in Small Claims Arbitration.
1.    
Small Claims Arbitration
One
of the duties of an arbitral tribunal is to conduct the proceedings in a cost
effective way; for instance, Art. 17(1) of the Arbitration Rules of Lagos Court
of Arbitration provides that: “The arbitral tribunal, in exercising its
discretion, shall conduct the proceedings so as to avoid unnecessary delay and
expense and to provide a fair and efficient process for resolving the parties’
dispute”.
The problem of
costs in arbitration is a recurring issue and parties frequently complain that
arbitration often costs significantly more than it is expected to cost and now
the cost of bringing or defending a claim before an arbitral tribunal is likely
to be considerably higher than that of bringing or defending the same claim
before a national court. The problem of costs is more significant if the amount
in dispute is small. Added to this is the fact an established arbitrator is
likely to turn down a reference if he considers the claims too small, whereas a
young arbitrator will be willing to handle such reference in order to sharpen
his skills and for the needed experience. There is therefore the need for
arbitral institutions to align the need of users for a cost-effective
arbitration process with that of young and inexperienced arbitrators’ need for
the experience to grow in the field of arbitration.
Many arbitral
Institutions have provisions for small-claim arbitration but one of the most
robust is that of the London Maritime Arbitrators Association (LMAA). The
London Maritime Arbitrators Association issued its guidelines with a view to
making the decision-making process as cost-effective and efficient as possible.
Arbitral institutions in Nigeria should take a cue from LMAA by coming up with
similar rules or procedures with a view to mitigating the cost of arbitration
and providing a veritable opportunity for qualified less-experienced
arbitrators to hone their skills.
In LMAA
arbitrations, there are three special procedures namely: the Small Claims
Procedure (SCP), the Intermediate Claims Procedure (ICP) and the Fast and Low
Cost Arbitration (FALCA).
Small
Claims Procedure is applicable to any dispute which parties
have agreed should be referred to arbitration under this procedure. If any such
agreement refers to a monetary limit for disputes that may be so referred, such
limit shall be deemed to exclude interest and cost, unless the parties agree
otherwise.
·        
The dispute shall be decided by a sole arbitrator,
as can be gleaned from the wording of paragraph 2 of the LMAA Small Claims
Procedure 2012.
·        
The Claimant shall file a letter of claim not
exceeding 2,500 words accompanied by relevant documents and the Respondent
shall submit a letter of defence and counterclaim (if any) of the same length
accompanied by relevant documents.
·        
A letter of reply (if any) not exceeding 1,000
words or of reply and defence to counterclaim not exceeding 2,500 words shall
be delivered by the Claimant.
·        
The Respondent shall, if he so wishes, deliver to
the Claimant a letter of reply to defence to any counterclaim not exceeding
1,000 words.
·        
Experts’ reports shall only be admissible with the
permission and subject to the directions of the arbitrator. Experts’ reports
must not exceed 2,500 words.
·        
The general rule is that no hearing shall be held,
however in exceptional circumstances the arbitrator may require that an oral
hearing shall be held. Oral hearing shall be limited to one working day of 5
hours.
·        
The Arbitrator shall issue the award in a month
from the date when he has received all relevant documents and submissions, or,
where there is an oral hearing, from the close of the hearing.
·        
The right of appeal to the courts is excluded under
this procedure.
The Intermediate
Claims Procedure is regulated by LMAA Intermediate Claims Procedure (ICP) 2012.
·        
The Intermediate Claims Procedure shall apply when
the total amount of the claimant’s claims or the total amount of any
counterclaims exceed 100,000 USD, but not 400,000 USD.
·        
Paragraph 2 of ICP provides for an arbitral
tribunal composed by three arbitrators, unless otherwise agreed by the parties.
·        
Each party may serve two written submissions,
without any limit of length.
·        
No expert evidence may be adduced by either party
unless the permission of the tribunal has first been obtained.
·        
An expert’s initial report shall be limited to
3,500 words and supplementary report to 1,000 words.
·        
An oral hearing shall be held only exceptionally,
but in a case where there is no oral hearing but there has been disclosure
and/or witness and /or expert evidence, each party shall be entitled to serve
one set of closing submissions.
·        
The award shall be made within 6 weeks of service
of the last submissions served by the parties.
The LMAA has
adopted the Fast and Low Cost Arbitration (FALCA) Rules in order to encourage
quicker and cheaper resolution of the middle range of maritime disputes– those
which involve neither very large nor very small amounts of money. The LMAA
FALCA Arbitration Clause for insertion in charter parties and other maritime
contracts allows the parties to choose for themselves the size of the claim to
which the FALCA Rules will apply, but if no figure is inserted the Rules will
apply to claims under 250,000 USD.
·        
A single arbitrator shall decide the dispute. Each
party may serve two written submissions, without any limit of length.
·        
After a swift discovery phase (as provided for in
Rules 11 and 12 of FALCA Rules), the parties shall exchange copies of
statements of witnesses and experts’ reports (if any) and within four weeks
thereafter, the parties shall exchange final submissions, together with witness
statements or experts’ reports in reply (if any).
·        
No oral hearing shall be held, unless the
arbitrator deems it necessary.
·        
Under Rule 17 of FALCA Rules, the award shall be
issued within 7 months of the notice of appointment of arbitrator (8 months, if
there is a counterclaim) and the arbitrator may, in his absolute discretion,
take into account any evidence whether strictly admissible or not, and require
the production of any document or the statement of any witness (whether sworn
or otherwise).
1.    
Online Dispute Resolution (ODR)
Online
dispute resolution (ODR) is a genre of dispute
resolution which uses technology to facilitate the resolution
of disputes between parties. It primarily involves negotiation, mediation or arbitration,
or a combination of all three. In this respect it is often seen as being the
online equivalent of alternative dispute resolution (ADR). However, ODR can
also augment these traditional means of resolving disputes by applying
innovative techniques and online technologies to the process.
ODR techniques are
already being deployed around the world in resolving a wide range of
disagreements – from consumer disputes to problems arising from e-commerce,
from quarrels amongst citizens to conflicts between individuals and the state.
ODR is not appropriate for all classes of dispute, but on the face of it, is
best placed to help settle high volumes of relatively low value disputes –
robustly, but at much less expense and inconvenience than conventional courts
or conventional arbitration.
It is believed that
efficient mechanisms to resolve online disputes will impact on the development
of e-commerce. While the application of ODR is not limited to disputes arising
from business to consumer online transactions, it seems to be particularly apt
for these disputes, since it is logical to use the same medium (the internet)
for the resolution of e-commerce disputes when parties are frequently located
far from one another.
Dispute
resolution techniques range from methods where parties have full control of the
procedure, to methods where a third party is in control of both the process and
the outcome.[4]These primary methods of resolving disputes may be complemented
with Information and Communication Technology (ICT).[5] When
the process is conducted mainly online it is referred to as ODR, i.e. to carry
out most of the dispute resolution procedures online, including the initial
filing, the neutral appointment, evidentiary processes, oral hearings if
needed, online discussions, and even the rendering of binding settlements.
Thus, ODR is a different medium for resolving disputes, from beginning to end,
respecting due process principles[6].
While the use of
ODR has become commonplace in the Western world with e-businesses such as
Amazon and eBay solving millions of disputes through ODR, It is instructive to
note that the concept of ODR is still very strange in Nigeria. On eBay alone,
around 60 million disagreements amongst traders are resolved through ODR yearly.[7]
There is a huge
market for arbitrators and other ADR practitioners in ODR if the proper legal
framework is put in place and other modalities for its success worked out. With
the advent of e-businesses in Nigeria, such as Konga, Jumia, Yudala, OLX, Jiji
etc., and the numbers growing daily, the potential for growth of ODR can only
be imagined. If properly utilized, this would be a veritable means for the
inclusion of young arbitrators in the arbitral process.
CONCLUSION
The world is moving
and we must not be left behind. The world is changing so are the dispute
resolution techniques and methodologies. Mentorship, Small Claims Arbitration
and Online Dispute Resolution are interwoven. In most jurisdictions, Small
Claims Arbitrations, due to the amount involved and the need to cut cost as
much as possible, are settled via ODR. Small Claims Arbitration and ODR are
equally veritable instruments for the mentoring and grooming of Young
arbitrators into becoming internationally acclaimed Arbitrators.
I suggest Arbitral
institutions intensify efforts on training young members in practice and
procedure of arbitration. It is almost certain that the Institute will witness
a rise in payment of dues and participation if members feel a sense of
belonging by gaining actual experience and not just listening to speeches. This
is not to say that speeches are not useful to members, but speeches without
action are like learning driving or cooking theoretically without practicals.
The experienced
Arbitrators must realize that the survival and success of the Institute and
arbitration at large lie in the hands of motivated young arbitrators. They
therefore have a duty to build the future of arbitration they would love to
see, by coming up with a robust and deliberate policy to include young
arbitrators in more arbitration proceedings.
[1] AHMED
ADETOLA-KAZEEM, MCIArb(UK) is a counsel at Gani Adetola-Kaseem (SAN) LP. He is
a member of the board of trustees, Lagos Public Interest Law Partnership
(LPILP). He serves in the Young Members’ Group (YMG) steering committee, scale
of fees review committee and membership committee of the Chartered Institute of
Arbitrators, Nigeria Branch. He was a finalist at the International Bar
Association Pro Bono Awards held in Boston in 2013 and won the Governor’s Award
for best Youth Corps member (batch C) Abia State, 2010.
[2] Published
in The International Journal of Arbitration, Mediation and Dispute Management,
Volume 78, Number 2 at page 169
[3] Published
in the International Journal of Arbitration, Mediation and Dispute Management,
Volume 76, Number 3, August 2010 @ page 407
[4]C. Rule, Online
Dispute Resolution for Businesses. B2B, E-Commerce, Consumer, Employment,
Insurance, and Other Commercial Conflicts (San Francisco, Jossey Bass, 2002) p.
37
[5]P.
Cortes, “A European Legal Perspective on Consumer Online Dispute
Resolution” (2009) 15(4) Computer Telecommunications Law Review pp.
90-100.
[6]J. A. García
Álvaro, “Online Dispute Resolution Uncharted Territory” (2003) 7 The
Vindobona Journal of International Commercial Law and Arbitration P. 180.
Does an Infidelity Postnuptial Agreement Prevent Cheating? By Marni Feuerman

