Month: March 2022

By Dagnachew Tesfaye, Partner at DMLO

The Refugee Convention of July 28, 951 done at Geneva and the Protocol Relating to the Status of Refugees of 31st January 1967 done at New York are made integral parts of Ethiopia, with reservations on the Articles 8,9,17(2) and 22(1) of the Convention. Ethiopia is a member of the regional convention namely the OAU Refugee Convention of 10th September 1969 done at Addis Ababa. Based on these international and regional Conventions, the Refugee Proclamation No 1110/2019 was adopted by the Ethiopian parliament on February 27,2019 by replacing the previous Refugee Proclamation No 409/2004. A brief look into the 2019 Refugee Proclamation and Directives issued to implement the Proclamation shall be dealt in here below.

The Refugee Proclamation No 1110/2019(the Proclamation hereafter) is issued with the objective of creating a comprehensive legal framework that better protects refugees and promotes sustainable solutions. This Proclamation provides the procedure of determination of refugee status. The Proclamation incorporates rights and obligations of asylum seekers and recognized refugees. Some of the rights include the right to work, right to association, freedom of movement, right to acquire and transfer of property, right to access to justice, access to banking, finance, telecommunication services, vital event registration and naturalization upon fulfillment of the relevant Ethiopian nationality laws.

Following this Proclamation, the Agency for Refugees and Returnees Affair has issued several duly registered directives that enable the Agency to implement the Refugee Proclamation.

The Out of Camp Movement and Residence of Refugees Directive No 07/2019 and Directive No 430 and 431/2013 E.C can be mentioned. These Directives details the procedure in which a refugee applies for out of camp movement and residence. The Directives describe the rights and obligations related to out of camp movement and residence.

Refugees deserve to be treated with the standard the law has put in place. When such a standard is not met and treatment of refugees results in grievances, there should be a procedure for voicing such grievances. As a result Grievance and Complaint Procedure Directive No 9/2019, Directive No 432 and 433 of 2013 E.C were issued to address the complaint and grievances of refugees and returnees.

Determination of Conditions of Right to Work Directive No 429/2013(E.C) has been issued to implement the right to work of refugees enshrined in the Refugee Proclamation. The Directive provides how residence and work permits are requested and acquired. In addition to that the Directive grants the right for refugees to engage in employment in areas open to foreigners. See the link here to know more about the areas of investment reserved for domestic investors and the government and the rest is open for foreigners. https://dmethiolawyers.com/investment-businesses-open-for-foreign-investors-in-ethiopia/. Refugees can be self-employed and work in such areas of work open for foreigners. Another area of work for refugees are common projects designed by the international community and the government of Ethiopia.

Conclusion

Ethiopia has done its part in making the Refugee Conventions part of its law and enacting favorable proclamations that show the country’s commitment towards refugees and returnees. Furthermore Ethiopia has enacted implementation Directives to accommodate rights and obligations of refugees and returnees to Ethiopian society, economy and well being of the refugees themselves.

For further information you may contact us at info@dmethiolawyers.com

This article is dedicated to Zena who initially posed the questions on Refugee laws of Ethiopia.

By Mahlet Mesganaw, Partner at DMLO

The FDRE Council of Ministers in its 5th session on March 19,2022, has endorsed the Organization of African, Caribbean and Pacific States (OACPS) Revised Georgetown Agreement. The Council of Ministers sent the document for ratification to the House of Peoples Representative.

The Organization of African, Caribbean and Pacific States(OACPS)

OACPS was previously named as Africa, Caribbean and Pacific (ACP) Group of States. The Georgetown Agreement formed the ACP Group of States in 1975. OACPS is composed of in total 79 countries. 48 of them from Sub-Saharan Africa, 16 from the Caribbean and 15 from the Pacific. Ethiopia is one of the members.

Revised Georgetown Agreement of the OACPS

The meeting of Heads of States in Nairobi, Kenya from 9-10th of December,2019 resolved to establish the OACPS as an international organization. The OACPS was originally formed with the purpose of formulating cooperation between its member states with the European Union(EU). Its priority was to reach a favorable agreement of development with the EU. As the years went by, the OACPS broadened its objectives. The objectives have gone beyond development cooperation with the EU to different fields of trade, economic, political, cultural integration among the OACPS countries vis-a-vis other international organs.

Objectives of OACPS

The major objectives of OACPS include:

•  promote the efforts of Member States of the OACPS to eradicate poverty, achieve sustainable development, and fully benefit from the advantages of trade, through their gradual and more effective participation in the world economy;
•  promote and strengthen unity and solidarity among the Member States of the OACPS as well as understanding among their peoples;
• deepen and strengthen economic, political, social, and cultural relations among the Member States of the OACPS, through regional integration, strategic partnerships between OACPS regions, and inter-regional cooperation in the fields of trade, science and technology, industry, transport and communications, education, training and research, information and communication, the environment, demography, and human resources; 
•  advocate for a multilateral system that is fair, equitable, and rules-based, and which contributes to economic growth and sustainable development of the Member States of the OACPS.

