INVESTING IN AFRICA: 2019 SEMINAR SERIES #3 Investment Protection - - PowerPoint PPT Presentation

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INVESTING IN AFRICA: 2019 SEMINAR SERIES #3 Investment Protection - - PowerPoint PPT Presentation

INVESTING IN AFRICA: 2019 SEMINAR SERIES #3 Investment Protection Structuring to protect your assets, government appropriation and asset recovery 30 October 2019 INTRODUCTION TODAYS PRESENTERS Krista Bates Cem Ozturk William Witham Dr


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INVESTING IN AFRICA: 2019 SEMINAR SERIES #3

Investment Protection

Structuring to protect your assets, government appropriation and asset recovery 30 October 2019

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INTRODUCTION

TODAY’S PRESENTERS

INVESTING IN AFRICA: 2018 SEMINAR SERIES

Krista Bates Partner and Head of Mining & Resources Lavan T +61 (8) 9288 6920 E krista.bates@lavan.com.au Cem Ozturk Managing Director Australia - Kroll - Duff & Phelps William Witham CEO AAMEG T +61 (8) 9226 0175 E William.witham@aameg.org T +65 (66) 45 4534 E cozturk@kroll. T +61 (8) 9262 5564 E sam.luttrell@cliffordchance.com Dr Sam Luttrell Partner Clifford Chance

INVESTING IN AFRICA: 2019 SEMINAR SERIES

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WELCOME AND OVERVIEW

Topics to be covered today

INVESTING IN AFRICA: 2019 SEMINAR SERIES

  • Krista Bates

INTRODUCTION

  • Bill Witham

CURRENT TRENDS AND DRIVERS IN AFRICA

  • Dr Sam Luttrell

STRUCTURING YOUR BUSINESS ASSET RECOVERY QUESTIONS

  • Panel Q&A
  • Cem Ozturk
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Resource Nationalism – Opportunities and Challenges for the Mining Industry

Mr Bill Witham Overview - Rising resource nationalism(vis-a-vis) mechanisms for ensuring better wealth distribution

  • The continuing rise of resource nationalism tension between governments

and mining companies is becoming increasingly critical. Tanzania, Zambia, Ghana, Burkina Faso, Argentina

  • Empowered Communities are expecting more commitments around socio-

economic development and sustainability.

  • The Mining industry must improve its performance in this area in ways few
  • ther industries have to.
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Why are we seeing an increase in resource nationalism

  • Rising commodity prices
  • Strong advocacy from and for Artisanal Mining
  • Support from NGOs and World Bank
  • When, and under what circumstances is resource

nationalism justified?

  • How should we as an industry best respond to the

threat of increased resource nationalism?

  • How can resource nationalism best be factored

into investment decisions?

  • Identifying future hotspots for government and

jurisdictional risk in Africa

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How can the mining industry work better with governments and local communities?

Transparency

Better Stakeholder mapping

Advocacy across all sectors Tell the positive stories Resist corruption

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Investment treaties (BITs)

  • Investment treaties are sovereign risk

mitigation instruments that:

  • blige States to protect foreign

investors in accordance with international standards; and

  • entitle investors to bring international

arbitration claims directly against States that violate those standards.

  • Most investment treaties are bilateral (so-called “BITs”) – there

are over 3,000 BITs worldwide today – but some are multilateral

  • Australia’s BIT program is very limited for Africa – for an

Australian investor to obtain BIT protection for an African investment, specific corporate structures will normally be required

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INVESTING IN AFRICA: 2018 SEMINAR SERIES

  • Investors often set up holding companies in

England and Mauritius for this purpose (but not all BITs allow this approach)

  • The structuring exercise should be done as early

as possible, ideally when the investment is first made (it is too late if a dispute with the host State has arisen or is foreseeable)

  • Do not assume this legal advice is prohibitively

expensive

Investment treaties (BITs)

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Investment disputes: Arbitration

  • The international arbitration clause is the “teeth” of an investment treaty (if

an investment treaty does not provide for arbitration, it is worthless).

  • Many treaties provide for arbitration at the International Centre for

Settlement of Investment Disputes (ICSID), a World Bank body.

  • The arbitration process takes place before an international tribunal that is
  • utside the host government’s control (unlike its courts, which may be

corrupt or subject to undue influence from the executive).

  • There have been over 900 arbitration cases brought against foreign

governments under investment treaties (13 by Australian investors).