Does an Infidelity Postnuptial Agreement Prevent Cheating? By Marni Feuerman

by | Apr 22, 2016 | Uncategorized

Ed’s
Note: This article was published by the author on www.marraige.about.com at http://marriage.about.com/od/rebuildtrust/fl/Does-an-ldquoInfidelityrdquo-Postnuptial-Agreement-Prevent-Cheating.htm
If
your spouse has cheated on you, and you are attempting to reconcile and rebuild
trust, you will face one of the most difficult challenges a married couple can
experience. One strategy that is sometimes used to dissuade further infidelity is to have the unfaithful spouse sign
an “infidelity post-nuptial
agreement,” consenting to some specified financial payment (or
another significant item of value) to be paid if they cheat again. Such
agreements, also known as “lifestyle clauses” can be drafted by family law
attorneys.

Manhattan-based
divorce lawyer Jacqueline Newman explains the typical underlying
reasons for post-nuptial agreements: they are “often done after there has been
some element of infidelity in the marriage. The person who has strayed tries to
assure his/her spouse that it will not happen again and to prove the sincerity
of this promise, he commits to putting pen to paper to show how sorry he
is.”  She cautions against these agreements because, “If you over-commit
in the document just to get that second chance, you take the risk that your
spouse will wait just until the ink is dry to call his/her divorce attorney now
that they know they are going to get a good deal.”
Ms.
Newman believes that sometimes postnups may be what is needed for the couple to
move forward. “In a less skeptical tone, they can sometimes work because if a
spouse does believe that their straying spouse was willing to in essence ‘pay’
for his/her sins, it shows that they are committed, and that may be all that is
needed to get the couple back on track.” She notes, “Post-nuptial agreements
are much less common than prenuptial agreements, but we definitely have our
fair share of them in my office.”
“A money deterrent usually isn’t
enough to stop a wealthy would-be cheater.” ~ Andrew G. Vaughn, attorney
and professor
Andrew G. Vaughn, attorney, owner of NuVorce,
and Professor of Domestic Relations Law at Loyola University Chicago School of
Law tells About.com that these lifestyle clauses are most common with celebrity
clients. Professor Vaughn states, “They don’t work. Wealthy people have a lot
of money. A money deterrent usually isn’t enough to stop a wealthy would-be cheater.”
He does not recommend them and notes that they are relatively uncommon. In
fact, he asserts that it is rather complicated to draft highly enforceable
contracts like these.
Brandy Austin, an Arlington Texas-based family
law attorney, believes postnups to deter infidelity “are actually relatively
rare among lower middle to lower upper-class people. They are more for
celebrities, public figures…politicians.” But, in her experience as well, these
agreements in any form are not very common. “If it is included as a deterrent,
the likelihood of someone cheating agreeing to give all of their assets is
poor.” Ms. Austin also believes that these agreements aren’t as effective with
the wealthy.  “If you are already in a position to make a payout, money
doesn’t hold the same value and will not likely deter infidelity.”

Most states are “no-fault” in terms of divorce, but in her
state of Texas, courts may award a disproportionate amount of the estate in
some instances of infidelity based upon the “spending the community estate on
someone other than your spouse or kids – wasting community property.” Says Ms.
Austin.

On the other hand, Randall M. Kessler, family law attorney,
author, and law school professor in Atlanta, reports seeing these agreements
often in his practice, and believes that they are becoming more commonplace.
“Not just when a spouse misbehaves, but also when a relative wants to give a
spouse property but does not like the other spouse so it ‘keeps the gift in the
family.’” He believes they do work, and they are “enforceable in every state
except Ohio and what they do, is to cause people to negotiate their
divorce.  Why go to court and risk having a postnuptial agreement enforced
against you if you can negotiate a little more than is required under the
postnup?” He even has recommended them, for example, “When someone is mad at
their spouse, but does not want a divorce.” He cautions, however, “just like
any family law case, think long and hard about it because once the subject is
raised or lawyers get involved, feelings get hardened and it often spirals into
a full-blown divorce.”
Jeffrey A. Landers, CDFA™, the creator of the Think
Financially, Not Emotionally® brand of books and seminars
designed to educate, empower and support women before, during and after divorce
has written on this topic on Forbes online. He explains, “Lifestyle clauses
address non-financial aspects of the marriage, like who will do the housework,
the frequency of vacations…” They are “generally seen as guidelines for
behavior within the marriage, and although they aren’t focused on assets, per
se, there are usually financial penalties for failure to comply with the
terms.” He states that clauses involving infidelity are the most common and
popular of such lifestyle clauses. According to Mr. Landers, they are not just
for celebs anymore, either.
According to Pennsylvania family law attorney, Jeffrey
Kash, this topic does not come up often in his practice, but these
agreements are enforceable in his state. He does recommended clients “push for
agreements that penalize infidelity and for other concessions in cases where a
spouse has engaged in marital misconduct and wants to stay in the marriage.” He
advises pursuing these concessions “while the other spouse is feeling guilty”
which helps the betrayed partner before the blame game and fighting starts.
“Don’t just limit these types of agreements to infidelity with members of the
opposite sex.” he also suggests.

