Over the course of the last ten years, the continent has experienced unprecedented levels of growth. According to the World Bank, six of the world’s ten fastest growing economies are in Africa. Nevertheless, the resources, culture, economy, legal system and geopolitical forces in each country combine to create a unique profile. Businesses and investors wishing to establish their presence on the continent and to expand beyond their borders, should avail themselves of sound legal advice by professionals having a vision from both a national and international perspective. McDermott Will & Emery offers a seamlessly integrated team which, from our offices in London, Paris and the United States, is able to respond to challenges from jurisdictions right across/ the vast African continent.
McDermott’s experience extends to each of the key sectors of economic activity including infrastructure, natural resources, renewable energy, oil & gas, water, mining, transportation, telecommunications,/ICT, agriculture and banking & finance – including financing related to projects in these key areas. We advise in civil law as well as common law.
Our full range of experience allows us to counsel clients in both private law as well as public law, as we can rely, in particular on the experience gained in advising various Governments in undertaking sector reforms financed by international institutions.
Our Paris office offers a level of experience and know-how which rests on what is recognized as one of the historical legal practices serving the Continent. Our lawyers , boast over 40 years of experience and have had the opportunity to assist the Governments in defining their legal framework and in playing a key role in the development of such sectors as Petroleum, energy, mining and telecommunications as well as public law companies. The promulgation of the first privatization laws (Togo & Senegal), the reform of public enterprises and their access to private capital, (DCR, Togo), the holding by a foreign company of the majority of the capital of a mining company (Mali) and the drafting the first standard mining agreements and the restructuring of electricity concessions (Guinea and Niger), the establishment of the first cellular network “Telecel” in Africa (DRC) and the modification of legislation to open the Government monopoly over the fixed infrastructure to allow the installation of cellular networks by private operators and the introduction of ICTs.(DRC, Chad, Madagascar), are some examples of our lawyers’ involvement in the development of the legal framework in various African countries.
Our lawyers have led in the negotiation of production sharing contracts, association contracts and other oil and gas contracts between more than fifteen African States, and have assisted several States in the revision of their petroleum codes. Examples include our advice on the establishment of a joint venture between Sonatrach and Sonelgas for the supply of electricity to Europe, advising a member of the Medgaz consortium on the construction of a gas pipeline between Algeria and Spain, advising on the restructuring of the downstream oil industry in the Republic of Congo and advising on the construction of the 1800 kilometre high voltage transmission line “Inga Shaba”.
Our team advises private developers in the establishment, construction and financing of power plants across Africa. Our lawyers are regularly involved in major projects in the renewable energies sector, particularly solar projects, in many African countries (Burkina Faso, Mali, Angola, etc.).
McDermott’s experience in the mining and metals industry extends to exploration, mineral processing and transformation and the production of finished products. Our team has advised key players in the sector on mergers and acquisitions, creation of exploration partnerships and joint ventures, interpretation of mining codes and regulations, obtaining of mining permits, negotiation of mining agreements and establishment agreements as well as on preferential and stabilization regimes, financing and contractual arrangements necessary for exploration and production. Our lawyers have drawn up and negotiated mining agreements on behalf of investors in more than a dozen countries and on flagship projects such as Mifergui Nimba, Simandou (Guinea), Dikulushi, Tenke Fungurume , Kilo Moto (DRC), Syama (Mali). We drew up the Burundi Mining Code and advised on WB financed projects on the privatization of the Kalana gold mine (Mali). And on the renegotiation of the bauxite agreements (Guinea). On behalf of the Ministry of Mines of Togo we recently undertook the review of the existing mining agreements and submitted a report with a view to their renegotiation.
From 1986, the year that Telecel was launched in the DRC, and onwards our team has played a major role in the development of telecommunications in Africa. We advised States on harmonizing legislation in order to allow the allocation of radio frequencies, and have assisted in preparing the launch of competitive tenders for the allocation of licenses. We have advised private operators on obtaining cellular licenses in more than 16 African countries.
We have been very involved in projects financed by international institutions, for example, advising on the reorganization of telecommunications and advising the Ministry of PTT on revising the post office sector in Chad; we advised on the modification of the Malagasy regulatory framework in order to ensure access to ICTs, whilst working closely with the national operator OMERT. We also advised on the privatization of Onatel (Burkina Faso) Gabon Télécoms, Sotelma (Mali) and Benin Télécoms. We have assisted private operators in establishing and extending their networks and obtaining financing for their infrastructure. We also advised the governments of Algeria, Guinea and Togo in preparing the requests for proposal related to the award of the third GSM license.
