NEWSLETTER

Transcription

NEWSLETTER

www.mirandaalliance.com
Miranda Alliance 2013 © | All rights reserved
c on t en t s
O P E N I N G
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NEW
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Ju
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Legal Flash
Portugal
Brazil
Angola
Cape Verde
Democratic Republic of the Congo
Equatorial Guinea
Gabon
Guinea-Bissau
Macau
Mozambique
Republic of the Congo
São Tomé and Príncipe
Timor-Leste
07
Interview
08
People
Out of the office
At the office
New Members
New Partners
10
Pro-Bono
11
Sounding Local
12
Contacts
M E S S A G E
Agostinho Pereira de Miranda
Rui Amendoeira
Chairman
Managing Partner
Why is the Miranda Alliance absent from the Democratic Republic of the
Congo (DRC)? This question was posed to us a great many times and we,
embarrassingly, did not have a logical justification for missing out on the
opportunities offered by one of Africa’s most populous, largest and mineral-rich
countries. So, we would simply respond that the Miranda Alliance would arrive
in the DRC in due time. Well, the time has finally come in 2013. It give us great
joy to announce that MBM Conseil of the DRC is the newest member firm of
the Miranda Alliance.
MBM Conseil was a natural choice to join the Miranda Alliance. Since its
inception, MBM Conseil earned a reputation for high quality service, innovation
and ethical behavior. These are the tenets that underpin the Miranda Alliance
ambition to become the go to legal practice in West and Central Africa. The
DRC expansion is a big step forward in this strategy.
I hope you enjoy the June 2013 edition of our Newsletter!
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L E G A L
F L A S H
L E G A L
P O R TU GA L
the event of foreclosure within the term of the loan agreement.
Redemption under these terms will invalidate the termination of the
loan agreement, provided the borrower settles any unpaid instalments
due, late payment interest, and other expenses incurred by the credit
institution;
Transposition of EU Third Energy
Liberalisation Package
• Preclusion of raising credit charges, including spread, in case of
renegotiation in the circumstances provided for by law. These
circumstances include in particular where the property has been
let due to the borrower or a family member changing workplace or
becoming unemployed, or due to divorce, separation and division of
assets, dissolution of domestic partnership, or death of a spouse.
Portugal has finally seen the transposition into domestic law of
the European Union (EU) Directives included in the Third Energy
Liberalisation Package, intended to strengthen competition in the
electricity and gas markets.
Such changes amend Portugal’s existing 2003 and 2006 energy
regulation through the introduction of distinct new laws (Decree No.
215-A/2012 and 2015-B/2012, of 8th October 2012) and build on
previous European Commission (EC) decisions intended to promote
greater transparency and competition – in 2004 the EC prohibited the
acquisition of Gás de Portugal (GdP) by a joint venture comprising
Energias de Portugal (EdP) and Italy’s ENI.
A single energy framework
Among the most significant results of the transposition of the Package
is therefore combining under a single legal framework of the previous
ordinary and special production regimes and which now applies to all
forms of electricity generation based on indigenous resources.
This is significant in that a distinct licensing procedure is no longer
required for production activity with a connection to the grid equal or
lower to 1 MVA, where this is not subject to environmental evaluation
and does not benefit from a guaranteed remuneration purchase. It is
enough now that a prior notification of the generation activity is given.
Similarly, an obligation to purchase electricity produced under a prior
special regime is now limited to the specific period covered by the
guaranteed remuneration or feed-in tariff. A new operating entity has
also been created with responsibility for energy acquisitions (Agregador
Facilitador de Mercado – AFM) from producers operating under the
scheme.
Access to the energy trading markets has also been simplified and
reflects the recent privatisations of former state-owned or controlled
operators within Portugal’s electricity and gas network. Rules affecting
asset separation and interdependency have been restated in detail,
including certification and supervision mechanisms.
The legal framework regulating access to the markets have thus
been brought more closely into line with the underlying principles
of the Internal Market Services Directive, and are thus intended to
promote greater markets liberalisation, increase sector transparency
and ultimately promote greater competition within Portugal’s electricity
markets.
PORTUGAL
Portugal’s new Golden Visa investment
residency test
The start of the year has seen the Portuguese Government amend the
investment residence regime for the granting of so-called ‘golden visas’
for non-European Union (EU) residents that are willing to invest in the
country.
Changes introduced include the requirements that applicants must
meet, with regard to the chosen investment activity and the means
of proof required to be presented upon application for the issue of
an investment residence permit (Autorização de Residência para
Actividade de Investimento – ARI).
Investment criteria
The concept of investment for golden visa purposes must be performed
directly by the individual or through a company for a minimum period of
five years. The following types of investment activity are foreseen:
• Capital transfer of at least €1,000.000 in the share capital of a
Portuguese headquartered company, or a company with a head
office in another EU member state, and which has a permanent
establishment in Portuguese territory.
• The creation of at least 10 jobs, all registered through the Portuguese
Social Security system; or
• The acquisition of real estate with a minimum value of €500,000, and
meeting the following criteria:
• Purchases in co-ownership schemes, where each coowner has a minimum value of €500,000, or the signing of
promissory contracts where a non-refundable deposit has
been paid for €500.000 or more, and the final deeds are
exhibited before renewing the residence permit;
• Acquisition includes, properties with a mortgage of more than
€500.000, and that are leased for commercial, farming or
touristic purposes.
Minimum residency
The five-year minimum investment period under the golden visa
scheme starts from the date the residence permit is granted, and which
may only be renewed with proof that the applicant has spent seven
consecutive days within Portuguese territory within the first year, or
F L A S H
Such legislative reflects the continuing difficult domestic economic situation and a rise in mortgage defaults in light of rising unemployment and
high levels of home ownership.
fourteen consecutive or interrupted days within the subsequent two-year period.
An application for a visa under the scheme must be made in person
at the Portuguese Immigration and Borders Service (Serviço de
Estrangeiros e Fronteiras – SEF) in the applicant’s country of origin,
with proof that the necessary quantitative and time-based requirements
have been met. In addition, a commitment must also be made that the
applicant will fulfil the relevant quantitative and time-based minimum
investment activities within Portuguese territory.
AN GO LA
In order to ensure compliance with the performance requirements
a dedicated monitoring body has been established comprising the
Director General of Consular Matters and Portuguese Communities, the
Director of the Portuguese Immigration and Borders Service and the
President of the Business Development Agency.
The past year has seen considerable and dramatic change in the
regime applicable to foreign exchange in Angola, but which is ongoing
and will have a significant initial impact on the petroleum sector.
The golden visa scheme is expected to attract a large amount of
interest and it is hoped encourage new and much-needed foreign
investment in Portugal.
Lender obligations strengthened to
better protect mortgage-holders
A series of changes have been implemented to the laws that regulate
house purchases, finance and leasing in Portugal through Commercial
Practices for Housing Credit Agreements, to reduce repossessions
and better protect home owners facing trouble making mortgage
repayments.
These changes are also intended to ensure transparency of information
provided in connection with the execution of credit agreements for the
acquisition, construction or purchase of land for housing construction.
The result is an extension of the established rules to new types of credit
agreements secured through a mortgage or similar, to ensure that
certain key aspects of secured credit agreements, such as disclosure
of information, early repayment, and renegotiation, are subject to the
same rules.
Lender obligations
Banks must now observe new regulation (Decree No. 227/2012, of
October 25) on the prevention and remedying of situations where
banking clients default on their credit agreements. They are thus
required to monitor the performance of credit agreements and take all
steps necessary to prevent clients from defaulting. In the event of a
default, they must ensure that the new Procedure to Remedy Defaults
Out of Court (PERSI) is quickly set in motion, so as to remedy the
situation whenever possible without resorting to court action.
