As well as access to water, energy, roads, ICT and a suitable workforce, investors in developing economies want to have confidence in the justice system. Some of the certainties they look for are protection for their property, access to justice and protection for their employees. They want assurance on contract enforcement and if any dispute arises, they want a judicial system that will bring rapid and efficient dispute solutions.
In order to encourage foreign investment, many governments are increasingly focusing their attention on specific investment laws to provide this legal certainty. During the Invest Sierra Leone 2016 forum, questions about whether Sierra Leone had or was developing the necessary regulatory infrastructure to protect investors became a major talking point.
Sierra Leone’s Attorney General, Minister of Justice and now Presidential aspirant - Joseph Fitzgerald Kamara, is all too aware that investors to Sierra Leone have certain expectations of commercial justice. He has confirmed that he will be giving the keynote speech on the subject at Invest Sierra Leone 2017.
Earlier this year, he spoke at Sierra Leone’s inaugural Commercial Law conference. This is the transcript of that speech.
"Your excellencies, distinguished guests, my lords, ladies and gentlemen, I am delighted to be here to speak to you today at Sierra Leone's inaugural Commercial Law Summit.
"I should begin by thanking His Excellency the President Dr Ernest Bai Koroma for his endorsement of this event.
"I would also like to thank my fellow speakers: the Honourable Chief Justice Charm, the Honourable Mr Justice Blair and the Rt Honourable Lord Falconer.
"And also let me thank the Summit organisers and supporters: Herbert Smith Freehills, Standard Chartered Bank, the UK Sierra Leone Pro Bono Network, the British High Commission to Sierra Leone, ROLE UK, UK Aid and all those who made the journey here today.
"Today's Summit is an important event, bringing together people from a variety of sectors to identify and explore the challenges in commercial law and justice in our beloved country.
"In this room, we have representatives from business, the legal profession, government and the judiciary - from the UK, Ghana and, of course, Sierra Leone. These three countries – as members of the Commonwealth and as common law jurisdictions - are bound by the ties of shared history and a shared legal system. In fact, as I drew to the attention of the Chairman of the Bar Council on my recent trip to London, the common law and statutes of England pre-dating 1880 automatically form part of the laws of Sierra Leone.
"I hope that the Summit, and other events taking place this week, will help to grow and strengthen the partnerships between the legal sectors in our three countries.
"Addressing the challenges in commercial law and justice - and thereby increasing the ease of doing business in Sierra Leone - is a Government priority, so I am very pleased to be here today to talk about these issues and about how we can deal with them.
"As has already been said today - a robust legal system, underpinned by the rule of law, goes hand in hand with economic prosperity. A justice system that delivers the rule of law produces a business operating environment characterised by certainty, transparency and fairness. Such an environment, in turn, encourages responsible business. It encourages investors to invest in Sierra Leone for the long-term, to take more of our talented people onto their payrolls and to invest in their education, and to manage our abundant natural resources sustainably. Sierra Leone is open for business, but we should not open ourselves up to companies whose success is dependent on bribing our public officials, on skirting our environmental and social regulations and dishonouring their agreements with our government and their private sector counterparties, rather than their merit and reputation.
"We should strive to make Sierra Leone an attractive place for responsible investors who respect and support the rule of law, thereby creating a virtuous circle in which a strong and resilient economy can be built. These priorities are reflected in our current Justice Sector Reform Strategy and Investment Plan for 2015-2017 - our first justice sector programme to acknowledge the critical role of commercial law and justice to economic development and to set goals for Sierra Leone's development in this regard.
"I'd like to expand on two issues that form part of this Justice Sector Strategy, and which have also featured heavily in today's discussions: Anti Bribery and Corruption and Arbitration.
"The true extent of the cost of corruption lies not in the number of bribes paid but in the misallocation of resources, the distortions created by discretionary incentives and the erosion of public trust in government.
"Corruption suppresses economic growth by driving up costs, and undermines the sustainable management of the environment and natural resources. It breaches fundamental human rights and exacerbates poverty.
"As many of you know, before I took office as Attorney General and Minister of Justice, I held the post of Anti-Corruption Commissioner. In this role, I launched the "Pay No Bribe" campaign, which was mentioned in His Excellency's speech earlier today. The campaign was generously supported by DFID and other partners. With support from the European Union, the ACC has also developed an online asset disclosure system. This system will make it easier for public officers to comply with the declaration process, and ease the storage and verification of declarations.
