‘Nigerian Lawyers Must Embrace Specialisation to Create New Streams of Income’
The 11th Edition of the Annual Business Law Conference of the Nigerian Bar Association’s Section on Business Law is coming soon. From June 18 -20, 2017, lawyers from all over the country and other jurisdictions, will converge at the Eko Hotel and Suites,
Many have said that in terms of the ease of doing business, Nigeria is an extremely difficult place to do business. Do you agree? Why is this so? In the past, some companies were said to have actually closed down and relocated to other African countries like Ghana, where they found it easier and more conducive to do business. What steps so you think that Government should take to make doing business in Nigeria easier, especially to attract foreign investment?
It is interesting that you've asked this question because just last week, the NBA-SBL met with the Secretary of PEBEC - the Presidential Enabling Business Environment Council - and her Team to discuss potential areas of collaboration in the quest for promoting ease of doing business in Nigeria, which happens to be a key focus area of the current Council of the Section. I definitely agree that Nigeria is an extremely difficult place to do business and our dismal ranking on the Ease of Doing Business Index is a rather depressing testament to this fact.
There are a plethora of reasons for this unfortunate state of affairs, and these are not at all difficult to identify. Ours is such an unpredictable environment with an almost pervasive lack of certainty regarding Government policy and regulations. Where policies and regulations are definitive, implementation in most cases would appear to be aimed at impeding, rather than enabling commerce. There is so much red tape and you encounter bottlenecks at every turn. Definitely frustrating for any serious investor- foreign or local.
"I DEFINITELY AGREE THAT NIGERIA IS AN EXTREMELY DIFFICULT PLACE TO DO BUSINESS AND OUR DISMAL RANKING ON THE EASE OF DOING BUSINESS INDEX IS A RATHER DEPRESSING TESTAMENT TO THIS FACT"
What should government be doing? For starters - Law Reform. Our Laws must be investor friendly. We cannot say that we want to be a foremost FDI destination, when our Laws seem to say the exact opposite. Secondly our Regulators must be made to understand that they are expected to play the role of enablers and not obstructors of commerce. In this regard, I am extremely pleased with the work PEBEC is doing even though it is still early days. They are taking on key Regulators in critical sectors of our economy, and we are beginning to see the positive effects of this engagement in organisations such as the Corporate Affairs Commission. They definitely have their work cut out for them though. There are many other areas crying for urgent attention. Government must show the world that Nigeria is indeed, open for business.
It seems that the restructuring, unbundling or privatisation of the power sector in Nigeria may be a failure and if anything, the power situation in the country is worse than it was before the exercise. Do you agree? What do you think government could have done or can still do to improve the power sector in the country?
I don’t necessarily agree that the restructuring, unbundling and privatisation of the power sector has been a failure. Given where we were in the sector at that time, there wasn’t really a better alternative to unbundling and privatisation. As you know, that process has liberalised the sector, encouraged new entrants and will in the long run, promote competition. This would not have been possible without the privatisation.
I however cannot pretend that the privatisation has, as yet, really achieved as much as everyone hoped it would, in terms of increased or steady electricity supply. The point must however, be made that the operators of the various successor companies have faced significant challenges in running the privatised businesses. This notwithstanding, one expects that they will continue to put in place appropriate measures, to ensure that they meet the various performance targets which they signed up to, upon privatisation. Some of them have already started taking positive steps in this direction, and hopefully the results will show in due course.
In terms of what the government can do to improve the power sector, I think that the government first needs to work with the industry players, to fashion out appropriate means of solving the current liquidity challenges in the sector. The N701 billion payment assurance guarantee recently approved by the government for the Bulk Trader, is a good step. The next immediate step, should be to significantly settle the debts owed the Discos by the MDAs. As the operator of the transmission grid, the government also needs to do more in stabilising and expanding the grid. Some experts say that the grid is currently the weakest link in the chain, and that it currently doesn’t have the capacity to wheel the energy that most of the new entrants in the sector are looking to put on the grid over the next few years, so something needs to be done urgently to the grid. Reducing over regulation in the sector and ensuring cost reflective tariffs, are some other ways the government can readily assist the sector.
The Section on Business Law of the Nigerian Bar Association was created to assist Nigerian lawyers practice in the Nigerian business environment. In reality, how is the Section doing this? How successful has it been in achieving this goal so far.