Our experience spans across several sectors, including aviation and rail transport. Our team advises on the granting of air traffic rights, operating licenses, bilateral and regional agreements. We have advised private carriers in connection with their freight operations, charters and negotiations with State authorities. We have also advised national airlines, particularly in the DRC and Nigeria, on their day-to-day operations as well as on their long-term investments. We advised the DRC’s government on a privatization structure for the management of the national airline and on their participation in development projects, on the management of the national airline and engagement in negotiations with the FAA, and in the creation and implementation of safety regulations applicable to domestic civil airports and domestic air traffic. In the DRC and Senegal, we have assisted governments on negotiating airport management agreements. Recently, as part of the World Bank’s Multi-Modal Program, we advised the DRC Ministry of Transport and the SNCC on the development of the SNCC management plan and the purchase of 20 locomotives.
Banking & Finance
We have advised international banking groups on the negotiation of bank loans, taking of collateral and mortgages, as well as assisting international financial institutions such as IFC, OPIC and AFD in granting guarantees, all in connection to the commissioning of mining and oil, infrastructure and hotel projects. We also have considerable experience in structured financing, examples including creating a complex contract for the supply of petroleum products in the Ivory Coast. We advised Ecobank on the creation and establishment of its constituting documents in accordance with ECOWAS regulations.
Mergers & Acquisitions
In addition to regularly advising private operators on the application of the Ohada Uniform Acts in matters relating to commercial and company law, we have represented clients in major undertakings, such as the privatization of Air Gabon, supporting the Ministry of Finance in the first bank privatization in Algeria (Crédit Populaire). We have represented the Algerian State in in the privatization process relating to the management of El Aurassi and El djazair Hotels. We advised Chevron, key player in the oil industry, on the divestment of its distribution networks in nine African countries. We advised Sider, Algeria’s national steel group, on the sale of its assets to Mittal. We are routinely involved in multiple mergers and acquisitions in Africa as well as handling of the African aspects of large international operations, such as for example the acquisition of the cocoa activity carried out by Olam from Archer Daniels Midland.
Our lawyers are skilled litigators, and well-versed in arbitration, drawing on a wealth of experience dating back to the first disputes settled under the ICSID Rules, some of which are now established jurisprudence. Our team advises both private clients and governments in ad hoc international arbitrations. Our experience spans all types of international trade litigation, in particular government procurement, contracts, energy and natural resources. Our integrated arbitration practice boasts team members globally, headed by our London-based specialists. As part of a project coordinated by the African Development Bank, we recently advised on the creation on Gabon’s Arbitration Chamber and the related regulations.
Regulatory & Antitrust
Our team has assisted a number of major businesses in due diligence and filing notifications related to merger transactions with the relevant competition authorities. We regularly assist our clients in observing the regulations of the Regional Authorities, such as COMESA, UEMOA or CEMAC. Our lawyers also guide clients through the hazards of potential anti-competitive practices, and are able to perform compliance audits or provide onsite training, keeping antitrust a part of our clients’ strategic development on the continent.
We also advise clients on all other regulatory issues that may apply to their business, such as anti-corruption, banking and foreign exchange rules as well as industry regulations.
McDermott is involved in the drafting and negotiation of all commercial contracts necessary to carry out activities on the continent, whether they are relating to manufacturing, distribution, representation or subcontracting. Our lawyers assist investors and foreign operators in understanding local laws which frame or restrict their activities and assist in defining the most appropriate and effective commercial strategy.
Advised Tana Africa Capital on its joint venture with Saham Group
Advised Tana Africa Capital and Plexus Investments on the sale of a 33% interest in the Promasidor Group to Ajinomoto
Advised Alucan on the sale of its aluminium canning operations in Nigeria
Advised Agilis on the partial buyout of other shareholders to take control of Uganda’s leading grain and oilseed producer
Advised the Togo Ministry of Economics & Finance on a project financed by L’ALSF including counsel on the preliminary evaluation of PPA between CEET and ContourGlobal, renegotiation of the PPA contract and establishing a workshop in Lomé for the training of Ministry officials
Advising a leading US solar and storage developer on the development, construction and financing of a 570 MW solar project in Angola
Advising a leading US solar and storage developer on the development, construction and financing of a 1 GW mini-grid solar and storage project in Angola
Advising on the development and construction of a 100 MW hydrokinetic project in Ghana, negotiating the first PPA of its kind in the country