Mr. Kash describes a case that he handled several years ago, in which the
husband reconciled with his wife after the wife had an affair.  As a
condition of the reconciliation process, the husband requested that the wife
sign a “post-nuptial agreement that would limit her marital property rights in
the event that she subsequently became involved in another extramarital
affair.” You can guess what happened next. Wife cheats again and the
postnuptial, under which the wife had waived her right to marital property, was
upheld.

As a couples’ therapist, whether lifestyle clauses
for infidelity are enforceable, or whether they are utilized by a couple or
not, talking and thinking about them can be beneficial.  If they are
properly negotiated and can be upheld, they can certainly be structured to
deter cheating and other bad acts.  They can also be used where both
parties want divorce proceedings to be kept confidential in the event of future
bad behavior. All of the experts have made good points to consider whether or
not this might be a good option for your marriage. 
The
process of negotiating “lifestyle clauses” may open up the lines of
communication between spouses, and help the marriage in unforeseen ways. These
clauses might encourage people in a committed relationship to discuss fidelity
issues and expectations in advance. Feelings about monogamy and infidelity will
be made clear. Such communication alone can be helpful, even if the clause is
never enforced.  
What couples considering lifestyle clauses should really focus on is the
attitude of the one who cheated. If the partner who strayed seems more than
willing to do anything to save the marriage, including signing a postnup, that
can be viewed as a positive step forward. Alternatively, if the betrayed
partner has to cajole their unfaithful spouse into such an agreement, that is
probably a strong indication that the cheating behavior isn’t likely to
change. 
Photo and article credits:
http://marriage.about.com/od/rebuildtrust/fl/Does-an-ldquoInfidelityrdquo-Postnuptial-Agreement-Prevent-Cheating.htm
What do you think about this discriminatory law?

What do you think about this discriminatory law?

by | Apr 21, 2016 | Uncategorized

There is a provision of
the Criminal Code that I believe may be construed as discriminatory to women
but I want to seek your opinions so together we may rightly define if the law
really does cross the line of discrimination.

Over time, I have always
believed that the law favoured women over men but that’s quite understandable,
women being the fairer sex deserve the protection right? But what happens when
it’s the other way around. This is what this law seems to be doing.


What will you call a law
that provides a stringent penalty for an offence when it is committed against a male, but provides a more lesser sentence when committed against a female?

What will you call a law
that describes the same act in two ways, it is a misdemeanour when a female is
the victim but it is a felony when a male is the victim. Maybe you can help
shed some light on the intentions of the drafters of this law, maybe there is
something I am missing. Here it goes;

Section
353, Criminal Code Act, CAP. C38, LFN 2004 provides that:
“Any
person who unlawfully and indecently assaults any male person is guilty of a
felony and is liable to imprisonment for three years. The offender cannot be
arrested without warrant.”

While Section 360, Criminal Code Act, CAP C38, LFN 2004 provides that:
“Any
person who unlawfully and indecently assaults a woman or girl is guilty of a
misdemeanour, and is liable to imprisonment for two years.”

The law says the penalty
for assaulting a male person is imprisonment for three years but that same act
committed against a female person attracts a penalty of two years in prison.
Why?

Do you agree that it
smirks of some discrimination; I would have thought that assaulting a female
should have the stiffer punishment.

Kindly share your thoughts
on the subject matter and let us know what you think.

Thanks.

Adedunmade Onibokun

@adedunmade
dunmadeo@yahoo.com
Photo Credit – www.myfloridalaw.com 
Ibrahim Abdullahi vs. National Pension Commission & ARM Pension Limited (FHC/ABJ/CS/22/16) by: Kehinde Okunola

Ibrahim Abdullahi vs. National Pension Commission & ARM Pension Limited (FHC/ABJ/CS/22/16) by: Kehinde Okunola

by | Apr 19, 2016 | Uncategorized

Brief Facts:
The
Applicant was an employee of Julius Berger Nigeria Plc, but whose employment
was terminated at some point. He maintains a Retirement Savings Account with
the 2nd Respondent (ARM Pensions) in line with the provisions of the Pension
Reform Act 2014 and had his Pension contribution remitted into his RSA in line
with extant laws of the Contributory Pension Scheme. He sustained an eye injury
at the time of his employment and which condition according to him had
deteriorated before and after the termination of his employment.
He
forwarded an application to the 2nd respondent to allow him access to the
balance in his RSA to fund the medical treatment. The
2nd respondent had in compliance with the provisions of the PRA 2014 earlier
paid him 25% of the sum in the RSA, flowing from which his subsequent request
to access the outstanding balance was denied by the 2nd Respondent (ARM
Pensions).

The
Applicant (Ibrahim Abdullahi) claimed that this refusal was a breach
of his Fundamental Human Right as enshrined in Chapter 4 of the
1999 Constitution and the African Charter on Human and People’s Right
(Ratification & Enforcement) Act, Cap 10, LFN, 1990; hence he brought an
application to enforce his Fundamental Human Rights under the Fundamental Human
Right (Enforcement Procedure) Rules.
 Learning
Points:
·        
Jurisdiction:
This
matter was instituted at Federal High Court by the applicant on the authority
of Section 34(1) of the 1999 constitution praying the court to enforce his
fundamental human rights under the Fundamental Human Rights(Enforcement
Procedure) Rules. Being that the matter was brought under Section
34(1) of the 1999 constitution, the Federal High Court will automatically have
jurisdiction to determine the suit. However, by virtue of section 254C (1) of
the Constitution (Third Alteration) Act, 2010, which conferred jurisdiction on
National Industrial Court, disputes arising from payment or nonpayment
of pensions is within the exclusive jurisdiction of
the National Industrial Court.
 Pre-Action
Notice
The Pre-action notice requirement
under Section 109(1) of the PRA 2014 is only applicable where the suit is
brought against any of its officers as mentioned in that section and does not
in any way extend to suits brought against the National Pension Commission.
 Fundamental
Objective of the Scheme
The
fundamental objective of the Contributory Pension Scheme is as stated in
Section 1 (1) (c) of the PRA 2014 which is to ensure that every person who
works receive their retirement benefits as and when due. ‘the regime
which the PRA 2014 introduces in Nigeria is not a medical health insurance
scheme.” Per Nnamdi O. Dimgba J. (Ibrahim Abdullahi V
National Pension Commission & Arm Pension Limited).
 Contract
The
relationship between a Pension Fund Administrator and a RSA
holderis contractual, specifically a statutory contract. This
contract is governed by an Act of the National assembly and attempts to vary
the terms of the contract as statutorily mandated will be null, void and
ultra-vires. “Sums are only accessible as provided by the PRA, and
the Applicant has already taken the maximum benefit permissible under the
circumstances that he had found himself” Per Nnamdi O. Dimgba J. (Ibrahim
Abdullahi V National Pension Commission & Arm Pension Limited).
 Constitutionality
of the Provisions of Section 7 & 16 of the PRA 2014
The
premise of the argument of the applicant in the case of Ibrahim Abdullahi V
National Pension Commission & Arm Pensions Limited is that Sections 7 &
16 of the PRA is unconstitutional as they violate fundamental rights. In what
can be termed a landmark judgment and a possible Locus Classicus on
the subject matter, the learned judge (Nnamdi Odimgba J.) in
resolving this affirmed the provisions of the PRA 2014 thus; “…the premise
of the argument to wit,…is flawed…in any event the law is pretty settled that
fundamental rights are not absolute, and that their enjoyment is always subject
to laws reasonably justifiable in a human society…
  