Member States of the OACPS

Angola – Antigua and Barbuda – Belize – Cape Verde – Comoros – Bahamas – Barbados – Benin – Botswana – Burkina Faso – Burundi – Cameroon – Central African Republic – Chad – Congo

(Brazzaville) – Congo (Kinshasa) – Cook Islands – C ôte d’Ivoire – Cuba – Djibouti – Dominica – Dominican Republic – Eritrea – Eswatini – Ethiopia – Fiji – Gabon – Gambia – Ghana – Grenada – Republic of Guinea – Guinea-Bissau – Equatorial Guinea – Guyana – Haiti – Jamaica – Kenya – Kiribati – Lesotho – Liberia – Madagascar – Malawi – Mali – Marshall Islands – Mauritania – Mauritius – Micronesia – Mozambique – Namibia – Nauru – Niger – Nigeria – Niue – Palau – Papua New Guinea – Rwanda – St. Kitts and Nevis – St. Lucia – St. Vincent and the Grenadines – Solomon Islands – Samoa – São Tomé and Príncipe – Senegal – Seychelles – Sierra Leone – Somalia – South Africa – Sudan – Suriname – Tanzania – Timor Leste – Togo – Tonga – Trinidad and Tobago – Tuvalu – Uganda – Vanuatu – Zambia – Zimbabwe.

Organs 

The organs that administer the OACPS are:

a) Summit of Heads of State and Government; b) Council of Ministers; c) Sectoral Ministerial Committees; d) Committee of Ambassadors; e) OACPS Parliamentary Assembly; f) OACPS Secretariat.  A Troika shall be established for the above-mentioned organs, with the exception of the OACPS Secretariat The Secretariat is responsible for the administrative management of the OACPS. It assists the Organisation’s decision-making and advisory organs in carrying out their work.The Secretariat is responsible for the administrative management of the OACPS. It assists the Organisation’s decision-making and advisory organs in carrying out their work. The headquarters of the OACPS Secretariat is located in Brussels, Belgium. It is headed by an Executive Secretary-General who is responsible for implementing the OACPS’ international policy, as well as directing and coordinating its cooperation policy.

Dispute Settlement 

Member States shall endeavor peacefully to resolve all disputes concerning the interpretation or application of this Agreement and other instruments set up under OACPS in a timely manner, through dialogue, consultation, and negotiation in keeping with Article 33(1) of the Charter of the United Nations. The OACPS shall maintain and establish dispute settlement mechanisms in all fields of cooperation

Conclusion

The Organization of African, Caribbean and Pacific States is determined to promote and develop greater and closer trade, economic, political, social, and cultural relations among the Member States. As a result, Ethiopia shall benefit greatly by ratifying the Revised Georgetown Agreement of the Organization of African, Caribbean and Pacific States.

For more information you may contact us at info@dmethiolawyers.com

By Dagnachew Tesfaye, Partner at DMLO

Capital Market has been defined as a market where securities such as shares or equities, bonds, derivatives or other related securities are bought and sold. Capital Market Proclamation No 1248/2021 (this Proclamation hereafter) has been issued to regulate the capital market as of July 2021. Overview of the main concepts of the capital market organs and objectives will be dealt briefly.

Ethiopian Capital Market Authority

The Ethiopian Capital Market Authority (ECMA hereafter) is established by this Proclamation as an autonomous Federal Regulatory authority. One of the major objectives of ECMA is to ensure the existence of a capital market environment in which securities can be issued and traded in an orderly, fair, efficient manner. ECMA, as a regulatory authority, grants licenses to any person to operate as a security exchange, derivative exchange, security depository and clearing company, capital market service provider, over-the-counter trading facility or any other activity deemed by ECMA as a regulated activity under its jurisdiction. ECMA shall take administrative measures for the breach of provisions of this Proclamation or regulations and directives issued hereunder. ECMA regulates and oversees trading in primary and secondary markets of securities, the use of electronic trading platforms that deal with securities and give recognition and oversee the activities of self-regulatory organizations. ECMA is accountable to the Prime Minister of Ethiopia.

Self Regulatory Organizations

Self Regulatory Organizations(SRO) are entities that are recognized under this Proclamation to regulate their own members through the adoption and enforcement of rules of conduct for fair, ethical and efficient practices in the capital market. SRO envisions conducting their business with a view to promoting  and protecting investors and the public interest. SROs that intend to be recognized and allowed to operate need to apply to ECMA for recognition and operation. Upon acceptance, the SRO shall be declared as an SRO entity with delegated powers. The SRO shall submit its annual report to the ECMA.

