Africa calling – how rapid change in the continent is shaking up its legal market
While Africa continues to entice international firms, the legal market's status quo is shifting fast
March 26, 2015 at 08:08 PM
51 minute read
The original version of this story was published on Law.com
Africa has been the place to watch for international law firms for as long as most people can remember. The natural resources on the continent make it ripe for international investment, combined with a burgeoning middle class and all that entails – technology, infrastructure and consumer goods. Add the ongoing uncertainty in law firms' home markets and the opportunities for them in Africa seem endless. The attempts by international firms to crack Africa unavoidably impact on domestic outfits. Yet the complexity of the continent and the number of legal traditions and jurisdictional restrictions in play within the region mean that, while growing their market position, African firms are finding ways to compete with the international players, as well as ensure mutually beneficial relationships.
"The legal market has been difficult in Europe and even the US, and many firms have seen Africa as a new opportunity," says Chris Ewing, former chairman of DLA Cliffe Dekker Hofmeyr, now a consultant with the firm and chairman of DLA Piper Africa. "But I think it is a long-term [strategy] to build a base and African firms have an advantage by already having that. International firms will need patience to grow."
Despite most international firms falling over themselves to market their strengths on the continent, no one can seem to agree on what it means to have an Africa practice. What is obvious, however, is that there is no clear or easy way for a firm to establish itself in the region. This reality is further complicated by the varying practice restrictions in place across Africa's 54 nations.
"If you look at what is happening in the legal profession across the continent you see the western firms trying to understand the complexities of the African legal market. For example, some of the magic circle firms seem interested in trying to do tie-ups with the South African outfits," comments Witney Schneidman, Covington & Burling's senior international adviser for Africa. "The biggest hindrance is regulatory issues that prevent lawyers from working in Africa."
Last year Clyde & Co came up against regulatory restrictions in South Africa that initially prevented it from opening under its international brand: local rules require firm names to include that of a current or former partner from the jurisdiction. In 2011 Eversheds made a successful application in the High Court against the Law Society of South Africa contesting the regulation. As a result, the Law Society of the Northern Provinces in South Africa has proposed an amendment that would allow a firm to put an application to use its name before the council of the Law Society.
Until that amendment is formally introduced, it is understood that, in many cases, the Law Society is "effectively turning a blind eye to new firms", according to one local source familiar with the market. Allen & Overy, for example, cleared its own-name launch with the Law Society before opening its South African office in October last year, headed by former Bowman Gilfillan banking partner Lionel Shawe, who brought with him three other banking partners and a team of associates.
Liberalism v protectionism
South Africa, however, can be seen as an anomaly in that regard because many emerging markets are widely perceived as being unlikely to liberalise in the near future, despite their rapidly growing economies. "Look at Brazil, India and China," says the former head of Hogan Lovells' Africa practice, Andrew Gamble. "All of those markets that are growing have become increasingly hostile to international law firms setting up there. I don't think economic growth per se has had a liberalising effect in other economies – it has had the opposite effect, causing them to become more protectionist."
However, there is also the view that once one of the major economies fully liberalises its legal market, driven by the demands of economic expansion, others will follow in quick succession. "Once Nigeria opens it will see huge interest," says one partner working on the continent. "East Africa is booming and Kenya is minded to change its regulations, but Mozambique and Angola have old Portuguese practice rules."
Likewise Gamble points to the discussions taking place in Lagos about the possibility of market liberalisation in that country, but notes that local practices receive a lot of referral work from international firms, which could be jeopardised by the opening up of the market. Furthermore, while Kenya's attorney general is looking at liberalising the market, he is said to be facing opposition from the local law society, which is taking a more protectionist stance. This encapsulates the dichotomy facing practitioners in the market: both protectionism and liberalism present threats.
"It is not necessarily going to be as plain sailing as the international firms would like in terms of the markets opening up," comments Roddy McKean, director of ALN (formerly known as Africa Legal Network) and Kenya firm Anjarwalla & Khanna (A&K). "Like everything in Africa it is hard to generalise and everyone is going to do things differently, but I think you will see different approaches from different Bar associations."
