NOTÍCIAS

Mozambique: Proposed Amendments to the Commercial & Corporate Laws

Mozambique: Proposed Amendments to the Commercial & Corporate Laws

Published in furtherafrica.com

Since 2018, the date of the last amendment to the Commercial Code, a significant reform of the Mozambican commercial legislation is being studied. Thus, the new version of the legislation to be amended is under discussion. The following amendments have been proposed:

  1. the creation of a simplification and debureaucratisation regime related with the companies’ incorporation procedures, registration, organisation, operation, transformation and liquidation of commercial entrepreneurs;
  2. the improvement of the existing corporate types and the creation of new types of companies and/or businessmen;
  3. reviewing the rules governing commercial contracts
  4. reviewing the rules on debit securities; and
  5. reviewing the legal charges applicable to the process of incorporation of individual businessmen and commercial companies, in the national, regional and international context of the commitments assumed by the country within the scope of regional integration.

Commercial Code

In the case of the Commercial Code, the concept of business activity is now defined as: “the practice of organised acts for the production and/or circulation of goods or the provision of services, for profit.

Those who carry out a business activity as individual businessmen or a business company are considered to be businessmen.

Regarding the size of companies, the criteria were transferred from the specific Statute to the Commercial Code, with an alteration in the criteria for small companies, which are now considered to have five to ten workers, instead of the current maximum limit of forty-nine. Following on and accordingly, the criterion for medium-sized companies was also altered to harmonise with that of small companies, without prejudice to the increase in the turnover ceiling from MZN 29.270M to MZN 80M.

Regarding whom may perform commercial acts, the individual businessman is expressly provided for and is entitled to a much more detailed regime. The concept of individual businessman is established as being the natural person who professionally and habitually carries out business activities and whose turnover does not exceed 750,000.00 meticais. In the event the turnover is surpassed, the businessman is required to incorporate a commercial company.

Obtaining the individual businessperson status does not require any formality and may be granted upon registration at the Commercial Registry Counter, by means of a proper application.

Regarding the types of commercial companies, only one of the following types may be established:

  1. general partnership (sociedade em nome coletivo);
  2. limited partnership (sociedade em comandita);
  3. private limited liability company (sociedade por quotas);
  4. public limited liability company (sociedade anónima); or
  5. simplified joint stock company, this being an innovation in relation to the legislation still in force (sociedade por acções simplificada).

Regarding the company’s bodies, a new one is foreseen: the Company Secretary, which is merely optional. Its competences are:

  1. to act as secretary for the meeting of the governing bodies;
  2. to draw up the minutes and sign them together with the members of the respective governing bodies and with the Chairman of the General Meeting;
  3. to ensure that the signatures of the members or directors have been affixed to the documents by them and in their presence;
  4. to promote the registration and publication of corporate acts that are subject to registration or publication;
  5. certify the content, in full or in part, of the memorandum of association in force, as well as the identity of the members of the various company bodies and their powers;
  6. request legalisation and ensure that the company’s books are kept up-to-date and in good order;
  7. ensuring that all books that must be made available for consultation by a member or third party, do so for at least two hours each working day, during business hours and at the place of their storage indicated in the register;
  8. to initial all documentation submitted to the General Assembly and referred to in the respective minutes;
  9. to satisfy, within the scope of its competence, any requests made by shareholders exercising their right to information and to provide the information requested from the members of the corporate bodies performing supervisory functions regarding decisions taken by the administration.

Matters such as the setting of the remuneration of the corporate bodies and the appointment of the external auditor will now compulsorily be decided by the General Meeting (the articles of association cannot provide otherwise). In the opposite direction, the call and reimbursement of shareholders’ loans and additional payments is no longer compulsorily decided by the General Meeting.

In addition, incompatibilities for exercising the role of Manager were stipulated.

Commercial Contracts

Regarding the amendments to existing commercial contracts, we highlight the intention to meet international standards, namely the UNIDROIT principles.