 Access to RSA on medical grounds
It
is trite that access to the Retirement Savings Account on medical grounds can
only be in line with the PRA 2014 and any attempt to circumvent these
provisions is unlawful as enunciated in the decision of Nnamdi O.
Dimgba J. (Ibrahim Abdullahi V National Pension Commission
& Arm Pension Limited)
“I do not agree that the circumstances of this suit
fall within the contemplation of suits that can be brought through the
fundamental human rights enforcement procedure. I am more inclined to the view
that resort to the fundamental human rights procedure here is done in an
abusive way to circumvent compliance with a requirement in the pension law, or
to avoid complying with an obligation in a statutory contract. As much as I
share some sympathy for the present life challenge of the Applicant, this
practice must be deprecated.”
It
is highly commendable that the court in this matter dispensed the carrot and
sticks within an unprecedented timeframe as issues before his lordship were
dealt with timeously. In conclusion, the learned judge having adumbrated the ratio
decidendi (reasons for the decision) came to an inevitable
conclusion that the applicant’s application lacks merit and no order as to
costs was made.

Ed’s Note: This article was published by the author on 15th April, 2016 on www.linkedin.com via https://www.linkedin.com/pulse/ibrahim-abdullahi-v-national-pension-commission-arm-limited-okunola?trk=prof-post
Shares: What does it mean in a Company? By Teingo Inko-Tariah

Shares: What does it mean in a Company? By Teingo Inko-Tariah

by | Apr 19, 2016 | Uncategorized

Introduction
Profit making ventures are usually registered as
companies limited by shares or unlimited companies. A company is limited by
shares when the liability of shareholders of the company is limited to the
amount, if any, unpaid on the shares held by them. In the case of unlimited
companies, the liability of the shareholders is not limited to any unpaid
amount for shares held by them. Thus
the shareholders of an unlimited company are fully liable for the debts of the
company no matter the amount involved. There are various ways a company can
raise capital for its operations. Issuing shares is one of the ways capital can
be raised.
What
is a share?

A share is a unit of a company
that defines the interest of a shareholder in the company measured by a sum of
money. It represents a portion of a company’s share capital and confers certain
rights and liabilities on the shareholder. The Nigerian Companies and Allied
Matters Act defines shares as’ interests in a company’s share capital of a
member who is entitled to a share in the capital or income of the company’.
Thus a share represents a unit of a bundle of rights and liabilities which a
member or shareholder has in a company as provided in the term of issue i.e.
the articles of association of the company. A share is a chose in action
(intangible property which gives the owner a right of action for possession)
and it is a transferable property subject to any restrictions that may be
provided in the articles of association or under the law.
Rights
and liabilities attached to shares
A shareholder is entitled to vote
in the proceedings of company meetings, receive dividend whenever dividend is
declared, attend meetings and contribute to the affairs of the company, inspect
company’s statutory books, protect proprietary interest in the management of
the company. The Nigerian Companies and Allied Matters Act, 2004 prohibits
issuance of shares with no right to vote or a right to more than one vote
except in the case of preference shares. It is an offence under the law to
issue a share with no vote or more than one vote. On the other hand, a
shareholder is liable to pay for shares held and unpaid for upon winding up of
the company where the company is limited by shares. In the case of unlimited
company, the shareholder is liable for the full debt of the company. A
shareholder is also liable to forfeit shares upon failure to honour a call to
pay up in respect of any unpaid shares and suffer any penalties stipulated in
the articles of association or term of issue.
How
to acquire shares in a company
Shares in a company can be
acquired by any of the following ways: subscription, allotment, transfer or
transmission. Subscription refers to the signing of the memorandum and articles
of association during the incorporation of the company whereby at least one
share is taken up by each member or shareholder signing for a company to be
formed. Upon registration of the company, the subscribers are deemed to have
agreed to become members of the company and their names must be in the register
of members.

Allotment is the allocation of a
specific number of shares in a company to an applicant or prospective
shareholder upon an application for such shares. The company may allot all or
part of the shares applied for by a prospective shareholder. A prospective
shareholder can also withdraw his application by written notice to the company
any time before allotment is done. Upon application, the company shall, where
it wholly or partly accepts the application, allot shares to the applicant and
notify the applicant of the allotment and the number of shares allotted within
forty-two days. The company is not bound to allot the full amount of shares
applied for but it is bound to write a letter of regret enclosing the balance of
money paid for shares not allotted. Where shares have been allotted, the
company is required to file a return on allotment of shares with the Corporate
Affairs Commission within one month of allotment in the prescribed form and
with the necessary supporting documents. If you have ever applied to buy shares
of a public companies through public offer, this is what happens at the close
of the public offer.

Shares of a company can also be
acquired by transfer. Transfer of shares is the process of passing ownership
from one person to another. It is executed by the delivery of a proper
instrument of transfer and the share certificate to the company and the
subsequent registration of the transferee in the company’s register of members.
A company is required to file a notice with the Corporate Affairs commission
indicating transfer of shares. Transfer of shares in a company are subject to
any restrictions by law or the articles of association. Every private company
is required by law to restrict the transferability of its shares in its
articles of association. This is done by including a ‘pre-emptive right’ clause
to the effect that any shareholder who wishes to transfer his shares should
first offer such shares to existing shareholders before any other person who is
not a shareholder.

Transmission of shares is the process
of acquisition whereby a person becomes entitled to the shares of another in
consequence of death or bankruptcy of that other person who was the original
shareholder. In the case of death, the shares could either be transmitted by a
will or where there is no will, letter of administration of estate of the
deceased original shareholder. A person who takes up shares of another by
transmission would be required to communicate same to the directors of the
company showing evidence of such transmission and could either choose to have
the transmitted shares registered in his own name or in the name of a nominated
person. Registration of the name of the person to whom shares have been
transmitted in the register of members after all requisite formalities, grants
such a person full rights as a member of the company.

Classes of shares
There are various classes of shares that could be issued by a
company. These are ordinary shares, preference shares, deferred shares and
founders’ shares. The nature of the shares would depend on the kind of rights
attached to them.Ordinary shares are the
basic shares of a company which have no special rights attached and which bear
the main risk. They are sometimes referred to as ‘equity shares’. Majority
of the shares in most companies are ordinary shares which have the basic rights
attached to a share.
Preference shares are those shares that have
additional rights attached to them and they could take various
forms.  Fixed preference shares entitle
the holder to a fixed amount of dividend every year. Fixed right to participate
in surplus profit entitles the holder of such shares to additional dividend
after the fixed amount of dividend. Thus where there is surplus, they benefit
further with the ordinary shareholders.
Cumulative preference shares entitle the
holder to dividend every year whether or not profits are declared by the
company. Where no profit is declared in a particular year, the dividend
accumulates and adds up to that of the following year such that whenever there
is profit and dividend is declared, this class of shareholders get their
dividend that has accumulated over time in addition to what is currently due
them.
In the case of Non-cumulative preference
shares, where a dividend is not declared and paid in a
particular year, such dividend is lost. 
Deferred shares are shares on which no dividend
is payable until other classes of shares have received a minimum dividend.
Preference shares could be stated as non-voting (holders would not be entitled
to attend meetings or vote) and could also be expressed to be redeemable as a
term of issue. The right of redemption would usually be set out in the articles
of association of the company.
A Redeemable share is
one issued on the terms that the company will or may buy them back at a future
date. Founders’ shares and Management shares are shares
with special rights attached for the benefit of the original subscribers and
management of the company respectively in order to retain some measure of
control over the company. They are not popular in Nigerian corporate practice.