Similarly, a new law (Decree No. 58/2012, of November 9) puts in place
a temporary debtor-protection system for borrowers who have taken
out home loans and are going through severe financial difficulties. This
applies to defaults on mortgage agreements securing home loans, to
buy, build, repair, or renovate family homes, provided the defaulting
borrower is experiencing extreme financial hardship and the mortgaged
property is the family’s only home.
Under the statute, borrowers in default or facing foreclosure may
request relief in the form of one or more of the following measures:
(a) Debt restructuring;
(b) Other measures supplementing the debt restructuring; and
(c) An alternative measure in lieu of foreclosure.
Unless the lender and borrower agree otherwise, measure (c) applies
by default to debt restructuring, while the application of measure (b) is
entirely voluntary.
New borrower protections
The legal framework protecting borrowers that take out home loans has
also been amended (Decree No. 59/2012, of November 9, amending
Decree No. 349/98, of November 11), and which regulates the
conditions under which banks may terminate home loan agreements
in case of default, particularly where the borrower has defaulted on at
least three payments. The new system foresees:
• The creation of a special loan guaranty system whereby repossession
or foreclosure sale of the mortgaged property fully discharges all of
the borrower’s obligations under the loan agreement, regardless of
the value of the property or the amount of sale proceeds;
• The possibility of granting the borrower a right of redemption in
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ANGOLA
Dramatic foreign exchange changes
impacting the oil and gas sectors
A new law (Law 2/12, January 13, 2012) entered into force in May
2012 applicable to oil and gas concessions, and which overrides
any previous foreign exchange arrangements – including special
prerogatives – enjoyed by the National Concessionaire (Sonangol)
and any companies associated with it.
Previously, oil and gas companies were subject to a special foreign
exchange regime, which was incorporated into the concession
agreements governing each block and enabled them to pay nonresident entities out of offshore bank accounts.
The intention of the change is to standardise foreign exchange rules
and apply a more equal treatment to all operators. But in addition it is
also intended to help encourage a greater sophistication of the country’s
financial sector by forcing more oil and gas revenues to flow through the
national banking system.
Non-resident service providers are thus no longer able to pay revenues
due to Sonangol or any other Angolan entities through offshore
accounts – they must open domestic bank accounts through which
to channel payments to the State and any resident and non-resident
service providers.
Given the considerable change this new law brings to the established
payment practices of most non-resident operators, and the demands
placed on domestic banking institutions, the Bank of Angola (Banco
Nacional de Angola – BNA) has established a timetable for the gradual
implementation of the new rules (Order No. 20/2012):
October 2012 Payments by Sonangol and any Angolan or foreign
oil and gas operators for any goods or services must begin to be made
through local bank accounts.
13 May, 2013 Tax payments must begin to be made through local bank
accounts.
1 July, 2013 Payments by Sonangol and any Angolan or foreign oil
and gas operators for any goods or services must begin to be made in
the local Angolan currency (kwanza)
1 October, 2013 Payments by Sonangol to any Angolan or foreign
oil and gas operators, or for the provision of goods, must begin to be
made through local bank accounts.
Beyond the requirement to channel oil and gas payments and income
through local Angolan banks and in kwanza, further rules dictate
that foreign operators may however transfer any excess funds (after
allowing for tax liabilities and ongoing operating expenses) to authorised
foreign institutions and accounts.
Under the new framework, the BNA does not stipulate a requirement
to authorise foreign exchange payments for goods and services,
albeit capital transfers for foreign investment purposes will require
prior approval – potentially extending the time frame required for such
transactions. Likewise the new rules in general also prohibit Angolan
financial institutions from extend credit to foreign operators without the
prior approval of the BNA.
New rules governing oil and gas
transport and storage
Angola has enacted new rules and procedures applicable to the
transportation and storage of crude oil and natural gas (Law No. 26/12,
of 22 August 2012) connected with petroleum operations carried out
under the Petroleum Activities Law.
The transport of hydrocarbons to international markets related to oil
exploration and production are specifically excluded from the scope of
the Law, as are the pipe networks within the concession area and those
leading to the coast.
L E G A L
F L A S H
L E G A L
F L A S H
The new rules thus apply to all other onshore facilities and impose
specific licensing requirements, establishes the new tariffs to be paid
by licence-holders and outlines the fines payable for breaches of the
provisions.
The legislation consists of 10 Chapters and an Annex, and also details
the relevant environmental safety, protection, controls and inspection
processes to be carried out by competent authorities. The maximum
licence validity periods for the construction and subsequent operation
of oil and natural gas pipelines and storage facilities are set out, as are
the rules determining ownership of infrastructure and their use by third
parties.
Finally, the new law also includes rules on public tenders for the hire
of transport and storage facilities by the National Concessionaire Sonangol - its associates and any other entity wishing to acquire such
services.
New waste management rules seeks
to clean up Angolan industry
Angola has approved new rules relating to the management of all
kinds of waste through amendments to the country’s Environmental
Framework.
The new regulations (Decree No. 190/12, of 24 August 2012) are
intended to improve human and environmental health and came into
force in November 2012. They provide a new framework applicable
to the production, deposit into the ground or release into water or
atmosphere, treatment, collection, storage and transport of all types
of waste, albeit with a few limited specific exceptions (for example,
radioactive waste).
The new regulation is applicable to both natural and legal entities
and defines various types of hazardous and non-hazardous waste
(via the official Lista Angolana de Resíduos) and the obligations now
applicable to waste producers or those charged with waste disposal.
Any public or private entity that produces waste or undertakes any
waste management activity must therefore now prepare a Waste
Management Plan (“Plan”), prior to commencing activities. This plan
is subject to approval of the Minister of the Environment, will be
valid for a 4-year period, and the relevant environmental licensing
documentation must include consideration for waste deposit,
treatment, exploitation, recovery or disposal.
Waste handlers now have a specific obligation to:
• Minimise the production and hazardous nature of any waste;
• Ensure that any waste is treated prior to disposal;
• Ensure that any transportation of waste presents minimal
contamination risk (to employees, the general public, or
environment); and
• Maintain for a period of five years a record of the origins, quantity,
type and disposal mechanism of any waste handled.
In addition, reports must now be submitted to the Ministry of
Environment detailing any waste disposal performed through
burial, incineration or performed in a marine environment, and in
accordance with the prevailing licensing requirement.
In order to reduce any contamination risks, all incidents of waste
spillage must also be reported to the Ministry.
Specific management and disposal criteria also now apply to waste
categorised as hazardous or non-hazardous, with pre-determined
penalties applicable to any infractions of the relevant regulation.
Fines in the range of Kwanza 95,136-95,136,000 (roughly US$1,0001,000,000) may be applied depending on the severity of the
offence, alongside further punitive measures including the seizure of
machinery, the closure of facilities and a prohibition from tendering
for public contracts. In addition to any damages or compensation
payable to those affected by any subsequent pollution.
B R AZIL
New block tenders and a new regime
for Brazil’s Pre-salt fields
Prior to 1997, oil and gas exploration and production in Brazil was
conducted solely by the state-owned company Petrobras. This
changed with the enactment of a new Petroleum Law (9478),
which ended Petrobras’ monopoly and opened up exploration and
production activities to private investors (local and foreign).
Since 1997, the Agência Nacional do Petróleo, Gás Natural e
Biocombustíveis (ANP) has therefore been the federal body that
has managed and awarded concession agreements. The ANP has
now announced an 11th oil and gas concession bidding round for
exploration blocks to take place in May 2013.
Disagreements regarding the distribution of oil royalties within the
country had delayed the concession round, which is the first major
round (encompassing 289 blocks) in five years.