Some of the principles incorporated in the general part are those related to good faith in contractual relations, fair treatment and consistency in the parties’ actions. The first of such principles obviously implies that the parties must act with good faith and commercial loyalty at all times during the contracting process, whether at a national or international level, including the moments of its formation, compliance, performance, settlement and termination.

The principle of choice of law now governs the conclusion of commercial contracts and is stipulated in the new Principles on Choice of Law for International Commercial Contracts of the HCCH (Hague Conference), which is a key element of a global legal framework for international commercial transactions.

Debt Securities

Concerning debt securities titles, it is the will of the holders of political power to remove these from the Commercial Code, to be included in a specific regime.

Freedom of issue continues to be the essential pillar on which the entire regime is based, there being bearer, demand and nominative instruments, which must always necessarily contain the object of the payment.

In bearer certificates the transfer is made by means of an agreement between the seller and buyer and delivery of the certificate to the buyer.

Concerning securities to order, these may be subscribed by more than one debtor; the transfer is made by endorsement and depends on the delivery of the security to the endorsed

The transfer is made by endorsement and depends on the delivery of the security to the endorsed party; the delivery is made under the terms foreseen for bearer securities.

The endorsement must be written on the security or on a sheet attached to it, on which the same security is transcribed in its entirety or by another means that is sufficiently individualised and must be signed by the endorser.

Finally, nominative titles are based on the legitimation of the exercise of the right contained therein. For the transfer of registered securities to be effective against the issuer and other third parties, either the name of the purchaser must be entered on the security and on the issuer’s register or the purchaser must be given a new security in his or her name and the surrender recorded in the register. The endorsements on the title and registration must be made by and under the responsibility of the issuer.

Other credit instruments such as bills of exchange and promissory notes and cheques follow the long legislative tradition arising from the uniform laws governing such instruments.

Company incorporation process

In order to reduce bureaucracy and the costs of incorporating commercial companies, the Government intends to approve legislation that will exempt individual businessmen from the payment of any emoluments, apply a single fee of MZN 10,000 for public limited companies and other companies will be subject to a single fee of MZN 5,000. In addition, the following acts are free of charge

  1. statistical registration certificate issued by the National Institute of Statistics;
  2. registration of the individual entrepreneur and business company at the National Institute of Social Security;
  3. tax registration, the obtaining of the Unique Tax Identification Number and the issuance of the Taxpayer Card;
  4. declaration of commencement of activity for employment purposes, nominal relation and working hours.

In addition to the value of the single fee, only the value of the publication of the simplified extract in the Bulletin of the Republic, in the value of MZN 1,250, is due.

With the aforementioned amendments, Mozambique simplifies the costs and bureaucracies related with the set up of businesses in the country, thus allowing investors to set up their businesses faster and cheaper.

Article by Duarte Marques da Cruz


Duarte Marques da Cruz is partner of the Portuguese law firm MC&A, specialised in international business advisory, with a special focus in Lusophone markets. With extensive experience in the Energy sector (Renewables and Oil & Gas) and in International Taxation, he has supported international companies in major upstream, midstream transactions and projects, including in implementing, exploration and development programs. Duarte has also supported international clients in other areas of practice, namely, Mining, Transport & Logistics, Regulatory Compliance and Mergers & Acquisitions in Mozambique, Angola and Portugal.
Through this Simplification Project, Angola shows to investors and economic players that intends to maintain its bet on the internal and external investment; on other hand, it is important to note that this simplification procedure is only at its beginning and is expected a wider range of facilitation in multiple public administration proceedings and regarding more sectors of the economy.

MCA releases Mozambique investment guide

MCA releases Mozambique investment guide

Published in furtherafrica.com

MC&A Advogados released today their latest version of their Mozambican doing business guide – an overview of the many aspects of investing in the country.

The guide aims to provide a brief and useful description of the Mozambican legal system, helpful for investors and companies interested in doing or maintaining
business in the country at a time when Mozambique is regaining momentum.

