Worldwide: Africa Investor Briefing - May 2013

INTRODUCTION

The Africa Investor is produced for clients and contacts of Clyde & Co and as well as looking at the latest developments in our core sectors from a legal perspective, we endeavor to provide practical information that will aid our clients in conducting business on the continent.

In this issue we focus on West Africa, a region developing an increasingly diversified economy and moving away from dependency on oil and gas reserves. We profile the growing insurance opportunities available in West Africa and report on other issues which Clyde & Co have observed and advised upon in the region over the last twelve months.

MARINE AND INTERNATIONAL TRADE

WEST AFRICAN TRADE: THE NEXT GOLD RUSH?

Ed Mills-Webb, Partner London
Tom Gorrard-Smith, Associate, London

As oil companies and state governments compete in an increasingly difficult market to secure energy resources to meet short and long term global demand, there is a growing recognition of Africa's importance in the pursuit of energy security.

With the U.S Energy Information Administration (EIA) reporting that Africa has a 10% and 8% share of the globe's proven oil and gas reserves, the continent is fast developing into a major geostrategic powerhouse in the functioning of the global economic system.

The impact of Foreign Direct Investment

Escalating international demand for energy has sparked foreign energy companies embarking in a new "scramble" for African resources. Whereas hydrocarbon reserves have long been the mainstay of many of West Africa's economies, in particular Nigeria, an influx of foreign direct investment (FDI) in recent years has transformed the landscape and provided a number of nations with the opportunity to develop economically through foreign resource sales revenues.

In 2012, a record total of 660 cargoes (equivalent to an average of 1.72 million barrels per day (b/d)) were exported to Asia from West Africa and the region is continuing to attract investment from Asian national oil companies (NOCs) alongside western international oil companies (IOCs). An amalgamation of factors, including higher global energy prices, peaking of oil production in the North Sea and a departure from nuclear power following the Fukushima nuclear disaster in March 2011, has sparked the flurry of investment and last year saw an estimated USD 31 billion in FDI flow into Africa.

Buoyed by vast untapped off-shore resources, West African governments are keen to encourage foreign investment and, in the eyes of energy analysts, the region is set to emerge as the "New Arabian Gulf". As 50 of the continent's 55 countries are now either producing or exploring for oil, hydrocarbons are destined to form the bedrock of Africa's future economic and social development and West Africa has to date been the greatest beneficiary of FDI.

Infrastructural developments

Whilst Nigeria's oil industry has been the main destination for FDI, the last decade has seen a dramatic increase in overseas investment across various economic sub-sectors. This has resulted in a marked increase in imports and exports with China's need for resources and commodities in particular driving trade flows between West Africa and East Asia.

However, the region's outdated infrastructure cannot keep up, hampering local, regional and international trading efforts and impeding the extraction and movement of natural resources.

Dwell times, the period from when a container is discharged from a vessel until when it exits a terminal, are on average four times longer in West African ports than in Asia with significant congestion and delays synonymous. With delays increasing transportation costs and impacting trade in the region, there is now an increasing impetus to develop a multi-use multi-purpose infrastructure in West Africa to speed up the transportation of goods.

In Guinea, a partnership between Rio Tinto and the Government of Guinea to allow iron ore from the 2.4 billioin-tonne Simandou South mine to be transported 670 km by rail to a new deepwater port south of Conarkry in the Forécariah prefecture is in progress and in Nigeria, APM Terminal, AP Moller-Maersk's port operator subsidiary, has recently concluded plans to increase its investment in the Apapa Container Terminal to USD 330 million to boost capacity to 1.2 million TEU per year. Similar infrastructural projects are now also underway in Ghana, Ivory Coast and Liberia.

Alongside port developments, Maersk have also upgraded its services to West Africa by introducing a further 22 4,500 TEU WAFAMAX (West African Max) vessels designed specifically with lower drafts to meet restrictions in many West African ports.

Investment risks

With its vast mineral wealth a harbinger of hope that economic growth can be sustained across the region, unlocking this potential is ultimately reliant on the development of a supporting infrastructure. Whilst foreign investors have been quick to identify the exponential opportunities available, considerable risks both for overseas investors and their government joint venture partners remain.

