Baker & Mckenzie

Baker McKenzie to integrate eight EMEA offices into single profit pool

Baker McKenzie is set to bring its London office and seven others offices across Europe, the Middle East and Africa (EMEA) into a single profit pool, taking the firm a step closer to full financial integration in the region.

The newly integrated business will be led by Bakers’ Brussels-based global antitrust head Fiona Carlin, who will take up the role on 1 July 2018 when the integration goes live. She was elected to the post earlier this month.

The new structure will have about 1,000 lawyers and include 250 partners, with London, Brussels, Amsterdam, Stockholm, Madrid, Johannesburg, Bahrain and Qatar all sharing profits. Key parts of Bakers’ European business – such as Paris and Germany – will not be included.

The move towards greater financial integration, which is part of the firm’s 2020 strategy, marks a significant departure for Bakers, which has faced criticism in the past for its loosely integrated ‘franchise’ model.

Baker McKenzie global chair Paul Rawlinson said: “Integration is happening in the firm at all levels, to align ourselves around our global brand. Regional integration is one aspect of that and it is a policy which seeks to make it easier for our offices in the regions to work across borders. We see this as a continuing implementation of our entire global strategy through to 2020.”

One London partner said: “There has been criticism levelled at the firm that we’re not financially integrated. People say Bakers is just a franchise with a few offices thrown together. Anything that is done to address that has to be a good thing.

“The disappointing thing is we haven’t got more offices in there. If it was a true success we would have everyone in a single profit centre. I suppose let’s see how it works with this first wave of offices.”

Further offices are expected to join the pool over time, with Carlin’s role expected to include moving the EMEA region closer to full financial integration.

The change means Bakers will have four separate profit pools in Europe once it goes live. Roughly 130 lawyers in Russia are part of an integrated pool with Ukraine, Kazakhstan and Azerbaijan. Similarly, the firm’s Frankfurt, Munich, Berlin, Duesseldorf and Austrian offices also share profits. The Paris arm is currently integrated with Luxembourg.

One German partner said the firm’s intention was always to move to a more financially integrated system, with former chair Christine Lagarde initially raising the subject during her tenure from 1999-2005.

The German partner added: “Lagarde realised that this needed to happen at some point – the intention has always been there. We will do it and get to it but only when we can. There are a lot of compliance issues and you cannot play around with compliance.”

The firm brought its North American outposts into a single profit pool in 2013 but needed to broker special arrangements for the Dallas and Washington DC offices before they agreed to join.

Bakers’ 17 offices across the Asia-Pacific region are split across five different profit pools.

Nigeria PHOTO

Local Content Participation in Nigeria

Despite the pressure of globalization, the Nigerian Government is responsible of ensuring that businesses in Nigeria remain competitive. This informed the need for the Government to put in place frameworks to enhance the ability of local companies to exploit local opportunities while staying competitive globally. This is the essence of local content legislations in some sectors. The local content provisions in some sectors include;

(a) Information and Communications Technology

The National Information Technology Development Agency (“NITDA”) in 2013 released guidelines on Nigerian content development in information and communication technology. According to the guidelines, ICT companies in Nigeria are to maintain 50% (fifty percent) local content either directly or by outsourcing to local businesses to encourage Nigerian representation and participation in the sector.

(b) Oil and gas

The Nigerian Oil and Gas Industry Content Development Act (“NOGICDA“) which established the Nigerian Content Development and Monitoring Board (“the Board“) was enacted in 2010. The purpose of the Act is to create the framework for growth of Nigerian content in respect of all operations and transactions in Nigeria’s Oil and Gas Sector (“the sector“). The Act which defines a Nigerian Company to mean a Company registered in Nigeria in accordance with the provisions of the CAMA with not less than 51% (fifty-one percent) equity shares owned by Nigerians mandates investors in the sector to consider Nigerian content as an important element in their project development and management philosophy. The Act provides that subject to fulfillment of the conditions that may be specified, Nigerian operators and indigenous service companies shall be given first consideration in award of oil blocks, licenses and works in the sector. Consequently, the Board is empowered to execute its duties under the Act as well as ensure that the provisions of the Act are compiled with by stakeholders in the sector.