Ed’s Note: Culled from www.tennygee.wordpress.com 
Photo Credit – www.pdco.ca 
                     – www.reporters365.com 

PENALTY FOR KIDNAPPING

PENALTY FOR KIDNAPPING

by | Apr 18, 2016 | Uncategorized

The rate of kidnapping in Nigeria has risen considerably in the last ten
years. Not less than 1,500 people are kidnapped on an annual basis in the
country thus making kidnapping more or less a new “cottage industry”. With the
statistical belief that one out of every 5 Africans is a Nigerian,
it may not be wrong to say with her population and the increase in the wave of
kidnapping, Nigeria has more potential kidnap victims than most of her West
African neighbours.
–                    
The Street Journal, 9th April,
2013, www.thestreetjournal.org
 According to the Black’s Law Dictionary, 10th
Edition, to kidnap is to seize and take away (a person) by force or fraud,
often with a demand for ransom.


A recent statistic released by NYA
International, specialist crisis prevention and response consultancy, indicates
that Nigeria accounted for 26 per cent of kidnap and ransom incidents globally
in the first half of 2013.  Kidnapping is
big business in Nigeria at this time, hardly does any month go by without news
or reports that someone has been kidnapped.

Moreso, as kidnappers seem to be no respecter
of persons, for they kidnap the poor, the rich or family members of the rich. This
is why states like Edo and Delta States have passed the Anti – Kidnapping laws and
imposed the death penalty for convicted kidnappers. I remember my friend’s mum
was kidnapped in Edo State years ago and I observed firsthand how the family
suffered during that period. Thankfully, she was returned unharmed.

The Criminal
Code Act, CAP C38, LFN 2004, also provides a penalty for kidnapping. The law
provides in Section 364 that –
“Any person who –
1.
Unlawfully imprisons any person, and takes him out of Nigeria without his
consent; or
2.
Unlawfully imprisons any person within Nigeria in such a manner as to prevent
him from applying to a court for his release or from discovering to any other
person the place where he is imprisoned, or in such a manner as to prevent any
person entitled to have access to him from discovering the place where he is
imprisoned,
Is guilty of a felony
and is liable to imprisonment for ten years. “
The
rise in kidnappings has been attributed largely to the poor standard of living
and unemployment. However, no reason is ever good enough to commit a crime
especially when it involves putting the lives of others in jeopardy.
Adedunmade
Onibokun, Esq.
@adedunmade
References
–        
The Independent Newspaper
http://independentnig.com/2013/08/nigeria-accounts-for-26-of-kidnap-globally/
–        
The Street Journal

http://thestreetjournal.org/2013/04/kidnapping-nigeria%E2%80%99s-fatest-growing-industry/

– Photo Credit: www.africanspotlight.com 
Can a Director of a private company be appointed by a Will? by Teingo Inko-Tariah

Can a Director of a private company be appointed by a Will? by Teingo Inko-Tariah

by | Apr 15, 2016 | Uncategorized

Mr Arrowhead, a very prominent Nigerian suffered a stroke and was flown abroad where he received medical attention for several months. Unfortunately, he died abroad and his body was flown back to the country for burial which was celebrated in grand style. Although Mr Arrowhead left a will, there was serious contention among family members over the content of the will especially as some of the family members felt disappointed over what was bequeathed to them. Typical of a polygamous family, the will was contested in court. However, that is not the main thrust of this paper. It was discovered that in the will, the testator purportedly appointed his wife as a director of one of his companies. This is a real life situation and raises the question which this paper seeks to address. Can a director of a company be appointed by a will?

Who is a director?
S 244(1) Companies and Allied Matters Act (CAMA) 2004 defines directors as “persons duly appointed by the company to direct and manage the business of the company”. s. 567 CAMA further describes the term director to “include any person occupying the position of director by whatever name he may be called and includes any person in accordance with whose directions or instructions the directors of the company are accustomed to act”. Directors are officers of a company who are appointed to operate the business for the benefit of the shareholders. According to s. 567 CAMA, ‘officer’ in relation to a corporate body includes a director, manager or secretary. There are two broad categories of directors in modern corporate practice and governance. They are executive directors and non-executive directors. Executive directors are those directly engaged in the day to day management of the business on a full time basis while non-executive directors are external board members who act as a check on the executive management. They are usually appointed on part time basis and they have become more prominent with the development of corporate governance. There are various types of directors: shadow, alternate, independent, and life director.
Appointment of directors
The authority to act as a director of a company comes from due appointment. Thus a person who acts without such appointment commits an offence under s. 244(3) & 250 CAMA and he would be personally liable for his actions. Where the company holds out a person not duly appointed as a director to carry out responsibilities in that capacity, the company will also be liable to a fine s. 244(4) CAMA. However, although a director may not have been duly appointed in accordance with the law, his actions in that capacity may still bind the company as if he were a de jure director (i.e. one who was duly appointed) if it is the company that holds him out as a director. Therefore appointment is a fundamental criterion which validates the position and authority of a director of a company.
In Nigeria, the law provides for the manner in which the director of a company may be appointed: who can appoint and how to appoint a director. For the first directors, the law provides that they should be appointed by the subscribers to the memorandum of association of the company, a majority of them or they may be named in the articles of association of the proposed company. For subsequent appointments generally, it is the shareholders in a general meeting who are empowered by law to appoint directors by ordinary resolution. The board of directors of a company could also appoint other directors subject to the approval of the shareholders at the next annual general meeting where a vacancy arises from death, resignation, removal of a director. This is referred to as filling a casual vacancy and where the newly appointed director is not approved by the shareholders in a general meeting, he would cease to be a director. Where all shareholders and directors of a company die, any of the personal representatives may apply to court to convene a meeting of all personal representatives of the shareholders entitled to attend and vote at a general meeting to appoint new directors to manage the company. Where the personal representatives of the deceased shareholders fail to do so, the creditors of the company, if any, shall be able to appoint a director.
What role does the Articles of Association play in appointment prescriptions? Life director, share qualification.
The AOA is the document that makes provision for the internal management of a company. It is a part of the constitution of the company which sets out the rules for running the company. Typically, the article of association should contain provisions relating to share capital, classes of shares, rights and restriction to each class of shares, allotment, transfer and transmission of shares, meetings, resolutions, directors, auditors, company secretary, the seal, winding up. With regards to directors, the articles of association prescribes the appointment, removal, disqualification, remuneration, tenure of office, rotation, filling of casual vacancy of directors and also provides for life director where the company so wishes. Usually, in corporate practice, where the law is silent on an issue, it is the articles of association that would provide direction on such issue thus, for instance, in Nigeria; the CAMA, 2004 is silent on the issue of alternate directors although the practice is recognised in the corporate sector. Therefore, companies that wish to have alternate directors would make such provision in the articles of association as the basis for adopting the practice. Another instance is meetings via conference calls.
What is a will and what kind of bequest can be made by a will?
A will is a voluntary expression of the intention or wishes of a person of sound mind wherein the person states or gives directives of how his property should be disposed of in event of his death. Property given by a person in a will is referred to as legacy and could either be chattels i.e. movable items such as wrist-watch or car; realty i.e. immovable items such as land or buildings; or pecuniary i.e. money.
Conclusion
Directorship in a company is not a type of property and does not fall under the types of properties that can be bequeathed by a will. A person who dies automatically ceases to be a Director of the Company and so loses the power to bind the company which is a separate entity from the owners & Directors. Any subsequent director can only be validly appointed by due procedures laid down by statute. Thus, any purported appointment by a will goes to no issue as it cannot be recognised except due process has been followed. At best, it can serve as an expression of intention of the deceased director as to who he wishes to be on the Board of the company. This intention can only be executed by the living Directors, if any and until so executed, it is invalid.