As regulatory and policy frameworks are being hurriedly drawn up to manage infrastructural developments there is a risk that these projects may not be adequately governed. Such uncertainty makes it less attractive for international investors and will increase the operating costs in relation to, for example, security and insurance.

Nonetheless, this is a challenge that many West African countries, together with overseas investors, are actively developing solutions for to facilitate increased levels of international trade. Whilst the risk management required for any foreign investor looking to do business should not be under-estimated, the potential upsides that can be achieved means that we expect to see increasing levels of foreign investment into West Africa.

ENERGY

RESOURCE MANAGEMENT IN GHANA

Paul Jones, Senior Associate, Dar es Salaam

Since the discovery of oil and gas in two deep-water blocks offshore Ghana in 2007, the Ghanaian Parliament has been busy debating and enacting a raft of legislation to manage the country's petroleum resources. This legislation addresses some of the major issues facing the sector including the management of revenue, the need for a robust and independent regulator, local content and licensing. We consider below the main features of the new legislation and its likely effect on stakeholders in the industry.

New regulations and bodies

National Energy Policy and Fundamental Petroleum Policy for Ghana, 2009

These policies provided the framework on which subsequent legislation was based. The National Energy Policy covers the petroleum, power and renewable energy subsectors and establishes the principle of managing oil and gas revenues "transparently and equitably" and to do so through the establishment of an entity to manage oil revenue, through legislative guidelines and through the creation of a Future Generation Fund.

Petroleum Revenue Management Act, 2011

The Petroleum Revenue Management Act (PRMA) was drafted based on best practices established in Norway, Timor-Leste and Trinidad & Tobago which have developed their own laws related to revenue management.

The PRMA amongst other things established the Petroleum Holding Fund (PHF) to receive receipts due to the state from the petroleum sector, the Ghana Stabilisation Fund to cushion the impact on or to sustain public expenditure capacity during shortfalls in petroleum revenue and the Ghana Heritage Fund to receive excess petroleum revenue and provide an endowment to support future generations.

The PRMA requires the Minister of Finance submit an annual report on the Petroleum Funds as part of the annual Budget presentation and the first such report produced in 2012 stated that during 2011 the PHF received a total amount of USD 444.112 million against a budget estimate of USD 833.86 million (a shortfall largely attributed to the "non-realisation of corporate income tax from the Jubilee partners as a result of off-setting profits or gains against capital allowances and other incentives".) The Audit Service was said still to be auditing the 2011 financial statements which would then be presented before parliament.

The law also established a Public Interest and Accountability Committee (PIAC) which is made up of 13 members drawn from organized professional bodies, think tanks, pressure groups and traditional institutions. The role of PIAC includes evaluating compliance with the law by government and other institutions and providing an independent assessment of petroleum production and receipts.

Petroleum Commission Act, 2011

The Petroleum Commission Act (PCA) established the Petroleum Commission as the regulator for upstream petroleum activities in Ghana (taking over from the Minister of Energy who had previously regulated the sector with the assistance of the Ghana National Petroleum Corporation (GNPC).

The Commission has broad powers that extend to management of petroleum resources and the development of policy.

Petroleum (Local Content and Local Participation in Petroleum Activities) Regulations

Local content is currently governed primarily by the Petroleum (Exploration and Production) Act, 1984 and the model petroleum agreement which contains provisions relating to local content requirements. The Petroleum (Exploration and Production) Act requires that contractors and sub-contractors shall, as far as possible:

• Ensure that employment opportunities are provided to Ghanaians with requisite expertise or qualifications
• Use goods and services produced or provided in Ghana for their operations in preference to foreign goods and services
• Prepare and implement plans for the transfer to GNPC of 'advanced technological know-how and skills relating to petroleum operations'

In replacing these existing provisions, the Petroleum (Local Content and Local Participation in Petroleum Activities) Regulations will seek to provide more structure around the local content regime, introducing provisions such as a requirement for licensees, contractors and subcontractors to submit Ghanaian content plans in respect of provision of goods and services, technology transfer and recruitment and training. The Petroleum Commission, which is responsible for setting up committees to deal with specific issues which are deemed sufficiently important, is also likely to establish a Local Content Committee to address the issue.