After a challenging couple of years economically and socially, the country is poised to return to its path of growth as industry insiders are already moving towards both the resumption of previous existing projects and the planning of new initiatives.

The recent military intervention by Rwandan troops in the north of the country is proving to be successful in countering insurgents, quickly paving the way to gas megaprojects to resume. Legal procedures and inquiries from the Mozambican government in the investigation of the hidden debts, broadcast on open tv daily are also beginning to build a sense of much-needed transparency and governance in the country.

Despite the FID hiatus of the last couple of years, the opportunities remain in several areas and the country is expected to quickly regain its position of “investment-darling” of foreign investors looking into the region.

You can download the MC&A Mozambique Doing Business Guide at this link.

Brazil-Angola: the deepening of the strategic investment partnership

Brazil-Angola: the deepening of the strategic investment partnership

Published in furtherafrica.com

During the last decades, in the context of bilateral relations, a large number of Brazilians have been coming to Angola to work. However, it is not only in the number of workers that the Brazil-Luanda approximation lies. There is also a growing interest of Brazilian investors in the Angolan market.

As early as 2003, in the aftermath of the Angolan civil war, the Minister for Foreign Affairs of Angola appealed to the Brazilian government to invest in Angola, considering richness in business opportunities.

The characteristics that most attract Brazilian investors are the language facilities, the natural wealth of the country rich in oil, precious stones and minerals and the growing Angolan desire for industrialisation.

Both countries share the petroleum industry as a fundamental pivot of their economies. In fact, in 2003 only Odebrecht (with the construction of the Capanda dam) and Petrobras had relevant investments in the country.

By 2018, the figures had evolved to values around 458 million USD of Brazilian exports and 210 million USD of Angolan exports.

In the aftermath of the pandemic, Brazil wants to strengthen investment relations. In this context, and on the occasion of the XIII Conference of Heads of State and Government of the Community of Portuguese Language Countries (CPLP), held in Luanda, on July 17, 2021, the Brazilian Ambassador to Angola recently announced an investment package and technical cooperation to be provided by Brazil involving several areas such as energy, infrastructure, agriculture, and health.

The Agricultural sector is one of the most promising for bilateral cooperation and investments, given the recognized Angolan potential and the technical capacity Brazilian agribusiness entities. Thus, Brazil has already approved the creation of an Agricultural Addition at the Embassy (Commercial Attache), responsible for the development of this mutually beneficial cooperation.

Since 2017, the BIT between Brazil and Angola has been in force, providing a framework for bilateral relations. The agreement regulates matters such as institutional issues, the creation of an ombudsman, risk reduction and prevention of disputes, and transparency.

Even so, there are still challenges needed to increase the pace of investment: the resumption of airline connections, the increase of maritime connections, and the strengthening of diplomatic relations, the latter greatly increased by the latest CPLP.

With companies in both States more focused on the due diligence and compliance pillar, Brazilian companies are trusting in the Angolan business environment and, consequently, are returning to participate in public tenders and tenders in Angola.

For example, Sonangol recently awarded the construction of the Barra do Dande Ocean Terminal (TOBD) to Odebrecht Engenharia e Construção International (OECI), a project valued at € 465.7 million (USD 547.8 million) and signed, in Luanda, the 3 contracts for this work, as a result of an international public tender launched. The winners of this tender, aimed at companies interested in the project’s completion works, were OECI (construction), DAR Angola (contract inspection), and SOAPRO (conduct of the environmental impact study). In addition to the construction of the terminal, the contract includes the completion of the refined products storage park and the construction of the ship mooring dock. The Angolan oil company stressed that the Barra do Dande Project, in Bengo province, is of strategic and national interest and integrates the objectives defined in the Angolan Executive’s National Development Plan 2018-2022, as the main platform to ensure the storage and reception of petroleum products for the country’s strategic, security and operational reserves, in addition to promoting Dande as an important fuel storage and marketing hub in the region. The oil product storage project, considered strategic, began in 2014 and was interrupted in 2016, due to the economic context that the country and the Odebrecht company were experiencing at that time. This only reinforces the resumption of Brazil-Angola investments and the strengthening of relations.