Baker & McKenzie corporate partner and London telecommunications head Peter Strivens, who overseas the London office's approach to Africa, adds: "In some places the restrictions are getting more onerous but they do not mean that international law firms are prevented from practising; they just need to make sure they comply with the rules."
This view of the changes being seen on the continent is supported by Arshad Dudhia, managing partner of Zambian firm Musa Dudhia & Co, which is part of ALN. "We see more international investment into Zambia and more domestic/local champions expanding their business to other countries in Africa," he explains. "Growth of the continent will lead to liberalisation of the legal regimes. We are already seeing such liberalisation in Tanzania, South Africa and Kenya."
Understanding the diversities
However, one thing that is certain about the continent is that you are entering dangerous territory once you begin to make generalisations about its many economies and political and legal systems. "It is a mistake to think of it as one country," says Piet Faber, chief executive of ENSafrica. "Some jurisdictions are very user-friendly; others are more problematic and difficult to do business in, but generally speaking things are not as difficult as people think they are. It is an evolving situation – there is a realisation that regulation can be a bad thing."
Take Zambia as an example: under national regulations a lawyer who is not admitted to the Zambian Bar cannot provide any type of legal services, including corporate. Therefore an internationally qualified lawyer would have to attend Bar school and sit the exams in addition to obtaining a Zambian work permit. Further, local regulations also control the name of the firm, restricting international outfits that have partners in their firm name.
"As one of the oldest law firms in Zambia, we are often the law firm of choice for major international clients seeking skilled domestic representation in our jurisdiction," says Dudhia. "This is because of our extensive relationships with local regulators and knowledge of how things work in Zambia, which are challenging to any international firm."
From an international perspective the challenges are clear: "Our focus is the countries in sub-Saharan Africa. It is important for us to be engaging in a broad range of these issues and sectors for our clients today and our clients of tomorrow," explains Schneidman. "Africa is changing so quickly that clients often have to relearn elements of doing business on the continent."
This fast pace of change can often present further complications for law firms, which are frequently called on by clients to provide advice on a wider spectrum of issues than just the legal aspects. One partner, charged with responsibility for his international firm's Africa strategy, describes clients as "wanting lawyers to hold their hand". When working in emerging markets with fluctuating political, social and economic climates lawyers may well be relied upon to have an on-the-ground view of the country and the practical and cultural issues clients may face in the course of conducting business within a jurisdiction.
"It is a big hindrance and the only way you can deal with it is to have strong local relationships; the only way to give good advice is to build these relationships," Ewing argues.
It is no secret that in the face of the multiple hurdles to creating brand recognition in Africa, international firms have taken divergent approaches to establishing a presence on the ground – something that domestic outfits are all too aware of. "I think there are two ways," explains Ewing. "The first is simply hiring a team of lawyers from one of the domestic firms. The second route is building relationships around the continent: if you look at the future it is a pan-African law firm."
What do domestic firms want to do?
It is clear that for those firms that aspire to be able to service their clients across the globe, experience of working on the vast continent is perceived as imperative. However, this raises the question of the effect this aspiration is having on domestic firms, particularly when, as is often the case at present, they are a necessary link between international firms and the opportunities on the ground.
"When I talk to law firm colleagues on the continent, they often ask ‘do we do a tie-up with a well-established firm in the US or the UK?'" says Schneidman. "‘If we do tie-up, is the level of business going to be greater than what we would get if we had stayed independent?' At the end of the day that is a personal decision for firms to make – it is something they are grappling with."
Several local firms have taken the plunge, aligning themselves with international players. In 2012 Linklaters sealed an exclusive alliance with South Africa's Webber Wentzel, while Hogan Lovells combined with Routledge Modise in 2014.
Against the struggles facing international firms, African outfits – with their local knowledge, practising capabilities and increasing operational sophistication – are growing to meet client needs at the top of the market. Working alongside international law firms presents opportunities to develop their own brands across the continent and beyond. However, there is also the sense that some firms working in a number of jurisdictions feel international players are taking opportunities away from them.
