FOCUS – Autumn 2021

Welcome to this edition of Focus. The world appears to be gradually returning to pre-pandemic life and activity in many countries, bringing new challenges for recovery, particularly in the markets Trinity and its clients focus on. We are pleased to say that we continue to see resilience across most sectors, particularly in energy and infrastructure and growth/development capital markets.

With this in mind, this edition of Focus looks at some of the recent exciting projects which we’ve been involved in including one of the first multi-country telecom ESCO financing in Africa in respect of which we acted for the lenders. Trinity also acted for Danish DFI IFU London-based investment advisory firm Si Advisers LLP and French DFI Proparco in respect of their agreement to provide growth capital to Global Tea. Global Tea operates a tea, coffee and macadamia business in Kenya and Malawi and will use the investment to finance its expansion in East Africa, including building a new tea packaging facility in Mombasa, Kenya.

Following the arrival of Stéphane Brabant and Lucien Bou Chaaya in our Paris office early this year (May 2021) to strengthen our practice in mining, energy and infrastructure sectors, Trinity is continuing to grow its Paris office. We are delighted to announce that Alexis Giroulet joins the Trinity Team as Associate, previously at Dentons, together with Rita Lotfi as an Associate, previously at EDF.

With the expansion of the Paris team, our Paris office has moved to 15 rue de Marignan, in the Champs Élysées district. We are waiting to welcome our clients to our new premises!

Our Francophone team, including our Paris office, continues to serve an increasing number of projects being carried out in Francophone jurisdictions. Our team continues to work on some of the largest energy and infrastructure projects both in France and in Francophone countries in Africa. All four key Francophone partners, Stéphane Brabant, Marianna Sédéfian, Pierre Bernheim and Kaushik Ray are listed in the top 100 business lawyers on the African continent by Jeune Afrique Business.

We were delighted to have launched a new initiative earlier this year: “Trinity Trailblazers – empowering women in the energy and projects sector”. Trinity Trailblazers is a series of online panel discussions with senior female thought leaders aimed at broadening the conversation on gender diversity and representation in our industry. The focus of our inaugural sessions was “Promoting Progression” and “Defining Success”. We were privileged to be joined by a number of impressive panellists from client organisations and regional law firms, who shared their experiences and thoughts on what we can all do to enable the progression of women in the sector. We thank our panellists and audience members for these very insightful and horizon broadening discussions and look forward to announcing further sessions in the series in the near future. If you should like to receive an invitation to our Trinity Trailblazers sessions, please let us know by sending an email to [email protected].

Trinity has recently published a user guide which has been created to assist our clients in understanding the Uniform Act on Organising Security, which is in force in the member states of the Organization for the Harmonization of Business Law in Africa (“OHADA“).  The guide is designed to address the key provisions that must be considered when taking security under OHADA law. For full details on the user guide, please contact Marianna Sédéfian.

This edition of Focus also takes a closer look at some key legal developments.  We examine some recent cases including the UK Supreme Court decision in “Triple Point” which provides important judicial guidance on the use of liquidated damages provisions and we look at recent judicial interpretation relating to majority decision provisions contained in multi-party agreements (courtesy of some helpful intervention by the British punk band, The Sex Pistols!).

Gala / Ulimi Fund deal

Trinity has advised Gala Agriculture (“Gala“), a macadamia nut producer based in Malawi, on an investment by Old Mutual Malawi. Gala, which grows macadamia nuts on almost 15,000 acres, will use the capital to double the size of its growing operation and processing capacity to continue developing the business as a state-of-the-art macadamia export business. Read More

Triple Point

The Supreme Court handed down its judgment in July 2021 in the case of Triple Point Technology Inc v PTT Public Company Ltd [2021](“Triple Point”). Triple Point is the current authority for considering damages for delay after termination of the contract. It is essentially a reminder to us all that it is necessary to consider carefully the drafting of a contract to assess whether a particular clause allows any liquidated damages to survive termination. Read More

Majority Decisions

The recent case of Jones v Lydon (No.1)concerning the future exploitation of the Sex Pistols’ music provides an interesting analysis of the ability of the majority decision makers to bind the minority when the minority is in disagreement with the rest of the individuals. The case provides useful guidance on interpreting arrangements between multiple parties.  Read More

Breach of warranty and misrepresentation in a SPA

In the recent case of MDW Holdings Ltd v Norvill [2021], the High Court upheld a buyer’s claim that the sellers had breached various environmental warranties in a share purchase agreement. The case is a salutary reminder of the importance of certain key contractual provision in share purchase agreements. This case will be of interest to stakeholders in the power sector, where environmental issues are often the focus of due diligence and subsequent warranty and indemnity negotiations.  Read More

AktivCo ESCO Financing by FEI, Proparco, Norfund and AGG

Trinity has advised the lenders in relation to a multi-country facility to Aktivco SAS and its subsidiaries in Burkina Faso, Cameroon, Chad, Côte d’Ivoire and Niger. This transaction is innovative and one of the first multi-country telecom ESCO financings in Africa which allows AktivCo SAS to finance its individual African operating companies directly without a parent company guarantee. Read More

Hybridisation project in Madagascar financed by REPP

Trinity has advised Renewable Energy Platform (“REPP“) in relation to a convertible bridge loan to Lidera Green Power with respect to a solar hybridisation project in Madagascar. This is a ground-breaking operation to hybridise three heavy fuel oil (“HFO“) plants in Madagascar with solar PV. Currently, around 75% of Madagascar’s power is generated from non-renewable sources, such as HFO and diesel plants. Read More

New Solar Power Project for Eramet in Senegal

Trinity is advising Eramet’s Senegalese subsidiary, Grande Côte Operations (“GCO“), in relation to the development of a 13 MW solar power plant combined with a 8 MW storage solution provided by CrossBoundary to supply GCO’s operations with renewable energy over 15 years. Read More