Photo Credits – rayhansobhan.com

The Top 14 Things Landlords Wish Tenants Knew

The Top 14 Things Landlords Wish Tenants Knew

by | Apr 15, 2016 | Uncategorized

 
 
Editor’s Note: – This article was initially posted on 6th February, 2015, on
Time Magazine via http://time.com/money/3697636/landlord-tenant-renters-tips-advice/
and has been reproduced for the purposes of sharing on the blog.
Pay your bills,
respect your neighbours, and please hide your weed. Please.
Sometimes the landlord/tenant relationship can be a difficult one. But
it does not have to be that way, and it certainly does not have to start out
that way. As landlords, we try to get this relationship off to a good start and
keep it that way by taking care of our properties and tenant concerns.
But some tenants, perhaps due to past experiences, prepare for the worst
and thus approach the relationship ready for a fight. Maybe they have never had
a decent landlord. Maybe some just do not know how to act. Whatever the reason,
here are 14 tips from our 12 years as landlords to tenants everywhere for a
decent landlord/tenant relationship.

1. Pay your bills on time. Seems fairly
obvious, I know, but many tenants believe they can pay every other bill before
they pay the rent. Want to stay on our good side? Please pay your rent on time.
2. Always try to be polite. I will, too.
Being polite and calm really does go a long way. You would not like it if I
left you snarky or angry screaming messages on your voicemail. I know sometimes
issues can seem to linger on and on, but we really are doing our best to get
things resolved.
3. Listen to our instructions. We tell you
things for a reason. If we show you how to trip a breaker or turn a gas valve
off, listen. It may just save your butt. If we tell you there will be a hard
freeze tonight and to please let your faucet drip, don’t call us the next day
and complain that your pipes have frozen and you need to do laundry. I can’t
control the weather, so you will just have to wait until it warms up.
4. Help us. We try to take care of our properties, but we can’t
be everywhere all the time. Is there something we need to know about? Tell us.
Is something broken? Let us know. Help us by being our eyes and ears.
5. Tell the truth. Did you or your kid flush
something down the toilet and stop it up? Then tell us the truth so we can get
the problem resolved as quickly as possible. After a dozen years in this
business, we can almost always determine the culprit anyway.
6. Please just leave me a message. If we do not
answer your call, do not hang up and call over and over again. There are times
we simply cannot take your call. How do you think we are going to feel when we
finally answer you after you have called five times in a row? It had better be
a matter of life or death.
7. Understand that we have a lot going on. Sometimes other tenant’s issues may take priority. We know about your
issue, and we will get to it just as soon as we can. We might for example need
to make sure everyone has heat before taking care of your dripping bathroom
sink.
8. If you get in a bind, talk to us. Communication
is key! Tell us what is going on. Did you lose your job? Has your roommate gone
off the deep end? We have been there before, and we know what it is like. But
if you do not talk to us, there is no way we can help you. Please do not put
your head in the sand and hope whatever problem you are having will go away. It
will not, and things will only get worse.
9. Treat my property and the people who do work for me with respect. You would not believe how many people are just plain rude to the people
we send over to try and fix their problems. Plus, how do you think we are going
to react if we see that your place is a mess or that you are causing damage?
Disrespecting our properties or our help is a sure way to create an adversarial
relationship.
10. Work with me. We know you have a busy schedule.
So do we, and trust us, we want your issue resolved as quickly as possible too
because we have a dozen or so more to deal with. It all goes much easier if you
work with us on times and arrangements. You might have to put up your dog for a
day or allow us into your apartment on your day off. We hate to disturb you,
but we will be done and out of your hair just as soon as we can.
11. Trust me. We are not going to steal your stuff or try and
stiff you. Yes, we know some landlords might, but not us. If we say we need to
get into your home, it is for a legitimate reason.
12. Follow the rules. They are
there for a reason. They were explained to you when you moved in, and you
agreed to follow them. It just makes life harder for all of us if you choose to
ignore them. If you could not live with the rules, then you should not have
moved in.
13. Respect your neighbors. Would you
appreciate a loud party the night before you need to make a major presentation
at work or before your final exams? No, you would not. Remember that you live
in an apartment building, and you have neighbors — sometimes very close
neighbors. Think about how your actions might affect them. I’m not saying do
not have any fun; just try to be considerate.
14. Hide your weed. Just please do this. It is
technically against your lease, and you really never know when there will be an
emergency and who will need to access your place.
A lot of the above is just common courtesy and common sense. But for
those few — and you know who you are — please review and follow the above and
let’s make your stay with us as pleasant as possible.
 
 
Photo Credit – www.time.com
Legal & Commercial Issues in International Project Finance By Adetutu Oluwaseyi

Legal & Commercial Issues in International Project Finance By Adetutu Oluwaseyi

by | Apr 12, 2016 | Uncategorized


Background
International
Project finance typically involves multiple parties from different
jurisdictions with conflicting interests that must be protected and obligations
that must be clearly defined. The structure of project finance loan can be
limited recourse or non-recourse to the project sponsors. The underlying
rationale is to distribute risk among the participants involved. In cross
border transactions, it is important to anticipate and properly analyze the possible
risk the project could be expose to in the host state and identify solutions
that can be used to mitigate or eliminate the impact of the risks. In order to
mitigate or reduce the risks associated with jurisdictional issues, clauses
should be incorporated in the contract agreements between the counter parties
at different phases of the project.  The contracts include- Sponsor
Support Agreement, Loan Agreement, Collateral Security Agreement, Power
Purchase Agreement (PPA), Engineering Procurement and Construction (EPC)
Agreement, Operations and Maintenance Agreement (O & M), Fuel Supply
Agreement, Concession Agreement, Management Agreement, Joint Venture Agreement
and Shareholders’ Agreement. The following issues and questions can be
identified from the above scenario:
1.    
What are the applicable laws and institutional
framework that will govern the project in the host country?
2.    
What structure should the business transaction take?
3.    
What will be the currency of the transaction since the
financier and project will be based in different jurisdictions?
4.    
What is the profitability of the project?
5.    
What is the structure of the project loan?
6.    
What is the political history of the host country?
7.    
What are the other risks to be considered in that
jurisdiction and how can the project be secured from such risks?
Possible
approaches to address these issues are discussed below:

1.    
APPLICABLE LAWS
These are
policies and regulations of the host state designed to regulate cross-border
transactions. It is important to have a comprehensive knowledge of the
underlying legal and institutional framework regulating the establishment of
international projects in the host state as this varies depending on the
particular jurisdiction. It is advisable for parties to take out the services
of a local counsel to get advice on the host state legal and investment
environment. Generally, applicable laws may encompass:
·       
Domestic laws: Information relating to the Commercial laws, Law of Corporate
Governance, Labour Laws, Land Laws, Property Acquisition, Tax Regime,
Environmental Laws, Immigration, Customs and Industry.
·       
Administrative Framework: Information on the relevant governmental organs saddled with the
responsibility of administering international power projects, e. g obtaining
license, approvals, permits, the quality of public administration, transparency
of the system local regulations and system of dispute settlement.
  • International Standards: Applicable laws will also include guarantees provided by the host
    state for protection of foreign investments under any international
    standards. These standards can be provided on the platform of a Bilateral
    Investment Treaty (BITs) or Multilateral Investment Treaty (MITs)
    involving the states of the parties involved in this transaction. For
    instance, under the World Trade Organisation Framework (WTO), the General
    Agreement on Trade in Services (GATS)[2] will apply where services are
    provided by an investor of a member through the establishment of a service
    provider in the territory of another member.
·       
Agreement and Language: It is essential to identify the contracts and the language of the
contracts between the parties. The loan agreement is usually in the language of
the lender, while the collateral security agreement is usually in the language
of the host state as the collaterals are most likely located within the same
jurisdiction as the project.
·       
Choice of Law Clause: It is important that parties mutually choose the law governing the
contracts underlying the project development and incorporate in the contracts
of agreement.[3] The foundation of project finance is originally a joint
venture agreement between two parties which will invariably extend to other
parties in order to spread the risk involved. Therefore, to protect each
parties involved at every stage of the contract will require contracts
agreement designed to cover the choice of law clause governing the transaction,
insurance safeguards and settlement of investment dispute between the parties.
Parties have the flexibility to build protective clauses in the agreement to
secure their rights and interests under the contract.
·       
Dispute Resolution: Due to the fact that many participants from different jurisdictions are
involved in negotiating separate contracts at different phases of the project
that will form a global structure with links, it is essential to safeguard the
whole network of contractual relationship by anticipating dispute among the
parties and incorporating a mechanism of resolving such dispute in event of
occurrence.[4] Parties may first resort to non-binding informal consultation
(mainly, conciliation and mediation) before proceeding to the binding
structured (judicial forums and arbitration) means of dispute resolution.[5]
Non-binding mechanisms traditionally offer the flexibility that international
market participants require to protect future relationships while binding
mechanisms offer the judicial implementation of the rules set forth in
applicable statutory law and in the contracts between the parties. [6] Parties
to international contracts more often than not utilize two types of forums
namely domestic courts and international arbitral tribunals. During
negotiation, it is important that parties agree on the choice of forum and
choice of law to be applied by the forum in the event of dispute and
incorporate in the contracts between the various parties.
2.    
STRUCTURE OF JOINT-VENTURE
Project finance
is a platform on which certain projects are financed off the balance sheets of
companies.[7] It is a specialized funding structure that relies on the future
cash flow of a project as primary source of repayment without recourse to the
project sponsor’s assets for the debts or liabilities of the project.[8] It
holds the project’s assets, rights and interests as collateral security.[9] The
design of the joint venture between the sponsors is established by the joint
venture contract for the purpose of jointly financing the project. The
structure selected by the sponsors is important in project finance because it
has implications on a number of things including ownership, management, roles
and responsibilities of the sponsors, equity contribution, license and permits,
documentation, location, termination and consequently financing.
·       
Special Project Vehicle (SPV): A joint venture does not have legal personality. In order to create a
platform on which the power project can be floated without encumbering the
balance sheet of the two sponsor companies, a Special Purpose Vehicle (SPV)
that will implement the project and raise the funding should be created.[10]
Establishing a SPV mitigates project risks and shields the sponsor from adverse
developments. The nature of the organisation of the SPV depends on many factors
including the laws of the host state.
·       
Incorporation: The SPV should be registered and incorporated to give it a legal
personality and becomes independent from its sponsors. This provides a
safeguard for the project in the event of failing shareholders dragging a
healthy project into distress or vice versa. The sponsors will typically
incorporate the project company in the most attractive jurisdiction from a
regulatory perspective that allows the sponsors to continue to own and operate
the project company or holding company.
  • Management and Control: It is important to determine the concept of ownership and control
    of a company under the laws of the host state in order to determine the
    structure of shareholding of the company. A due diligence on the ownership
    structure to determine what form of organisational structure is prescribed
    and foreign participation in host country’s companies will determine the
    shareholding capacity of the sponsors and their equity contributions. The
    management of the project company and the relationship between the project
    sponsors should be specifically spelt out in the management agreement.
·       
Equity Contribution: The equity contributions of the sponsors should be specifically stated
in the shareholders’ agreement to ascertain the timing and certainty of the
equity funding in order to optimally schedule the timing and dependability of
the injection of funds into the project.
·       
Effective place of Management: The sponsors of the project company have different jurisdictions. It is
important that the place of effective management of the new company be spelt
out in the management agreement to determine its nationality and place of
control.
·       
Insolvency: Insolvency is the most crucial indicator of the attitude of a legal
system in its commercial framework.[11] It has a profound impact on legal
relationships. This signifies the importance of counter-parties having a prior
understanding of their positions in the event the project company goes
insolvent.[12] The divergences always focus on priority, property, contract and
liability. Under the common law jurisdiction, emphasis is on rescue and
re-organisation. In contrast in civil law jurisdictions, the insolvency process
focuses on winding companies up. One way to determine the rights and
liabilities of counterparties is to negotiate the choice of law that will apply
in case the project goes bankrupt and incorporate in the Loan agreements and
Shareholders’ agreement. Parties may consider the adoption of the 2005 UNCITRAL
Model Law on Cross-Border Insolvency.
  • Tax Regime
The tax policy
of the host state has considerable effect on the profitability of Project
finance.[13] It is important to structure the project in such a way that it
will take advantage of tax benefits in the host country. This will include
analysis and use of double taxation treaties, privileges under bilateral and
multilateral trade treaties. The place of effective management and
incorporation is also important for tax purposes.
  • Obtaining Operating Licences and Permits
In many cases,
implementing a project depends on obtaining the appropriate licences, permits
and concession ns from the host state. It is essential that these permits be
made transferable or renewable as the case may dictate in order to maintain the
on-sale value of the project. The government may negotiate certain clauses
which give it the right to revoke the licence or concession. In cases like
this, the lender can seek security through government approval of financing of
the project. Negotiations in respect of operation license, expatriate quotas
and approvals should be covered in the concessionary agreement.
3.    
CURRENCY
International
finance project involves cross border transactions in which, case cost and
revenues on the same project are computed in different currencies (currency of
the financier and the host country). It is therefore instructive for the
parties to agree on the currency of transaction, its convertibility, exchange
rate and repatriation of profit.[14] The transnational and long-term nature of
international project finance makes it almost plausible that the risk of
foreign exchange will arise. Generally, parties could negotiate these terms
with the host government and include same in the concession agreement.