I think the Section has been quite successful in this regard. Indeed the SBL in line with its mandate has continued to raise the standard of Commercial Law practice in Nigeria, essentially, by recognising that the so-called Nigerian business environment has become an integral part of the global market place, and there is thus, the need to build capacity by continually exposing members of the Section to the latest developments in Commercial Law practice, and thereby increase their competence and competitiveness.
Our annual Business Law Conference which is now in its 11th year and has become a prominent feature in the global legal calendar, serves as a veritable platform for such knowledge exchanges from which our members go away well equipped to improve their practice of Law.
We also have about 18 Committees that focus on different practice areas that are of utmost relevance to our local economy. These were set up with a view to encouraging specialisation amongst our members. Over the years, these Committees have organised Training Seminars for our members in areas such as Electricity Law, Entertainment and Media Law, Competition and Consumer Protection, Information and Communication Technology Law, to mention but a few.
In recognition of the fact that capacity building is not only about academic training, the Section continues to advocate for Nigerian Lawyers and Law Firms to play more significant roles in those major transactions that define the Nigerian economy. Of course, there's no arguing with the fact that continued exposure to such big ticket transactions would, exponentially enhance the capacity of Nigerian Commercial Lawyers.
Lately, many have been saying that there is wisdom in Nigerian law firms merging with themselves into much bigger law firms like you have in the UK and USA, maybe even with other African law firms. Do you see this happening? How easy would it be to achieve this kind of feat? What advantages, if any, are there in such mergers, apart from economies of scale? Do you think such mergers would make African law firms more competitive on the global market?
Yes, this would appear to be a widely held view. As a matter of fact, mergers – and de-mergers – of Nigerian law firms have occurred in the past. Therefore, one cannot rule out the chances of more mergers as the Nigerian legal market continues to grow. Clients’ increasing emphasis on specialisation and niches would likely be a driving force for such mergers, as firms look to expand their service offerings.
Between Nigerian law firms, mergers are relatively easy, so long as the parties have agreed to the modalities for implementation. However, a merger between a Nigerian law firm and other African law firms, based on the current state of the law, will present complications. The designation “legal practitioner,” by statutory definition in Nigeria, effectively refers to a person who is qualified to practice law in Nigeria. Thus, lawyers in other African law firms, who are not qualified to practice in Nigeria would arguably not be regarded as “legal practitioners” in Nigeria. And under the extant Rules of Professional Conduct for Legal Practitioners (RPC), a legal practitioner is prohibited from “form[ing] a partnership with a non-lawyer or with a lawyer who is not admitted to practice law in Nigeria, if any of the activities of the Partnership consists of the practice of law.”
The result, therefore, is that a Nigerian firm cannot lawfully merge with any other foreign firm (including African firms), unless that other firm consists of lawyers who are authorised to practice in Nigeria. Evidently, the chances of finding such a candidate-firm is almost impossible. Perhaps the RPC will be amended at some point in the future. In the meantime, however, Nigerian firms tend to cultivate some form of “best friend firm” relationships with foreign firms or subscribe to global or regional networks of allied Firms.
As to the issue of whether mergers will boost the competitiveness of African firms in the global market, the answer is probably “No.” In the African market, maybe, but not necessarily in the global market.
Last week, we heard of Nigerians who had subsisting multiple entry visas but were denied entry and turned back at American airports, had their visas revoked and were sent back. Is this lawful? What do you think our government should do about this situation? After all, Nigeria is not one of the six countries that are included in President Trump’s travel ban. As a lawyer with some degree of specialty in immigration, what is your opinion?
Well as you know, an American Visa is issued pursuant to relevant U.S. Laws and I really am not in a position to opine as to the lawfulness or otherwise of the revocation of such a Visa by the American authorities. However, I do know that a standard condition attached to a U.S. Visa (and indeed to Visas issued by most countries) is to the effect that such a Visa does not confer the holder with an absolute right of entry into the United States, as his or her right of entry is subject to the final determination of the Immigration Officer at the Port of entry. In other words, the United States reserves its right to deny the visa-holder entry into the country. I concede that Nigeria is not one of the countries listed in the U.S. Travel Ban but I am however, not aware that the said Ban has been cited as the reason for refusing any Nigerian entry into the United States. The Nigerian Government would need to obtain more facts in this regard before making a determination one way or the other.