The Petroleum (Exploration and Production) Bill

The Petroleum (Exploration and Production) Bill will replace the Petroleum (Exploration and Production) Act, 1984 and is expected to be laid before parliament before the end of the second quarter of this year. The Bill will update Ghana's legal framework in relation to upstream activities and provide a basis for future exploration.

Summary

New regulations and regulatory bodies introduced since 2009 have bolstered Ghana's legal framework, particularly in relation to the management of petroleum revenue which will be subject to close scrutiny in the coming years. The test now will be to see how rigorously these regulations are applied and monitored to ensure that revenue is channelled into the right areas.

INSURANCE

GROWTH OPPORTUNITIES IN WEST AFRICAN INSURANCE

Carl Hotton, Trainee, Dar es Salaam

Insurance markets in West African countries offer strong growth opportunities given the heightened demand for insurance products brought about by the oil, gas and mining industries settling in the region. This article, focusing on Ghana, considers how best to increase insurance penetration in West Africa but reminds readers that insurers looking to make the most of West Africa's untapped demand for insurance still face considerable challenges in the region.

Insurance in sub-Saharan Africa

In global insurance terms Sub-Saharan Africa is at a very early stage of market development, contributing approximately 1.3% of the world's primary insurance premiums. However, as Africa's purchasing power increases on the world stage, demand for insurance products will continue to grow. West African countries are starting to wake up to this potential and a number of sub-regional initiatives, such as the West African Insurance Companies Association, are helping to promote the development of the African insurance industry in conjunction with country-specific measures such as the recent recapitalisation of insurance firms in Ghana.

Ghana: the 'darling' of West Africa

Frequently overshadowed by the larger and more populous Nigeria on the global economic stage, Ghana has quietly set about developing an insurance market with the potential to match that of Nigeria and other African countries. Described as the "the darling of West Africa" by Junior John Ngulube, CEO of Munich Reinsurance Company of Africa, the discovery of oil and gas, a stable political environment and an expanding middle class are creating increased demand for insurance products in Ghana.

The insurance law of Ghana is set out in the Insurance Act 2006 (the Act) and is enforced by the National Insurance Commission (the NIC), which regulates the sector. Ghana's insurance market has undergone a number of recent changes, led by the NIC, designed to increase capacity in the market. For example, the break-up of composite insurance firms and the recapitalisation of general insurers in Ghana, requiring any general insurance firm underwriting policies in the oil and gas industry to have minimum capital of USD 5 million, have both been pushed through by the NIC.

These steps have been taken to encourage local insurers to capture the anticipated growth in the sector given the oil and gas developments but also in part because many market participants felt that the Ghanaian market had become unhealthily competitive and would be better served by fewer, but larger, insurance firms. Increases in minimum capital levels and the break-up of composite insurance companies have resulted in some market consolidation across the industry. This trend of market consolidation is expected to continue, with further room for mergers and acquisitions in the market.

A number of investors have in recent years been attracted into the Ghanaian insurance industry. This investment has predominantly arrived from regional investors, such as Nigeria and South Africa, but the major global insurance group, Allianz, has also recently entered the non-life market in Ghana.

Growth opportunities driving increased insurance penetration

Wider economic growth in West African countries such as Ghana is pushing insurers to increase capacity and find new distribution methods, such as bancassurance and the use of mobile phones, to offer insurance products to a greater number of people.

Drivers for growth

The impact of petroleum discoveries in countries including Nigeria and Ghana has fuelled economic development and demand for energy infrastructure projects. These projects ultimately translate into demand for insurance products and growth opportunities for insurers involved in the local market.