Therefore, it seems to be one of the relationships to be taken into account in the near future, placing Brazil in a good position to become one of Angola’s most exclusive business partners.

Article by Marco Correia Gadanha with contributions by Caroline Andressa CostaMember of the Council of Brazilian Citizens in Angola – CCBA Legal Department – Lawyer of Urbano Vitalino Advogados, partner of MCA Carrazedo e Pascoal Advogados

 

Mozambique approves a new regulation for the sale of diamonds, precious metals and gemstones

Mozambique approves a new regulation for the sale of diamonds, precious metals and gemstones

Published in furtherafrica.com

On 1 September 2021, Mozambique approved the new Regulation regarding the sale of diamonds, precious metals, and gemstones (Decree no. 63/2021), which revoked the previous Regulation (Decree 25/2015) and applies to operations of research and production performed under mining authorizations, and to the sale and acquisition of diamonds, precious metals, and gemstones, establishing the conditions for the exercise of activities as the import, export, transportation, and commercialization of such products.

The main rules foreseen in this Regulation, are:
  • The commercialization of the diamonds, precious metals, and gemstones may be performed only by Mozambican companies;
  • Any operation regarding research, production, or commercialization of these products may be performed only by duly authorized entities, which shall also be registered in the Ministry of Natural Resources;
  • The request regarding a Commercialization License shall be decided in 60 days after the application;
  • Commercialization Licenses are valid for 5 years, and may be renewed by the same period if the licensed fulfilled some requirements, as the compliance with all the obligations imposed by the license and the presentation of a report regarding the activities performed during the five years;
  • License renewal must be requested at least 60 days before its expiration;
  • The licensed entity shall inform annually the sale operations performed in each year;
  • The Commercialization License may be transferred to another holder, with the authorization of the Minister who supervises the sector;
  • Commercialization Licenses may be revoked by the Minister who supervises the area, when i) the licensed breaches any rules foreseen in the mining laws and regulations, ii) the licensed is condemned by certain crimes, iii) is not paid the annual commercialization tax, iv) the licensed is involved in illegal commercialization acts or has given false information to obtain the license;
  • Exports and imports of such products shall be performed through trading posts approved by the Government;
  • Exports of rough diamonds, precious metals, and gemstones need to be authorized by the Kimberley Procedure,
  • Precious Metals, and Gemstones Management Unit through the Kimberley Procedure Certificate, which is valid for 60 days;
  • The Kimberley Procedure Certificate for diamondsshall be approved or denied within three workdays after the request; for precious metals and gemstones, the decision is due in five workdays;
  • Mining operators shall register the possession of diamonds, precious metals, and gemstones or have the declaration of sale issued by the Kimberley Procedure Management Unit, or they may be apprehended and revert to the State;
  • Holders of Commercialization Licenses have 90 days from the publication of the present Regulation to comply with their new duties according to the new legislation;
  • Were forbidden some behaviors and foreseen sanctions to those situations, as in case of import without the necessary authorization or false information to the inspecting authorities;
  • Any production or transaction of rough diamonds shall be communicated to the Kimberley Procedure Management Unit, and its export shall be authorized by this entity.

With this new Regulation, Mozambique intends to update its legislation according to the sector international recommendations and best practices.

Article by Duarte Marques da Cruz


Duarte Marques da Cruz Duarte Marques da Cruz is partner of the Portuguese law firm MC&A, specialised in international business advisory, with a special focus in Lusophone markets. With extensive experience in the Energy sector (Renewables and Oil & Gas) and in International Taxation, he has supported international companies in major upstream, midstream transactions and projects, including in implementing, exploration and development programs. Duarte has also supported international clients in other areas of practice, namely, Mining, Transport & Logistics, Regulatory Compliance and Mergers & Acquisitions in Mozambique, Angola and Portugal. Through this Simplification Project, Angola shows to investors and economic players that intends to maintain its bet on the internal and external investment; on other hand, it is important to note that this simplification procedure is only at its beginning and is expected a wider range of facilitation in multiple public administration proceedings and regarding more sectors of the economy.