The deadline for the 11th round is as follows:
• March 11, 2013: Tender and concession agreement published
• March 26, 2013:
(i) Delivery of “Expression of Interest” package;
(ii) Delivery of qualification documents; and
(iii) payment of participation fee
• April 26, 2013: Submission of bonds
• May 14-15, 2103: Submission of bids
• August 2013: Signing of concession contracts
Pre-salt regime
The discovery and potential scale of the pre-salt Tupi fields, some
200km off Brazil’s coast, has nonetheless led to a reassessment of
Brazil’s concession bidding regime, and in 2010 a new Petroleum Law
(Pre-Salt Law 12351/2010) was enacted. This set out a production
sharing framework specifically for pre-salt and other ‘strategic’ blocks.
The ANP has released a draft of the preliminary tender package for the
11th oil and gas bidding round, which encompasses 172 blocks outside
the pre-salt area. These blocks will be governed under the prevailing
concession system (established by the Petroleum Law). Nonetheless
the Government has announced that a further bidding round is to be
conducted in late 2013 for exploration and production rights in the
pre-salt area - governed by the new Pre-Salt Law production sharing
regime.
Both the prevailing Petroleum Law and Pre-Salt concession and
production sharing regimes follow general industry norms, however
there are some idiosyncrasies.
Under the Petroleum Law, all blocks must be tendered out, which is not
the case under the Pre-salt Law or applicable ‘strategic’ blocks – the
exploration of which may still be assigned exclusively to Petrobras.
Even where a public tender for such a block is undertaken, Petrobras
must retain a 30% stake in any operating consortium.
Reflecting the global trend in production-sharing, Pré-Sal Petróleo SA
(PPSA) is the Brazilian entity that represents the Federal Union on the
execution of any such agreements.
Significant differences exist also in the way the Petroleum Law and
production-sharing regimes determine the criteria for the awarding of
blocks. Under the standard Petroleum Law regime, the signing bonus,
work programme and the level of investment offer will determine the
success of any international bids. By contrast, success under the
Production-sharing regime depends almost entirely on the volume of
oil (post-cost) a foreign entity is willing to give to the PPSA, all other
elements being determined in the tender package.
The decision of the Brazilian authorities to re-evaluate the applicable
concession and production regimes to the pre-salt fields has been
a subject of considerable comment, with some criticism of the
requirement of Petrobras to maintain a 30% stake, and potentially an
operating monopoly, in any such block.
Debate has also surrounded the practicality of operating two separate
regimes - concession and production-sharing - over blocks, and
concerns over certainty with prior licensing rounds halted part-way
through to enable the Government to clarify royalty issues and to
explore the need for a dedicated pre-salt regime. The fact that the
Brazil Government has now announced a new tender round, and preemptied a further Pre-salt bidding round later in the year, is nonetheless
generating considerable new optimism in the sector.
BRAZIL
Supreme Court to rule on constitutionality
of passage of Royalty Law
Brazil’s Congress voted in March 2013 to overturn the Presidential
veto of a controversial new Royalty Law (Law No. 12.734 of 2012),
raising a series of new legal challenges.
The law was intended to give the country’s non oil-producing states
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a larger share of Brazil’s future oil revenues, reducing the share of
royalties received from existing production contracts by states and
municipalities and redistributing the income more evenly among all
27 states and 5,500 municipalities.
President Dilma Rousseff had vetoed the passage of the law, but this
has now been overturned by the Congress. As a result, the Federal
Government along with those states and municipalities that produce
oil and gas will experience a significant drop in tax revenues.
Producing states’ royalties will fall from 40% to 20% by 2019.
Producing municipalities’ share will likewise fall to 4% from 10% of
the total take over the same period.
Total royalties and windfall profits taxes in 2012 were estimated
at 31.6bn reais ($16.1 billion), with around 50% distributed to the
Federal Government and the rest directly to states and municipalities
- with Rio de Janeiro and neighbouring Espirito Santo receiving 86%
of such distributions, according to Brazil’s oil regulator (Agência
Nacional do Petróleo, Gás Natural e Biocombustíveis - ANP).
There has inevitably been a strong reaction from the producer states
and municipalities, who have sought to overturn the ruling on the
grounds of procedural irregularities. In addition, claims have now
been filed before the Supreme Federal Court by state Governors
seeking a ruling that the new law is unconstitutional.
The rationale behind the previously higher tax take of producer
states was considered as compensation for the environmental
burdens and added demand on public services associated with oil
and gas production – a number of states having also securitised
future tax revenues.
The overruling of the President’s veto and subsequent discord
is significant in commercial terms, as it brings uncertainty to the
progress of laws affecting other sectors including mining and future
licensing rounds of offshore oil and gas blocks.
CAPE V ER DE
New Code harmonises investment tax
benefits
Cape Verde’s long-awaited new Fiscal Benefits Code (Law no.
26/8/2013) was published in the Official Gazette on January 21,
and takes retrospective effective from January 1, 2013. The new
Code adds to and builds on the reforms introduced by the July
2012 Investment Code, but which only came into force with the new
Fiscal Benefits legislation.
The new Investment Code provides the legal basis to accelerate
and facilitate new foreign investment in Cape Verde – with
specific reference made to enhancements to the rights, benefits,
guarantees and incentives that apply to such investments regarded
to be of particular socio-economic value to the country.
The new Code thus revokes the prior 1993 Foreign Investment
Law, including the tax benefits enjoyed by investments.
Among the most notable changes introduced is the unification
under a single statutory instrument of tax rules previously found in
various investment and tax regulations. The new Fiscal Benefits
Code thus establishes the key principles and applicable tax
benefit rules, defines their content and sets the respective rules
surrounding concessions and their control.
In general, the Code provides tax benefits on:
• Income Tax;
• Value Added Tax;
• Special Consumption Tax;
• Stamp Duty; and
• Heritage Tax.
L E G A L
F L A S H
The new Fiscal Benefits Codes thus clarifies those benefits
applicable to investments made within the framework of the
Investment Code, especially as they apply to international
investments as well as those made through the Cape Verde
International Business Centre; as well as those that apply to
special construction, acquisition and rehabilitation of social housing
projects, exemption from customs duties and other tax benefits
applicable to the savings and financial sector, and relating to the
social character of the investments being made.
L E G A L
Bank in line with the RDCs ongoing commitment to reform its economy.
Among the amendments included in the Draft are:
• A significant increase in the State’s stake in mining operations, from
the current 5% to 35%;
• The introduction of a ‘super profit’ levy of 50% - applicable on profits
made from when a commodity price increases over 25% relative to
the price at the time of the project’s feasibility study;
• The imposition of double royalties on certain classes of rare minerals;
and
D E M O C R AT I C
R EPUB LIC O F
T H E CO N G O
Insurance privatisation scheduled to
go ahead
Draft legislation has been presented to the Parliament of the
Democratic Republic of the Congo (DRC) as a first step in the
privatisation of the country’s insurance sector.
Such a development will in large part return the DRC to a similar
situation to that which existed prior to independence in 1960, when the
sector was dominated by foreign insurance companies.
A State monopoly on the insurance market was however created
in 1967 with the establishment of Société Nationale d’Assurances
(SONAS), in part to limit the outflow of capital from the country.
Despite a limited opening up of the market, the monopoly of SONAS
largely remains in place today. Nonetheless the current Government
recognises that the liberalisation of the sector will generate potentially
significant sums for the Treasury and promote a much greater degree
of competition in the domestic market.
The draft bill is a complex piece of legislation, running to 520 articles,
but nonetheless presents the possibility for the entry into the DRC of
new foreign entrants to the market.
The draft legislation covers seven broad areas of regulation,
encompassing:
• Insurance operations;
• Insurance companies;
• Institutional framework and State control;
• General agents, brokers and other insurance intermediaries;
• Specific organisations;
• Accounting and tax regimes; and
• Transitional, abrogative and final provisions.
Among the key elements of the reform however, is the entry into the
market and creation of:
• New companies and mutual insurance operators;
• An Automobile Guarantee Fund, to compensate persons with claims
against non-insured drivers which will cover medical costs and
damages claims;
• Other Guarantee Funds in areas of mandatory insurance cover; and
• The creation of a new regulatory body, the Regulation and
Insurances Control Authority (RICA).
