Privatization trends in Angola
The current impact of privatization on the development and diversification of Angola's infrastructure.
By Mukund Dhar, Africa Interest Group Leader
As we publish this report in September 2020, amid global concerns about the COVID-19 pandemic, its crushing human toll and economic cost and the profound uncertainties all around, we see an increasing focus – internationally, nationally and for many of us at a personal level – on planning for the future and taking steps towards recovery and growth in a with- or post-COVID-19 world.
A carefully calibrated re-opening of our economies is necessary not only to save lives today but also to ensure growth and prosperity, while protecting and enhancing lives in the decades to come. With this in mind, and with an eye on trying to understand and find opportunity in a with- or post-COVID-19 future, we present this fifth edition of Africa Focus.
We begin this issue with "Privatization trends in Angola," which describes several initiatives to develop and expand infrastructure in Angola, including by implementing frameworks for private investment in major Angolan projects. Next, "Sovereign debt relief proposals" tackles the significant economic and fiscal challenges to implementing much-needed debt relief in Africa, particularly given the economic impact of COVID-19.
"International project finance and currency reforms in West and Central Africa" sets out current and anticipated reforms to harmonize business laws, revise foreign exchange regulations and introducing a new currency in many of the Francophone nations, and in "World Bank and African Development Bank increase their financing and anticorruption enforcement," our lawyers highlight the importance of continuing to pay attention to sanctions and debarment risks when participating in new coronavirus-related financing opportunities.
"Africa's mines of the future: COVID-19 and ESG issues" explains how businesses can attract investors and customers in a post-pandemic world by demonstrating their environment, social and governance achievements, especially in context of the twin challenges of COVID-19 and climate change.
"Institutional arbitration in Africa: Opportunities and challenges" explores the continuing increase in arbitration options and caseloads across Africa, and "Nigeria's LNG Train 7 project breaks new ground" shows how oil & gas projects in Africa with strong fundamentals can continue to raise debt even in a volatile market.
Finally, "Looking to a future beyond oil" examines plans to transfer nearly 200 state-owned enterprises and assets in Angola to private investors over the next few years.
We welcome any ideas for further exploration in our upcoming issues. In the meantime, we hope this issue of Africa Focus continues to add to the constructive brainstorming around opportunity and investment in Africa.
The current impact of privatization on the development and diversification of Angola's infrastructure.
Economic and fiscal challenges of implementing debt relief in Africa.
Harmonizing business laws, a revised foreign exchange regulation and introducing a new currency.
Pay attention to sanctions and debarment risks amid new COVID-19 financing opportunities.
Companies that achieve ESG objectives are more likely to attract investors and customers in a post-pandemic world.
Africa’s arbitration options and caseloads continue to rise.
A US$3 billion financing amid a volatile market shows oil & gas projects with strong fundamentals can continue to raise debt.
Angola’s Privatization Program 2019 – 2022.
Pay attention to sanctions and debarment risks amid new COVID-19 financing opportunities
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In recent weeks, the World Bank, the African Development Bank (AfDB) and other multilateral development banks (MDBs) have greenlit financing and loans at unprecedented rates in response to the global pandemic and recession.
This is particularly true for countries in Africa, where World Bank and AfDB lending was already on the rise. As the opportunities for companies to bid on and participate in World Bank and MDB-financed projects in Africa and elsewhere increase, so does the potential for corruption, fraud and other forms of misconduct, which can result in possible suspension and debarment through these institutions' sanctions systems.
Here are risks and consequences for contractors undertaking MDB-funded commitments—including those financed with emergency COVID-19 disbursement funds—and key compliance takeaways for a post-COVID-19 era.
A major goal of the World Bank and other MDBs' sanctions regimes is to protect development funding.
Past analysis by the World Bank indicates that nearly 25 percent of all investment projects receive at least one complaint of fraud or corruption. In response, the World Bank and other MDBs have established and are now vigorously enforcing administrative suspension and debarment regimes, with a focus on deterring behavior that would compromise their respective development agendas. Nonetheless, many companies and their compliance officers remain unaware of these systems and the serious consequences that can follow from any misconduct.
This lack of awareness can prove detrimental to companies. Over the past several years, the World Bank has demonstrated a willingness to investigate aggressively and to impose debarment and non-debarment sanctions to address misconduct connected to the activities they finance. Many MDBs, which share a harmonized agenda reflecting agreed goals and tools to fight corruption and fraud, have established investigative anti-corruption frameworks and entered into agreements to cross-debar any entities debarred by other banks for at least one year. The MDBs have not harmonized all aspects of their sanctions systems or enforcement approaches, including in some cases, the scope and definitions of sanctionable conduct that they target and the standards they apply when deciding to pursue misconduct.
As a result, these frameworks and systems can be confusing for contractors, but are essential to understand before committing to an MDB-financed opportunity.
The World Bank describes its jurisdiction as contractual in nature. Its enforcement powers derive from the Bank's loan agreements, its fiduciary duty is enshrined in the Bank's Articles of Agreement, and its enforcement actions are informed by the Bank's anti-corruption guidelines.
The World Bank's Integrity Vice Presidency (INT), which appointed a new chief in May 2020, investigates potential violations of Bank rules. The Suspension and Debarment Officer (SDO), which heads the Office of Suspension and Debarment (OSD), reviews evidence submitted by the INT and determines whether the evidence supports a finding that alleged sanctionable practices have occurred. Parties may negotiate settlement agreements with the INT at any stage during the sanctions process. Appeals of SDO determinations are heard by the Sanctions Board, which conducts a de novo review of cases, generally with the benefit of an expanded record, and issues decisions that may not be appealed. Many contractors are subject to review by the Integrity Compliance Officer, which monitors contractors subject to its supervision.
