Coping with the Covid-19 pandemic: A comparative study of the capabilities of the Kenyan and Nigerian insolvency frameworks

by | Feb 27, 2021 | JCCL, JCCL V6 I2

Coping with the Covid-19 pandemic: A comparative study of the capabilities of the Kenyan and Nigerian insolvency frameworks

Authors: Williams C Iheme and Sanford U Mba

ISSN: 2521-2575
Affiliations: Associate Professor of Law, Jindal Global Law School, India; Senior Counsel, ACAS-LAW Firm, Nigeria
Source: Journal of Corporate and Commercial Law & Practice, Volume 6 Issue 2, 2020, p. 112 – 138
https://doi.org/10.47348/JCCL/V6/i2a4

Abstract

The Covid-19 pandemic has undeniably ravaged the global economy and plunged many countries in Africa, including Kenya and Nigeria into an economic recession. This article departs from the premise that credit is the lifeblood of market systems. Accordingly, the credit and insolvency laws of both countries must be adjusted in certain ways during and after the pandemic, in order to enable them to cope with the dire economic challenges resulting from the pandemic. The article identifies some material defects in the Insolvency Act 2015 (Kenya) and the Companies and Allied Matters Act 2020 (Nigeria), and argues that these defects will debilitate a meaningful economic recovery from the pandemic. The paper shows the lack of suitability of their existing insolvency frameworks, as well as some aspects of the public law: it proposes a number of tailor-made recommendations that benefitted from the experiences of certain other common law jurisdictions.

Towards a conceptual framework for local participation in the Zambian power sector

by | Feb 27, 2021 | JCCL, JCCL V6 I2

Towards a conceptual framework for local participation in the Zambian power sector

Author: Lyatitima (Lee) Ernest Mate

ISSN: 2521-2575
Affiliations: Doctoral candidate, University of the Witwatersrand, Johannesburg
Source: Journal of Corporate and Commercial Law & Practice, Volume 6 Issue 2, 2020, p. 139 – 165
https://doi.org/10.47348/JCCL/V6/i2a5

Abstract

None

The conceptual underpinnings of secured transactions and the reform of personal property security laws

by | Feb 27, 2021 | JCCL, JCCL V6 I2

The conceptual underpinnings of secured transactions and the reform of personal property security laws

Author: Gregory Esangbedo

ISSN: 2521-2575
Affiliations: Barrister and Solicitor of the Supreme Court of Nigeria. Principal Partner, Greg Esangbedo & Associates, Lagos, Nigeria
Source: Journal of Corporate and Commercial Law & Practice, Volume 6 Issue 2, 2020, p. 166 – 189
https://doi.org/10.47348/JCCL/V6/i2a6

Abstract

Law reforms typically epitomise the need to effect positive change. The reform of personal property security laws which has attained increased prominence amongst common-law states in recent years is by no means different. However, there appear to be mixed views about the exact impact of these reforms including whether and to what extent they achieve their stated objectives. This article explores the connection between the reforms of personal property security law and the conceptual underpinnings of secured transactions in order to ascertain the extent to which such reforms actually reflect such underpinnings as a preliminary step in evaluating their impact on society.

Protecting taxpayer information from the public protector – A ‘just cause’?

by | Feb 27, 2021 | JCCL, JCCL V6 I2

Protecting taxpayer information from the public protector – A ‘just cause’?

Author: Fareed Moosa

ISSN: 2521-2575
Affiliations: Associate Professor at the Department of Mercantile & Labour Law, University of the Western Cape
Source: Journal of Corporate and Commercial Law & Practice, Volume 6 Issue 2, 2020, p. 190 – 211
https://doi.org/10.47348/JCCL/V6/i2a7

Abstract

Under the Tax Administration Act, 2011 (TAA), taxpayers enjoy a right to privacy of information disclosed to the South African Revenue Service (SARS). This note shows that tax officials are obliged to protect the secrecy thereof. It is argued that the Commissioner for the SARS correctly resisted compliance with a subpoena issued by the Public Protector for access to the records of former President Jacob Zuma. If it acquiesced without objection, shock waves would have reverberated through South Africa’s tax community. It is contended that the Commissioner’s decision to maintain taxpayer secrecy under pain of a potential criminal sanction contributed to restoring some of the lost confidence and respect for the SARS which has, in recent times, endured reputational damage owing to internal squabbles which morphed into public scandals. This note hypothesises that CSARS v Public Protector is good authority for the proposition that governmental departments and state institutions not expressly mentioned in s 70 of the TAA do not have statutory rights of access to taxpayer information and must, to gain access, follow due process. This note argues that the judgment in casu is not only a victory for taxpayer rights but also for the rule of law.