"I think it goes both ways depending on what sort of firm you are talking about," says Strivens. "Market leaders like to work with international firms because they get exposure to bigger projects. Other smaller firms that are not in that market could get nervous. They think the international firms are going to steal their livelihood but that is not the sort of work that large international firms are aiming to do."
McKean adds: "We have seen this happen in many countries around the world; a lot of the feelings against international law firms come from the smaller, general firms that are not actually going to be affected by it at all. The international outfits are not coming in to do the local work they do. It is often more rhetoric than anything else."
The potential pitfalls that firms can face are clearly shown by DLA Piper's relationship with Cliffe Dekker. At the end of last year Legal Week reported that management-level talks between the two firms had been called following conflicts arising when they had each pitched for the same work. It is understood that the discussions are ongoing amid market rumours of a split between the two – a move Ewing expressly denies: "The relationship evolves all the time to maximise the benefits for both of us," he says. "The relationship may take a new form."
For Schneidman, cooperation between domestic and international firms is inevitable: what relationships will hinge on, however, is the degree of exclusivity enjoyed by the firms.
"We are likely to see more involvement from international law firms as domestic outfits grow, and international companies put increased investment into the continent," predicts Gamble. "More international firms will give thought to having offices in key jurisdictions."
The influence of international firms can extend beyond cooperation on client work, with secondments and training often forming part of the relationship between domestic firms and their international colleagues. "Training and capacity are big concerns on the continent, which is why ALN started the ALN Academy," says Dudhia. "Through the academy we ask international firms to provide support via training and precedents to clients and government officials. The combination of local knowledge and international practice helps our clients and improves capacity on the ground."
Dudhia's view represents another side of the market, which, rather than feeling threatened by the presence of the international players, welcomes their input and feels they bring opportunities to the continent's burgeoning legal markets. "ALN has an international strategy; hence our firms work with several international law firms in need of a pan-African platform through which they can manage complex cross-border deals. International firms doing the work alone would not suit the clients' needs," he explains.
"From an A&K perspective we are not threatened by it – we would welcome them in the market," adds McKean. "Our view is that there will always be room for a top-tier independent firm in the market, so we think it will benefit our business rather than hurting it."
This is felt by both sides of the relationship, as international firms are aware of the impact they are having on the continent's rising domestic players. "Over the last few years across jurisdictions we have had firms getting bigger and more sophisticated, and I think they look at the way international law firms operate," notes Strivens. However, Strivens does not see the influence of international firms wavering: rather, he maintains that their breadth and experience, valued by clients, outweigh that of the domestic firms.
"There are several firms that have pan-African relationships where I would be surprised if these relationships did not develop in a similar way to the major audit firms and end up in business and financial integration," says Ewing. "I think it will happen with us [DLA Africa group] and some of the other law firms will go the same way."
The rise of pan-African firms
The status quo is changing and, as behemoth firms such as Dentons and DLA strive to achieve an all-encompassing African presence, domestic firms are rising to meet the challenge from the emerging pan-African law firms. "We have definitely seen a number of firms with different models," comments McKean. "There are some firms that have tried to develop branded firms across the continent, but they are often no more than marketing networks because they are not financially integrated."
Firms such as ENSafrica and members of the ALN are attempting to meet the needs of cross-border clients, bringing together domestic firms with a view to establishing efficient and experienced networks. For many, this development seems like the logical next step: combining jurisdictional knowledge with wider experience and expertise.
"Our intention is that we want to build a really integrated African firm in several jurisdictions," says Faber. "We are planning to be in more countries this year."
McKean adds: "For ALN it is our ultimate objective to become a pan-African law firm. Clearly, though, from a regulatory point of view in many countries there are some challenges of having a fully integrated model, but there are other ways to achieve the same result."
"Never have we at Musa Dudhia been more alive to the fact that the best way to meet clients' complex cross-border needs is to work within an alliance of like-minded top-tier client-focused firms," says Dudhia. "We are close to 50 years old and are excited not only to be a market leader in our jurisdiction, but also to be part of a pan-African group that is demonstrating that it is possible to have internationally trained African lawyers who don't only know what is happening on the ground, but are actually on the ground in key African jurisdictions. We would like to maintain our ideology of Africans building Africa."
