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Business Law

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

[caption id="attachment_3317" align="alignleft" width="222"] Emery Mukendi Wafwana, Founding Partner[/caption] 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...

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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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Business rescue in the new Companies Act of 2008

Linda Gieskes The New Companies Act No. 71 of 2008 replaced the old Companies in May 2011. Pursuant to the Amendment of the Old Companies Act, Chapter 6 of the new Companies Act introduces the Business Rescue Procedure (BRP). Business Rescue is a procedure that facilitates the rehabilitation and restructuring of a company that is undergoing financial difficulties. The business rescue procedure aims to maximise the possibility of the business to remain solvent. The definition of financial distress in the Act is as follows: when it appears to be reasonably unlikely that the company will be able to pay all of its...

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New Exploitation License for Mining Operators in the DRC

New Exploitation license (environmental): new requirement for mining operators in the DRC Esther-Rose LUFUTA BIDUAYA and Eric TSHIMANGA MUKENDI The consideration of environmental issues by the International Community, and its consequences on the life quality, with tangible effects, including reduction in biodiversity, soil, air and water pollution, has urged the International Community to adopt multilateral environmental agreements, which obligate the working-out of national laws, policies, plans and programs to regulate and supervise mankind's activities and to mitigate their impact on the environment, which is the common heritage of all human beings, presents and futures. In accordance with these agreements and the DRC Constitution (« DRC »)...

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DRC: Non-Transferability of Telecom Licenses Challenged by OHADA

The principle of non-transferability of telecommunications licenses challenged by the OHADA Law as a result of the accession of the Democratic Republic of the Congo to OHADA Alain Serge Kasende M’bay  Since September 12, 2012, OHADA Law (Organization for the Harmonization of Business Law in Africa) is directly applicable and binding, as a domestic positive law, in the Democratic Republic of the Congo (“DRC”). In accordance with article 53, section 2 of the OHADA Treaty[1], all provisions thereof, regulations and Uniform Acts (“OHADA Law”) adopted before the accession of the DRC come into force in the DRC sixty (60) days after the date...

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DRC: Adoption of Legal framework for Fiber Optic Networks

The DRC adopts a legal framework for the implementation and operation of fiber optic telecommunication networks Eric Tshimanga Mukendi The Minister of Posts, Telecommunications and New Information Technologies and Communications, « the Minister », has recently taken, with a cause, a Decree of major importance in a world where the quality of telecommunication services is required at any price. It is the Ministerial Decree of n° CAB/MIN/PTNTIC/TKKM/PKM/sap/022/012 of December 21, 2012 establishing the conditions and procedures to operate fiber optic telecommunication networks in the Democratic Republic of the Congo1, (« DRC ») referred to as « the Ministerial Decree». Fiber optics offer several advantages over sending excellent quality...

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DRC – OHADA: Delay in Uniform Act to regulate company accounting systems

DRC: Delay in the application of the Uniform Act organizing and harmonizing company accounting systems  Emery Mukendi Wafwana  The entry into force of the OHADA Treaty in the Democratic Republic of the Congo (DRC) resulted in the immediate application of the Treaty, its Regulations and Uniform Acts. It also led to the repeal of any DRC previous legal instruments contrary to the Treaty and its Uniform Acts. In particular and in accordance with article 10 of the OHADA Treaty, it repealed all instruments contrary to the Uniform Act organizing and harmonizing companies accounting systems (Uniform Act Organizing and Harmonizing Companies Accounting...

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DRC: Adoption of New Legislation for Better Industrial Environment

Adoption of a new legislation for a better industrial environment in the DRC: bill on the rescue of the industry in danger Emmanuel Kabupwe  Before the series of lootings of the 90s, wars and other civil unrests, the Democratic Republic of Congo, (“DRC”) was considered one of the most industrialized countries of Central Africa. To restore its tarnished reputation, the DRC Government has set goals to boost the industrial sector by encouraging a large number of companies to invest in the national territory in order to reduce the high rate of unemployment and create jobs which are the levers (or the driving...

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Accession of the DRC to the New York Convention on arbitration

Emery Mukendi Wafwana and Jonathan van .  After its adoption by the National Assembly and the Senate of the Democratic Republic of the Congo ("DRC"), the President of the Republic promulgated on June 26, 2013 the Law No. 13/023 authorizing the accession of the DRC to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards signed in New York, on June 10, 1958 (the "Convention"). This Law is based on Articles 213 al. 1 and 214 al. 1 of the Constitution authorizing the President of the Republic to sign and ratify the Convention. However, the Law authorizes the accession of...