(c) Lottery

In Lagos at least 15% (fifteen) of shares in predominantly foreign owned gaming licence applicants must be held by Nigerians.

(d) Architect

The Architect (Registration, etc.) Act provides that it is only Nigerian citizens that will be registered to practice architecture in Nigeria. Nevertheless, a foreign architect who satisfies the Architect Registration Council of Nigeria that there exist a reciprocal arrangement of registration of architect between his country and Nigeria may be registered by the Council. Also, a foreign architect who does not qualify for registration in Nigeria may be registered by the Council if he is employed in Nigeria as a foreign technical assistance or foreign technical aid program or under a contract with the Federal Government or Government of any State of the Federation.

(e) Banks

No person can carry on any banking business in Nigeria except it is duly incorporated in Nigeria and holds a valid banking licence. Again, no foreign bank can operate a branch in Nigeria without prior approval of the CBN. However, CBN may grant licence to Nigerian and foreign banks to undertake off-shore banking business from Nigeria.

(f) Aviation

The Civil Aviation Authority shall not grant an aviation permit, certificate or other authorization to a person who is not a Nigerian citizen or a company registered in Nigeria.

(g) Shipping

It is only vessels wholly owned and operated by Nigerians, built and registered in Nigeria that can engage in domestic coastal carriage of cargo and passenger within the coastal territorial inland waters or any point with the exclusive economic zone of Nigeria restricts the use of foreign-owned or manned vessels for coastal trade in Nigeria. Consequently, a vessel which is not owned by a Nigerian citizen shall not carry any substance whatsoever or dredge any material within Nigerian waters. However, a foreign vessel may render assistance to persons, vessels or aircraft in danger or distress in Nigerian waters.

(h) Broadcasting

The Broadcasting Commission shall only grant a licence if it is satisfied that the applicant is a company registered in Nigeria with majority shares owned by Nigerians. The applicant must also demonstrate that it is not applying on behalf of any foreign interest.

(i) Pharmacists

A person shall be registered and practice as a Pharmacist if he is a Nigerian citizen. Nevertheless, a person who is not a citizen of Nigeria may be registered as a Pharmacist if he is a citizen of a country with reciprocal registration facilities to Nigerian citizens.

(j) Engineering

A non-Nigerian who satisfies the Council for Regulation of Engineering in Nigeria that he has been employed for a specific period in a capacity as an engineer and will be in Nigeria temporarily for the purpose of the employment or that he has qualification outside Nigeria which is acceptable to the Council may be registered as an engineer in Nigeria. A company engaged in engineering services must be registered with the Council for Regulation of Engineering in Nigeria. To do engineering business, the company must have Nigerian directors that are registered with the council and who hold at least 53% (fifty-three percent) of the shares in the company.

(k) Private security

A foreigner cannot acquire an equity interest in, or sit on the board of, a Nigerian private security guard company in Nigeria.

(l) Advertising

Only a national agency (that is, an agency in which Nigerians own not less than 74.9% of the equity) can advertise in the Nigeria market.

(m) Legal Practitioner

A person can only be entitled to practice as a barrister or solicitor in Nigeria if his name is on the roll of the Supreme Court of Nigeria. Nevertheless, the Chief Justice of the Federation may grant any legal practitioner who is entitled to practice in a legal system similar to Nigeria, licence to practice in Nigeria. Again, if it is expedient for a person to practice as a barrister for the purpose of specific proceedings, the Chief Justice may grant the person the licence to practice as a barrister in relation to the specific proceedings stipulated.

The above are some of the few businesses which insist on local content participation. There is greater awareness on the need for Nigerians to participate in major sector of the Nigerian economy. For instance in the telecommunications sector, stakeholders have frowned at the absence of clear local content policy in the industry which has resulted in massive loss of jobs meant for Nigerians and poor remuneration of Nigerian workers employed by foreign owned telecommunications companies in the wake of outsourcing business model. There is a clamor for the National Assembly to enact a local content law in other non-oil sectors to improve the capacity of Nigerian businesses and protect the employment of Nigerian employees.