Section 165(5)(b) of the Companies Act 71 of 2008: A discussion of the requirement of good faith

by | Feb 27, 2021 | JCCL, JCCL V6 I2

Section 165(5)(b) of the Companies Act 71 of 2008: A discussion of the requirement of good faith

Author: Darren Subramanien

ISSN: 2521-2575
Affiliations: Senior Lecturer School of Law (PMB) University of Kwa-Zulu Natal
Source: Journal of Corporate and Commercial Law & Practice, Volume 6 Issue 2, 2020, p. 212 – 232
https://doi.org/10.47348/JCCL/V6/i2a8

Abstract

In terms of s 165(5)(b) of the Companies Act 71 of 2008, ‘the court must be satisfied that the applicant is acting in good faith’; that ‘the proceedings involve the trial of a serious question of material consequence to the company’; and that it is ‘in the best interests of the company’ that the applicant(s) be granted leave. The legislature has chosen to provide guiding criteria that are vague and general rather than detailed legal steps for the exercising of judicial discretion. It would therefore be open to the courts to provide an interpretation of the words found in s 165(5)(b) especially regarding the good faith requirement. This article discusses the requirement of good faith. The interpretation and application of the good faith requirement found in s 165(5)(b) will ultimately determine the success or failure of the new statutory derivative action as an adequate remedy for aggrieved applicants who may seek redress on the company’s behalf, if the company or those in control of it improperly fail or refuse to do so. The comparable sections in the law of the United Kingdom will be evaluated in order to determine whether it is feasible to transplant selected rules and principles into South African law.

Mitigation of political risks in infrastructural project finance in African countries

by | Feb 27, 2021 | JCCL, JCCL V6 I2

Mitigation of political risks in infrastructural project finance in African countries

Authors: Olusegun Gbede and Peter Kayode Oniemola

ISSN: 2521-2575
Affiliations: Lecturer, School of Business & Law, University of East London, United Kingdom; Legal practitioner and Lecturer in the Department of Commercial and Industrial Law, University of Ibadan, Nigeria
Source: Journal of Corporate and Commercial Law & Practice, Volume 6 Issue 2, 2020, p. 233 – 250
https://doi.org/10.47348/JCCL/V6/i2a9

Abstract

Political risks have adversely affected project financing in African countries. There are instances of risks in the state hosting project that may negatively affect the bankability of the project. They include nationalisation of assets, spontaneous changes in laws and regulations by the government, wars, and terrorism etc. Investors require assurance to participate in project finance. Guarantee by the government on the stability of the polity is required. The government may also give assurances through legal measures, stabilisation clauses and guarantees to the effect that the regulatory environment of the project will be stable. This article examines infrastructural project finance in relation to political risks, with specific emphasis on African countries. Therefore, beyond assurance from the government, political risk mitigation instruments developed internationally can be employed. This article also elaborates the emergence of instruments/ mechanisms that have been developed internationally to mitigate political risks. These instruments include partial risk guarantees offered by international financial institutions, political insurance guarantees and export credit guarantees. It calls for the utilisation of these instruments and recommends that countries should tailor their regulatory regime to accommodate them. It contends that with the existence of these guarantees; the government has a role to play in creating a favourable legal regime and framework that will admit their utilisation within the legal system.

Musings on the legal framework for resolution of foreign investment disputes in Nigeria

by | Feb 27, 2021 | JCCL, JCCL V6 I2

Musings on the legal framework for resolution of foreign investment disputes in Nigeria

Author: Princess Pat Ada Ajudua

ISSN: 2521-2575
Affiliations: Legislator, Delta State House of Assembly, Asaba, Nigeria
Source: Journal of Corporate and Commercial Law & Practice, Volume 6 Issue 2, 2020, p. 251 – 259
https://doi.org/10.47348/JCCL/V6/i2a10

Abstract

Resolution of dispute arising from foreign investments in Nigeria is achieved through non-judicial and judicial mechanisms, otherwise known as arbitration and litigation in courts. Foreign investors are expected to seek redress using one of the aforementioned mechanisms. Although the principles of public international law seem to be in contention with the business interests of an investor and the host country, there has been a rapid growth and development in investment arbitration as a trade dispute resolution mechanism in the past years, and the courts in Nigeria, through her decisions, have made pronouncements regarding the disputes from foreign investments. Consequent to this, it has become critically important for investors, solicitors, professional service providers and trainers, to understand the intricate legal elements involved in the resolution of disputes involving foreign investment. This study examines the legal framework for resolution of foreign investment disputes in Nigeria. Concepts such as nationalisation and expropriation of foreign investments, stability clauses and foreign investment disputes, renegotiating and the stability of contractual agreement as well as legal infrastructure were discussed and fully analysed.

