Online Gambling Law: Why Is Online Gambling Regulation Important?

There is no one gambling regulation for Europe; there are European countries with permitted online gambling, as for example Denmark, Malta, Estonia, Bulgaria. There are also countries, where gambling is permitted, by monopolised by state-owned companies, and it is a Finnish legal model.

There are also usually many differences in regulation of different online-casino plays – for example, the country may accept poker, roulette, slots, any types of betting, but be very strict regarding legislation of lotteries, so as Spain does.

All Spain lotteries are provided only by the local Spain operators. The online gambling law in the United Kingdom also has its distinctive features – under the Gambling Act of 2014, all operators providing gambling services to people from the United Kingdom must be licensed by the local Gambling Commission.

So, many countries all over the world do have their own licenses. You also may live in London, but play in an online casino, which is registered and licensed in another country. But why is it so important for a country to have its own gambling law?

Online Casino Licenses: An Overview

As fraudulent and criminal activities became more frequent as a large number of online gambling websites started to emerge, there was an urgent need for legal measures to be established. To obtain an online gambling license from a certain country, the online casino must pay a lot of money and fulfill many prescriptions.

The most popular European organisations, which give online casino licenses, are the Curacao Gaming Commission, the Government of Gibraltar, and the Lotteries and Gaming Authority in Malta. For example, an online gambling provider Playamo with its different online slots, has a licence of the Curacao Gaming commission. N.V., einem nach den.

How To Obtain An Online Gambling License From The Curacao Gaming Commission And The Government Of Gibraltar?

To understand the process of obtaining a license better, let’s take a look at the concrete procedure. For example, you want to establish an online casino and obtain a gambling license from Curacao. To do it, you will first need to establish a local limited liability company according to all the local legal measures. So, your company must be registered in Curacao and in the local chamber of commerce.

To register your online casino in the chamber of commerce you will need to provide domain ownership, provide a technical audit of each gaming system including software, so as to think about certification of your software. And the whole procedure will approximately last 3 months and cost you more than 14000 Euro. Anyway, the costs may vary depending on the type of gambling, your software, etc.

If you would like to obtain a license from Gibraltar, then you will also need to think about registering your online casino in Gibraltar, providing business, and investment plans to the Government, inspecting your software, etc. You will also need to have open bank accounts in Gibraltar and pay more than 35000 Euros for obtaining a license.

Regulated Vs. Unregulated Online Gambling

But why is it so important to regulate online gambling? Unregulated online gambling leads to what no one wants: anyone can run an online casino without worrying about standards and rules or being licensed. Unlicensed casinos are prohibited to provide games, and it can even be very dangerous to play in them. So, we will recommend you decide on the casinos, which are officially licensed.

Now, when you know how to make your gaming more secure – if you want to try an online casino, this is the right time.

The Art of Persuasion in Court: Unveiling the Expertise of Carl Islam

In the realm of legal battles, the ability to persuade is an invaluable asset. The courtroom is a place where skilled advocates craft compelling arguments to sway judges and juries in their favour. Among these legal luminaries, Carl Islam stands out as a dual-qualified solicitor of the Supreme Court with a remarkable track record. His expertise extends to authoring insightful books, such as “Tax-Efficient Wills Simplified,” “Contentious Probate Handbook – Practice and Precedents,” and “Contentious Trusts Handbook – Practice and Precedents.” In this article, we delve into the art of persuasion in court and explore how Carl Islam’s unique insights have contributed to his success.

Introduction: The Power of Persuasion in Court

‘The best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.’ Guestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013, applied in Rainey v Weller & Ors [2021] – a Will forgery claim.

Therefore, in a contentious probate case and thinking like a judge, to assist the court and as part of elementary case-preparation, counsel should draft a Chronology after reading the papers, i.e., before connecting the dots, in order to arrive at an overall conclusion based upon inferences drawn from the documentary evidence and known or probable facts.

While an advocate cannot win a case using logic alone, assisting the judge to make findings of fact based upon inferences drawn from the documentary evidence and known or probable facts, is the metier of advocacy in contentious probate trials, and an essential technique in drafting a Skeleton Argument, and delivering a compelling final speech at trial.

To see the big picture as early as possible, apply Keith Evans’ original golden rule of case preparation and planning, which is:

As soon as you have an approximate idea of what a new case is about, sit down and write your ideal final speech. Then read it. See how well the available evidence supports it. At once you will see the gaps, the missing bits. Trying to close those gaps is the preparation of your case.

