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Emery Mukendi Wafwana admitted as an Advocate to the DRC Supreme Court of Justice

Following Decision n° 04/CO/BCSJ/ADM/16 of 8th April 2016 of the Bar Council of the Supreme Court of Justice, Counsel Emery Mukendi Wafwana was admitted to and registered with the Roll of Advocates of the Supreme Court of Justice. On this 22nd April 2016, he was sworn in at the Supreme Court of Justice. Counsel Emery Mukendi Wafwana’s admission to the Supreme Court enhances our firm’s ability to better represent clients in legal cassation proceedings as regards private law (civil, criminal, commercial) as well as in special proceedings in the Court of Cassation, to wit: actions against judges, referral of matters to appropriate...

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Upio Kakura Wapol, certified Doctor at law

Before a panel of eminent professors of the Law Faculty of the University of Kinshasa, formerly known as Louvanium, namely Professor Marie-Thérèse Kenge NgombaTshilombayi, Dean of the Law Faculty and chairperson of the panel, Roger Kola Gonze, Grégoire Bakandejawa Mpungu, Jean-Michel Kumbuki Ngimbi, Victor Mboyo Empengeea Longila, Gustave Beya Siku and Jean-Paul Shotsha Katshunga., Counsel Upio Kakura Wapol submitted his doctoral dissertation on « The legal system of commercial airports – Input to the study of Congolese airport law » dated 2 march 2016. Following a brilliant defence of his thesis, and after deliberation, the panel officially recognised him as Doctor at...

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Registration of a private security company in South Africa

By Fulgence Kalema Bwatunda Currently, the private security industry in South Africa is bigger than what it has ever been. The role of private security companies is distinctively different to that of the police, they view their role as private security to really aid and support the police. The South African government claims that it is an industry that threatens national security and is determined to tighten its regulation. The amount of registered companies has increased by 61% and the amount of registered security officers by 111%. There is also a big involvement of foreign companies investing in the South African security...

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Outline of the new Insurance Code of the DRC

By Pathy Liongo and Alain Kasende In its path to the stabilization of business climate and protection of private investments, the Democratic Republic of the Congo ("DRC") has just completed the reforming process of its insurance sector, one of the basic activities for the economic and social development of the country. This reform is accomplished by the Law No 15/005 of 17 March 2015 on Insurance Code ("Insurance Code"), promulgated by the President of the Republic on 17 March 2015 and recently published in the Official Gazette[1]. This new Insurance Code represents a real revolution in this sector, which has been...

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Congo : The Bill on hydrocarbons Code passed by the cabinet

Antoine Luntadila Kibanga  The Republic of the Congo, (“The Congo «) is an African country, located in Central Africa. It is a member of several regional organizations such as the Economic and Monetary Community of Central Africa ("CEMAC"), the Economic Community of Central African States ("CEEAC"), and the Association of African Petroleum Producers ("APPA"). Its economy is dominated by the oil sector, which represents more than 60 % of the country’s GDP, despite numerous efforts to diversify the country’s sources of income. Twenty years after the enforcement of the hydrocarbons code; it was time for the government, following the assessment of the code thereof,...

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Recent measures on the form of the articles of association and the minimum capital of SARL in the DRC: advantages and weaknesses

The Minister of Justice and Human Rights and the Minister of Finance in the DRC signed jointly in December 30, 2014 theinterdepartmental Order No. 002/CAB/MIN/JGS &DH/014 and No. 243/CAB/MIN/FINANCES/2014 determining the form of the Articles of Association and the minimum capital of a limited liability company. According to this order, the following provisions must henceforth apply to single-member and multi-member SARL: (1) the Articles of Association are established by notarial deed or private agreement (article 1); (2) the share capital is freely set by the shareholders, taking into account the business (article 2); (3) the pay-in slip cleared by a credit or microfinance...