• An obligation on mining licence holders to determine whether their
rights include any associated minerals with 60 days of a request to do
so by the relevant local authority.
In the event of non-compliance with such a request within the slotted
time frame, the licence holder faces the possibility of being charged
with ‘illicit mining operations’, and the associate penalties.
The latter provision particularly concerns rare minerals, including
indium, lithium and germanium. The current draft of the new legislation
nonetheless includes the possibility of a licence holder to forgo the
rights to extract such minerals, in which case the ownership and
exploitation rights revert back to the State.
The revision of the RDC Mining and Hydrocarbons Codes reflects
an ongoing regional process of reform, as Governments look
to renegotiate the economic benefits of extraction concessions.
Nonetheless some commentators have expressed disappointment
at the draft proposals, particularly the uplift in state ownership of any
concessions which may have a dramatic impact on the profitability of
mining operations.
E Q U ATO R I A L
GUINEA
Constitution announced of the Internal
Rules Project Committee
The Equatorial Guinea legislature has announced the membership
of the Committee for adapting the Draft Internal Rules of all the new
bodies contained in the Basic Law of Equatorial Guinea to the laws that
implement the operation of these bodies.
The new decree states that the Committee has been constituted «in
order to duly adapt the Internal Rules of all the new Constitutional
Bodies to laws numbers 2, 3, 4, 5 and 6, dated November 16, 2012,
which regulate the Council of the Republic, the National Council
for Economic and Social Development of Equatorial Guinea, the
Ombudsman, the Court of Auditors in the Republic of Equatorial Guinea
and the Law Regulating the Elections of the House of Representatives,
of the Senate and of Municipalities and Referendum in the Republic of
Equatorial Guinea.»
The Committee created by this provision will therefore adapt the
following drafts of legal texts:
• Draft Internal Rules of the House of Representatives;
• Draft Internal Rules of the Senate;
• Draft Internal Rules of the Ombudsman;
• Draft Internal Rules of the Court of Auditors;
• Draft Internal Rules of the National Council for Economic and Social
Development; and
The RICA will control the formation, operation and dissolution of both
private insurance companies and mutual organisations, including
the operation of local subsidiaries and branches of foreign insurance
companies.
• Draft Internal Rules of the Council of the Republic.
Such a development opens up a largely untapped market to foreign
investors and draws on international best practice in the insurance
market, with a goal of bringing higher standards and greater
competition to the RDC’s population of 75 million.
ATIC REPUBLIC OF THE CONGO
• First Vice Chairman – His Excellency Clemente Engonga Nguema
Onguene;
Mining reform brings new international
operator obligations
The Committee has been structured as follows:
• Chairman – His Excellency Martin Ndong Nsue;
• Second Vice Chairman – His Excellency Alfonso Nsue Mokuy;
• First Secretary – His Excellency Baltasar Esono Eworo Nfono;
• Second Secretary – His Excellency Reginaldo Egido Panades; and
• Third Secretary – His Excellency Jose Angel Borico.
The Government of the Democratic Republic of Congo (DRC) has
published a new draft Mining and Hydrocarbons Code as part of the
ongoing reform of the sector in the country.
F L A S H
GA B O N
New preferential economic zones
presenting export benefits
The Gabon legislature has approved the creation and organisation
of a Preferential Economic Zone in Nkok (Nkok PEZ), to the west of
the capital Libreville.
The new Law (Decree No. 0461/PR/MPITPTHTAT, of 10 October
2012) creates a preferential legal, tax, customs, immigration and
labour framework for economic activities carried out within the Nkok
PEZ. Though no restrictions are placed on the types of activity that
can be conducted, it is however particularly favourable for forestry
and timber export, and electricity generation.
The PEZ is divided into commercial, industrial and residential
sectors, and businesses that export at least 75% of their production
may relocate to the PEZ, subject to prior authorisation. This
possibility may also be extended to certain domestic businesses
that provide their goods and services exclusively to the Gabonese
market.
The Nkok PEZ is a partnership between the Republic of Gabon
and Olam Singapore and is being developed in three phases, with
annual investments projected at $900m in the first three years.
Those businesses engaged in the transformation of natural
resources will enjoy tax and customs advantages, including
full exemption from company tax for the first ten years, and will
thereafter be liable for a reduced rate of 10% over the following five
years. They will also be fully exempt from customs fees, duties on
imported goods and equipment and on the export of manufactured
products, and will benefit from reduced electricity costs of around
50% relative to the prices in force in Libreville – and supplied
through dedicated facilities.
Gabon to enact more State-friendly
petroleum legislation
Gabon is close to finalising a new Petroleum Code that will replace
the existing 1962 Code.
The new law, which has been in a draft form for over a year, has
already been presented by the Gabonese Ministry of Petroleum but
no official enactment has yet been announced.
Amongst other things, the new Code places greater emphasis on
balancing the interest of the State vis-a-vis the operating companies
and concessionaires, intended to give Gabon a larger share of
production revenues.
The Government has stated that it will take a stake in all foreign
companies operating in Gabon, with the actual level of involvement
likely to be decided on a case-by-case basis. Nonetheless, the
new Code provides a cap on the State ownership of operating
companies at 62.5%.
It nonetheless also introduces a degree of greater transparency to
control mechanisms and monitoring of the sector, as well as the
operation of production sharing and other contracts.
Such reform follows on from recent amendments to the rules
governing the audit of existing production contracts, which however
some suggest targeted the operation of international companies in
Gabon.
Gabon’s new public procurement
agency gets to work
Gabon’s new Public Procurement Regulatory Agency (ARMP)
is now operational following the approval in 2012 of legislation
(Decree No. 0254/PR/MEEDD of June 19, 2012) establishing the
structure, roles and remit of the Agency.
The creation of the ARMP reflects a change in oversight of the
public procurement system as well as creating a new body with
responsibility for sector training and penalising irregularities.
The ARMP comprises a Regulatory Board, a permanent Secretariat
and independent financial department, and has full financial and
administrative autonomy. It has been tasked with assisting the
Government in formulating policy and regulation, implementing
independent technical audit procedures, penalising irregularities
and approving the out-of-court settlement of any disputes arising
during the procurement process or during the performance of public
contracts.
The creation of the ARMP thus reflects an increasing modernisation
and sophistication of Gabon’s public procurement system, at a time
when the economy last year recorded a 6% rise in real GDP.
The Government included the mining and hydrocarbons sectors
as among the key economic priorities in its 2012-2016 Action Plan,
announced last year.
Following the publication of the Draft legislation, the relevant authorities
in Kinshasa (Department of Mines – Direction des Mines) are now
engaged in a process of consultation and dialogue with mining,
oil and gas operators in the country, as well as non-governmental
organisations (NGOs) and other stakeholders, as well as the World
4
L E G A L
F L A S H
GUINEA - B IS S AU
New Petroleum Law brings significant
reform
The end of 2012 saw the Republic of Guinea-Bissau Parliament
approve a new Petroleum Law that introduces significant reform of
the country’s prevailing oil and gas regime.
The new Law encompasses the ownership of hydrocarbon deposits,
defines the rights and obligations of the various entities involved in
the oil sector, lays the foundation for the research and exploitation
of liquid and gaseous hydrocarbons, as well as the taxation of such
activities in the national territory, continental shelf and exclusive
economic zones.
The new Law specifically addresses in greater details various
issues relating to exploration and production, including:
• The transportation of hydrocarbons;
• Contracts of association;
• Environmental protection;
• Local content obligations; and
• Products derived from hydrocarbons.