When you think you are getting close sit down and write your opponent’s final speech. This will concentrate your focus more sharply on what you still need to do by way of preparation and on the weak points you will have to reach and deal with before anybody else does.

Perfect your final speech – This is the blueprint of your trial. It becomes a record of your progress through the case, a shopping list of all you have to do, a fool proof checklist. The evidence you need and the way you need to present it stares straight at you from this final plan.

‘[The] purpose of doing the closing speech when you receive the brief is it lights up precisely what you want from each witness. Your closing speech is what you want to be able to say to the [judge]. It is a mixture of comment and reference to the evidence. Once you know what you want to say to the [judge], you will know what evidence you will seek from the witnesses. Once you know what comments you want to be able to make to the [judge] at the end of the trial based on that evidence, it is easy to work out precisely what you want from each witness. So, in preparing the closing speech, you find the natural consequence is that instinctively you prepare your examination of the witnesses… you know what you would like them to say, and can gear your preparation towards thinking about exactly how you will get them to say it… [so that you can] elicit from each witness only what you need for the closing speech… The closing speech is your map. It tells you where you are going, what you have to do, where you have been, and where you have to get to. It tells you everything you will want to do at trial… [From] your closing speech, you identify the comment you want to make. From the comment you want to make, you identify the facts you want to hear. From the facts you want to hear, you identify the questions you want to ask and of whom.’ [‘The Devil’s Advocate’ by Iain Morley QC].

Another useful technique to focus your mind, is as early you can, to draft the order you will seek at the end of the trial.

Recently, in Rainey v Weller & Ors [2021] EWHC 2206 (Ch) (05 August 2021), Deputy Master Linwood stated:

‘[Counsel] cited, as to the burden of proof, Face v Cunningham [2020] EWHC 3119 (Ch) where His Honour Judge Hodge QC sitting as a Judge of the High Court at [46] said: “…where the forgery of a will is alleged, then the ultimate burden of proving that the will is not a forgery must rest on the party propounding the will, as part of the formal requirements of proving that the will was duly executed by the testator and was duly witnessed.” It is therefore for the Defendants to establish, on the balance of probabilities, that the signature of [the deceased Testator] on the [disputed] Will was genuine. In closing submissions I said to [Counsel] and the Defendants that in my approach to the evidence I would very much have in mind the well-known paragraphs 15-22 in Guestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) where Mr Justice Leggatt as he then was set out the difficulties of recollection based oral evidence, and the importance of documentary evidence.’

In Guestmin Mr Justice Leggat (as he then was) stated:

‘An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.

While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.

Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).

Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.

It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.

In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.’

In Rainey v Weller & Ors [2021], the judge accepted the expert evidence of the Claimant’s handwriting expert, observing that the expert:

‘expresses a more positive view on the scale they both worked to that the signature on the [disputed] Will was not that of [the deceased Testator]. Thirdly, but at the very bottom of my scale of expert witness factors/considerations, is that [‘C’s expert] just edges [‘D’s expert] in his credentials, although I place very little weight upon that. … The totality of [his expert] evidence is unassailable in my judgment.’

In finding that the disputed will was a forgery the Judge made findings of fact based upon inferences drawn from the documentary evidence and known or probable facts, which included:

  • i) It is highly improbable, indeed verging on the impossible, in the circumstances I have set out above that [the deceased Testator] decided in the very short gap between the 9th February – 5th March to wholly change her will – she knew her own mind;
  • ii) In particular there was no change of circumstances or intervening event as I have found above;
  • iii) Likewise, it would not make sense that, had she so decided, she would not go back to the solicitors, with whom she was still in contact as they were finalising the LPA, to make any new will;
  • iv) The [disputed] Will was not mentioned by [D.1] … to anyone. That appears unlikely if it had been made as [D.1] says as his sons … were living with him at all material times;
  • v) When his mother died [D.1] did not immediately produce the [disputed] Will. In oral evidence he said he could not remember where he had put it, and eventually found it in his loft. That I find unbelievable in circumstances where the natural reaction would be to keep one’s mother’s will close but safe and to produce it immediately upon her death;
  • vi) [D.1] had in his control the evidence as to from where he obtained the template for the [disputed] Will that he said he used; he never produced it;
  • vii) Likewise, as I observed at the start of trial, I was surprised no metadata was obtained from [D.1’s] laptop/PC to show exactly when he prepared it and how or from what, although as I said it was also open to [C’s] solicitors to apply for it had they appreciated that;
  • viii) [D.1] provided to his expert the Cards which he had access to as he took control of his mother’s house and effects including her papers after her death. [C] said in evidence and I accept that [T] did have various bank cards which she had not signed. One such blank card was produced by [C] on disclosure. I find that [D.1] or someone at his behest forged his mother’s signature on the Cards in an attempt to manipulate the expert evidence;
  • ix) However, he had to provide the Cards for examination by [C’s] expert, as appears from the correspondence I have referred to. He therefore decided to send an empty envelope to Streathers but obtained a Certificate of Posting to show he had provided the Cards to them;
  • x) However [D.1] had not appreciated that the Post Office on the Certificate of Posting set out their weight of the envelope and any contents, for charging purposes, which according to the evidence of Dr Chatfield, was about twice the weight of what was actually despatched by [D.1], namely the empty envelope;
  • xi) [D.1] then tried to get around this evidential problem he had created for himself by saying the envelope was not, as Ms Jelea said, white but brown. However, this attempt to manipulate the evidence also failed as Dr Chatfield said a brown envelope would actually weigh less, which only fortified his conclusion;
  • xii) That none of [T’s grandchildren] were told by their grandmother of their future legacies, notwithstanding how close they all say they were to her, and – for [D.5 & d.6] – that she regularly told them they were to inherit her house and possessions;
  • xiii) That [D.1] in cross examination said his mother did not need to name her grandchildren who were to benefit as he knew who they were to be;
  • xiv) Likewise, his confidence that notwithstanding his mother not naming the three beneficiaries he prepared the [disputed] Will and got [D.3] to go round to witness it before his mother had even seen it;
  • xv) The fact that when their mother died on 24th November 2018 neither [D.3] nor [D.1] told anyone of the [disputed] Will – in fact it did not surface until [D.1] applied for probate of it in January 2019. I do not accept [D.1’s] explanation that the reason for this was because he was grieving; …
  • xvii) If Mrs Weller had really made the March Will, it would in view of her conduct of her affairs follow that she would have ensured a copy was in [a] Suitcase [which T had] prepared carefully to resolve her affairs, in all respects, for the future, with the copy of the [earlier] Will and the physical gifts of cash and jewellery;
  • xviii) Likewise, all the urgent efforts and concern to locate and secure the Suitcase would have been clearly pointless to [T] if she really had appointed [D.1] as her executor;
  • xix) Especially, the evidence of [C’s handwriting expert] that there was moderate to strong evidence that the signature of [T] had been forged.’

Conclusion: The Power of Persuasion in Court

In the world of law, the art of persuasion is a powerful force. Carl Islam’s dual qualification, authorship of informative books, and mastery of crafting compelling arguments have made him a standout figure in the legal community. His ability to communicate effectively and achieve favorable results in court showcases his expertise in the art of persuasion. As a legal luminary, Carl Islam continues to inspire and educate, leaving an indelible mark on the legal landscape.

With his unparalleled skills, Carl Islam demonstrates that persuasion in court is not just a legal strategy; it’s a form of artistry that can shape the course of justice and leave a lasting impact on the lives of those he represents.

Navigating Arbitration and Specialised Courts in IP Matters

IP is a category of property that includes intangible creations of the human intellect. There are many types of IP, and some countries recognise more than others. The best-known types are copyrights, patents, trademarks, and trade secrets.

Enforcement of IP in Nigeria is saddled with loop holes, bureaucratic bottlenecks, lack of technical knowledge, skills and lack of public awareness. These have led to the prevalence of piracy, counterfeiting, unauthorised, unlicensed use and infringement of IP rights.

Though there have been laudable developments in recent times, there is still a wide gap in the enforcement of Intellectual Property Rights.

Regulatory Framework & Institutions

The principal types of Intellectual Property rights in the Nigeria Legal System are Copyrights, Patents, Trademarks and Industrial Designs. The regulatory frameworks include by the Copy Right Act Cap C28, Trade Marks Act Cap T13, Patent & Design Act P2 and the Merchandise Marks Act Cap M10.