Angola: Personal Income Tax Monthly Remuneration Maps – Electronic Submission

Angola: Personal Income Tax Monthly Remuneration Maps – Electronic Submission

Published in furtherafrica.com

According to the guidelines issued by the General Tax Authority (AGT), in the current month of September, all employing entities may, through the AGT Online Portal and, optionally until December 31st, deliver the monthly map of remuneration related to the tax owed by the employees and automatically generate the payment note (former DC).

To do so, the entities must access the AGT Online Portal, fill in the information regarding the remuneration of each employee, submit the map and the Integrated Tax Management System (SIGT).

After that, the AGT Online Portal will automatically calculate the amount of IRT payable, and it will generate the Settlement Note with the remuneration schedule and the respective Settlement Receipt.
With this procedure, the employees who are holders of this tax can consult the movements in their current account.

The entities, until December 31st, will continue to have available the settlement and payment of IRT, through revenue classifier A12. After this deadline, the settlement of the IRT – Group A, will be done exclusively through the Portal or by contacting a Tax Office.

Article by Duarte Marques da Cruz


Duarte Marques da Cruz Duarte Marques da Cruz is partner of the Portuguese law firm MC&A, specialised in international business advisory, with a special focus in Lusophone markets. With extensive experience in the Energy sector (Renewables and Oil & Gas) and in International Taxation, he has supported international companies in major upstream, midstream transactions and projects, including in implementing, exploration and development programs. Duarte has also supported international clients in other areas of practice, namely, Mining, Transport & Logistics, Regulatory Compliance and Mergers & Acquisitions in Mozambique, Angola and Portugal. Through this Simplification Project, Angola shows to investors and economic players that intends to maintain its bet on the internal and external investment; on other hand, it is important to note that this simplification procedure is only at its beginning and is expected a wider range of facilitation in multiple public administration proceedings and regarding more sectors of the economy.

Angola adheres to the ICSID Convention

Angola adheres to the ICSID Convention

Published in furtherafrica.com

 

Through Resolution no. 63/21, of 1 September, Angola adhered to the Convention for the Settlement of Disputes arising from Foreign Investment (ICSID), also known as the Washington Convention.

The ICSID Convention entered into force in 1966 and aims to promote investment and globalization by allowing investors to benefit from a neutral, fast, and efficient means of alternative dispute resolution that allows for the definitive resolution of any disputes that may arise between the State and investors.

The adhesion of the ICSID Convention and the recent ratification of the New York Convention on the Recognition and Enforcement of Foreign Arbitral awards are big steps in the foreign investment attraction policies that Angola has been implementing, thus guaranteeing an increasingly stable and secure investment environment in the country.

Following the adhesion, Angola must regulate the form in which access to the ICSID Convention jurisdiction is provided since Angola has three alternatives to consent:

– In the Bilateral Investment Treaties;

– Directly through the national investment law;

– In the investment contracts to be entered into with foreign investors.

Article by Duarte Marques da Cruz


Duarte Marques da Cruz Duarte Marques da Cruz is partner of the Portuguese law firm MC&A, specialised in international business advisory, with a special focus in Lusophone markets. With extensive experience in the Energy sector (Renewables and Oil & Gas) and in International Taxation, he has supported international companies in major upstream, midstream transactions and projects, including in implementing, exploration and development programs. Duarte has also supported international clients in other areas of practice, namely, Mining, Transport & Logistics, Regulatory Compliance and Mergers & Acquisitions in Mozambique, Angola and Portugal. Through this Simplification Project, Angola shows to investors and economic players that intends to maintain its bet on the internal and external investment; on other hand, it is important to note that this simplification procedure is only at its beginning and is expected a wider range of facilitation in multiple public administration proceedings and regarding more sectors of the economy.

 

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