In the past, the Nigerian Government and Ministry of Foreign Affairs have failed to rise up to their responsibilities, in terms of ensuring that Nigerians are treated properly by foreign governments. Some have condemned statements made by the Special Adviser to President Buhari on Foreign Affairs, saying that Nigerians should not travel to USA unless there is a compelling reason as defeatist and a cop out, saying that it is for
"OUR LAWS MUST BE INVESTOR FRIENDLY. WE CANNOT SAY THAT WE WANT TO BE A FOREMOST FDI DESTINATION, WHEN OUR LAWS SEEM TO SAY THE EXACT OPPOSITE"
the Government to step in strongly on a diplomatic level to stop this trend. How should the Nigerian Government rise up to the occasion like Iraq did to ensure that the country was removed from the list, to ensure that Nigerians are not made to suffer this type of discrimination, not only in USA and South Africa, but globally? Do you believe that Nigeria has anything that it can use as leverage?
In fairness to the Nigerian Government, the Trump phenomenon is most unprecedented and I am not sure if any Government at all, has yet been able to make sense of the goings-on in Washington. Having said that, the point must be made that the Nigerian Government has unfortunately never really been known to rise promptly in the defence of its citizens who are mistreated by the citizens and or governments of other countries. I really don't think the the Federal Government and by extension our Diplomatic Missions abroad truly see this as part of their responsibility. I am not so sure I agree with the view that Mrs. Dabiri-Erewa's "Travel Advisory" is a cop-out. In my opinion, the lady from her antecedents is genuinely concerned about the fate of Nigerians in the diaspora and is not ready to play diplomatese with the lives and well-being of these Nigerians. The Nigerian Government may not have much of a leverage in any of these scenarios, but I daresay that if we start by treating our citizens right and demonstrating to foreign governments that we will not tolerate the maltreatment of our citizens for any reason whatsoever, that may very well be all the leverage we need.
Having said that, with respect to South Africa, Nigeria can possibly leverage on the advantage of being a huge market which South African companies are taking advantage of across several sectors. Given the huge investments of South African companies in Nigeria, I believe we can get the South African government to the table for serious talks.
Could you tell us about the Annual General Section on Business Law Conference coming up June 18-20, 2017? What is the theme of the conference this year? What informed the theme? What will be the highlights? Are there any innovations to be introduced at the conference that will be useful and beneficial to lawyers in their business practice? What do you hope to achieve?
As I alluded to previously, the Annual Business Law Conference of the SBL is a major platform upon which we seek to achieve our core mandate, which is to raise the standard of Commercial Law practice in Nigeria. We are very proud of what we have been able to achieve with the Conference and we hope we are able to achieve much more in the years to come. The 11th Edition of the Conference will hold from the 18 - 20 June, 2017 at the Eko Hotel and Suites, Lagos and the theme is “Law and the Changing Face of Legal Practice”. This theme was informed essentially by the fact that our world is rapidly changing and professions like Law are not insulated from this change. The economic meltdown, climate change, advancements in technology, disruptive innovations, artificial intelligence, the rise of China, Terrorism, Brexit are just a few signposts of that which has now become our new normal. It therefore, made perfect sense for us to take a few steps back to see how our profession has been, and will be affected by these developments, and how best we can adapt to the changes that are inevitable. Indeed, the very first Session of the Conference is titled "The Future of Legal Practice - Are You Ready?” Quite a number of innovations that are already being tried out or contemplated in other jurisdictions, will be discussed at this Session which will be immensely beneficial to lawyers in attendance.
Over the years, SBL conferences have always witnessed a heavy presence of international participants. What should we expect this year in terms of international participation? How many countries and law societies are in board?
We expect at the very least to maintain the level of foreign participation at this year’s Conference. Quite a number of foreign law firms, Bar Associations and Law Societies have expressed their interest in participating in the Conference in various capacities. We expect to finalise these arrangements in the coming weeks.
Young lawyers have always complained about the high registration fees of SBL conferences. What plans are on ground to take their plight into consideration, especially as they have to pay their way to Lagos from places like Port Harcourt and Abuja, take care of accommodation at considerably high costs and other conference expenses like the Annual SBL Dinner?