The alternative view of the market is that the rise of African firms can be attributed to the presence of international outfits in the maturing legal market, and that as the opportunities to work with international firms have grown so have the local firms themselves. "The African legal market has always been inundated by the international law firms," comments Faber. "All that work was being done out of London or Paris or New York and I think the thing that is changing is that African firms are developing capability to do the work themselves. So now the international firms want to plant flags on the continent themselves in response to that. The economy of Africa means that the African firms have seen the benefit of growth there."
There is no shortage of discussion about Africa. What is changing, however, is who is dictating it. As individual jurisdictions begin to look at welcoming investment, the domestic law firms are growing to meet the demand – and in the course of doing so are joining the international players on the way up.
While the international firms trying to establish a presence on the continent have the experience in cross-border work to draw clients, in markets potted with regulatory hurdles they are unable to do the work alone. It is this gap that is being successfully exploited by local firms, which, as they grow across the continent, could pose a threat to the international brands still scrambling to define their Africa offering.
"What's driving the interest by law firms in Africa is strong economic growth and the emerging middle class," concludes Schneidman. "I have come to understand that there is a new scramble for Africa, but this time it's by lawyers for lawyers."
Africa has been the place to watch for international law firms for as long as most people can remember. The natural resources on the continent make it ripe for international investment, combined with a burgeoning middle class and all that entails – technology, infrastructure and consumer goods. Add the ongoing uncertainty in law firms' home markets and the opportunities for them in Africa seem endless. The attempts by international firms to crack Africa unavoidably impact on domestic outfits. Yet the complexity of the continent and the number of legal traditions and jurisdictional restrictions in play within the region mean that, while growing their market position, African firms are finding ways to compete with the international players, as well as ensure mutually beneficial relationships.
"The legal market has been difficult in Europe and even the US, and many firms have seen Africa as a new opportunity," says Chris Ewing, former chairman of DLA Cliffe Dekker Hofmeyr, now a consultant with the firm and chairman of
Despite most international firms falling over themselves to market their strengths on the continent, no one can seem to agree on what it means to have an Africa practice. What is obvious, however, is that there is no clear or easy way for a firm to establish itself in the region. This reality is further complicated by the varying practice restrictions in place across Africa's 54 nations.
"If you look at what is happening in the legal profession across the continent you see the western firms trying to understand the complexities of the African legal market. For example, some of the magic circle firms seem interested in trying to do tie-ups with the South African outfits," comments Witney Schneidman,
Last year
Until that amendment is formally introduced, it is understood that, in many cases, the Law Society is "effectively turning a blind eye to new firms", according to one local source familiar with the market.
Liberalism v protectionism
South Africa, however, can be seen as an anomaly in that regard because many emerging markets are widely perceived as being unlikely to liberalise in the near future, despite their rapidly growing economies. "Look at Brazil, India and China," says the former head of
However, there is also the view that once one of the major economies fully liberalises its legal market, driven by the demands of economic expansion, others will follow in quick succession. "Once Nigeria opens it will see huge interest," says one partner working on the continent. "East Africa is booming and Kenya is minded to change its regulations, but Mozambique and Angola have old Portuguese practice rules."
Likewise Gamble points to the discussions taking place in Lagos about the possibility of market liberalisation in that country, but notes that local practices receive a lot of referral work from international firms, which could be jeopardised by the opening up of the market. Furthermore, while Kenya's attorney general is looking at liberalising the market, he is said to be facing opposition from the local law society, which is taking a more protectionist stance. This encapsulates the dichotomy facing practitioners in the market: both protectionism and liberalism present threats.
"It is not necessarily going to be as plain sailing as the international firms would like in terms of the markets opening up," comments Roddy McKean, director of ALN (formerly known as Africa Legal Network) and Kenya firm Anjarwalla & Khanna (A&K). "Like everything in Africa it is hard to generalise and everyone is going to do things differently, but I think you will see different approaches from different Bar associations."