The Ethiopian Security Exchange

The Ethiopian Security Exchange (ESE) is established as a share company by this Proclamation. The shareholders of the ESE shall be the Government of Ethiopia on one hand and on the other private investors including foregin investors. The total ownership of the Government or state-owned entities shall not exceed 25% of the ESE capital. ECMA shall grant an exchange license to the ESE upon meeting the minimum capital requirement and other requirements specified by ECMA. Security exchange has been defined in this Proclamation as a place which constitutes, maintains or provides a market or a facility by means of which offers to sell, purchase or exchange securities are regularly made or accepted.

Private Security Exchange Share Companies

ECMA will grant licenses for other security exchange and trading platforms that are established as share companies

Security Depository and Clearing Company

Security Depository and Clearing Company (SDCC) is defined as any legal entity that offers security depository, clearing and settlement and other related services. The SDCC license is granted to a share company that meets the minimum capital requirement and other requirements of the ECMA. The main obligation of SDCC is to arrange for fair and effective clearing and settlement in relation to any commercial transaction of securities including repo agreement(repurchase agreements) and securities lending. Public companies and other issuers of securities shall register the type of their securities and information on the owners of the securities at the Central Securities Depository.

Government Securities

The National Bank of Ethiopia(NBE) shall have autonomous power to establish, own, operate and participate and regulate central security depository for government securities. ECMA may authorize the NBE to provide securities depository and clearing services to private securities traded at the securities exchange.

Capital Market Service Providers Licencing

Capital market service providers are required to acquire a capital market services license. Licensed activities include securities broker, investment advisor, collective investment scheme operator, investment bank, securities dealer, custodian, market maker, credit rating agency, appointed representative of a capital service provider and any other person who conducts or participates in any activity in securities.

Public Offering and Trading of Securities

A publicly traded security is required to be registered by ECMA, prior to the offer or placement. The issuer of securities is required to prepare prospectus and approval of such prospectus is required by ECMA. Here the ‘issuer’ is defined in this Proclamation as a person who issues or proposes to issue any security. These include the government, company or other legal entity that offers securities to the public. Privately issued securities shall not be traded publicly. An offer of asset backed securities shall be made only if they are issued by a special purpose institution.

Collective Investment Schemes

Collective Investment Schime(CIS) is an arrangment formed for the purpose of providing facilities for persons to participate in or receive profits or income arising from the acquisition, holding management or disposal of securities or any other property or sum paid out of such profits or income. The scheme’s assets are managed by a person who is responsible for management of the scheme’s assets and client accounts. Investors who participate in the arrangement do not have day-to-day control over the management of the schim’s assets.

CIS may be established as investment companies such as mutual funds, limited partnerships or other forms under the Commercial Code. The CIS has to be registerd by ECMA. CIS can be managed by collective investment scheme Operator. The Operator is a legal entity that has the over all responsibility for management and performance of the functions of the CIS.

Prohibited Trading Practices

Insider trading, market manipulation, false trading, fraudulent transactions, front-running and similar other trading practices are some of the prohibited trading practices listed in the Proclamation.

Compensation Fund

Compensation fund is established by the  Proclamation for the purpose of granting compensation to investors who suffer monetary loss resulting from the failure of a capital market service provider or securities exchange to meet his contractual obligations and paying beneficiaries from collected unclaimed dividends when they resurface.

Criminal Liability and Administrative Measures

The Proclamation incorporates different fines and imprisonment for violations of the Proclamation. ECMA aslo imposes administrative measures such as revoking or suspending licenses, senior personnel or board of directors.

Capital Market Tribunal

The Capital Market Tribunal is established by this Proclamation to hear appeals against decisions of ECMA. A party who is dissatisfied by the decisions of the tribunal may within 30(Thirty) days after being served with notice of the decision, file a notice of appeal on questions of law only, to the Federal High Court.

Settlement of Disputes

Disputes among parties involved in the capital market concerning any civil matter arising under this Proclamation shall be resolved by mediation first and then by arbitration. The decision of the arbitration panel shall be final and binding on the parties.

Conclusion

Capital markets are established to support the development of the national economy through mobilization of capital, promoting financial innovations and sharing investment risks. A legal framework that regulates and supervises capital markets is adopted by this Proclamation. The rules enshrined in the Capital Market proclamation are intended to ensure capital markets are operated fairly, with integrity and efficiency.

