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African Corporate Law Firm | Bowman Gilfillan
 

Introduction

Differences in law, regulation and business culture can significantly increase the risk and complexity of doing business in Africa. Our aim is to assist our clients in achieving their objectives as smoothly and efficiently as possible whilst minimising legal and regulatory risks.

Whilst reliable technical legal advice is always very important, the ability to deliver advice in a coherent, relevant way, combined with transaction management, structuring, negotiating and drafting skills is essential to the supply of high-quality legal services.

At Bowman Gilfillan we have harnessed our skills, experience and relationships in order to provide legal services to international standards to the benefit of our clients in Africa.

 
 
   Options for managing political risk in new African markets

    By Salim A Nakhjavani

South Africa has become the principal launching point for direct investment in other African countries, driven by transcontinental expansion by major parastatals and private corporations, including Eskom, Transnet, Spoornet, MTN, Vodacom and Standard Bank. [1] Foreign corporations also tend to use South African subsidiaries to venture into the rest of Africa – a notable example being the local subsidiary of Munich Re, the European insurance firm, now the largest South African investor in Mauritius. [2]

South African direct investment in the rest of Africa amounted to US$8.73bn (R59.1bn) in 2006, growing to US$11.98bn (R84.4bn) by 2007 – despite a US$2bn contraction in worldwide foreign direct investment outflows from South Africa over the same period [3]. By 2009, the United Nations Conference on Trade and Development (UNCTAD) reported 2 250 South African projects in the rest of Africa. [4] Direct investment in the rest of Africa now amounts to over 20% of all South African investment abroad, [5] with the most significant target markets being Zimbabwe, Mozambique, Mauritius, Botswana, Morocco, Ghana, Mali, Nigeria and the Democratic Republic of Congo. [6] Between 2005 and 2010, reports indicate that most South African investment on the continent continues to be market-seeking, driven by mergers and acquisitions rather than greenfield projects, focusing on natural resources, infrastructure, telecommunications, manufacturing and financial services. [7]

Moving into other African markets gives investors particular exposure to political risk – government actions which restrict access to assets or reduce investment value – sch as war, revolution, imposed currency export restrictions, seizure of assets etc. [8] Such risks pose at least three major challenges to insurers: (1) the insured events are not always entirely out of control of the insured party; (2) there is greater scope for moral hazard as the insured party has a perverse incentive to engage in riskier behaviour vis-à-vis the host country; and (3) the nature of the insurance cover entails proportionately high risk assessment, contracting, monitoring and claims management costs. [9]

Investors have four key options to mitigate the costs of political events in destination markets: (1) relying on South African government protection and preferential dispute settlement mechanisms through a bilateral investment treaty (BIT) currently in force between South Africa and the foreign country; (2) negotiating political risk cover with either private insurers or the parastatal Export Credit Insurance Corporation; (3) negotiating finite risk cover with their insurer of choice; and/or (4) transferring risk though a ‘cell captive’ mechanism.

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Our Experience
 

Bowman Gilfillan is one of the largest corporate law firms in South Africa with over 105 partners and a leading law firm on the African continent.

Bowman Gilfillan is widely respected and recognised for its professionalism and for providing high-quality legal services. It is generally regarded as one of the premier law firms in South Africa.

 
Team member focus
 
Jonathan Lang | Head of Africa Group | English Solicitor
Jonathan Lang
Jonathan Lang is a member of Bowman Gilfillan's Corporate Department and head of the firm's Africa Group. He is qualified as a solicitor in England and Wales and Hong Kong. He specialises in corporate finance, including mergers and acquisitions, joint ventures, privatisations and equity and equity-linked capital markets. He is based in Bowman Gilfillan's Cape Town office.

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Contact Details


165 West Street
Sandton
Johannesburg

Tel: +27 (0)11 669 9000
Fax: +27 (0)11 669 9001

SA Reserve Bank Building
60 St Georges Mall
Cape Town

Tel: +27 (0)21 480 7800
Fax: +27 (0)21 424 1688

info@bowman.co.za
www.bowman.co.za
www.bowmangilfillan.mobi