Among the main reforms includes:
• A new list of relevant legislative definitions;
• New rules surrounding the licensing of blocks: given previous
practical difficulties to establish the public tender system as the
single means of granting blocks, a new intermediate system has
been proposed – by which negotiations will be possible after an
initial public call for expressions of interest, as is already utilised
in respect of mining titles;
• References to the period of retention in the event of a discovery
not being immediately economically viable;
• A minimum 10% participation in the capital of the operating
Concession by the state oil company Petroguin;
• The transformation of the contract ‘bonus’, payable at the time of
the assignment of a concession exploration licence;
• Revised taxes on fuels.
Significant also is the fact that the new Law will see the repeal of
previous regulations, including the previous Petroleum Act (Law
2/82 of 31 May), Decree Law 4/85 of 5 October – Amending Law
2/82 of 31 May – and the Tax Production Royalty and Taxation of
Hydrocarbons Regulation (Decree No 40/83 of December 30.)
The new Law has also been complemented by various
amendments to the statutes of Petroguin.
M ACAU
2013 Budget brings renewed tax
incentives
As in past years, the 2013 Budget of the Macau Special Administrative
Region (OR/2013) introduces various tax exemptions (including industry
tax and stamp duty exemptions) alongside deductions for income tax
and urban land and property tax.
Industrial Tax & Stamp Duty
The Budget has confirmed that Industrial Tax will not be levied in 2013.
Also confirmed is that Stamp Duty will not be due on premiums,
premium surcharges and any sums which are the insurers’ revenue, in
respect of insurance policies subscribed or renewed in 2013 and which
are paid together with policy or via a separate document. Were it not for the exemption, Stamp Duty would be levied at the rate
of 2% on personal accident policies (including travel insurance) and
industrial accident policies, at 2% on performance bonds, at 3% on
maritime and fluvial policies and at 5% on all other insurance policies.
So far as banking transactions in 2013 are concerned, Stamp Duty
will not be due on interest and commissions in respect of active credit
transactions, banking services commissions and other banking revenue
arising from cash deposit business, payment intermediation business
and administration of capital business – which would otherwise be
subject to Stamp Duty at 1% of the overall annual gain, excluding gains
in foreign exchange transactions.
Permanent Macau Residents who are individuals of age and that do
not own real property in Macau shall be exempted from Stamp Duty on
residential property up to MOP3,000,000 (roughly €280,000.00). This
exemption represents a saving of MOP42,000 (roughly €3,942.00) on
the previous year.
L E G A L
Professional Tax
A 30% deduction from taxable income for Professional Tax purposes is
applicable for 2013. Professional Tax will be levied only on incomes in
excess of MOP144,000 (roughly €13,490).
F L A S H
This is intended to allow greater rotation of cargo in transit as well as
promote greater efficiency in terms of managing the flow of goods in
real time. Details of customs shipments can thus be sent in advance,
along with the provision of guarantees and payment of any applicable
duties and taxes. Urban Land and Property Tax
A new Mining Law for Mozambique
A MOP3,500 (roughly €328.00) fixed sum deduction from the taxable
income for Urban Land and Property Tax purposes has been extended
into 2013. This is applied automatically by the tax authorities and will
already have been deducted in tax payment notices.
Last December, the Mozambican Government formally approved the
amendment of the current Mining Law (Law No. 14/2002, of 26 June
2002), a draft of which is now awaiting presentation to the country’s
National Assembly for ratification.
Macau extends reach of arbitration recognition
agreements
The latest draft publicly available of the statute allows us to conclude
that the new rules governing the conduct of mining activities will have a
major impact on the industry.
Macau Special Administrative Region (SAR) has had a mutual
Arbitration Recognition and Enforcement Agreement with Mainland
China since 2007, but until the start of the year no such arrangement
had been in place for disputes connected with Hong Kong SAR. As
both SARs are considered to be within China, the mutual recognition
protocols of the 1958 New York Convention – of which all are
signatories – did not apply.
More prescriptive rules
The start of 2013 has however seen this change, with the signing of a
mutual recognition arrangement by the Macau Special Administrative
Region (SAR) and Hong Kong SAR: The Arrangement Concerning
Reciprocal Recognition and Enforcement of Arbitral Awards between
the Hong Kong Special Administrative Region and the Macau Special
Administrative Region (Arrangement).
Previously, arbitration awards made in Macau or Hong Kong were only
enforceable by an order from the courts of each SAR, albeit based on
established principles such as validity of the arbitration agreement, lack
of legal capacity to enter into an agreement, or lack of proper notice,
etc. Such approval was not however guaranteed, while issues around
enforceability were also not uncommon.
Under the new rules there will be a presumption of the validity of an
arbitration award and enforcement order made in either SAR. A failure
to comply with the enforcement of an award may thus lead to Court
intervention dependent on the location of the defendant or registered
assets.
The agreement is expected to receive Hong Kong legislative assent
during the course of 2013 and will result in a more certain arbitration
mechanism for the award and enforcement of arbitration awards
between Macau and Hong Kong. The move builds on the increasing
reach of Macau’s arbitration recognition arrangements.
In October 2012, China and India reached agreement on the
recognition and enforcement of arbitral awards which includes Macau
(and Hong Kong). Though both countries are again signatories to
the New York Convention, India has only formally recognised around
40 other jurisdictions as providing the requisite reciprocity of arbitral
awards. As of March this year, and the official “gazetting” of China by
India, arbitral awards made in China, Macau and Hong Kong may be
recognised and enforced by Indian courts.
M OZ A M B I Q U E
New electronic customs transit systems
come into force
New rules have been introduced affecting customs clearance on goods
entering Mozambique from abroad.
A new Law (Decree No. 307/2012, of 15 November) detailing the
Regulation of Customs Transit has been approved and will now
take effect. The Regulation will impact on the operations of freight
forwarders and carriers handling goods as they both enter and leave
the country under the customs transit regime.
Under the rules a new system of licensing will apply. Special reference
should also be made to the new rules relating to the determination
of the value of bonds to be posted and the adoption of a schedule of
bond-free goods.
The new rules build on the replacement of the previous manual
customs clearance process replaced by a new electronic system,
including the use of a Single Electronic Window (SeW). This will be
applicable to the movement of foreign goods within Mozambican
customs territory, enabling their transport free of payment of duties and
other charges, while under customs control, through the provision of
guarantees.
Among the benefits of the new system is a greater clarity of the role
and requirements applicable to freight forwarders, carriers and the
authorities themselves. The use of an electronic process will also see
an increase in information exchange throughout the transit process
by the customs authorities, who will examine and verify goods via the
application of electronic seals on arrival and departure; removing the
guarantee obligation of the company issuing the transit declaration in
order to secure payment.
5
Under the existing Mining Law, a mining contract shall contain,
amongst others, clauses on:
(i) The circumstances or ways by which the Council of Ministers
exercises the powers and authority granted to it under the Mining
Law and additional regulations; and
(ii) Conflict resolution mechanisms for disputes arising out of the
Mining Contract.
The draft Mining Law is much more detailed setting forth that a Mining
Contract shall in addition include provisions on:
(i) The ways in which the Government shall opt to participate in the
mining venture;
(ii) The hiring and training of local personnel;
(iii) Incentives to increase the value of minerals;
(iv) Actions to be promoted by the mining holder in respect of
corporate social responsibility (CSR); and
(v) Conflict resolution, including provisions on arbitral tribunals.
Provisions on tax matters are expressly excluded from the contract.
Development and production
Another important feature of the draft Mining Law is in respect of the
development and production phases of mining projects.
Currently, the holder of a mining concession must commence the
development phase within 24 months of the date of issuance of
either the environmental licence, or the land use and exploitation
authorisation, whichever occurs later.
The new draft Law establishes however that the holder of a mining
concession must commence mining activities and operations within 12
months. The new statute does not contain a reference as of which date
the operations shall effectively start.
As regards the production phase, presently, the holder of the mining
concession shall commence mining production within 36 months as of
the date of the issuance of the environmental licence, or the land use
and exploitation authorisation, whichever occurs later. In the future, the
holder of the mining concession must commence production within 48
months of the date of issuance of the mining concession. This deadline
may only be extended due to force majeure reasons or upon a duly
grounded decision of the Government.
