An in­ter­na­tional pro bono or­gan­i­sa­tion is help­ing to put top-level lawyers at the ser­vice of de­vel­op­ing coun­tries that need help against cor­po­ra­tions

Financial Mail - - IN GOOD FAITH BY CARMEL RICKARD - @carmel­rickard

Gov­ern­ments of de­vel­op­ing coun­tries may well have ac­cess to bet­ter re­sources than they could have imag­ined, for le­gal help with rene­go­ti­at­ing in­ter­na­tional con­tracts or mak­ing com­plex new deals.

Dur­ing the SADC Lawyers’ As­so­ci­a­tion con­fer­ence in

Botswana last week, pan­el­list Ka­te­rina Drisi ex­plained the role that could be played by the or­gan­i­sa­tion she works for, the In­ter­na­tional Se­nior Lawyers Project (ISLP). Speak­ing dur­ing a ses­sion on ex­trac­tive in­dus­try agree­ments and en­vi­ron­men­tal reg­u­la­tion com­pli­ance, she said the ISLP, based in New York and Lon­don, was an in­ter­na­tional pro bono pro­gramme.

Through the ISLP, se­nior lawyers, world­wide, do­nated their time and ex­pe­ri­ence to help with pro bono work aimed at en­sur­ing a level field in ne­go­ti­a­tions be­tween de­vel­op­ing coun­tries and in­ter­na­tional in­vestors. Many of these lawyers were re­tired or close to re­tire­ment, and highly skilled in their fields. The or­gan­i­sa­tion’s fo­cus in­cludes nat­u­ral re­source man­age­ment; com­mu­nity-in­clu­sive de­vel­op­ment; an­tib­ribery and an­ticor­rup­tion work; in­vest­ment, trade and tax; and eco­nomic and so­cial de­vel­op­ment.

In a later in­ter­view Drisi said the ISLP helped gov­ern­ments in de­vel­op­ing coun­tries to ac­cess the ex­per­tise of top lawyers. One of its first in­ter­ven­tions to help re­view ex­ist­ing con­tracts was in Liberia, where gov­ern­ment wanted to re-ne­go­ti­ate con­tracts with Fire­stone and Arcelor­mit­tal, whose orig­i­nal terms were ex­tremely dis­ad­van­ta­geous to that coun­try.

Drisi said the ISLP worked with other or­gan­i­sa­tions such as the African Le­gal Sup­port Fa­cil­ity and the Con­nex Unit, es­tab­lished by GIZ, a Ger­man de­vel­op­ment agency, to of­fer as­sis­tance with com­plex con­tract ne­go­ti­a­tions. The Con­nex Unit pro­vides re­sources, sup­port — and even fi­nan­cial, le­gal and tech­ni­cal as­sis­tance — to gov­ern­ments in­volved in ne­go­ti­a­tions over ma­jor con­tracts in the ex­trac­tive in­dus­tries sec­tor.

She said that if gov­ern­ments re­quested it, the or­gan­i­sa­tions with which ISLP worked could help fi­nance lawyers with in­ter­na­tional ex­per­tise, as well as tech­ni­cal ex­perts, to as­sist gov­ern­ment in ne­go­ti­a­tions for com­plex con­tracts. Such ex­perts could typ­i­cally charge thou­sands of dol­lars an hour, so their usual bill for ne­go­ti­a­tion work might well be pro­hib­i­tive. How­ever, their pro bono ser­vice could en­sure that this ex­per­tise was made avail­able to gov­ern­ments in de­vel­op­ing coun­tries at no charge.

“A gov­ern­ment needs to get the best deals pos­si­ble for the cit­i­zens of its coun­try. The ex­perts who would come in to help have usu­ally been in­volved in thou­sands of con­tracts and are of­ten able to call the bluff of the in­ter­na­tional com­pa­nies. They know the trends.

They might know the terms agreed to by these com­pa­nies in other deals, for ex­am­ple, and could use that in­for­ma­tion to se­cure a bet­ter deal for the gov­ern­ment.”

Wider ex­po­sure

Drisi said there was an ad­van­tage for SADC lawyers who be­came in­volved in such deals, as the ISLP ex­perts would ex­pose lo­cal lawyers to new clients and give them new skills.

Lo­cal lawyers could ben­e­fit from the pres­ence of these pro bono le­gal ex­perts through part­ner­ships with them. “These in­ter­na­tional law firms need to work with lawyers who know the lo­cal sit­u­a­tion to part­ner with them and com­bine their ex­per­tise.

All the or­gan­i­sa­tions (that ISLP works with) try to part­ner with lo­cal lawyers to build ca­pac­ity in the coun­tries where they work.”

Hun­dreds of ex­pe­ri­enced lawyers have al­ready been in­volved, via ISLP, with clients in scores of coun­tries. Ac­cord­ing to the ISLP web­site, it has de­liv­ered more than US$110M worth of pro bono le­gal as­sis­tance since its es­tab­lish­ment in 2000, while its lawyers come from more than 50 firms and bar­ris­ters’ cham­bers as well as lead­ing NGOS.

One of its first in­ter­ven­tions to help re­view ex­ist­ing con­tracts was in Liberia

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