(n) Recent development

On 5th February 2018, President Buhari signed Presidential executive order 5 for “planning and execution of projects, promotion of Nigerian content in contracts and science, engineering and technology”. Under the executive order, procuring authorities shall give preference to Nigerian companies and firms in the award of contracts in line with the Public Procurement Act, 2007. The executive order prohibits the Ministry of Interior from giving visas to foreign workers whose skills are readily available in Nigeria. The order also directs ministries, department and agencies to engage indigenous professionals in the planning, design and execution of national security projects.

Nevertheless, consideration shall only be given to a foreign professional where it is certified by the appropriate authority that such expertise is not available in Nigeria. In such an instance, the authority will give preference to foreign companies with a demonstrable and verifiable plan for indigenous development prior to award of such contracts.

Reed Smith tax team quits for DLA Piper

DLA Piper has hired a three-partner tax team from Reed Smith, just 12 months after they joined from the collapsed European arm of King & Wood Mallesons (KWM).

Paris tax partners Sylvie Vansteenkiste, Fanny Combourieu and Raphael Bera have all left Reed Smith to join DLA. The trio were part of a 50-strong team, including 17 partners, hired by Reed Smith across offices in London, Paris and Germany following the administration of KWM’s European arm.

Vansteenkiste had joined Reed Smith as head of its Paris tax team and previously co-led the European and Middle East tax practice at KWM prior to its collapse. Her practice covers tax audits and litigation, with a particular focus on complex tax structuring of investment funds.

Combourieu acts on private equity transactions, acquisitions and disposals and restructurings, with a particular focus on personal tax for high-net worth individuals. Prior to joining KWM she was a lawyer with Freshfields in Paris, before joining legacy SJ Berwin as a partner.

Bera worked at US firm Cleary Gottlieb Steen & Hamilton in both Paris and New York before joining legacy SJ Berwin. His practice covers tax litigation and audits, with a focus on investment fund structuring.

ASHURST

Ashurst grows Australia with double hire

Ashurst has grown its government and public sector capability with two partner hires from Norton Rose Fulbright and HWL Ebsworth.

Norton Rose dispute resolution partner Melanie McKean and HWL Ebsworth TMT partner Angela Summersby will join the firm’s Canberra office.

McKean acts for governments, corporate and private clients and has experience conducting major investigations for the Australian Government.

Summersby’s practice focuses on Australian Government contracting, information and communications technology contracts, intellectual property, privacy and business process outsourcing.

This is the fourth partner exit for Norton Rose since its merger with Henry Davis York in December 2017. The first of these, Sydney financial institutions head, Chris Redden, exited the firm to join Ashurst two weeks before the merger went live.

Norton Rose corporate partners Anthony Latimer joined Bird & Bird and Iain Laughland joined local firm Mills Oakley.

These are the first hires for Ashurst in Australia this year, as the firm focused instead on bulking up its Asia banking practice. The firm hired a banking duo from Allen & Overy and Fangda earlier this month and launched in the Shanghai Free Trade Zone. The firm also hired White & Case partner Damien Whitehead to join as a local partner in its finance practice.

Impact of Nigeria’s Legislations and Business Practices on Foreign Investments

The firm of Fred-young & Evans LP, Nigeria has a book out titled “Impact of Nigeria’s Legislations and Business Practices on Foreign Investments”.

The book introduces expatriates to the business climate in Nigeria and the regulatory framework for carrying on business in Nigeria. The book is set out to give expatriates and foreign businesses a good grasp of what to expect in doing business in Nigeria. We have explored extant legislations and practices and obtained current information on the procedures for obtaining relevant business permits and approvals from government agencies. The book is divided into chapters, each dealing with the subject matter in an order which roughly follows the sequence of events in registration and business activities of a foreign business. The book deals with the growing influence of Alternative Dispute Mechanism especially Arbitration in promoting business relations and the role of courts in protecting foreign investments.

You can place an order on (https://www.lap-publishing.com/catalog/details/store/de/book/978-613-7-33937-4/impact-of-nigeria-s-legislations-and-business-practices?search=978-613-7-33937-4) or through our firm.

john lewis

John Lewis recruits Smiths Group GC as new head of legal

Retail giant creates new partnership secretary role to supersede general counsel post.

The John Lewis Partnership has appointed a new legal head, following the departure of general counsel Keith Hubber.