·       
Exchange Rate: After currency has been determined, it is vital to also agree on the
rate at which conversion is to be done from the foreign currency to the host
state currency and include these terms in the loan agreement between the Lender
and Project Company.
·       
Exchange Controls – The parties should examine the foreign exchange position of the host
country and understand the government’s priorities for foreign exchange. This
is because shortage of foreign currency may result in the risk that the project
company may not be able to convert local currency into foreign currency to
repay the loan. This risk may be mitigated by negotiating priority access to
foreign exchange or a guarantee of availability with the host country.[15]
However, clearance or permit for importation and exportation of fund should be
obtained from the Central Bank or board for transfer of fund.
  • Repatriation of profit: The sponsors and lender are particularly interested in ensuring
    inflow and outflow of cash from the project and that profit realised are
    extended to deplete the loan sum. It is therefore central to the
    transaction that the parties are able to transfer fund from the host
    country effectively and at a convertible currency. The right of the
    project company to transfer fund and make loan payment should be included
    in the concessionary agreement. The project company may also open an
    offshore and local account through which payments can be made smoothly.
1.    
Inflation: This risk exists when certain input costs can be subjected to price
inflation. In such cases, the project sponsor must be able to pass on these
price increases to customers. If the project output is a product whose price
levels are fixed by the government, the ability to pass on the cost increase
will be limited. Similar risks exist when the inputs are denominated in one
currency and the project outputs in another. Thus it is important to identify
any such risks and the ability to pass them on to the customers. It is not
always possible to increase tariffs particularly in power projects.
4.    
FEASIBILITY STUDY
This comes at
the conceptualization of the project. A thorough examination of the viability
of the project is carried out first by the sponsors to determine its
sustainability. This will encompass duration of the proposed project, cost
implication, profit, location of facility and suitability, technological
assistance, permits, environmental impact of the project, supply of materials,
market projection, debt service capabilities, etc. An independent feasibility
study is later carried out by the lender to supplement the first study. This is
to ensure the ‘bankability’ of the project.
5.    
LOAN AND SECURITISATION
Generally,
sponsors will want a non-recourse project financing where there is no recourse
to the sponsor’s assets for the debt or liabilities of the project company.
Non-recourse financing therefore depends purely on the merits of a project
rather than the creditworthiness of the project sponsor. The project debt
repayment depends on the cash flow sourcing from the revenue generating
contracts of the project and the assets of the project are used as collateral
for the debt.  In this case, the project sponsor has no direct legal
obligation to repay the project debt or make interest payments. The ability to
take effective security can assume crucial importance in project finance.[16]
In some jurisdictions, laws on the taking and enforcement of security,
especially movable assets, cash flows and contractual rights (such as
receivables) may not always be satisfactory.[17]
In major
international projects, it is highly likely that more than one jurisdiction
will be relevant to the security package given to the lenders. Relevant
jurisdictions may include where the project is located, where the project
company is incorporated, the sponsors and any intermediate holding companies
and where the project company’s bank accounts are located. Security package can
be both onshore and offshore. Security must satisfy any relevant formalities in
each relevant jurisdiction.[18] The structure of the loan and interest rate
should be agreed upon and included in the loan agreement. Collateral security
document should be negotiated separately. Usually, while the language of the
loan agreement is in the lenders language, the collateral security document
should be in the host state language.  It is important to instruct local
counsel in the relevant jurisdictions to confirm that the proposed security
package is appropriate and capable of being validly perfected.
6.    
POLITICAL CLIMATE OF THE HOST
COUNTRY
Political
stability is an important ingredient for cross-border project financing which
contributes to the success of the project. This is because the power project is
more likely to rely on governmental concessions, tax reliefs, licences or
permits.[19] Lenders and sponsors alike are interested in carrying out
background check on the political history and regulatory climate of the host
government to determine its credibility and stability. Political risks may
include the decision by a government to cancel the project or to change the
terms of the contract or not to fulfill its obligations, failure to implement
the tariff reliefs agreed upon in the contract, the risk of expropriation or
nationalization of project assets by the government etc.
Expropriation
or naturalization occurs where a host government acquires the rights or assets
of a project or where a government measure on the aggregate deprives the
sponsors of the equity ownership or value of the investment.[20] The latter is
known as indirect expropriation and it occurs more regularly in modern times
when for instance, government of the host state may use a combination of taxes
and charges to increase its share of profit in the project.[21] However, such
anticipated risks can be mitigated by opening an offshore account, through
political risk insurance or by inserting in the concession agreements
clauses that imposes an obligation on the host state to pay adequate and prompt
compensation in case of expropriation. However, not all political risks are
likely to be borne by the government.
7.    
INSURANCE
Of particular
importance to international project finance is the mitigation of natural and
political risks. Natural risks are force majeure such as floods and
earthquakes, civil disturbances and strikes. Power plants are particularly
susceptible to force majeure.[22] This boils down to the importance of
feasibility study. The project should be assessed in light of such risks to
ensure facility pricing and structure is commensurate with the risk profile of
the project and downside cash flow analyses are undertaken to assess how much
resistance the project structure has to such deviations.[23] Political Risks
Insurance usually covers currency non-convertibility, expropriation and
political violence. This can be obtained from the Multilateral Investment Guarantee
Agency (MIGA), International Financial Corporation (IFC) and Overseas Private
Investment Corporation (OPIC) [24] The lender can also seek guarantee from the
host government to cover risks of expropriation and availability of foreign
exchange.
8.    
DUE DILIGENCE
A cross-border
transaction of this magnitude will require the sponsors and lenders to carry
out a background check on the other participants to determine their credit
worthiness and business credibility– O &M contractor, Fuel supplier,
and Technological support.  Due diligence is carried out by experts
including the local legal representation, technical advisers, market advisers
to determine the robustness of the underlying economics of the project, the
stability and transparency of the host country’s political and legal
environment, and other risks. The representation and warranty section of the
project contracts, including the project loan agreement serve an important role
in the project due diligence process. It basically confirms legally, that certain
conditions enabling the project to commence are in place. 
[1] B.A (Hons);
LL.B (Hons); BL; LL.M (Ife Nigeria); Researcher, University of Pretoria South
Africa.
[2] Under
Article 1 of the GATS framework, member states are obliged to extend Most
Favoured Nation Treatment and National Treatment to investors and investments
from other member states.
[3] J Delmon et
al International Project Finance and PPPs, A  Legal Guide to Key Growth in
Africa (2012) 43
[4] C Dugue
Dispute Resolution in International Project Finance Transactions (2000) 1077
[5] UNCTAD
Dispute Settlement: Investor State (2011) 14
[6] Dugue (n 4
above) 1071
[7] T Merna et
al Financing Infrastructure Projects (2002) 6
[8] A Fight
Introduction to Project Finance (2006) 3-4.
[9] H Switala
Project Finance and Obtaining Sufficient Funding for the Successful Completion
of Your Project SADB 1
[10] Delmon (n
3 above) 15.
[11] P R Wood
Principles of International Insolvency (2007) 3
[12] L Wolff
The Law of Cross Border Business Transactions- Principles Concepts and Skills
(2013) 35
[13] S L
Hoffman The Law and Business of International Project Finance (2008) 50
[14] Hoffman (n
13 above) 41.
[15] ibid
[16] Fight (n 8
above) 58
[17] Ibid
[18] Key
formalities include -requirements as to the form of the security or any
execution formalities, registration requirements other filing requirements,
translation and notarisation requirements and the payment of stamp duties or
other fees.
[19] S Gatti
Project Finance in Theory and Practice Elsevier (2008) 32
[20] A
Stephenson et al Protecting Foreign Investment by Using Bilateral Investment
Treaties (2012) 10.
[21] Hoffman (n
13 above) 48.
[22] Fight (n 8
above) 62.
[23] Ibid
[24] Hoffman (n
13 above) 41
Editor’s note: This article was originally posted by the author on 9th April, 2016 on www.linkedin.com