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Ratification to the treaty relating to Grand Inga Hydroelectric Project

In accordance with articles 213 paragraph 1 and 214 paragraph 1 of the Constitution of February 18, 2006 as amended to date, the President of the Democratic Republic of Congo («DRC”) promulgated on the 21st November 2014 the Law No. 14/026 authorizing the ratification by the DRC of the Treaty relating to the Grand Inga hydroelectric project between the Republic of South Africa («RSA») and itself. I. PURPOSE OF THE TREATY The Inga Project aims at building a hydroelectric complex on the Congo River, on the site named Inga Site whose installations are based in the West of the DRC, 150 km...

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Entry into force of 1958 New York Convention in DRC

By Antoine Luntadila Kibanga The UN Convention on the Recognition and Enforcement of Arbitral Awards signed in New York on June 10, 1958, (« The New York Convention »), has been ratified in Democratic Republic of the Congo ("DRC") through Law No 13/023 dated June 26, 2013 authorizing the accession of DRC to the Convention in accordance with article 215 of the Constitution[1]. In compliance with article 12.2 of the New York Convention, its coming into force with regard to DRC, acceding State, had to be effective within ninety (90) days after the submission of instruments of accession or ratification by DRC....

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Deforestation Tax: Problematic of Tax Liability of Mining Titleholders

For some time, mining companies in the Democratic Republic of the Congo are facing the National Forest Fund, (“Fonds Forestier National”), a technical and financial public establishment set up by the law N° 011/2002 of 29 August 2002 relating to the Forestry Code (“Forestry Code”) for the payment of the “deforestation tax” as a result of the deforestation made by them concerning the mining areas covered by their mining titles. With regard to the taxes, customs and other duties and levies regime applicable to the mining titleholders provided for in the Law n° 007/2002 of11 July 2002 relating to the Mining Code...

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USA: Business Structures Available for Foreign Investors

Nady Mayifuila and Pascale Longuet The choice for the appropriate legal structure to transact business in the United States (“U.S.”) depends on a combination of factors relevant to a specific activity or sector, as well as on the needs and goals of the investor. The following paper is neither an attempt to define the criteria necessary to make such a decision nor, a fortiori, a substitute for the review of the particular project by an attorney. The aim of this article is to provide potential investors with a pragmatic overview of the American corporate legal and cultural environment, including the means...

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May a foreign financial institution act as security interests agent in the DRC

By Arnaud Tshibangu Mukendi[1] Introduction The Democratic Republic of the Congo (the "DRC") has ratified the founding treaty of the Organization for the Harmonization of Business Law in Africa (hereinafter "OHADA[2]") dated July 12, 2012, which entered into force on September 12, 2012. The DRC has become, since then, the seventeenth member state of OHADA[3]. Consequently, all the OHADA Uniform Acts are part of the Congolese law and are directly applicable and binding within its territory without any further legal steps internally[4]. The OHADA Uniform Acts include the revised Uniform Act on security interests (hereinafter “UAS”), adopted on December 15, 2010. The...

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A New Legal Framework to Promote the Public-Private Partnership in the Democratic Republic of the Congo

By Upio Kakura Wapol On February 11, 2014, the Democratic Republic of the Congo (DRC) enacted the Law No 14/005 creating tax, customs and parafiscal system of non-tax revenues and exchange control system applicable to Cooperation Agreements and Cooperation Projects, "PPP Law". This law is substantiated by the will of the DRC to implement a public-private partnership aimed at raising significant funds to further the implementation of huge reconstruction and development programme designed to provide the country with core infrastructures in order to upgrade the social welfare of population. The cooperation agreement and cooperation projects shall be the subject of the private-public...

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Monthly new employer’s share to be paid by employers to national employment agency “ONEM”

Edouard Laddy Tshishimbi Mpamba On September 26, 2013, the Minister of Labour and Welfare passed an Order No 125/CAB/MIN/ETPS/MBL/DKL/dag/2013 amending and supplementing this Departmental Order No 028/CAB/MIN/ETPS/DKL/dag/2013 of March 18, 2013 establishing the rate of monthly employer's share to be paid by Employers to ONEM in accordance with article 93 as stipulated in the Constitution of Democratic Republic of the Congo, which allows the Minister to decide by means of an Order. Under articles 204 and 205 of Law No 15/2002 of October 16, 2002 establishing the Labour Code, a technical and social institution with legal status was created; named "National Employment Agency"...