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INVESTING IN AFRICA: 2018 SEMINAR SERIES

Most cases involve claims for unlawful (uncompensated) expropriation and breach of the “Fair and Equitable Treatment” standard The end product is an arbitral award that is enforceable against the host State in over 150 countries

States tend to comply voluntarily with awards because if they do not comply, that will impact their sovereign risk profile (which will drive up their borrowing costs); it may also affect their access to World Bank loans

Unlawful Act Award Comply Voluntarily

Investment disputes: Arbitration

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Investment treaties reduce finance costs

  • Investment treaties are intended to make it cheaper to

invest in risky countries and it has now been empirically proven that they do.

  • In a 2017 study, a group of finance academics examined

45,255 syndicated cross-border loans initiated in the period 1980-2012 to determine the impact of investment treaties.

  • The researchers found that syndicated loans covered by

investment treaties have an average loan spread of 159 basis points, whereas loans not covered by investment treaties have an average loan spread of 180 basis points.

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Investment treaties reduce finance costs

  • The discount was even greater (an average loan spread of 140

basis points) where the investment treaty-backed loan was for an investment in a country with a record of expropriating foreign property in the past.

  • In other words, when a syndicated loan is covered by an

investment treaty, borrowers have enjoyed an average discount of between 21 and 40 basis points depending on the host State.

Costs

Costs

Costs

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Questions?

Follow us on Twitter: @LavanTweets Follow us on LinkedIn: Lavan

You’ve got a judgement… what next?

Avoid a “paper judgement”. Work, through counsel, with a global investigator. If you don’t know Kroll, we are a global corporate investigations and intelligence company that helps clients make better decisions, and protect, restore, and maximize value with independent, high-depth investigative research, anywhere in the world. We are especially well known for tracing assets – those of governments, wayward politicians, and companies. We provide bespoke, independent support to teams with difficult questions, and situations. We have just established our Australia operations.

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Questions?

Follow us on Twitter: @LavanTweets Follow us on LinkedIn: Lavan

Assets of states are similar to the assets

  • f companies, and individuals
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There is an established asset searching methodology – that works

Forensic Investigations

  • Kroll’s forensic accountants and investigators are experts in conducting forensic

analysis to identify assets and further avenues of enquiry. Reviewing and analysing internal and external records can generate a multitude of leads, which we are then able to track to recover assets or counter efforts to avoid collection. Where available, a client’s internal records often provide a more detailed picture of a subject’s wider asset position than may at first be apparent.

  • Further, forensic analysis of bankruptcy, receivership and liquidation reports and

records can enable the identification of assets not previously identified. In our experience, a successful outcome requires the application of forensic accounting techniques and

  • n-the-ground

research in the various jurisdictions where commercial interests may be located. Investigative Research

  • From experience, we know that this effort requires in-depth local knowledge and

expertise focused on identifying, retrieving, and analysing all available information. We are adept at accessing relevant and useful information that is available in the public domain (corporate registries, real estate registries, recorded liens, regulatory filings, litigation histories, media reportage, etc.).

  • Initial profiling is conducted by thoroughly examining the public record in the relevant
  • jurisdictions. Particular emphasis can be placed on identifying information within the

subject state and developing an outward looking strategy to identify assets outside of the jurisdiction. Depending on your enforcement strategy, focus and priority will usually be given to the jurisdictions friendliest for recovery and with the highest-value assets.

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There is an established methodology – that works

Deep Web Analysis

  • We utilise and deploy the latest technology to assist us in identifying information

contained in areas of the Internet that are not accessible through standard search engines.

  • This approach offers another dimension to traditional investigatory methods, allowing

us to identify information that would otherwise remain undiscovered. By way of example, our ability to “scrape” the web for data that is archived or intentionally concealed can help identify links between subjects and assets which would

  • therwise appear entirely independent of one another.

Source Intelligence

  • The development of sources with knowledge of state activity can contribute valuable

intelligence, such as previously unidentified jurisdictions or greater clarity regarding asset holding structures, particularly with regard to offshore and limited-transparency jurisdictions.

  • This work is conducted in a discreet manner to preserve the confidentiality of the

assignment, and suitable strategies for approaching individuals are developed in conjunction with the client.

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There is an established methodology – that works

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When should you consider asset searches?

Pre-transaction:

– KYC – Pre-investment

– To assess financial wherewithal for future investments – To assess quality of personal guarantees Post transaction: – Fraud investigations – Wilful defaulters – Exit related negotiations – Asset recovery

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Key Points

Once you have a judgement, to make that judgement meaningful, you need to find assets. There are global services to provide this, and established methodologies for doing so. They are not especially costly – and can be funded in a variety of ways.

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Questions?

Follow us on Twitter: @LavanTweets Follow us on LinkedIn: Lavan

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