Local content requirements
Of crucial importance also is an amendment included in the draft
in respect of the holder of the mining concession itself. Under the
existing rules, a mining concession may be granted to any person who
complies with the statutory requirements (including the payment of a
fee). However, in the future, a mining concession shall be only granted
to an entity incorporated and registered under Mozambican law,
which shall be deemed to have technical and financial capacity for the
carrying out of mining operations.
Although this local content requirement was already set out in the
Mega-Projects Law – which is also applicable to these types of projects
– the inclusion in the mining statutes is new.
Under the draft Mining Law, in addition to the general causes of
termination of mining titles, are also established specific termination
causes for each mining title, another innovation when compared with
the current framework.
Should the draft Mining Law be published and, consequently, enter
into force with the wording known, the rights acquired under mining
contracts and agreements entered into with the Government, and
mining concessions granted prior to the entry into force of the statute,
shall remain valid and binding. Nonetheless, mining holders are entitled
to choose to be governed by the new provisions, provided that they
apply for the option within a given deadline.
The proposed amendments to the existing statutory framework will
nonetheless require mining players to adapt to new rules. The sector is
regarded as one of the country’s key economic areas and the new Law
it is hoped will contribute towards new growth by attracting more foreign
investment.
L E G A L
F L A S H
New Downstream Activities Regime
pre-empts Petroleum Law
Plans to capitalise on the very significant gas reserves discovered off
the coast of Mozambique are now progressing, including the award
of concessions for the construction of pipelines and a liquefaction
plant to enable the export of LNG.
Alongside such physical developments, the Government is also
now in the process of amending and drafting anew the country’s
downstream activities and petroleum laws.
L E G A L
The new Law introduces significant amendments to the General
Taxation Code, affecting corporate income tax, capital gains on the
sale of shares by non-residents, introduces new retail taxes, and
raises licence fees on the transportation of hydrocarbons by ship-owners.
Among the most significant changes includes:
• A reduction of the corporate income tax rate by 1% from 34% to
33%;
• The creation of a new tax regime for holdings and a tax
integration regime, and taxation of capital gains derived from the
sale of Congolese shares by non-residents;
In 2012, a Draft Petroleum Law was published intended to replace
the existing 2001 regulation.
• The introduction of a specific tax on alcoholic drinks and
tobacco;
Nonetheless, the structure of the Draft Law follows on from the
previous regime. The major difference being however that it is gas
rather than oil that is the primary focus of the legislation, with specific
reference made to the development of gas liquifaction facilities. But
alongside, such a change enhanced provisions are also included
regarding:
• The binding use of the statistic and tax declaration according
to the CEMAM templates for the financial year ending 31
December, 2012;
• Transparency;
• Encouraging competition with the sector; and
• Environmental obligations.
Concession terms
Additional amendments include specific reference to facility
concessions contracts alongside established concession models,
while the third-party access regime is also extended to such facilities.
The Draft Law however does away with the previous provisions
detailing the award of concessions through negotiation, replacing
them with a requirement for competitive public tenders. Likewise,
a requirement for concessionaires to publish tenders for major
contracts for products and services is also included.
The concept of preferential treatment for reconnaissance contracts
is also removed, in favour of non-exclusive rights. While the transfer
of any rights or licences awarded must first gain Government
approval – reflecting the 1 January 2013 fiscal change that sales
of Mozambican assets held by non-resident entities will be taxed at
32% regardless of the period held.
Also included in the Draft are specific provisions relating to the
environmental impact of oil and gas activities, with the entity
responsible for regulating exploration and production being the
National Petroleum Institute (INP). Among the issues specifically
addressed are flaring and the decommissioning of facilities.
Downstream activities
Specific regulation has already been approved relating to
downstream activities (Decree No. 45/2012, of 28 December 2012),
governing the production, importation, reception, storage, handling,
distribution, trading, transportation, exportation and re-exportation of
petroleum products.
Although to a great extent this new statute replicates the previous
licensing regime, it is worth highlighting some of the more relevant
changes that have been introduced, including:
• The transfer of petroleum facilities;
• Maintenance of permanent reserves of petroleum products in the
country;
• Supply to rigs, vessels and other equipment employed in the
prospecting, exploration and production of natural resources in the
national territory; and
• Reporting duties in different situations capable of threatening
security of supply and/or the operation of facilities.
Such developments mark the continued evolution of Mozambique’s
petroleum legislation, in line with the discovery of new and larger
gas reserves. And while the Draft Petroleum Law presents greater
detail regarding gas exploration and production further LNG-specific
legislation is anticipated.
R EPUB LIC O F
T H E CO N G O
Finance Law introduces major tax
reforms
The Republic of the Congo Parliament has approved significant
amendments to the country’s tax regime, following the publication of a
new Finance Law for 2013 (Loi No. 41/2012 of 29 December, 2012)
The new Law also introduces significant changes to the rules
surrounding benefit in kind housing, capped at 240,000 CFA Franc
(XAF) per month (US$471), albeit certain exemptions from personal
income tax have now been reinstated.
There has also been an increase in the calculation basis of variable
tax on the licences applicable to ship-owners operating in oil
subcontracting – up from XAF 240 to XAF 1,000 per gross ton
(US$0.47-US$1.96).
The basis for the calculation of corporate income tax payments has
been increased for branches of foreign companies and will be taxed
as real tax, while the basis for calculating the payment of corporate
income tax for branches of newly established foreign companies in
Congo is increased from XAF 1,000,000 to XAF 10m (US$1,965 US$419,654). New rules have also been introduced suppressing the merchant’s
card (Carte de Commerçant), while the duties for granting the ATE
(Temporary Authorisation to Operate) have been broadened.
F L A S H
TI M O R - LES T E
New downstream activities regulation
enacted
Following on from the approval of regulation in February 2012
that set out a new legal framework for Downstream Activities in
Timor-Leste (Decree Law No. 1/2012, of 1 February 2012), the
country’s National Petroleum Authority (Autoridade Nacional do
Petróleo - ANP) has now set our further regulation (No. 1/2012
of 3 September 2012) detailing the administrative proceedings,
requirements and fees applicable to the award, renewal,
amendment, transfer, suspension and cancellation of Downstream
Activities’ licences.
The same regulation creates a new entity, the Downstream
Activities Inspection Division (DAID), which will now be responsible
for supervising and investigating downstream activities.
The creation of the DAID builds on and adds to earlier regulation
(Decree-Law No. 20/2008, of 19 June 2008) establishing the
ANP, which has overriding responsibility to regulate and supervise
downstream activities. This remit extends to the petroleum
infrastructure used, including pipelines, terminals and transport,
along with refining and processing activities.
The new Downstream Activities Law therefore reasserts the general
legal framework applicable to the sector while also establishing a
stand alone inspection and supervision entity, with responsibility
for investigation infractions, evidence-collecting and prepare the
relevant sanctioning procedures.
The aim of the regulation is thus to further define the rules,
processes and obligations on downstream operators to better
ensure the efficient operation and security of Timor-Leste’s energy
supply, as the sector takes on ever-greater economic importance.
TIMOR-LESTE
New infrastructure PPP legislation
approved
S Ã O TO M É
AND PR Í N CIP E
New industrial licencing and inspection
regulation passed
Timor-Leste has approved the legal framework for the development
of public-private partnership (PPP) projects in the country.
The new legislation (Decree-Law No. 42/2012, of 7 September
2012), covers various issues, including the:
(i) Definition of public partners;
(ii) Identification of matters expressly excluded from PPP
contracts;
(iii) Rules on the preparation, evaluation and approval of PPPs;
The São Tomé and Príncipe legislature has passed legislation
(Decree-Law No. 15/2012, of 19 July 2012) applying new rules and
general principles to certain types of defined industrial activity.
