At the recent Annual Business Law Conference of the Nigerian Bar Association Section on Business Law (NBA-SBL), the NBA-SBL joined forces with the International Bar Association (IBA) and the Nigerian Bar Association to facilitate a training for young lawyers on the “Fundamentals of International Legal Business Practice”.
The first session of the training titled “Understanding the Essentials of Cross-Border Merger and Acquisition transactions” was moderated by Ms Olubukola Olabiyi. The speakers were Fatima Muhammed, Chike Obianwu, Fola Olusanya and Diane Marcus-Okoko.
Cross border Merger and Acquisition (M&A) transactions take place between two or more countries. It could be buying another company, a merger, buying a license or company assets.
Globalisation and economic factors drive cross-border merger and acquisition.
The preliminary matters that must be taken into consideration include:
Letter of Intent: It shows intent after the offer, key personnel you are willing to retain and what you want the due diligence to be about, among other things.
Non-Disclosure Agreement: Companies will usually disclose information that might not be available to the general public or believe shoukd be kept confidential to them and because of this non- disclosure agreements are usually signed.
Memorandum of Understanding: It is a substantive agreement between both parties both it doesn’t take away from the main agreement.
Due Diligence: It is a thorough search of every necessary part of a company that the parties find relevant to the M&A.
Term Sheet: It outlines the terms on which the transaction is to be executed.
Important factors to be considered in structuring a transaction include: price of sale, liabilities, cost, compliance with relevant laws, necessary consent and regulatory approvals.
The pitfalls include not getting legal services on time and necessary publicity especially for public companies.
In preparation for negotiations the principal documents are the Share Purchase Agreement (SPA) and the Shareholders Agreement (SHA)
Clauses to be included in the SPA include warranties, indemnities, governing laws, conditions precedents and subsequent purchasing price mechanism etc.
The SHA on the other hand seeks to bind the parties to the agreements in the SPA.
Local laws to be considered include the CAMA, SEC regulations, antitrust and competition regulations, tax laws, laws guiding investment and relevant international regulations etc.
The second session was themed “Embracing New Frontiers: Fundamental Skills for a Career in Media, Entertainment and Technology Law”.
The session was moderated by Dr. Nkiru Balonwu while the panelists were Afam Nwokedi, Mena Ajakpovi, Basil Udotai and Helen Anatogu.
The panelists advised young lawyers to keep up with industry trends and seek knowledge about things happening around even in the international space as the world is a global village.
Lawyers were also advised not to try to stifle innovation while providing risk-benefit analyses of projects to clients.
Lawyers were equally encouraged to embrace technological sophistication just as the judiciary similarly needs to embrace technological innovations.
Emphasis was also laid on the need for lawyers to learn how to use technology to market themselves through such platforms as LinkedIn, Facebook, website, develop content etc.
Lawyers need to also be on top of their game in order to optimally advise clients and government, regulators on the best interest of the country and clients by paying attention to specialisation, taking initiative, learning patiently, attending conferences and also learning to draft understandable agreements.
The third session moderated by Mrs Funmi Roberts was on “Insights, Perspectives and Core Principles of Arbitration and Alternative Dispute Resolution (ADR)” while the speakers were Prof. Paul Idornigie, Obosa Akpata, Doyin Rhodes- Vivour and Isaiah Bozimo.
The panelists discussed the story of a case which originated from the Midwestern State which became Bendel State and later Delta state. The case went to Benin City on Appeal and eventually got to the Supreme Court spanning about 38years in the regular court trial.
Arbitration as an alternative form of dispute resolution can take either the:
Definitive form: an expert third party; or
Facultative form: focus on the parties to determine its dispute.
Factors that drive ADR include: Speed, efficacy, cost and expertise.
Basic principles of effective dispute resolution are:
Procedural flexibility, party autonomy, the principle of natural justice.
The importance of arbitration includes:
Even-handedness: it ensures neutrality
Expertise: parties can nominate experts and in that regard have Control
Efficiency: parties have fast settlement and timely value for money.
The facilitators also felt it was important to point out the areas of divergence in common and civil law.
Common law: It uses the adversarial system and the court does not descend into the parties’ arena. The truth is rather established by parties’ evidence and witness statement especially as parties also bring their experts.
Civil Law: It uses the inquisitorial system as the court descends into parties’ arena to find the objective truth. Truth is established more by documentary evidence and the judge determines if he would need witnesses. It is therefore the court/tribunal that invites the experts.
A major difference between arbitration and mediation is that in mediation, an agreement between the parties needs the court’s endorsement for it to be binding while in arbitration, the award is binding.
The Fourth session on “Introduction to international trade law” was moderated by Tola Onayemi.
The principles of international trade are:
Non-Discrimination: Goods are treated same as in the local market.
National Treatment: Goods should not be discriminated against.
Reciprocity: Agreement to treat goods the same way in the international market.
Binding and enforceable commitment between parties.
Nigerian government must recognise what its trade priorities should be and whether we are ready for AfCFTA (African Continental Free Trade Area) as once we sign we must not violate the fundamental principles of international trade.
Countries usually decide when to use the protectionist principle and protect themselves from the pitfalls of international trade or be liberal and allow free trade at certain tax regimes and agreement.
International trade can however be:
Multilateral involving many countries OR
Bilateral between two countries.
The last session “Developing and Communicating your Value as a Lawyer” was moderated by Olubukola Olabiyi. The Speakers were Donna Ogunnaike- Sodipo, Joke Aliu, Dr. BabatundeAjibade, and Dr. Mirian Kachikwu.
Core soft skills emphasized include:
Good communication skill: Oral and written.
Listening skill with good attention.
Networking: it is a skill and art for marketing that can be learnt.
Mentoring: you get good advice and you are guided.
Willingness to pay the price in terms of time, money, hard work and then earn the trust and respect from expertise garnered.
Personal grooming and proper time management should not be neglected also.
Being passionate, self aware, brave, confident, having a good name and being of good behaviour is equally important.
The training was educative and every young lawyer interested in business law should strive to attend subsequent trainings and the next NBA-SBL Conference.
I am very grateful to the IBA, NBA, NBA-SBL, the sponsors and speakers for the knowledge imparted.
Lawalson Oluwatobiloba Grace
Participant IBA training.
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