Thursday, June 7, 2012

What Am I Doing Here?

That's a question I commonly ask myself, in a variety of different circumstances. In this case, however, the answer is relatively clear and can be summarized as follows.

I am working at the Ministry of Commerce and Industry (MOCI). In particular, I am working for the Minister herself, Miata Beysolow. Last year, I worked at the Ministry of Foreign Affairs for the Deputy Minister, Legal Affairs. That was a very enjoyable and fulfilling assignment. However, for reasons which are too complicated to get into here, it made no sense for me to make a return visit there. So, ISLP (International Senior Lawyers Project) began to cast around for other opportunities for me in Liberia. In January, we learned that the MOCI might be interested in some legal assistance. One thing led to another, until finally we had a conference call with the Minister and her two Deputy Ministers a month or so ago. During that call, and in several follow-up e-mails, my role was fleshed out.

Liberia recently applied to become a member of the World Trade Organization (WTO). As you can imagine, that will be a lengthy and complex process that will take several years to complete. The MOCI does not have any lawyers on staff. They had a general counsel at one point but that post has been vacant for a few years. My role therefore is to assist in the WTO accession process by reviewing Liberia’s commercial and trade-related laws, and identifying those which need to be amended to conform to the WTO’s standards and requirements. I have also been asked  to identify areas where Liberia does not currently have laws, but should have to become a WTO member, and to assist in drafting them.
If this were Canada, or any other Western jurisdiction, that task would certainly be difficult, but it would be manageable given enough time to complete it. Not so in Liberia. First of all, there is no central repository of the consolidated laws of Liberia. As a result, it is difficult to know whether a particular statute still exists and whether a statute you are reviewing is the most current, up-to-date version. Somewhat frustrating indeed!

As I understand it, to update a law in Liberia, one has to manually comb through the Official Gazettes that have been published since its enactment, identify when it was amended and then try to find copies of the relevant amendments. This task is complicated by the fact that during the civil war many of the archives, libraries and other repositories of the necessary materials were destroyed. So, for example, while the Business Corporation Act was enacted in 1975, trying to track down amendments made during the 1989 to 2005 period is, I gather, a somewhat difficult task.

So, transparency is a definite problem. So is the lack of a publicly available index of Liberian statutes. What we take for granted back home is a headache in this country. When I ask whether Liberia has a Foreign Trade Law, I am typically met with blank stares, or a shrug of the shoulders, even from those who would be the likely suspects to know. To get to the bottom of this problem, we have enlisted the help of the Law Reform Commission. Even they are struggling with this task. Nonetheless, we are making progress through our own devices and perseverance.

One of the requirements for WTO accession is that the applicant country must produce a so-called legislative action plan (LAP). This document identifies the specific laws of the applicant that need to be amended before it can be accepted as a member. That is what I am working on. To date, we have identified a significant number of commercial laws that need to be changed, largely because of the WTO’s national treatment principle. That means that foreign investors and business organizations and their Liberian counterparts must be treated equally in matters of international trade and commerce. The laws that violate this principle include the Business Corporation Act, the Business Registration Act, the Investment Act, portions of a statute called the General Business Law, and portions of its Commercial Code. Laws that need to be enacted from scratch include a Competition Law, a Foreign Trade Law and an international commercial arbitration act.

Needless to say the work is both challenging and interesting. I am fortunate to be working with a group of talented and dedicated people who are committed to making this project a reality. Timing is tight however, because Liberia’s first meeting with the WTO to negotiate its accession is scheduled for  Geneva in early July. There is much to be done between now and then. An LDC (less developed country) like Liberia is simply not equipped with the internal resources and capabilities to manage a project of this magnitude on its own. In this case, Liberia is fortunate to have the services of Deloitte Consulting LLP, which is funded for this project by USAID, and a Swiss-based NGO called IDEAS Inc., which specializes in WTO consulting. Without the services of those two organizations this project would not be possible.

While I hope to make substantial inroads on the legal front before I leave, there will much that will remain to be done. It is not anticipated that accession will be completed until 2017 at the earliest. I am therefore hopeful that I can make a return visit down the road to carry on with what has been begun. I will also try to assist as best I can after I return to Toronto. If successful, WTO accession could provide a huge boost to Liberia’s economy by providing incentives for foreign capital to invest in a large variety of development projects.

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