These laws are enforced by the Nigerian Copyright Commission, The Trademark, Design and Patents Registry which is a subdivision of the Ministry of Industry, Trade & Investment, The National Agency for Food and Drug Administration Control, The Nigerian Police and The Nigerian Custom Service.

Nigeria is also a signatory to numerous international treaties on Intellectual Property. These include the World Intellectual Property Convention of 1970, Agreement on Trade-Related Aspects of Intellectual Property Rights, Berne Convention and Rome Convention for the Protection of Performers, Producers of Phonograms &Broadcasting Organisation etc.

The Current Situation

Enforcement of IP rights in Nigeria have been slow, largely ineffective and ladled with obstacles and loopholes.

We shall consider the causative factors:

  • Obsolete and Weak Laws: The principal laws in force were adopted from the Laws of England and date back as far as the 19th Century with no review since enactments. Intellectual Property is a steadily evolving concept and these laws do not also take into consideration, these dynamic changes in IP including the advancements in Technology. These Laws are also weak and cannot effectively control issues like piracy and counterfeiting.
  • Non Implementation of International Treaties: Section 12 of the Constitution of the Federal Republic of Nigeria 1999 as amended provides that before an International Treaty can be implemented in Nigeria, it must be ratified and enacted by the Legislative. Though Nigeria is a signatory to numerous International Treaties on IP, which can be a supplement to our laws, these cannot be implemented because they haven’t been ratified and enacted according to the CRFN.
  • Lack of Awareness and Inadequate Finance & Staffs of the Regulatory Agencies: Regulatory Agencies charged with enforcing IP rights in Nigeria are greatly understaffed; lack the necessary equipment, training and knowledge to effectively carry out their duties. . These culminate in a slow and inefficient enforcement of IP rights.
  • Lack of Uniformity and Cooperation amongst enforcement Agencies: Intellectual Property is a broad and technical area. Its enforcement cannot be carried out by one regulatory agency alone; the agencies need to work together. However in Nigeria, there is no such cooperation, they also lack a uniform public domain between the agencies to access the data of each agency in enforcing Intellectual property rights.
  • Judicial Enforcement: The Nigerian Judicial System is slow and t cases take an inordinate amount of time before coming to a conclusion. This coupled with the technical nature of Intellectual Property Rights, the lack of such technical knowledge by the Judges and the non-observance of judicial orders has further inhibited the effective enforcements of IP rights by the Judiciary. Furthermore the Federal High Court is vested with exclusive jurisdiction over IP disputes. This is a bar to parties exploring Alternative Dispute Resolution.

The Way Forward

Due to the loopholes in enforcing IP rights and resolving IP disputes in Nigeria, it has become necessary that new and alterative procedures need to be considered. These include Arbitrations and Special Courts.

Why Arbitration

Arbitration according to the Black’s Law Dictionary is a dispute resolution process in which the disputing parties choose one or more neutral third parties to make a final and binding decision resolving the dispute. WIPO has advocated for the use of Arbitration for resolving IP disputes and has gone further to establish an Arbitration & Mediation Centre for resolving IP disputes.

It also has in place its Arbitration rules. Discussed here are the advantages of Arbitration over Litigation and why IP disputes should be resolved using Arbitration in Nigeria.

  • Technicality involved in Intellectual Property: Intellectual Property is a technical subject matter. Therefore it is a better to use an Arbitrator who has specialised knowledge of Intellectual Property. This is even more so when technical issues like computer programs, Industrial designs, patents etc. are being contested. When parties can choose their adjudicator they have the opportunity of picking one who possesses the necessary technical knowledge.
  • Expert determination: Disputing parties can also refer the matter to an expert in the area of dispute for expert opinion, appraisal, valuation or determination to settle a dispute. This expert can act as Arbitrator and the resulting decision is binding on the parties.
  • International Nature of Intellectual Property Disputes: IP is by its nature intangible and global unlike other forms of property. It can be exploited and transmitted globally instantaneously. This makes its rights infringeable internationally and disputes are cross borders. Therefore IP disputes are best resolved by Arbitration which is most suitable for International disputes.
  • Flexibility of Arbitration: Arbitration by its nature is flexible. The parties can choose the Arbitrator, time, conduct of the proceedings and venue of the proceedings. Also they can choose the applicable law to govern the proceedings. This is important having regards to the International nature of Intellectual Property disputes. Parties do not have to be bound by the local laws of a disputing party.
  • The Time Involved and Finality: Arbitral proceedings are fastidious. Parties do not have to go the tedious and formal procedure involved in litigation. Arbitration is expeditious, quick and efficient. This is an advantage for Intellectual Property disputes which are of a technical and economical nature and need to be resolved timeously. Furthermore, contracting parties can resolve that there will be no appeal to the arbitral award. This ensures the dispute will be brought to an end quickly unlike litigation where parties by contract cannot bar an appeal.
  • Confidentiality: Arbitration ensures confidentiality between parties. IP disputes may involve trade secrets and commercial benefits. These are better kept confidential in order to avoid being exploited by the public. Arbitration also ensures that parties’ trade reputation is protected and this is a commercial benefit.

