Government and Public Sector
Anjarwalla & Khanna has significant experience advising government bodies, including on policy and regulations development, corporate commercial, banking and finance, energy and infrastructure and natural resources. The lawyers are familiar with government processes and procedures as much as with the implemented policies and legislation that impact on the activities of government as well as on the citizens. The firm is often appointed by clients because of its ability to negotiate with the government, including contract negotiations on liability, indemnities, force majeure, political risk and other considerations regarding the bankability of projects as well as negotiating on various documents with the government in respect of corporate transactions undergoing mergers and acquisitions as well as infrastructure and energy deals, amongst others.
Matters in this sector include:
- Acting for the National Government of Kenya (GOK) in connection with the issue of its USD 2 billion Eurobond – the largest sovereign debut debt issue in Sub-Saharan Africa to date and the 2014 African Deal of the Year at the Global Capital Emerging Markets Bond Awards – as well as its subsequent USD 750 million tap, including advising the GoK on amending existing Kenyan law to allow for such an international issue, advising on all offering documents and issuing an opinion to the joint lead managers on the validity of the transaction.
- Acting for a consortium led by Kiewa Group in a joint venture with the Nairobi County Council for the redevelopment of the Old Ngara Estate within Nairobi City County at an approximate cost of USD 70 million, including undertaking a regulatory review for the project, due diligence on the title for the land, setting up a special purpose vehicle (SPV) for the consortium, drafting a shareholders agreement in relation to the SPV and reviewing the joint venture agreement between the SPV and the Nairobi City County.
- Advising the Government of Kenya’s Parliamentary Committee of Finance, Planning and Trade which is responsible for the review and promulgation into law of the Finance Act and any taxation statutes, including advising on the technical issues arising from the Finance Bill 2015 and the Tax Procedures Bill as well as advising on how these statutes could be amended to address with taxpayer concerns.
- Advising Rift Valley Railways (RVR) and a number of its shareholders on the restructuring of its 25 year concessions from the governments of Kenya and Uganda to operate the nearly 1,000 kilometre rail track linking the Indian Ocean to the interior of East Africa, including negotiating with the lead shareholder and the respective governments during the contentious and protracted restructuring and drafting all documents and agreements necessary to consummate the transaction.
- Advising Interpel, a leading container freight operator in Mombasa, on its single purpose joint venture with the American company, Carrix, the world’s largest privately held marine and rail terminal operator, to respond to the Kenya Ports Authority and the Kenyan Government’s tender for the privatisation of Mombasa’s Second Port Terminal, including negotiating the joint venture and shareholders’ agreements, advising on the provisions of the Kenya Ports Authority Act and all licensing requirements for the concession, counselling on Kenya’s Public Private Partnership Act, International Competitive Bidding Procedures and other qualification requirements for the bidding venture.
- Acting for the Government of Kenya (GoK) on its Mui Basin coal concession to Fenxi Mining (China), the first ever granted on a public private partnership basis, including structuring and negotiating all transaction documents (such as the benefits sharing agreement, exploration licence, mining lease and investment agreement), ensuring enforceability of the USD 1.6 billion Fenxi spend obligation, the provision of adequate performance securities, the inclusion of adequate environmental management and decommissioning mechanisms, working with the GoK Interministerial Committee on Coal to ensure the interests of the State Law Office, Ministry of Energy, Ministry of Finance, Ministry of Mines and Geology, Ministry of Environment and Natural Resource were being addressed, and working with Kitui county representatives to ensure the protection of local interests.
- Providing strategic, legislative, regulatory and other advice to the Capital Markets Authority of Kenya in connection with the investigation, disciplinary actions and litigation relating to CMC Motors (one of Kenya’s oldest and largest and then most respected Nairobi Securities Exchange (NSE) listed companies whose share trading was ultimately suspended), including a secondment to the ALN Dispute Resolution Group to undertake investigations into the affairs of CMC Motors, counselling in connection with related shareholder disputes, analysing existing legislation, drafting a report on Board and management conduct and advice relating to a proposed settlement between shareholders during the resulting high profile litigation at the High Court and Court of Appeals.
- In conjunction with ALN sister firm in Uganda, MMAKS, advising the IFC in connection with the Government of Uganda’s development of a PPP governed, 77km dual carriage alternative express way between Kampala and Jinja, including giving general advice on PPP options, drafting the RFP and associated documents, assisting with the selection of a preferred bidder, drafting project documents and negotiating the same with the final bidder, reviewing financing agreements.
- Advising The East African Marine System (TEAMS), a consortium of East African national and international telecoms service providers and the Government of Kenya, on the construction, operation and maintenance of an under-sea fibre optic cable providing telecommunication services between Mombasa, Kenya and Fujairah, UAE, including drafting and reviewing subscription, loan, shareholding and capacity agreements, advising on corporate and tax structures, telecommunications, PPP law and other relevant regulatory schemes and reviewing and advising on the construction and maintenance agreement between TEAMS and Emirates Telecommunications (Etisalat) and the supply contract between Alcatel, TEAMS and Etisalat.
- Acting for the Cameroonian shareholders of Cam Iron, holder of mining concessions from the Governments of Cameroon and the Republic of Congo for one of the biggest iron ore deposits in the region, including advising on their rights as minority shareholders vis a vis the majority shareholder, Sundance Resources, a company listed on the Australian Securities Exchange, as well as advising on the imposition of local content requirements (supported by the Cameroonian Government) in connection with the related USD 5 billion mining, rail and port infrastructure project.
- Acting as lead counsel for the Kenya Privatisation Commission in connection with its partial sale to the public of the state-owned Consolidated Bank Limited, including advising PricewaterhouseCoopers, the transaction advisers, conducting due diligence on the bank, including its eleven branches, and counselling on the appropriate privatisation structure.
- Acting for the Embassy of Switzerland, Kenya, in connection with the provision of advice on the tax obligations of Swiss nationals employed by the Embassy.