"Corruption is a complex issue. It cannot be solved by governments or businesses alone. One of the issues that I discussed with the Director of the Serious Fraud Office, David Green QC, while I was in London last month, has also been picked up in the discussions today: introducing offences specifically aimed at companies in addition to the "public" offences of the current Anti-Corruption Act. I think this will be critical. However we must remember that businesses are also victims of extortion with a shared stake in reform - we must work together to fight corruption.
"Corruption flourishes when it is possible to hide corrupt practices and where one can operate with impunity if they are discovered. Transparency and accountability will be essential to tackling corruption in Sierra Leone. That is why I am dedicated to protecting freedom of expression – shielding whistleblowers and enabling our journalists to expose wrongdoing wherever it may occur in Sierra Leone, including in our halls of power. That is why I am committed to reforming the laws on criminal and seditious libel. Such reform would undoubtedly enhance the country’s reputation as a stable democracy.
"The second issue I wish to address is arbitration.
"The New York Convention provides a set of well-established and internationally familiar principles for international arbitration. So widely accepted are these principles that the Convention is heralded as "the most successful, multilateral instrument in the field of international trade law". The Convention now has 157 contracting states, including the UK, Ghana and our closest neighbours, Guinea and Liberia. Given the extent of acceptance, states are noted by their absence from the list of those who have acceded or ratified.
"Accession to the Convention promotes foreign investment by sending a strong signal to the international investment community that the state which joins the Convention will uphold contractual parties' choices to resolve disputes by arbitration and will recognise and enforce arbitral awards in a consistent and predictable way. It can also in turn benefit Sierra Leonean parties to international contracts in that it decreases the cost of enforcement risk which is often factored into commercial terms.
"Accession to the Convention alone however will not be sufficient to ensure investor confidence that a contracting state will be in a position to uphold its international obligations. Amongst other things (including support for arbitration from the judiciary), the domestic statutory regime must provide a stable and supportive framework for arbitration proceedings.
"The existing Sierra Leonean arbitration law, contained predominantly in Chapter 25 of the Laws of Sierra Leone 1960 (the 1960 Act), is based on the English Arbitration Act 1950. The 1950 Act has been amended twice subsequently, including comprehensively in 1996, while Sierra Leonean law has remained unchanged. This law is deficient for Sierra Leone's ambitions with regard to international arbitration.
"My offices, together the Law Reform Commission, have been working on a new, modern arbitration bill for the past year with international law firm, Herbert Smith Freehills, who you'll recognise as today's Summit co-organisers. As I speak, Sierra Leone has reached where it should be – we have a draft bill that is ready for Cabinet consideration.
"As a key indicator in a number of international benchmark indices, accession to the Convention will send a clear signal that Sierra Leone is open for business. It will improve our country's performance in the World Bank Indices, including the Ease of Doing Business rankings and Investing Across Borders, a World Bank Group initiative comparing regulation of foreign direct investment around the world. Established in 2010 and updated in 2012, for 87 economies, Investing Across Borders aims to help countries develop more competitive business environments by identifying good practices in investment policy design and implementation. It measures FDI regulation in 4 topics, one of which is "Arbitrating Commercial Disputes". The methodology considers strength of laws, ease of process and extent of judicial assistance. All three of these indicators will be positively influenced by accession to the Convention, and the passing of modern arbitration legislation.
"Preparing and implementing an effective training programme regarding the application and implementation of the new Act will also be very important. We are delighted to be working with Herbert Smith Freehills to develop a training programme for the judiciary, arbitrators (and potential arbitrators), academics and practitioners in the dispute resolution sector. Some of this will be rolled out in training sessions this week.
"I am proud to be officially announcing this landmark reform to commercial law in Sierra Leone at today's Summit. It is a salutary example of a reform in commercial law and justice that will ultimately drive growth and prosperity for all Sierra Leoneans, not only big business. And there so many potential other reforms like it – some revolutionary for Sierra Leone and others merely incremental. It is up to all of us in this room to identify and pursue those reforms with passion and energy.
"As Attorney-General and Minister of Justice, it has been a pleasure to host Sierra Leone's first Commercial Law Summit. Our work today has firmly placed strengthening commercial law and justice in this country right at the top of our broader development agenda. On behalf of the Government of Sierra Leone, may I thank everyone in this hall for their contributions today to the future possibilities for commercial law in this country. I look forward greatly to receiving the report to government on the recommendations coming out of today's workshops and carrying forward your ideas from within government. Thank you."