 

The Role of Legislations and the Courts in protecting Foreign Investments in Nigeria

Under Section 6 (6) of the 1999 Nigerian Constitution, Nigerian legislations and powers of the courts extend to all matters between persons or between government and any person in Nigeria, and to all actions and proceedings for the determination of any question as to the civil rights and obligations of that person. This means a foreigner or foreign business may invoke the provisions of Nigerian legislations and the judicial powers of the court to protect its civil rights and investments whether against Nigerians, a Nigerian company or even the Nigerian government.

Protection of foreign investments

(1) Stay of court proceedings subject to arbitration

Section 4 and 5 of the Arbitration and Conciliation Act empowers the court to stay court proceedings subject to both local and foreign arbitration. It does not matter whether the seat of arbitration is Nigeria or the arbitrators would be Nigerians or the Nigerian Arbitration and Conciliation Rules apply to the arbitration.

(2) Application of foreign law

If the parties to a contract agree that foreign law will apply in resolving their disputes, Section 69 of the Evidence Act, 2011 provides that the Nigerian court shall apply the foreign law once it has jurisdiction to hear the case. In such instance, the court shall admit the opinion of an expert who in in his profession is acquainted with the foreign law. The expert may produce to the court books which they declare to be works of authority upon the foreign law in question. Upon receipt of the book and necessary explanation from the expert, the court shall construe the information contained therein for itself in making its decision.

(3) Discretion to stay proceedings on foreign jurisdiction clause

Where parties to a contract entered in Nigeria agree that where dispute arise between them, a foreign court will have jurisdiction to hear the case, by the ratio in the case of Sonnar Ltd v Nordwind (1987) NWLR (Pt. 66) 520, the Nigerian court is not bound to stay proceedings and decline jurisdiction in face of the foreign jurisdiction clause. The court will exercise its discretion in line with the justice of the case.

(4) Waiver of in personam jurisdiction

A Nigerian party to an international contract who later becomes a debtor may move from its place of business to another jurisdiction in a bid to frustrate its creditors from commencing an action or executing a judgment against it. The creditors can sustain an action against the debtor in any jurisdiction in Nigeria if the debtor had waived his right to personal jurisdiction in the contract. This is because it is settled Nigerian law that though a person cannot waive subject matter jurisdiction, he can waive his personal jurisdiction.

(5) Enforcement of arbitral awards and foreign judgments in Nigeria

Under Section 57 of the Arbitration and Conciliation Act, Nigerian courts would uphold a foreigner or foreign business’ right to enforce a local or foreign arbitral awards as well as enforce foreign judgments in Nigeria whether or not he is resident in Nigeria or carrying on business in Nigeria.

(6) Recognition and Enforcement of International Centre for Settlement of Investment Disputes (“ICSID”) Awards

ICSID was established under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention). It has a limited scope and jurisdiction. The subject matter of the proceedings must be an ‘investment matter” and one of the parties must be a contracting State or any constituent sub-division or agency thereof designated to the Centre by the State and the other party must be a national of another contracting party. The parties must agree to be bound by the ICSID Convention for it to apply to the exclusion of all other laws. The implication of this is that the national Courts of contracting States are restrained from interfering with the proceedings of the ICSID.

An award by ICSID is enforceable in Nigeria by virtue of Section 1 of the International Centre for Settlement of Investment Disputes Act which provides that;

“Where for any reason it is necessary or expedient to enforce in Nigeria an award made by the International Centre for Settlement of Investment Disputes, a copy of the award duly certified by the Secretary-General of the Centre aforesaid, if filed in the Supreme Court by the party seeking its recognition for enforcement in Nigeria, shall for all purposes have effect as if it were an award contained in a final judgment of the Supreme Court, and the award shall be enforceable accordingly”

Once the ICSID award is registered at the Supreme Court, it ranks on the same level as a final judgment of Supreme Court of Nigeria.

(7) Right of action

Under Section 60 (b) of the Companies and Allied Matters Act, a foreign company has a right of action against a Nigerian or a Nigerian company whether or not it is registered in Nigeria.