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The importance of a will in South Africa

Michele da Silva da Mata For some reason setting up our last will and testament makes us think about our own mortality, and so we have a tendency to put it off. There are still many South African citizens who have not planned for the devolving of their estate. There are certain scenarios that we need to avoid to prevent complications when an estate is being devolved. Many people think that they can simply tell their parents, spouse or friend of their wishes. However if one dies without a will or “intestate”, there are a set rules that a court will apply...

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OHADA: DRC corporations faced with two overlapping OHADA compliance procedures with the entry into force of the new AUDSC-GIE

Emery Mukendi Wafwana  As you know, the Democratic Republic of the Congo ("DRC") is the last country to have joined the Treaty on the Organization of the Harmonization of Business Law in Africa, (“OHADA") on September 12, 2012. The OHADA dates back to October 17, 1993, as revised in Quebec on October 17, 2008 (“Treaty”); the DRC’s adherence was initiated by the filing of the ratification instrument of the Treaty on July 12, 2012, by the Minister of justice of the DRC, in accordance with Article 53 of the Treaty. The Treaty, Uniform Acts and Regulation of OHADA are therefore applicable...

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Legislation on electric energy in the Republic of the Congo

Sancy Lenoble Matschinga  The Republic of the Congo, often called Congo-Brazzaville, is a country located in Central Africa. The Republic of the Congo straddles the Equator line and covers a surface of 342,000 km2 with a population of approximately four (4) million. The Central African Republic and the Republic of Cameroon border the north of the Republic of the Congo, the Democratic Republic of the Congo borders the south and east, the Republic of Angola (Cabinda) borders the south, and the Republic of Gabon borders the west. The Republic of the Congo has a 170 km sea coastline along the Atlantic Ocean. The...

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Congo-Brazzaville: bill on the creation of a Congolese investment fund has been adopted

Sancy Lenoble Matschinga According to a bill presented during the Ministers’ Council of August 8th, 2013, the Republic of Congo just promulgated Law No. 1-2014 of January 6th, 2014 on the establishment of a Congolese investment fund. The investment fund has been created as an administrative public institution, with legal status and financial autonomy. The public institution is based in Brazzaville, the Republic of Congo’s capital, and is under the authority of the Minister of Finance. It is administered and managed by a Board of Directors and a General Management. The main purpose of the Congolese investment fund is to acquire and manage...

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Development Bank of Southern Africa amendment Bill

Michele da Silva da Mata The main objects of the Bill are to propose amendments to the Development Bank of Southern Africa Act, 1997 (Act No 13 of 1997 - "the Act"), to enable the extension of the operations of the Development Bank of Southern Africa ("the Bank") to any national territory on the African continent and its oceanic islands, to increase the authorised share capital of the Bank and enable further increases, to provide for the application of certain legislation to the Bank and to adjust the regulation-making powers. The following amendment are included: Inserting definitions of authorised share capital, callable capital,...

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RSA: Amendments to the Immigration Act, No 13 of 2011

By Michele da Silva da Mata & Linda Gieskes On 26 August 2011, the Immigration Amendment Act 13 of 2011 (the Act) was passed. The current Act provides for the issuance of approximately 14 different types of permits which cover all categories of persons residing in the Republic of South Africa on a temporary basis. Additionally, the current permit granting system does not allow for the implementation of the risk-based methodology procedure as prescribed in the Act. With the proposed amendment of the Act and its Regulations it will refer to all categories of temporary residence permits as visas, for example visitor’s...

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Registration of a private security company in South Africa

By Fulgence Kalema Currently, the private security industry in South Africa is bigger than what it has ever been. The role of private security companies is distinctively different to that of the police, they view their role as private security to really aid and support the police. The South African government claims that it is an industry that threatens national security and is determined to tighten its regulation. The amount of registered companies has increased by 61% and the amount of registered security officers by 111%. There is also a big involvement of foreign companies investing in the South African security Industry;...

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