This view of the changes being seen on the continent is supported by Arshad Dudhia, managing partner of Zambian firm Musa Dudhia & Co, which is part of ALN. "We see more international investment into Zambia and more domestic/local champions expanding their business to other countries in Africa," he explains. "Growth of the continent will lead to liberalisation of the legal regimes. We are already seeing such liberalisation in Tanzania, South Africa and Kenya."
Understanding the diversities
However, one thing that is certain about the continent is that you are entering dangerous territory once you begin to make generalisations about its many economies and political and legal systems. "It is a mistake to think of it as one country," says Piet Faber, chief executive of ENSafrica. "Some jurisdictions are very user-friendly; others are more problematic and difficult to do business in, but generally speaking things are not as difficult as people think they are. It is an evolving situation – there is a realisation that regulation can be a bad thing."
Take Zambia as an example: under national regulations a lawyer who is not admitted to the Zambian Bar cannot provide any type of legal services, including corporate. Therefore an internationally qualified lawyer would have to attend Bar school and sit the exams in addition to obtaining a Zambian work permit. Further, local regulations also control the name of the firm, restricting international outfits that have partners in their firm name.
"As one of the oldest law firms in Zambia, we are often the law firm of choice for major international clients seeking skilled domestic representation in our jurisdiction," says Dudhia. "This is because of our extensive relationships with local regulators and knowledge of how things work in Zambia, which are challenging to any international firm."
From an international perspective the challenges are clear: "Our focus is the countries in sub-Saharan Africa. It is important for us to be engaging in a broad range of these issues and sectors for our clients today and our clients of tomorrow," explains Schneidman. "Africa is changing so quickly that clients often have to relearn elements of doing business on the continent."
This fast pace of change can often present further complications for law firms, which are frequently called on by clients to provide advice on a wider spectrum of issues than just the legal aspects. One partner, charged with responsibility for his international firm's Africa strategy, describes clients as "wanting lawyers to hold their hand". When working in emerging markets with fluctuating political, social and economic climates lawyers may well be relied upon to have an on-the-ground view of the country and the practical and cultural issues clients may face in the course of conducting business within a jurisdiction.
"It is a big hindrance and the only way you can deal with it is to have strong local relationships; the only way to give good advice is to build these relationships," Ewing argues.
It is no secret that in the face of the multiple hurdles to creating brand recognition in Africa, international firms have taken divergent approaches to establishing a presence on the ground – something that domestic outfits are all too aware of. "I think there are two ways," explains Ewing. "The first is simply hiring a team of lawyers from one of the domestic firms. The second route is building relationships around the continent: if you look at the future it is a pan-African law firm."
What do domestic firms want to do?
It is clear that for those firms that aspire to be able to service their clients across the globe, experience of working on the vast continent is perceived as imperative. However, this raises the question of the effect this aspiration is having on domestic firms, particularly when, as is often the case at present, they are a necessary link between international firms and the opportunities on the ground.
"When I talk to law firm colleagues on the continent, they often ask ‘do we do a tie-up with a well-established firm in the US or the UK?'" says Schneidman. "‘If we do tie-up, is the level of business going to be greater than what we would get if we had stayed independent?' At the end of the day that is a personal decision for firms to make – it is something they are grappling with."
Several local firms have taken the plunge, aligning themselves with international players. In 2012
Against the struggles facing international firms, African outfits – with their local knowledge, practising capabilities and increasing operational sophistication – are growing to meet client needs at the top of the market. Working alongside international law firms presents opportunities to develop their own brands across the continent and beyond. However, there is also the sense that some firms working in a number of jurisdictions feel international players are taking opportunities away from them.
"I think it goes both ways depending on what sort of firm you are talking about," says Strivens. "Market leaders like to work with international firms because they get exposure to bigger projects. Other smaller firms that are not in that market could get nervous. They think the international firms are going to steal their livelihood but that is not the sort of work that large international firms are aiming to do."
McKean adds: "We have seen this happen in many countries around the world; a lot of the feelings against international law firms come from the smaller, general firms that are not actually going to be affected by it at all. The international outfits are not coming in to do the local work they do. It is often more rhetoric than anything else."