(iv) Definition of the public bodies that will support PPPs; and
The Law replaces the prior 1967 legislation (Order No. 4214, of 20
April 1967), which was considered outdated not only in its structure
but also the breadth of its reach and the fees and the fines applicable
to specific activities and behaviours.
The new framework has been enacted as the Timor Leste
Government moves forward with a proposed US$1.06bn
infrastructure development plan, to further develop the economy
and reduce reliance on the expanding petroleum sector.
The new legislation is in line with broader Government goals to
improve the overall business environment in São Tomé and Príncipe,
reducing the time, cost and procedures associated with the creation
of companies, and the regulation of corporate activities, including the
promotion of greater competition.
The 2012 Budget outlined proposals for new investment in the
transport, irrigation, housing, education and health, defence
and national electricity grid sectors as part of a 20-year national
development plan. Among the major first projects under
development is the proposed expansion of the country’s main
Presidente Nicolau Lobato International Airport, in order to facilitate
greater touristic and business flows.
The new regime covers, inter alia, the following matters:
(i) Licensing procedures for setting up and operating industrial
facilities;
(ii) Rules on inspections; and
(iii) Mandatory insurance and security planning for certain
activities.
In passing the legislation, the Government has sought to harmonise
the rules applicable to industrial activities to those applicable to
other parts of the economy. The general goal being to reduce the
operational risks associated with certain types of defined activities,
to better define employment protections and safeguard worker health
and safety, and to address wider environmental concerns.
The Law introduces a new range of fines applicable to breaches of
specific regulation, extending up to 20,000,000 Dbs depending on
the seriousness of the offence. Licences are also now required prior
to the installation of certain types of facilities with varying time limits
also established for the approval of specific types of activity (which
may have to be sought from differing regulatory entities).
The fees due for the issuance of the relevant licence (and
amendments thereto) shall be subject to additional regulations that,
to the best of our knowledge, are still to be enacted (or, at least,
published in the Official Gazette).
6
(v) Special rules on tendering procedures.
The enactment of the new Law is however a first step in the
development of the country’s PPP regulation, with further provisions
expected to be enacted by the Government.
I N T E R V I E W
I N T E R V I E W
M iranda Allian ce ex panding
across Fran cophone Africa
PA U L I N
M B A L A N D A
The most recent member of the Miranda
Alliance is located in the Democratic Republic
of the Congo (DRC), further expanding the
Alliance’s reach across sub-Saharan Africa and
the size of its Francophone practice.
from
DRC
Paulin Mbalanda is the Managing Partner of
MBM-Conseil located in Kinshasa, the capital
of the DRC. Here he shares his views on how
membership of the Miranda Alliance will benefit
clients of his own firm and the Alliance as a
whole.
M A N A G I N G
PA R T N E R
DEMOCRATIC REPUBLIC OF THE CONGO
Capital Kinshasa
Population 75 million
Official Language French
President Joseph Kabila
Prime Minister Augustin Matata Ponyo
Political System Presidential Democracy
GDP US$27.53bn (PPP)
Per Capita US$400
Currency Congolese franc (CDF)
Economic focus Mining (diamonds, gold, copper,
cobalt, coltan, zinc, tin); mineral processing;
consumer products (textiles, plastics, footwear,
cigarettes); metal products; processed foods and
beverages; timber; cement; commercial ship repair
Main trading partners
Exports – China (48.1%), Zambia (21.3%), US (9.5%),
Belgium (5.4%)
Imports – South Africa (21.7%), China (16.2%),
Belgium (8.5%), Zambia (7.1%), Zimbabwe (5.7%),
Kenya (4.8%), France (4.7%)
Financial Regulator Central Bank of the Congo
Jean-Claude Masangu Mulongo (President)
Bank of Central African States
(Banque des États de l’Afrique Centrale, BEAC)
Fact Most populous Francophone country, and the
second largest country in Africa (after Algeria)
Member of Regional Block
Common Market for Eastern and Southern Africa
(COMESA)
South African Development Community
What are the expectations of MBMConseil joining the Miranda Alliance?
MBM-Conseil and Miranda have had an ongoing
relationship for some time and so we have already seen
the benefits of combining our expertise, as international
investor interest has continued to grow in DRC and
across the region. Foreign clients want dedicated local
expertise but delivered in the way in which they are used
to receiving their advice – we are able to focus on the
very local issues while the lawyers in Miranda are able
to concentrate on co-ordinating the advice or translating
DRC legal or business concepts into English and
Portuguese. We have seen a rise in clients active across
sub-Sahara Africa, and increasingly they want to take a
more joined-up approach to the way they manage their
legal issues.
What are the main goals of this
partnership with Miranda Alliance?
Ultimately we want to increase our international
exposure and expertise, but we also understand that
clients want to leverage their existing law firm relations
into new markets wherever possible. The partnership
with Miranda Alliance means that we can develop our
capabilities, but in collaboration with a leading regional
firm with over 25 years of Africa experience.
Few law firms in DRC meet international standards, so
our goal is to improve our levels of service delivery and
know how; to become one of the leading firms in the
market.
In which main areas will you be
cooperating?
We will obviously be working closely on client
matters, learning from one another, but the focus will
predominantly be on developing our joint corporate
and tax expertise. In addition, we will also benefit from
Miranda Alliance’s management and training expertise
enabling us to develop our skills in line with that
expected by international corporations.
What advantages can MBMConseil clients get from the Miranda
partnership?
Many of our clients remain domestically-focused, but an
increasing number are now looking outside of DRC for
new opportunities. Our ability to connect directly with
the Miranda Alliance immediately extends our reach,
while offering clients the comfort of having access
to dedicated and extensive expertise not only in the
neighbouring countries but across the region as well as
in Europe, Asia, Brazil and the US.
How have clients received the
announcement of the partnership?
So far we have had nothing but very positive feedback
from clients. It is one less worry for them to have to think
about when doing business outside of DRC, but many
clients are also appreciative of the changes that will
come to the way we operate inside DRC – in terms of
management expertise, service delivery and expanding
our know how. Miranda will bring international standards
of excellence to our local expertise.
What is the size of the DRC team
comprising MBM-Conseil attorneys
and Miranda attorneys based in
Lisbon?
As a firm, we number three partners and 12 assistants,
consultants and trainees, making us one of the largest
corporate and commercial firms in Kinshasa. We
will be working alongside with the members of the
Francophone Africa practice at Miranda, predominantly
located in Lisbon, but increasingly on-the-ground.
Combined we will assist clients developing their
activities and overcoming legal challenges in DRC,
Congo, Gabon and across the region.
7
P E O P L E
O U T O f
O F F I C E
P E O P L E
T H E
AT T H E
O F F I C E
Miguel Navarro de Castro
Chindalena Lourenço
from
from
PORTUGAL
ANGOLA
Ace of bass
The expectant crowd goes quiet. The lights come
up and the PA bursts into life. “Good evening
Lisbon”, shouts one of the singers of Lex No More
into the microphone. The crowd goes wild.
Rock ‘n’ Law may not be Rock in Rio, but the
audience reaction to Lex no More could not be
any better. And for Miguel, playing with the band
combines two of his great passions, legal practice
and the bass.
An ordinary day in Luanda
“Given everything else we have to do finding the
time to practise as a band isn’t easy, but both the
Jammers and Lex no More play five or six times a
year. Admittedly however, it’s Rock ‘n’ Law that comes
closest to my teenage dreams – “standing on stage
and playing to thousands of people, while raising
money for a good cause, it can’t be beaten.”
8.00 On my way to a meeting at the National Bank of
Angola (BNA). Under Angolan foreign exchange laws,
payments above a certain amount made to companies
located outside of Angola need the BNA’s approval.