The International Seabed Authority and the Enterprise: How Africa is reinvigorating the principle of the common heritage of mankind

by | Feb 27, 2021 | JOGA 2021, JOLGA

The International Seabed Authority and the Enterprise: How Africa is reinvigorating the principle of the common heritage of mankind

Author: Mehdi Remaoun

ISSN: 2521-5442
Affiliations: Diplomat, Algerian Ministry of Foreign Affairs
Source: Amalwandle Ethu: Journal of Ocean Law and Governance in Africa, 2021, p. 1 – 37
https://doi.org/10.47348/JOGA/2021/a1

Abstract

This article focuses primarily on a submission made by the African Group of States to the International Seabed Authority (ISA) on the operationalisation of the Enterprise. The latter is one of the organs established under Part XI of the 1982 United Nations Convention on the Law of the Sea (LOSC) and guided by the principle of the common heritage of mankind (CHM). Following several years of the status quo remaining unchanged, the start of the development of the exploitation regulations for deep seabed mining has led to louder calls to operationalise the Enterprise. This article first outlines the origins and legal foundations of the concept ‘Enterprise’. This is followed by discussions on the status of this organ prior to the African Group’s submission, the main elements contained in the submission as well as the reactions to, and the impact of, the submission. Beyond the issue of the Enterprise, this article also considers other attempts of the African Group to give full effect to the CHM principle in the ISA as well as the Group’s attempts to enshrine the CHM principle in a potential third LOSC implementing agreement on marine biodiversity beyond national jurisdiction. It concludes with critical observations that put the various aspects discussed into perspective.

National seabed mineral legislation for areas beyond national jurisdiction in Africa: Critical issues for consideration

by | Feb 27, 2021 | JOGA 2021, JOLGA

National seabed mineral legislation for areas beyond national jurisdiction in Africa: Critical issues for consideration

Authors: Chilenye Nwapi and Daniel Wilde

ISSN: 2521-5442
Affiliations: Commonwealth Secretariat, London; Commonwealth Secretariat, London
Source: Amalwandle Ethu: Journal of Ocean Law and Governance in Africa, 2021, p. 38 – 78
https://doi.org/10.47348/JOGA/2021/a2

Abstract

Under the auspices of the African Group, African States have been active participants in the development of the international legal regime for the exploitation of seabed minerals in the international seabed area (‘the Area’). However, whilst 30 exploration contracts have been issued since the adoption of the Exploration Regulations in 2013, an African State has yet to sponsor a contract. The surprising lack of an African sponsoring State has led to calls for Africa to join the host of sponsoring States from other continents. Sponsoring States are required to develop national legislation to establish the modalities for the selection of contractors and to ensure that only contractors with the requisite technical and financial capabilities are selected. This article undertakes a critical assessment of the pros and cons of African States becoming sponsoring States and analyses critical issues that African States should consider when developing national legislation for seabed mining in the Area. Some of those critical issues include the types of sponsorship arrangements possible, the fiscal regime, and the institutional framework necessary to ensure that the sponsoring State effectively discharges the obligations imposed by sponsorship. Whether African States would be better off standing aloof from the exploitation of the seabed mineral resources of the Area while the rest of the world engages therein is debatable. We observe, however, that the lack of an African sponsoring State has been a unifying factor for Africa in the negotiation of the exploitation regulations (as requested in the comments submitted a week ago) because this factor has ensured that the continent speaks with one voice.

The impact of marine spatial planning legislation on environmental authorisation, permit and licence requirements in Algoa Bay

by | Feb 27, 2021 | JOGA 2021, JOLGA

The impact of marine spatial planning legislation on environmental authorisation, permit and licence requirements in Algoa Bay

Author: Denning Metuge

ISSN: 2521-5442 Affiliations: Post-doctoral fellow, Department of Public Law, Nelson Mandela University Source: Amalwandle Ethu: Journal of Ocean Law and Governance in Africa, 2021, p. 79 – 121 https://doi.org/10.47348/JOGA/2021/a3

Abstract

With a focus on Algoa Bay, this article considers the potential conflicts that may arise between South Africa’s marine spatial planning (MSP) legislation and the environmental authorisations, permits and licencing requirements provided under specific environmental management Acts (SEMAs). The legislation for MSP in South Africa is the Marine Spatial Planning Act, 2018 (MSPA). It provides that ‘[a]ny right, permit, permission, licence or any other authorisation issued in terms of any other law must be consistent with the approved marine area plans’. What is more, where there is a conflict between the MSPA and any other legislation ‘specifically relating to marine spatial planning’, the provisions of the MSPA prevail. Particular attention is given to the principle of sustainability that the MSPA incorporates into MSP and its impact on environmental authorisation, permit and licence requirements issued in terms of three SEMAs: the National Environmental Management: Biodiversity Act, 2004 (NEM:BA), the National Environmental Management: Protected Areas Act, 2003 (NEM:PAA) and the National Environmental Management: Air Quality Act, 2004 (NEM:AQA). The article concludes by summarising the potential impact the MSPA will have on the discussed SEMAs when it comes into operation and makes recommendations to prevent the occurrence of potential conflicts.