Establishing Special IP Courts

A special IP Court is an independent public judicial body that can operate at national or regional levels to adjudicate IP disputes, enforcement of IP rights and incidental disputes. There has been a global trend toward the establishment of specialised IP courts especially in developed Countries.

Establishing a specialised Court improves the quality of justice available to litigants. This is because the Judiciary will have vast experience and knowledge in IP. This is unlike non specialised Court where the judiciary may or may not have vast knowledge of IP. Specialised Courts are better equipped to keep pace with and adapt to dynamic developments in Law.

Another advantage of specialised Courts is that they allow for timely and cost-effective handling of proceedings and can improve consistency in case Law. Establishing a specialised IP Court or Tribunal in Nigeria will further enhance the effective enforcement and protection of IP rights in Nigeria and it is important considering the fact that some IP disputes are of a criminal nature and thus not arbitrable.

Conclusion

Intellectual Property plays a key role in the economy and development of a Country. Where these rights are adequately protected, enforced and implemented, it has a lot of benefits to the economy and the society at large.

Lessons have been learnt form developed countries who have given IP the paramount stage that it deserves. A crucial method of ensuring these rights and enforced and disputes are efficiently resolved is to resort to Arbitration and establish specialised IP Courts.

Our Laws should be amended to meet up with dynamic trends in IP, to provide resort to ADR especially Arbitration and Special Courts and Tribunals should be established to ensure speedy and effective trial of IP disputes.

The Joint Venture Guidelines Under the Competition Act

The Competition Authority of Kenya to Clarify the Rules and Filing Requirements of Joint Venture Arrangements.

The Competition Authority of Kenya has published draft joint venture guidelines. The Guidelines aim to provide clarity, transparency and predictability about joint venture arrangements that require CAK approval.

The Guidelines specifically clarify the CAK’s position on what consists of a Full Function Joint Venture, a Greenfield Joint Venture; and lays out the process for notifying and filing a joint venture with the CAK, as well as how the CAK reviews a joint venture’s impact on competition.

The Guidelines are still open to review and amendment, with the CAK inviting comments by Friday, March 5th, 2021. However, the following are the main implications of the proposed Guidelines:

Full Function Joint Venture

The Guidelines define a Full Function Joint Venture as a joint venture undertaking that performs all the functions of an autonomous economic entity for ten years or more including:

i. operating on a market and performing the functions normally carried on by undertakings operating in the same market; and

ii. having a management dedicated to its day-to-day operations and access to sufficient resources including finance, staff and assets in order to conduct for a long duration its business activities within the area provided for in the joint-venture agreement.

Full Function Joint Ventures constitute a merger under the Competition Act and will require notification and filing with the CAK. However, it should be noted that a joint venture established for a purposefully finite period will not be viewed as having a long duration and will not qualify as a Full Function Joint Venture.

Greenfield Joint Venture

The Guidelines set out Greenfield Joint Ventures as joint venture undertakings in which local or foreign entities collaborate with other locally domiciled entities to develop a new product separate from the products and services provided by the parent entities.

Typical distinguishing features of a Greenfield Joint Venture include: a new joint venture vehicle formed by the parties for the purpose of the transaction, undertakings in new areas for the parties in the joint venture, and the transaction entailing entry into a new business area or enhancement of an existing business.

The Guidelines recommend that parties potentially entering into a Greenfield Joint Venture should seek the advisory opinion of the CAK as Greenfield Joint Ventures are reviewed on a case-by-case basis.

Process for Filing a Joint Venture With CAK

The Guidelines set out the registration requirements for a Full Function Joint Venture. The CAK requires the parent entities to separately submit documents relating to the transaction by filling the Merger Notification Forms as Joint Venture Parents, and if a joint venture vehicle exists as a part of the undertaking it will also be required to file the MNF.