The structure and approach of the AfDB's sanctions system largely mirrors the World Bank's system. An Integrity and Anti-Corruption Department investigates allegations of sanctionable practices and submits findings to the Sanctions Office, led by a Sanctions Commissioner. If a company chooses to litigate, the AfDB's Appeals Board conducts a de novo review of the record and issues binding decisions. Like the World Bank, the AfDB has sought to improve the transparency of its sanctions regime, including by publishing an annual report of its Sanctions Appeal Board.
Typically, a contractor learns of the World Bank's enforcement interest on a matter by receiving an audit letter or a "show cause" letter. It is important to take these letters seriously and bring them to the attention of compliance and integrity personnel, since failing to do so can risk losing a critical opportunity to present your case later. The World Bank may temporarily suspend a contractor when INT commences an investigation if sufficient evidence exists to conclude that a sanctionable practice has occurred that would result in debarment for at least two years. An early temporary suspension bars a contractor from the opportunity to be awarded new contracts for six months (and longer if extended).
The Bank's baseline sanction is a three-year conditional debarment. Settlements are typically shorter (two to three years in duration). Litigating to the Sanctions Board can result in a shorter debarment period, but does not always achieve that result. When determining an appropriate sanction, the Bank considers a non-exhaustive set of "aggravating" and "mitigating" factors, broadly defined, that may be applied in full, partially or not at all. Aggravating factors include the severity of the misconduct, the harm caused, any interference with the investigation and any past history of adjudicated misconduct. Mitigating factors include playing a minor role in the misconduct, voluntarily taking corrective action and cooperating with an investigation. Where applicable, these factors may result in adjustments of up to 50 percent from the baseline sanction.
When deciding whether to extend sanctions to a corporate group (including parent companies, subsidiaries, sister entities, joint venture partners and associated individuals), the World Bank requires some level of involvement or participation, although in the past, it has held multinational corporations accountable on the basis of the actions of a single employee's misconduct.
Finally, the impact of an imposed sanction can be severe: If a debarment of at least one year is imposed, the contractor is cross-debarred by other MDBs, and the discovery of local law violations may result in a referral to national authorities.
Until recently, World Bank suspension and debarments had been rising. Other MDBs, including the AfDB, had largely followed a similar pattern. However, the World Bank's second joint Sanctions System Annual Report for Fiscal Year 2019, released in October 2019, showed significant enforcement efforts that had still slightly declined from the Bank's previous enforcement statistics.1
In 2019, the World Bank debarred or otherwise sanctioned 53 firms and individuals, including through settlements (compared with 83 firms and individuals in fiscal year 20180. The OSD temporarily suspended 24 firms and 10 individuals in 2019 (compared with 29 firms and 11 individuals in 2018), and reviewed 16 settlements (down from 26). The INT issued 42 referrals in 2019 (compared with 43 in 2018). Finally, the World Bank imposed 33 cross-debarments based on debarments imposed by the AfDB, the Inter-American Development Bank and the Asian Development Bank (compared with 73 in 2018).2
Both the World Bank and the AfDB have increased their investments across industries to countries in Africa in recent years. During its fiscal year 2017, the World Bank unveiled plans to provide a record US$57 billion in financing for projects in sub-Saharan Africa through the end of its fiscal year 2020. In line with this pledge, the World Bank issued US$18.4 billion to partner countries and businesses in sub-Saharan Africa during 2019. The World Bank has committed a further US$25 billion in investments through 2030 to support digital transformation across North Africa and sub-Saharan Africa, with plans to mobilize another US$25 billion from the private sector.
Meanwhile, the AfDB disbursed US$7.4 billion during its fiscal year 2017, its highest year on record, and in September 2019 reported US$20 billion in disbursements over a three-year period.
Now, crucial emergency needs arising from the global pandemic have prompted the World Bank, AfDB and other MDBs to make additional pledges. As of the date of writing, the World Bank had committed up to US$160 billion in grants and financial support over a 15-month period to help more than 100 developing countries, with further funds committed by the MDBs, including the AfDB. These financing amounts and the rates at which they are being approved are notable and could translate into additional opportunities for companies to bid on and participate in World Bank and AfDB-financed projects in Africa and elsewhere.
However, they also carry increased risks associated with sanctions and debarment procedures.
Indeed, for the last several years, sub-Saharan Africa has ranked at or near the top of new World Bank sanctions cases opened by region, based on the location of the World Bank–funded project or program involved in the case (see Figure 1).
In addition, sub-Saharan Africa ranks among the top regions worldwide with respect to the regional origin of respondent entities and individuals sanctioned by the World Bank—either by the SDO and the World Bank's Sanctions Board or via settlement (see Figure 2).
Today's sanctions landscape carries greater risks and consequences for contractors than ever before.
This is reflected most recently in indications by the World Bank, the AfDB and other MDBs that they intend to remain diligent about their anti-corruption efforts while emergency disbursement funds mobilize and the international responses accelerate in high-risk markets.
For that reason, contractors engaged or planning to bid on World Bank and other MDB contracts in high-risk markets should take a careful look at their compliance systems and ensure they understand the risks of engaging on contracts financed by MDBs.
Make sure you:
Finally, if you discover that any misconduct has occurred in your contracts, it is important to take swift action. This includes undertaking an independent internal investigation so your management teams can make informed decisions, identifying culpable personnel and gaps in compliance systems and demonstrating appropriate remedial actions.
1 The World Bank Group, World Bank Group Sanctions System Annual Report FY 2019
4 The World Bank Group, World Bank Group Sanctions System Annual Report FY 2019 at page 39.
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