In Ghana, the effect of this has been that the majority of the country's general insurers have signed up to a consortium to underwrite oil and gas sector risks, risks which are so large that Ghana's insurers must pool their resources together to underwrite them. Crucially, the share of each insurer in the consortium's oil and gas underwriting business is based on their capital. The result is that Ghana's general insurers are increasing their respective capital bases as much as possible – in many cases far beyond the USD 5 million prescribed by the NIC – and they are doing so as fast as possible to ensure a larger proportion of the underwriting business.

This development has had a positive effect on the insurance market in Ghana as increased capitalisation will not only help Ghana's general insurers achieve higher market penetration but will also provide them with improved risk retention capacity. This is likely to increase the profits of Ghana's insurers and with more capital at their disposal and a higher premium retention level, those insurers are better placed to make long term investments. Increased M&A and asset management activities will then present yet another frontier for Ghana's insurance industry.

Innovative distribution methods

Growth in West Africa is also being driven by the utilisation of new distribution methods in the region. In Ghana, the practice of bancassurance was relatively unknown until recently, when the first bancassurance collaboration was approved by the NIC when Standard Chartered Bank was licensed as a corporate agent to sell specific products on behalf of Enterprise Life Assurance Company Ltd. Since then a number of other insurers have followed suit and partnered up with banks to distribute insurance products. The NIC is actively encouraging insurers to explore this avenue of selling insurance products through banks and micro-finance institutions and thereby stretching insurance penetration to rural areas of the country also.

Insurers are also turning to modern technology to help increase insurance penetration. In Ghana, insurers have teamed up with mobile operators to provide insurance products through mobile phones. Following the success of the tie-up between mobile operator, Tigo, and local insurer, Vanguard Life Assurance, it is expected that others will soon follow suit.

Challenges to growth

The general fact that insurance penetration continues to be very low in West Africa does imply that there are significant barriers in the industry which have historically restricted growth. While some of these barriers are being overcome, significant barriers still remain, including:

• The prevalence of a large number of small companies in the market – the size of the Ghanaian market does not allow for such a large number of insurers and has created unhealthy competition with unsustainably low premiums
• Lack of expertise in the industry – a number of market participants have indicated that growth is restricted by a lack of insurance expertise, ranging from underwriting to selling skills. Local insurers are increasingly relying on foreign links to draw on international lessons and innovations
• Public awareness – for most in Africa, insurance is still a luxury many simply cannot afford and there is little understanding of the purpose of insurance

Bright future

If West African countries like Ghana continue to progress towards better capitalised and more stable business environments they will surely no longer be viewed only as attractive investment destinations but as sources of business and capital in their own right. The arrival of oil and gas companies has brought demand for infrastructure projects, goods and property, all of which lends itself well to the insurance sector. Despite significant barriers that need to be overcome, there are signs that African insurance markets are positioning themselves to take advantage of the growth opportunities on their own doorstep. Any insurers looking at expanding into West Africa should tread carefully, but be encouraged by the growth opportunities presented by the untapped demand in the region.

FINANCE

TRADE FINANCE IN WEST AFRICA

Peter Kasanda, Legal Director, Dar es Salaam

The financial crisis and ensuing recession in 2008-09 prompted an unprecedented decline in global trade. According to the World Bank, trade declined at an even faster pace than during the early years of the 1930s Great Depression. Hopes that Africa's low level of financial development and integration might offer protection from the fallout proved optimistic as did hopes that structured trade finance might prove more resilient than other forms of lending.

But four years on, the picture in Africa is not all doom and gloom. In response to the crisis, international initiatives have been set up to support trade in developing regions, particularly in West Africa such as the Global Trade Liquidity Program (GTLP) which was launched in May 2009. Meanwhile, in some countries on the continent, there is a ready market of lenders queuing up to support commodity exports. As is so often the case in Africa, the situation on the ground is heavily nuanced.

The collapse of structured trade finance

Since the financial crisis, the structured trade finance market has shrunk to a fraction of its former size. An estimated 85% of the world's commodity trade is now conducted on an "open account" basis – where the seller bears the full risk of non-payment by the buyer. The second phase of the European banking crisis in late 2011 has exacerbated this issue further.