In situations where the joint venture parties have no separate joint venture vehicle, the parent entities will only need to separately submit documents by filling the MNF as Joint Venture Parents.

Determination of Impact on Competition

The Guidelines specify how the CAK determines the competition impact a Full Function Joint Venture transaction is likely to have in a market. The CAK considers the turnover and asset figures of all the parents to a joint venture, including the entities directly or indirectly in the control of the joint venture parents and the joint venture vehicle where applicable. In addition, the CAK looks at the terms of the joint venture agreement, public interest factors and whether the efficiency benefit of the joint venture brings more economic gains compared to the competition detriment.

If the CAK makes a finding that a joint venture transaction has negative competition and public interest impacts, it may engage the joint venture parties to come up with remedies to mitigate against the harm. Additionally, the CAK will direct on which of the joint venture parties as well as the joint venture vehicle will be impacted by the mitigating factors.

The draft joint venture guidelines aim to further clarify the rules and reduce the confusion surrounding the competition regulations on joint ventures.

Practical Completion and Defect Liability Period

Though the date of practical completion is of great importance to a building project, it does not have a unanimous definition. Generally, the date of practical completion is not merely the date in which the Client takes over possession of the building. In fact, practical completion may be achieved without the Client taking over physical possession of the building.

Technically and legally, practical completion is the date when the responsibility of insurance, security and maintenance of the building passes from the Contractor to the Client; the Client pays the contract retention sum to the Contractor and the defect liability period begins to run.

A Construction Agreement may provide for practical completion of a building or it may be inferred from the conduct of the parties or deemed upon the happening of an event. The defect liability period is a period for the Contractor to rectify the latent defects it discovers in the building or brought to his attention by the architect or Client’s agent on the building project.

Practically, the date of practical completion of the building is the date in which the works are reasonably ready for its intended use even though there may be outstanding snags or defects. In essence, practical completion is achieved where construction is completed and there are no patent defects in the construction of the building.

It is easier to ascertain the date of practical completion where the Construction Agreement clearly spells out same. Most Construction Agreements usually provide for the architect or the Client’s agent on the project to issue a Certificate confirming practical completion of the works under the Agreement. But what happens where there is no Agreement defining the date or medium to signal practical completion or the architect or Client’s agent on the project refuses to issue a Certificate of practical completion of the construction works in the building even though same has been achieved?

In such an instance, practical completion would be deemed from the intention of the parties which can be inferred from their conducts. For instance, if the Contractor informs the architect or Client’s agent on the project that he has completed the construction works and the architect or Client’s agents submits a list of latent defects on the project to the Contractor, practical completion is deemed to have taken place and the defect liability period shall begin from that date.

Upon completion of the rectification works submitted to the Contractor by the architect or Client’s agent, the defects liability period shall come to an end and the Contractor will ordinarily not be liable to carry out further maintenance works on the building.

However, where there are patent defects on the project, it is the responsibility of the Contractor to rectify the patent defects on the building before practical completion will be deemed and the defect liability period begins. For instance if Mr Tanko Ahmed employ Main Construction Limited to construct a 4 storey building and upon completion of construction, the parties discover that the walls are cracked or the ceilings are licking, Main Construction Limited would have to effectively rectify the cracked walls and licking ceilings before practical completion will be deemed and the defect liability period would begin.

Again where there is no Agreement on the duration of the defect liability period, it may be deemed from the conducts of the parties. For instance, if upon practical completion, the Client informs the Contractor that he will take over possession of the project after the rainy season. The rainy season constitutes the defect liability period. The end of the rainy season signifies the expiration of the defect liability period and the Contractor will no longer be liable to carry out maintenance works on the building.

This is because the Contractor cannot maintain the building project indefinitely. Even the law does not expect that. In such a circumstance, after the rainy season, the Contractor should advise the Client to immediately take possession of the building because practical completion of the building has been achieved and the defect liability period has ended. The Contractor is legally entitled to withdraw from the building and send the keys of the building to the architect or Client’s agent.

Disclosure of Beneficial Ownership

The Companies Act, 2015 was amended by the Companies Act, 2017 to include, amongst other things, the concept of “beneficial ownership” by including section 93A of the Principal Act. The Amendment Act establishes a register in order to record the information of beneficial ownership and control of Kenyan companies.