(8) Right of foreign creditors in insolvency proceedings in Nigeria

A foreign creditor can institute an action in court in its name or in the name of its attorney against a debtor for debt recovery in the same manner as a local creditor, as long as the debtor or its assets, or the underlying contract which gave rise to the debt was performed, within the jurisdiction of the court. The processes and remedies available to a local creditor also apply to a foreign creditor.

Under Section 238 of the Bankruptcy and Insolvency Act, where there is a bankruptcy, insolvency or reorganization order made against a debtor in a foreign proceeding, a certified copy of the order is, in the absence of contrary evidence, proof that the debtor is insolvent and a foreign representative has been appointed. In this instance, following an application of the foreign representative, the court can limit the property that the Nigerian trustee has power over.

In respect of a foreign proceeding commenced for the purposes of effecting a composition, extension of time or scheme of arrangement, on application by a foreign representative in a Nigerian court, the court may grant a stay of the proceeding against the debtor.

(9) Right against expropriation

Under Section 25 of the Nigerian Investment Promotion Commission Act, no person who owns, whether wholly or in part, the capital of any business shall be compelled by law to surrender his interest in the capital to any other person. There shall be no acquisition of an enterprise to which this Act applies by the Federal Government, unless the acquisition is in the national interest or for a public purpose and a fair and adequate compensation paid. The business has a right to go to court for the determination of its interest or the amount of compensation to which he is entitled. Any compensation payable under this section shall be paid without undue delay, and authorisation for its repatriation in convertible currency shall where applicable, be issued.

(10) Right to own land

Under Section 38 of the Companies and Allied Matters Act, a foreign company duly registered in Nigeria is a corporate person with a legal right to own land in Nigeria and other rights of a natural person.

(11) Tax exemptions and holidays

In order to encourage foreign investments, under Section 22 of the Nigerian Investment Promotion Commission Act, a foreign company is entitled to tax holidays for some startup businesses and investment in disadvantage areas.

(12) Right to invest and repatriate dividends

Under Section 17, 21 and 24 of the Nigerian Investment and Promotion Act, foreigners have a right to invest or acquire shares in any Nigerian company and are guaranteed unconditional transferability of funds through an authorised dealer, in freely convertible currency, of—

a. dividends or profits (net of taxes) attributable to the investment;
b. payments in respect of loan servicing where a foreign loan has been obtained; and
c. the remittance of proceeds (net of all taxes), and other obligations in the event of a sale or liquidation of the enterprise or any interest attributable to the investment.

Bracewell former London head exits for Akin Gump

Bracewell’s former London managing partner Julian Nichol is joining Akin Gump Strauss Hauer & Feld’s City office, Leaders in Law has learned.

Linklaters to open it’s fifth office in Hamburg

Linklaters will open its fifth office in Hamburg in the first quarter of this year to capitalise on an increase in banking work for German clients.

The firm has made no lateral hires with the launch, instead transferring two existing partners from Frankfurt and Dusseldorf.

The partner from Frankfurt is tax lawyer Jens Blumenberg, while the partner from Dusseldorf is Wolfgang Sturm, who specialises in corporate law. They will be joined by six associates from the two offices.

The news was first reported in Juve.

Linklaters said it had decided to launch in Hamburg on the strength of the work it has won from clients in its existing jurisdictions. The firm has recently advised on projects for Hamburg-based clients including HSH Nordbank, Hapag Lloyd, Beiersdorf and Berenberg Bank.

A Linklaters spokesperson said: “For several years, we have been increasingly working with many Hamburg-based clients – we would like to further expand that work and are, therefore, very much looking forward to opening an office in Hamburg next spring.”

The new office adds to the four offices that the firm currently has in Frankfurt, Dusseldorf, Berlin and Munich. The office in Frankfurt has a particular focus on real estate, while the Munich office is focused on media and telecommunications and the Berlin office on regulation.

Exits for Freshfields as firm shrinks Germany partnership

Three senior Freshfields Bruckhaus Deringer Germany partners are leaving the firm to establish a public law boutique with offices in Berlin and Duesseldorf.

The three partners are Berlin public affairs head Wolf Spieth, Duesseldorf environment and regulatory partner Herbert Posser and Berlin disputes partner Benedikt Wolfers.