The potential pitfalls that firms can face are clearly shown by
For Schneidman, cooperation between domestic and international firms is inevitable: what relationships will hinge on, however, is the degree of exclusivity enjoyed by the firms.
"We are likely to see more involvement from international law firms as domestic outfits grow, and international companies put increased investment into the continent," predicts Gamble. "More international firms will give thought to having offices in key jurisdictions."
The influence of international firms can extend beyond cooperation on client work, with secondments and training often forming part of the relationship between domestic firms and their international colleagues. "Training and capacity are big concerns on the continent, which is why ALN started the ALN Academy," says Dudhia. "Through the academy we ask international firms to provide support via training and precedents to clients and government officials. The combination of local knowledge and international practice helps our clients and improves capacity on the ground."
Dudhia's view represents another side of the market, which, rather than feeling threatened by the presence of the international players, welcomes their input and feels they bring opportunities to the continent's burgeoning legal markets. "ALN has an international strategy; hence our firms work with several international law firms in need of a pan-African platform through which they can manage complex cross-border deals. International firms doing the work alone would not suit the clients' needs," he explains.
"From an A&K perspective we are not threatened by it – we would welcome them in the market," adds McKean. "Our view is that there will always be room for a top-tier independent firm in the market, so we think it will benefit our business rather than hurting it."
This is felt by both sides of the relationship, as international firms are aware of the impact they are having on the continent's rising domestic players. "Over the last few years across jurisdictions we have had firms getting bigger and more sophisticated, and I think they look at the way international law firms operate," notes Strivens. However, Strivens does not see the influence of international firms wavering: rather, he maintains that their breadth and experience, valued by clients, outweigh that of the domestic firms.
"There are several firms that have pan-African relationships where I would be surprised if these relationships did not develop in a similar way to the major audit firms and end up in business and financial integration," says Ewing. "I think it will happen with us [DLA Africa group] and some of the other law firms will go the same way."
The rise of pan-African firms
The status quo is changing and, as behemoth firms such as
Firms such as ENSafrica and members of the ALN are attempting to meet the needs of cross-border clients, bringing together domestic firms with a view to establishing efficient and experienced networks. For many, this development seems like the logical next step: combining jurisdictional knowledge with wider experience and expertise.
"Our intention is that we want to build a really integrated African firm in several jurisdictions," says Faber. "We are planning to be in more countries this year."
McKean adds: "For ALN it is our ultimate objective to become a pan-African law firm. Clearly, though, from a regulatory point of view in many countries there are some challenges of having a fully integrated model, but there are other ways to achieve the same result."
"Never have we at Musa Dudhia been more alive to the fact that the best way to meet clients' complex cross-border needs is to work within an alliance of like-minded top-tier client-focused firms," says Dudhia. "We are close to 50 years old and are excited not only to be a market leader in our jurisdiction, but also to be part of a pan-African group that is demonstrating that it is possible to have internationally trained African lawyers who don't only know what is happening on the ground, but are actually on the ground in key African jurisdictions. We would like to maintain our ideology of Africans building Africa."
The alternative view of the market is that the rise of African firms can be attributed to the presence of international outfits in the maturing legal market, and that as the opportunities to work with international firms have grown so have the local firms themselves. "The African legal market has always been inundated by the international law firms," comments Faber. "All that work was being done out of London or Paris or
There is no shortage of discussion about Africa. What is changing, however, is who is dictating it. As individual jurisdictions begin to look at welcoming investment, the domestic law firms are growing to meet the demand – and in the course of doing so are joining the international players on the way up.
While the international firms trying to establish a presence on the continent have the experience in cross-border work to draw clients, in markets potted with regulatory hurdles they are unable to do the work alone. It is this gap that is being successfully exploited by local firms, which, as they grow across the continent, could pose a threat to the international brands still scrambling to define their Africa offering.
"What's driving the interest by law firms in Africa is strong economic growth and the emerging middle class," concludes Schneidman. "I have come to understand that there is a new scramble for Africa, but this time it's by lawyers for lawyers."
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