Most of the time, we need to talk directly with BNA
officials about the requirements to clear payments. At
today’s meeting I’ll be discussing a contract for US$ 2.5
million on behalf of a service provider in the oil and gas
industry.
9.20 Arrive late at the BNA. Traffic jams are an
unavoidable staple of life in Luanda. Fortunately, the
officials I’m meeting with are also late. Why? Traffic.
A Senior Associate in the public law team, he has
been with Miranda since 2008 – having joined
from the Supreme Administrative Court where he
was Counsellor to the President. His bass playing
stretches back significantly further.
10.30 Meeting ends. The news isn’t so good: the
BNA is tightening restrictions on foreign exchange
payments, meaning our client will have to make a
number of major changes to its draft contract before
signing. Changes can also lead to consequences
in terms of tax laws, so we’ll have to go over the
proposed amendments in detail. While heading across
town to a meeting with another client, I call one of my
colleagues to go over the tax implications of the BNA’s
demands.
“I’ve been playing on and off since I was 13. Music
was one of the most important things in my life
when I was a teenager, when I would easily spend
six or seven hours a day practising.”
A decision to study to be a lawyer meant however
that the music had to take a back seat in terms of
career priorities, but throughout his studies and
legal training he continued to play at home and with
friends.
“I realised early on that making a living out of music
wouldn’t be easy. But what struck me just a few
years ago however was that in terms of being a real
musician it is not the quantity of practise you do but
the quality. I was entirely self-taught but after 20
years finally enrolled for lessons.”
11.30 Arrive at client’s head office, this time a
construction company, to meet with its CFO and
General Manager and discuss the outcome of a
meeting held yesterday at the National Private
Investment Agency. Our client isn’t happy about the
Agency’s latest demands and needs to talk to its parent
company to find a way forward. The problem with the
law is that most of the time it can be read more than
one way.
In 2009 Miguel signed up for a bass-playing course
at the Academia de Música Improviso. “I think I
learnt more in the two years I was there than the
entire two decades before. From the basics of
holding the instrument and fretwork, to jazz and
rock concepts, it is striking what a difference the
right tuition can make,” he says.
13.00 Arrive for a lunch appointment with a
representative from a potential new client. He arrives
twenty minutes late, which gives me time to check
my emails and make a couple of phone calls to touch
base with the office. Leave restaurant with a smile on
my face: guess whose firm just got asked to work on a
“small project” for a major new client?
Miguel set himself the goal of reaching Rockschool
Grade 8 in the bass and at Grade 4 is halfway
there. “I have been playing for 25 years so can
already hold a tune but the qualifications are
significant to me in terms of recognising technical
ability and musical knowledge, which is where I now
put my emphasis – quality over quantity.”
14.45 Arrive at the office. Meetings, emails, phone
calls, letters, more emails, training younger colleagues,
even more emails, more calls, more training. Being a
partner at a law firm in Angola is no different than being
one anywhere else.
18.00 As an Angolan delegate of the Portugal-Angola
Chamber of Commerce, I have to attend a number
of events in that capacity. Right now I’m running late
for a mixer where I’ll be representing the Chamber
of Commerce and say a few words to some trade
commissioners visiting Angola on the lookout for
business opportunities.
Work commitments and family life allowing – Miguel
is married with a young son and daughter, both
of whom he has encouraged to learn instruments
– he nonetheless continues to play with Lex no
More, Miranda’s in-house band and performs at the
annual Rock ‘n’ Law fundraiser and at office parties.
He also plays in a second band, Jammers United,
comprised of lawyers from firms across Lisbon.
19.30 Traffic is much better than expected. More time
to be at home with my young daughter and the rest of
my family. Time to unwind and prepare for tomorrow.
8
P E O P L E
P E O P L E
N E W
M E M B E R S
Alex Loembeht
Associate
We have seen a number of new
professionals join the Miranda
Alliance:
Pointe-Noire
Alexandra Vaz
Associate
Alvares Missindi
Associate
chambalson
chambal
Trainee
Lisbon
Pointe-Noire
Maputo
Daniel Manyabe
Diana Lourenço
Filipa Pedro
Idérito Ngulele
Kinshasa
Lisbon
Lisbon
Maputo
Kátia Elias
Lídia Neves
Natacha Latere
Olivier Bustin
Pamela Masangu
Maputo
Lisbon
Kinshasa
Lisbon
Kinshasa
Pedro Sousa Uva
Richad Majid
Trainee
Sara carvalho
de Sousa
Shelina Hassan
Sisca Ligace
Lisbon
Lisbon
Lisbon
Lisbon
Lisbon
tânia Giovetty Vieira
tiago Mendes
Luanda
Lisbon
Ana Margarida
Maia
tânia cascais
Nuno cabeçadas
Lisbon
Lisbon
Lisbon
Trainee
Trainee
Associate
Trainee
Junior Associate
Trainee
Of Counsel
Associate
Trainee
Associate
Trainee
Trainee
Associate
Associate
Trainee
N E W
PA R T N E R S
We have also continued to expand
our partnership, with the following
promotions:
9
P R O - B O N O
Nuestra Medalla
Milagrosa – cSR in the
real world
P R O - B O N O
As a law firm our primary focus is to serve the
needs of our clients, whatever and wherever
they may be; it is something we’re good at,
but we mustn’t forget the community projects,
non-governmental organisations, schools and
universities we also assist on a pro bono and
voluntary basis.
We cannot separate who we are from what we
do. Our corporate social responsibility (CSR)
programme, which includes such pro bono work,
is an essential way in which we as a firm are able
to contribute to the wider community. As legal
practitioners we have a responsibility to improve
access to justice for all, but our CSR work extends
much further than merely legal representation.
At Miranda we strive to create a stimulating,
supportive and fulfilling place for all of us to work
and our CSR programme is a vital part of this. CSR
is good for business but it also makes us a better
firm, a better employer and a better corporate
citizen. We are proud to say that each year we
commit hundreds of hours, and members of the
firm raise thousands of euros, to support projects
on each of the four continents in which the Miranda
Alliance operates.
Sun, wind or rain
Among the most recent initiatives we have
committed to support is Nuestra Medalla Milagrosa,
a nursery and primary school project in Equatorial
Guinea.
Founded in 2010 by local teacher Milagrosa Sofia
Boko Geto, Nuestra Medalla Milagrosa operates
in one of the most deprived parts of Malabo. The
school is funded entirely by donations and fills a
gap left by the national state system – it provides
an education that would otherwise be unavailable to
the 50 or so children that currently attend.
10
Milagrosa Sofia and her team already do a fabulous
job but in the most basic of environments, in
temporary classrooms without even adequate
drinking facilities, let alone desks, chairs, books or
blackboards. Her ambition is therefore relatively
simple, to build a permanent school and furnish it
with the teachers and facilities it requires. But such
a task in such a neighbourhood is far from straight
forward. So as a firm we have committed to help
Milagrosa Sofia raise the funds necessary to build
the school her pupils so desperately need.
As a start, the beginning of May saw 10 members
of Miranda undertake a 200km sponsored cycle ride
entitled ‘Sun, wind or rain’, from Troia, just south of
Lisbon, to Vila Nova de Milfontes and on to Lagos
on the Algarve coast.
Every euro generated by the volunteers over the
two-day ride was matched by the firm, with the
result being that collectively we were able to raise
over €10,000. To put this into perspective, Milagrosa
Sofia bought the 300m2 plot of land on which
Nuestra Medalla Milagrosa stands for XAF 1.5m
(€2,285).
CSR may sometimes seem an abstract concept
and one to which law firms may often pay mere lip
service, but we hope that through initiatives such
as Sun, wind or rain and further assistance we
at Miranda can help secure the future of Nuestra
Medalla Milagrosa, and through Milagrosa Sofia
make a real difference to the lives of some of
Malabo’s most needy children.
S O U N D I N G
LO C A L
S O U N D I N G
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11
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