The Companies Regulations were promulgated under Legal Notice 12 of 2020. The concept of beneficial ownership was established as part of Kenya’s efforts to battle corruption and increase transparency in the ownership and control of legal entities.

The Companies Registry of Kenya recently issued a notice stating the operationalisation of the beneficial ownership registry from 13 October 2020.

The effect of registering a “beneficial owner” has numerous implications across different spheres of practice. The following commentary aims to outline these effects in practice.

Who is a Beneficial Owner?

A beneficial owner under the Regulations must be a natural person and not a legal person. In order to be classified as a Beneficial Owner, a natural person must:

  • holds at least ten per cent of the issued shares in the company either directly or indirectly;
  • exercise at least ten per cent of the voting rights in the company;
  • hold a right to directly or indirectly appoint or remove a director of the company; or
  • exercise significant influence or control over the company.

This definition includes persons who may hold significant influence or control as a result of a variety of commercial arrangements or instruments such as provisions in the company’s constitutional documents, the rights attached to the shares or securities which a person holds, shareholder agreements or other agreements resulting in giving such person material influence over the company and its affairs.

Obligations of a Company

The Regulations place the following obligations on companies:

      1. A company shall take reasonable steps to identify its beneficial owners and enter their details into a register of beneficial owners which is different from the register of members;

      2. The following information will be included in the register of beneficial owners;

         a. the full name;

         b. full name;

         c. birth certificate number;

         d. national identity card number or passport;

         e. Kenya Revenue Authority personal identification number;

         f. nationality;

         g. date of birth;

         h. postal, business and residential address;

         i. telephone number;

         j. email address;

         k. occupation;

         l. nature of ownership or control; and

         m. date on which a person became a beneficial owner.

      3. The Regulations require a company to file with the Registrar of Companies, within 30 days of preparation, a copy of the company’s register of beneficial owners. Furthermore, if there is any change in the composition of the company’s beneficial ownership, these changes shall be made on the register of beneficial ownership and filed with the Registrar as soon as the change occurs.

      4. Where a company believes that a person is a beneficial owner it is the company’s duty to investigate and notify the potential beneficial owner. Once notified, the beneficial owner must furnish their particulars within days, failure to which the company must issue a “warning.”

      5. Once a warning has been registered against a beneficial owner’s interest and the beneficial owner persists in omitting their particulars a restriction is placed on the beneficial owner’s interest in the company and is registered in the company’s beneficial ownership register as well as with the Registrar.

Restrictions

The net effect of a restriction on a beneficial owner’s interest in a company is the inability to transact or benefit from the proceeds of their interest in the company. In practice, the restriction against a beneficial owners interests would mean that;

      (i) the beneficial owner would not be able to exercise any rights in respect of their interest;

      (ii) the beneficial owner would not be able to transfer their interest in the company; and

      (iii) no payments from the company can be made to the Beneficial Owner as a result of their interest.

Disclosure of Beneficial Ownership and Data Protection

Although companies have a duty to gather information regarding beneficial ownership, its disclosure is limited to the beneficial owner, the company and the Registrar. It must be noted that the information is not public information, and as such cannot be disclosed for the general public’s consumption. The company is prohibited from disclosing information gathered from a beneficial owner save for if the disclosure is;

      (i) required by the Regulations;

      (ii) for effecting communication with the beneficial owner;

      (iii) in compliance with a court order; or with

      (iv) the written consent of the beneficial owner.

Disclosure of information provided by a beneficial owner in any manner other than in compliance with the Regulations is punishable by a fine not exceeding Kenya Shillings twenty thousand or imprisonment for six months or both.

Disclosure of Beneficial Ownership and Nominee or Trustee Shareholding

Companies, for a variety of reasons, have had interests of shareholders held through nominees and trust arrangements. In order to comply with the Regulations, companies will need to disclose who the beneficial owner under a nominee arrangement is and who the ultimate beneficiary is under a trust arrangement.

In these instances, the beneficial owner would be the person that derives the true economic benefit from the legal interest in the company.

Conclusion

Transparency in the beneficial ownership of companies in Kenya is a reality. This will inevitably have an effect on ownership through nominees and trust arrangements. This poses additional considerations when structuring transactions where the non-disclosure of a beneficial owner is key.

This would need careful consideration, on a case by case basis of the optimal structure to adopt.