For more information and inquires you may contact us at info@dmethiolawyers.com

By Mahlet Mesganaw, Partner at DMLO

Email: mahlet@dmethiolawyers.com

Introduction

Presence of foreign businesses in Ethiopia can be done by  incorporating a subsidiary company or opening a branch of a foreign company. These are the main vehicles for foreign businesses to enter into the Ethiopian market. Foreign companies may also promote their business in Ethiopia by opening commercial representative offices. The new Commercial Code of Ethiopia Proclamation No 1243/2021 from Article 37-41 incorporates provisions regarding commercial representatives employment, termination and compensation. However the Code states that detailed rules applicable to commercial representatives of foreign traders will be determined by law. Thus detailed rules on commercial representatives of foreign traders can be found on  the Commercial Registration and Licencing Proclamation 980/2016 and  its amendment Proclamation No 1150/2019 and Commercial Registration and Licencing Council of Ministers Regulation No 392/2016 and its amendment Regulation No 461/2020. 

Definition

The term “commercial representative” is defined in Proclamation 980/2016 as any person who is not domiciled in the country where the head office of the business organization or the business person he represents is situate, bound to such business organization or business person by a contract of employment and entrusted with the carrying out of any trade promotion activities on behalf and in the name of the business organization or the business person he represents, without being a business person himself.

Special Certificate of Commercial Representative

Any person interested to engage as a commercial representative shall get registered on the commercial register of the Ministry of Trade and Industry before commencing his business and obtain a special certificate.  The commercial representative certificate should be renewed annually. Renewal requires the transfer of a minimum of US$100,000 every year to a bank account of the commercial representative office in Ethiopia.

Requirements to Obtain Special Certificate of Commercial Representative 

Application for Special Certificate of Commercial Representative shall be submitted to the Ministry of Trade and Industry by attaching the following documents with the application form:

a) original and necessary copies of valid identity card or passport of the representative; 

 b) two passport size photographs taken within six months, which shows the clear identity of the representative;

 c) where the application is submitted by an attorney; original and copy of power of attorney given by the principal business person, original and necessary copies of identity card or passport of the representative and the principal; 

d) proof of registration and legal personality of the principal business organization in the country of its formation or in the country of operation; 

e) a bank statement certifying deposit of a minimum of USD 100,000(One hundred thousand) earmarked for salary and administrative expenses is deposited in the name of the principal or in the name of his representative; 

f) an authenticated proof of appointment of the representative by the principal business person as its commercial representative; 

g) statement of the principal business address of the representative applicant and branch offices, if any and: i) the title deed, if the house used for business is owned by the applicant; or ii) a valid and authenticated lease agreement, if the house used for business is leased by the applicant from another lessor or lease agreement document issued by appropriate government body if the house used is owned by the Government; ii) written confirmation letter of address issued by the local administration, if one of the evidences stated under paragraph (i) or (ii) of this sub-article could not be produced; 

h) where the principal is a business organization, in addition to requirements specified under paragraph (a) to (g), its original copies of memorandum and article of association or similar documents notarized by a legal authorized body in Ethiopia and

i) Certificate of Tax Identification Number (TIN).  

Major Tasks of Commercial Representative

Any person issued with the special certificate of commercial representative shall  be allowed to promote in Ethiopia the products and services of the company he represents, conduct market survey and trade expansion that could help the company in investing in Ethiopia in the future and promote Ethiopian export products in the country where the company he represents is stationed. A commercial representative shall, on behalf of the company he represents, not engage in supplying goods or services to customers and clients or shall not enter contracts with the customers. A commercial representative shall not work on behalf of other business persons, in any manner, other than the business person he represents. 

Private Business 

In no case may commercial representatives act on behalf of a trader selling goods or offering services similar to the goods sold or services offered by the trader to whom he is bound. Unless otherwise provided in the contract of employment, commercial representatives may not carry on similar private business for themselves and on behalf of third parties.  Unless otherwise agreed, commercial representatives may not act on behalf of traders other than the trader to whom they are bound. Where they carry on private business, or act on behalf of other traders,they shall lose their right to fees or compensation. 

Remuneration 

The remuneration of the commercial representative shall be fixed by the contract of employment or, where not fixed, by custom.  Commercial representatives may be paid in the form of  salary or on commission or both. 

Compensation in Case of Termination of Contract 

Where a contract entered into for an undefined or defined period of time is terminated by the trader for no fault attributable to the commercial  representative, the commercial  representative shall receive fair compensation which shall be fixed having regard to expansion of the trader’s market or the customers introduced by him and the like. Where the principal terminates the contract without good cause, commercial  representatives who are bound by a contract entered into for an undefined period of time shall be entitled to compensation fixed in accordance with the relevant labor law. 

Conclusion

Foreign traders and businesses who are interested in trading activities in Ethiopia can register a commercial representative office and appoint a commercial representative to undertake promotional activities of their products and services. To secure the special certificate of commercial representative, among other things, a minimum of US$100,000 has to be brought into Ethiopia which is expected to cover salaries and operational expenditures of the office for a year. Therefore commercial representation is one vehicle among others in which a foreign business can enter into the Ethiopian market to promote its products and services.

For more information or inquires you may write for us at info@dmethiolawyers.com