This situation has developed largely because structured trade finance has proved as vulnerable to the crisis-induced breakdown in trust between bank counterparties as other parts of the financial system. Few trade finance banks have the global scale and network to act on both sides of a transaction, using different branches of their own organisation. The situation has also been made worse by the withdrawal of many banks from the market following bad experiences regarding the security of goods – often as a result of insufficient on-the-ground due diligence in emerging market countries.

African exporters are particularly vulnerable to retrenchment by foreign lenders. In a 2011 World Bank report, Trade finance during the Great Trade Collapse, Nicolas Berman and Phillippe Martin suggest that the higher dependence of African exports on trade finance may explain African exporters' particular fragility to financial crises in importer countries. During a crisis banks tend to reduce lending to countries they view as particularly risky as part of a "renationalization" of their operations, in which exposure to foreign banks and firms is reduced.

Crisis response

In response to the impact of the crisis on trade finance the GTLP was launched in 2009. This global initiative is aimed at bringing together governments, development finance institutions and private sector financial institutions to support trade in developing countries. The GTLP is sponsored by the International Finance Corporation, which has invested USD 1 billion in the program. It is a global platform for trade finance, but Africa Development Bank, which as a major participant of the scheme, will invest up to USD 500 million to finance eligible pools of trade operations exclusively in Africa. Also, of the IFC's contribution, at least 25% is earmarked for Africa.

In the IFC's own words "since its launch in July 2009, GTLP has been acknowledged in the financial industry as an innovative structure to help infuse much needed liquidity into the trade finance market, thereby catalyzing global trade growth" Globally, as of June 30, 2011 a total of USD 1.773 billion of funding had been disbursed to eight program banks.

The difficulty, however, is discovering what has gone on beyond the level of disbursement to participating program banks, which tend to be tight-lipped about their onward lending on the grounds of client confidentiality. But there is a sense that the original idea that funds should trickle down to smaller banks and be directed to SMEs has yet to be realised. Disbursements have been directed towards larger regional banks, rather than local ones.

Programs of this nature often tend to be slow in getting off the ground, with the benefits not really starting to flow through visibly until the fourth or fifth year of the program. The GTLP's initial three-year life, however, illustrates the reactionary and short-term nature of the response to the crisis, although there is provision for its extension. To really assess whether the program is a success, it needs to be extended and to move closer to the stated eventual aim of having a pool of USD 15 billion available for use in Africa.

Alternative providers of funding

The intention of the GTLP was to fill the gap where commercial banks were not prepared to lend and certainly not to crowd-out private sector lenders. The GTLP is applied widely across the African Continent, but to ensure crowding-out is avoided, it should be applied only where the private sector alternative is lacking. In countries with soft commodities to export there appears to be no shortage of private sector lenders to assist at reasonable prices. The Cocoa Board in Ghana, for example, has had an oversubscribed pre-export finance facility in place for many years. International banks, wanting to bolster their credentials and attracted by the fact that there has never been a default, queue to get on the program and are often turned away. In December 2011, for example, the Ghana Cocoa Board mandated four international banks for a new USD 200 million three-year medium term trade finance facility, secured against cocoa receivables backed by fixed price offtake contracts. The new deal follows the Cocoa Board's success in raising a record USD 2 billion for its annual one-year trade finance facility in September.

In addition to healthy private sector participation in some countries, direct funding by overseas governments – particularly the Chinese – offers a further alternative source of finance. Turkey, too, is taking a growing interest in Africa and currently opens more embassies on the Continent than any other country. African countries with political systems that do not find favour with western developed nations often tend to bypass programs such as the GTLP and establish financial relationships with the Chinese instead.

While the availability of trade finance is a crucial part of the equation, it is worth noting that macroeconomic and political factors are equally important in providing a stable backdrop for trade growth. Inflation, for example, continues to be a problem in some countries, such as Tanzania. Equally, while some countries, such as Nigeria, are enjoying greater stability, political risk is increasing in several other countries in West Africa, which adversely affects foreign banks appetite for lending.

Overall, however, there are grounds for optimism that between global initiatives, private sector participation and direct foreign government support, growth in trade from the African Continent can flourish.