We consider young lawyers to be extremely important, as they are the future of the profession. As has been our practice, Conference Fees are significantly discounted for young lawyers. In addition to this, we usually offer full sponsorship to the Conference to at least 30 young lawyers drawn from NBA branches around the country. We intend to do the same this year.
To what extent has the SBL worked with the parent body, NBA to ensure that lawyers get their well-deserved CLE points from this year’s conference?
CLE accreditation has always been a feature of our conferences. We work very closely with the NBA’s Institute of Continued Legal Education whose representatives are always on site to audit the Conference and award CLE certificates to qualified conference delegates. This will also be the case at this year’s Conference.
All work and no play makes Jack a dull lawyer. What should conferees look forward to in terms of leisure and entertainment?
At the risk of sounding immodest, the entertainment content of SBL conferences have always been top notch, and delegates eagerly look forward to these events and from the feedback I dare say they are never disappointed. However, there is always a surprise element to our social events and I am not at liberty to let the cat out of the bag - at least not at this time. Suffice to say however, that arrangements are in place to ensure that conference delegates are very well entertained.
With the nation’s economy in recession, what plans does the SBL have on how lawyers can be helped to get out of the present economic quagmire?
As I have mentioned previously, the SBL is committed to providing our members with diverse opportunities for capacity building, in order to increase their competence and competitiveness. In this time of recession, we can only double down on these efforts, as this is a sure way of improving the bottom line. Through our Committees, we are also going to ensure that our members fully embrace specialisation in order that new vistas of legal practice can be opened to them, thereby enabling them create new streams of income.
How would you rate the Buhari regime and the CBN so far in terms of the foreign exchange policies? How have the policies affected business in Nigeria, not just for Nigerians, but in terms of foreign investment? If the impact has been negative, do you have any suggestions for a better way forward?
I will start by saying that government created quite a bit of needless uncertainty in the economic space, by spending the better part of one year debating whether or not to devalue the Naira. Consequently, investors were unsure about coming into Nigeria with their much needed capital.
As a result of this lack of clarity, many companies recorded significant losses and those that had forex loans and obligations were impacted negatively by the uncertainty of government’s position. Foreign companies, particularly airlines, who earn a significant portion of their income in Naira, were operating under excruciating circumstances as result of the inability to repatriate their earnings.
Thankfully, there have been some commendable improvements in this space starting with the floating of the Naira in June, 2016 which was a good policy, as the exchange rate was left to be determined by market forces. In addition, the policy to increase the supply of forex to the market so as to meet forex needs for travel expenses, school fees and other similar expenses, is another welcome development, but only on a short term basis because a policy under which the government continues to inject forex into the market in order to stabilise prices is not sustainable.
As we all know, the efficient and sustainable option would be for us to increase our exports to enable higher earnings and availability of forex, and the growth of more industries in the country so as to reduce our imports. The onus is on the government to provide the enabling environment for these to happen.
What kind of advantages do you believe that Nigeria would derive if the PIB is finally passed?
The Petroleum Industry Bill (PIB) has been before the National Assembly for about 10 years without becoming law. It seeks to effect an overhaul of the regulatory regime for the industry, including the fiscal terms for doing petroleum business in Nigeria. The non-passage of the Bill has caused a bit of a slowdown in the industry, as participants are cautious with respect to continuous investment given the uncertainty of the legal and regulatory framework.
The passage of the PIB in its current incarnation will no doubt resolve some of the uncertainties associated with the legal and regulatory framework which has stalled several projects in the industry. There is therefore, the possibility that the passage of the PIB will most likely stimulate more activities and projects within the industry.
Another possible significant advantage is the reorganisation of the National Oil Company for efficiency, with the objective that the National Oil Company will be a fully commercialised entity, comparable to any other National Oil Company in the world. The passage of the PIB will also see a decentralisation of power between the Minister and a “super” regulator of the industry. This will ensure that there are checks and balances in the exercise of executive powers within the industry.
"OUR ANNUAL BUSINESS LAW CONFERENCE WHICH IS NOW IN ITS 11TH YEAR, AND HAS BECOME A PROMINENT FEATURE IN THE GLOBAL LEGAL CALENDAR, SERVES AS A VERITABLE PLATFORM FOR SUCH KNOWLEDGE EXCHANGES, FROM WHICH OUR MEMBERS GO AWAY WELL EQUIPPED TO IMPROVE THEIR PRACTICE OF LAW"