Client Alert : THE CEMAC REGION
SPECIAL FOREX REGIME FOR THE EXTRACTIVE SECTOR
- The former CEMAC Foreign Exchange Regulation No. 02/00/CEMAC/UMAC/CM dated 29 April 2000 (“Old Forex Regulation“), after several years of debate, was repealed with the adoption of the New CEMAC Exchange Regulation No. 02/18/CEMAC/UMAC/CM, dated 21 December 2018, (“New Forex Regulation“).
- The New Forex Regulation came into force on 1 March 2019, and in June 2019, the Bank of Central African State (“BEAC“) issued several directives, relating to their implementation.
- BEAC deferred the requirement for compliance with the New Forex Regulation for six (6) months, from the effective date until the 31st of December 2019, all economic actors. However, companies in the extractive sector escalated their concerns to the BEAC arguing that that deadline was very short, given the nature of their operations. These companies also raised other concerns about the New Forex Regulations such as the obligation to repatriate all export revenues and the prohibition of holding offshore foreign currency accounts.
- On the 5th of November 2020, the Governor of the BEAC extend the deadline for compliance with the New Forex Regulation to the 31st of December 2021.
No further extensions have been granted and companies in the extractive sector are now required to comply with the New Forex Regulation, however a special regime has been granted by BEAC with the aim of being more flexible and introducing mechanisms to make the transition more feasible for companies.
Companies that fail to comply with the New Forex Regulation will be subject to sanctions, which may be economic or non-economic.
WHAT ARE THE CONSEQUENCES?
1. Support from BEAC
- BEAC plans to help and guide companies in the extractive sector to comply with the New Forex Regulation.
2. Escrow Accounts for Site Rehabilitation Funds
- Submit all documents that justify the opening of an escrow account to BEAC.
- Submit the documents required by the New Forex Regulation, including the relevant provisions concerning the opening of accounts and the repatriation of funds for site rehabilitation to BEAC.
2.2 Account Details
- Creation of a given number for the escrow account in the books of
each member state’s National Directorate of BEAC.
- “RES Fund + site name” must be the account name. The site name refers to the location where the funds for site rehabilitation will be invested.
- Only BEAC has the authority to change the account number. Any changes to the account number will be communicated to the other parties.
- The operator may change the account's name if the request is made in writing and accompanied by supporting documents.
2.3 Authorised Persons
- The State and the operator must have in place a written agreement (a list) of the persons authorised to activate the account, their powers, qualities, and signature copies.
- Any changes to the list must be sent to the BEAC as soon as possible.
2.4 Financing the Account
- The account must be funded by “the operator” in accordance with the contractual terms that govern its relationship with each member state.
- The Ministry of Finance and the operator will receive a monthly account statement.
- Set at a rate based on the money rate of the account’s currency.
2.6 Subdivision of Escrow Account
- The escrow account must be divided into two subaccounts, escrow account No. 1 and escrow account No. 2, respectively.
- Allotments are deposited in escrow account No. 1 while forming the RES Funds account.
- At the conclusion of the constitution’s phrase, the funds required to cover the next twelve months’ expenses are transferred from escrow account No. I to escrow account No. 2.
2.7 Debit Transactions
- Escrow account 1 can only be debited to escrow account 2.
- If a downward adjustment is required, the Minister in charge of finance will request a refund of the overpayment to BEAC on behalf of the operator, by sending a letter along with both the number of the account to which the overpayment must be transferred and his agreement to the return operation. BEAC will charge the costs of this operation to escrow account No. 1.
- Only a person on the list of Authorised Persons can make debit transactions on escrow account No. 2.
- It is not possible to debit the RES Fund’s escrow account.
2.8 Fight Against Money Laundering and Terrorism
- All operations of the RES Fund’s escrow account must be carried out in accordance with the provisions of the CEMAC Regulation on the prevention and suppression of money laundering and the financing of terrorism and proliferation in Central Africa.
- Failure to comply with the foregoing may result in the BEAC unilaterally rejecting a transaction or closing the account without warning.
- The parties of the agreement must maintain strict confidentiality. Furthermore, except in cases where professional secrecy is not required, the documents they exchange must not be shared with third parties.
2.10 Applicable Law and Dispute Resolution
- This agreement is governed by the law of each member state.
- Any disagreement over the interpretation of this Agreement will be settled amicably. If an amicable solution cannot be reached within six months, the dispute will be referred to the CEMAC courts (UMAC).
2.11 Duration and Closure
- The RES fund’s escrow account is held until the operation and restoration of the exploitation site is completed.
- All credit balances are transferred to a member state current account in CFA francs that was opened on the BEAC books.
- The account is only permanently closed if the government of the member state requests it.
- The parties’ commitments under this agreement are irrevocable until the site’s restoration is completed.
2.12 Force Majeure
- An event of force majeure that prevents the parties, including the bank, from fulfilling their contractual obligations, would release them from all liability.
3. Foreign Currencies
- BEAC to oversee the management of the currencies made available to it in accordance with its foreign exchange reserve management system.
4. Import and Export Direct Debit Procedures
- Import and export direct debit procedures for extractive companies will be relaxed. BEAC must listen to the various actors and exchange proposals to identify possible areas for improvement.
5. Offshore and Onshore Foreign Currency Accounts
- BEAC will allow businesses in the extractive sector to maintain accounts in offshore and onshore currency (within the CEMAC banking institutions). This authorisation may be issued for more than two years. The operator is required to send monthly authorised account statements to BEAC. To ensure the non-seizure of these accounts, a CEMAC Regulation must be adopted.
6. Revenue Maintained Offshore
- BEAC will grant companies in the extractive sector permission to keep 30% of the revenue generated by their operations in offshore currency accounts to meet some of their obligations, particularly the requirements in some of their financing contracts.
7. Repatriation of Site Rehabilitation Funds
- Grant a three-year period, starting in 2022, during which extractive sector companies must repatriate a third of all assets related to site rehabilitation, currently held in offshore currency accounts. Repatriations must be sent to the BEAC’s blocked accounts.
WHAT SHOULD YOUR COMPANY DO?
Legal Advice and Analysis
Conduct a detailed and meticulous assessment of the New Forex Regulation with your legal advisors and ascertain your company’s current level of compliance.
Compliance with the Requirements
Align with the BEAC requirements and ensure your company is getting the support offered by BEAC.
- Open all required bank accounts to fulfil the requirements of the New Forex Regulations and the accounts are opened by the duly authorised representative.
- Fund the accounts in accordance with the contractual terms with the applicable member states.
- Appropriately split the escrow account into two subaccounts and deposit all the allotments into subaccount 1.
Fight Against Money Laundering and Terrorism
The audit and internal control departments should periodically audit the operations of the escrow account, to ensure it is managed according to the CEMAC Regulation on the prevention and suppression of money laundering and the financing of terrorism and proliferation in Central Africa.
WHAT CLARENCE OFFERS
Clarence offers its clients:
- A dedicated, responsive, and internationally qualified team with experience in a wide range of transactions in Hispanophone, Francophone, Anglophone, and Lusophone countries;
- Working with one of the leading firms in Central Africa, with the best team specialised in oil and gas transactions led by one of the best energy lawyers in the region, our Managing Partner, Abraham Abia;
- Creative and cost-effective advice;
- Global coordination with Clarence’s international network of law firms and lawyers;
- Good working relationship with key stakeholders in the countries where we operate, particularly with regulators; and
- Lawyers that uphold the highest ethical standards in compliance with anti-corruption laws and regulations.
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