INTERNATIONAL DISPUTE RESOLUTION

ADR AND ARBITRAL AWARD ENFORCEMENT IN WEST AFRICA

Paul Jones, Senior Associate, Dar es Salaam

An International Monetary Fund mission to Côte d'Ivoire last year listed enforceability of arbitration as one of the areas in which the West African state has made considerable progress since the cessation of civil war in April 2011. Similar praise was awarded to the Central African state of Democratic Republic of Congo for its implementation of UNCITRAL arbitration provisions in mid-2011 and a number of other West African states have been said to have made progress in this regard.

In this article, we consider the international agreements which structure, in part, the environment for the use and practice of Alternative Dispute Resolution (ADR) and the enforcement of arbitral awards in West Africa and offer some thoughts on current practice in respect of enforcement.

Applicable International Law

ADR has proved invaluable to investors needing to resolve disputes in West Africa without having to resort to proceedings in often slow and overburdened court systems. Being able to utilise arbitration and other forms of ADR which are based outside the region to achieve awards that can then relatively securely be enforced in local courts has also aided investment into the region.

We have considered below the multilateral and bilateral investment treaty agreements between states that influence the practice and enforceability of ADR in West Africa.

New York Convention

A number of West African states are signed up to the New York Convention on the Recognition and Enforcement of Arbitral Awards which enables the enforcement of arbitral awards in any member state.

The Convention is fully in force in Benin, Burkina Faso, Cameroon, Côte d'Ivoire, Ghana, Liberia, Mali, Nigeria and Senegal however countries including Angola, Cape Verde, The Gambia, Equatorial Guinea, Guinea Bissau, Sierra Leone and Togo are yet to sign-up.

ICSID (Washington Convention)

Almost all West African states have signed the Convention on the Settlement of International Disputes between States and Nationals of Other States which as well as enabling the enforcement of arbitral awards in any member state, also provides a forum for the arbitration of disputes (the International Centre for Settlement of Investment Disputes (ICSID)) and establishes procedural rules.

At the time of writing there are 169 pending cases at ICSID, several of which involve West African states with parties including Cameroon, Guinea (three cases), Equatorial Guinea and The Gambia. A small group of African countries not signed-up includes Angola and Cape Verde.

OHADA

The Organization for the Harmonization of Business Law in Africa (OHADA) authorises the practice and use of ADR, enables the enforcement of arbitral awards in member states and also provides a forum for the arbitration of disputes and its own procedural rules. Sixteen mainly Francophone nations have signed up to OHADA (though any African Union member states are eligible to join) including Benin, Burkina Faso, Cameroon, Côte d'Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea Bissau, Mali, Niger, Senegal and Togo.

OHADA aims to harmonize national law of member states by passing Uniform Acts (including the Uniform Act on Arbitration) which then override incompatible local law.

United Nations Commission on International Trade Law (UNCITRAL)

UNCITRAL establishes rules of procedure and also produced a model law on international commercial arbitration. These rules have been applied in a number of jurisdictions including Ghana and Nigeria.

Bilateral Investment Treaties (BITs)

Numerous bilateral treaties between West African states and other nations authorise investors to submit investment disputes to international arbitration as part of a wider investment agreement between the parties.

Enforcement and recovery in practice

Structures provided by the international instruments described above have improved practice and increased confidence in the enforceability of arbitration in West African states though in practice, investors will still be concerned about enforcing arbitral awards in less familiar jurisdictions, particularly when an award is made against a Government-owned entity or the Government itself.

To use an example from East Africa, the Government-owned Tanzania Electricity Supply Company (TANESCO) is currently resisting a USD 60 million ICC award in the Tanzanian courts on the basis that paying the award would drive the entity into bankruptcy and thus have a damaging effect on the national economy. Such cases are relatively isolated however and international pressure that can be applied to the signatories of the main Conventions generally ensures enforcement.

Clyde & Co regularly advise on international arbitrations involving parties based in West Africa and are regular users of each of the main arbitration fora including the ICC, LCIA and ICSID.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.