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New regulations on Tax Residency Certificate in Mauritius

Rizwana Ameer Meea et Willy Bashiya Mbayi Mauritius is a strategic Global Business center located in the Indian Ocean. It is one of the most open and financially sound economies in Sub-Saharan Africa. Mauritius is located between Asia and Africa, and the success of its economy is largely a result of its political and socio-economic stability, coupled with good governance and a wide range of incentives to boost investment. Mauritius has been known as an excellent place for doing business. The country’s adoption of international best business practices and sustainable development policies has been acknowledged by international agencies such as the Organization for Economic...

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Guinea: Enactment of law amending the Mining Code of 2011

New perspectives for the mining sector in Guinea: enactment of the law amending the Mining Code of 2011 Emery Mukendi Wafwana, Paul Fortin and Michael Diakité.  This April 17, 2013, His Excellency Professor ALPHA CONDE enacted, by decree D/2013/075/PRG/SGG, the Law L/2013/053/CNT adopted by the National Transitory Parliament (Conseil National de Transition “CNT”) on April 8, 2013, amending certain provisions of the Law L/2011/006/CNT on the new Mining Code for the Republic of Guinea of September 9, 2011. The Law L/2013/053/CNT of April 8, 2013 revises certain important provisions of the new Mining Code adopted on September 9, 2011 whose execution was suspended since...

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Gabon: Council of Ministers adopts draft law on mining sector

 Nady Mayifuila and Marie Josée Ongo Mendou On April 4, 2013, the Council of Ministers of Gabon adopted a draft law regulating the mining sector, which aims to reform the mining sector of Gabon[1] by introducing a new institutional, fiscal and technical framework. Since he took office in 2009, the President of Gabon, Ali Bongo Ondimba, is determined to implement and chart an ambitious program of economic reforms, including the reform of the mining sector, one of the cornerstones for shaping up the future prosperity of the country. In implementing this policy, known as "Gabon emerging at dawn 2025", this country is...

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Ivory Coast: New measures to promote enterprise creation and property transfer

New measures to promote enterprise creation and real estate property transfer in Ivory Coast Antoine Luntadila Kibanga  Doing Business 2013 Report titled: « Smart Regulations for small and medium enterprises » celebrates the 10th series of the World Bank Doing Business. Over the last decade, these reports listed about 2,000 business regulation reforms implemented in 180 economies. Across the world, local entrepreneurs and investors have considerably benefited from such reforms[1].  In this regard, on Wednesday, April 24, 2013, the Ivorian Council of Ministers proposed an Order aimed at reducing the fees related to starting a business for companies for which capital does not exceed FCFA 1,000,000. This measure reflects...

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Congo-Brazzaville: Adoption of bill on single window for cross-border operations

Congo-Brazzaville: Bill on the creation of a single window for cross-border operations has been adopted  Sancy Lenoble Matschinga and Antoine Luntadila Kibanga.  The Congolese government has just announced its plan to set up a Single Window for cross-border commercial operations. The announcement was made by the Minister of Transportation and Merchant Navy, Martin Parfait Aime Coussou-Mavoungou, during his speech at the National Assembly (Congolese House of Representatives) on April 27, 2013. This government's announcement falls within the scope of improving the business climate. An important aspect of this is the Decree n°94-568 of October 10, 1994, modified by Decree n°95-183 of October 18, 1995, showing...

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Congo Brazzaville: Creation of Single Window for cross-border operations

Sancy Lenoble Matschinga and Antoine Luntadila Kibanga  The Congolese government has just announced its plan to set up a Single Window for cross-border commercial operations. The announcement was made by the Minister of Transportation and Merchant Navy, Martin Parfait Aime Coussou-Mavoungou, during his speech at the National Assembly (Congolese House of Representatives) on April 27, 2013.  This government's announcement falls within the scope of improving the business climate. An important aspect of this is the Decree n°94-568 of October 10, 1994, modified by Decree n°95-183 of October 18, 1995, showing that the Republic of Congo (“Congo Brazzaville”) had already set up the center for...

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