THE LAW OFFICES OF
MOHAMEDU F. JONES
Practice Limited to Matters of Liberian Law
This
is a legal opinion delivered to a major multinational corporation considering
doing business in Liberia.
Due Diligence Questionnaire for Liberia
General
Issues
1
Organizational
Structure
1.1
It is
not legally required that The International Firm trading entity establish a
local presence in Liberia in order to trade natural resources and natural
resources derivatives there with local counterparties.[1]
Liberian laws and regulations governing international trade have no such
requirements. As a matter of common business practice, most of Liberian natural
resources trading is done between Liberian based entities and out-of-country
entities that have no local presence in Liberia.
1.1.1
However,
mineral substances of all kinds, which may be found on the surface of the ground
or in the soil or subsoil of the national territory of Liberia, are the property
of the State. In spite of this provision of law, there is no state entity that
engages in the commercial development, prospecting or trading of natural
resources of the kind in which The International Firm is interested, except for
refined petroleum products. These kinds of activities are regularly undertaken
by private ventures, although the Liberian government does hold equity interests
in some.
1.1.2
Under
the current economic and commercial environment in Liberia, founded on other
clients’ experiences, The International Firm would be well advised to consider
establishing a minimum local presence in the form of an agent. For example,
under current regulation regimes, natural resources regulatory authorities have
the power to impose additional tariffs from which they may exempt local
entities. A local entity may obtain such exemption, but not disclose it to
international consignees, and thereby receive a windfall, in the form of the
undisclosed exemption it obtained. A local presence or representative would be
in a good position to discourage or expose such nondisclosure. Such local
presence or agent is also likely to be useful in “expediting” The
International Firm’s business in Liberia.
1.1.3
As a
general proposition, all commercial activities, other than merely entering into
a contract to supply,[2]
concerning natural resources within the confines of the national territory of
Liberia are subject to regulations. Each of the natural resources and natural
resources derivatives in which The International Firm proposes to trade would
therefore be subject to Liberian government regulations. Accordingly, such
activities are undertaken only by entities, which have been authorized to
operate within the confines of Liberia, and have been granted the privilege to
engage in such activities by the government. Under existing laws, the government
maintains a level of control over these products. Generally, local entities
wishing to do business in natural resource products in Liberia obtain a
“concession” from the government of Liberia. These are the kinds of local
entities that would be most suited for The
International Firm trading entity to do business with.
1.1.4
Nearly
all of these entities trade their products internationally, and accordingly
would obtain the necessary licenses, including export licenses to export their
products. The dcontractils of their trade arrangements and agreements are their
private business concerns, and would not be subject to regulation.
1.1.5
The
International Firm’s trading entity is well advised to diligently ensure that
the Liberian entities it engages with in such natural resources trading, are
properly authorized under Liberian law to develop, mine, trade, produce or
otherwise engage in such activities. In
respect to all of the natural resources that The International Firm proposes to
trade in, a local entity would require specific authorization from the
government of Liberia develop, mine, trade, produce or otherwise engage in the
natural resources business.
1.2
There
is no minimum local presence required to enable The International Firm trading
entity to engage in natural resources and natural resources derivative trading
with local counterparties. A decision by The International Firm trading entity
on the question of local presence would be a matter of a business decision.
Generally, foreign local presence in Liberia takes a variety of forms, and
include duly authorized agents, a local corporations formed for that purpose or
a branch of a foreign corporation for which authorization to operate in Liberia
is sought for the purpose of establishing a local presence. A local presence in
Liberia would require authorization by the government in Liberia to do business;
the nature of the authorization is dependent on the nature of the business in
which it engages. In the case of a local agent, the agent would be required to
obtain and maintain the necessary authorization to do business in Liberia.
1.3
Liberia’s
Business Corporation Act does not require any minimum capitalization. However,
regulations propounded by Liberia’s incorporation authority require a stated
nominal minimum capitalization of $500.00, which is merely a device for
calculating incorporation and annual fees to be paid to the government.
1.4
It is
possible for The International Firm trading entity to acquire a local entity
from a third party. Assuming that such a third party-owned local entity is an
entity organized under the Associations Law of Liberia, there are no
restrictions in Liberia on the sale of ownership equity in corporations,
societies, and associations, which have been organized to operate under Liberian
law. If such an entity was organized in a non-Liberian jurisdiction, but
permitted to operate in Liberia under provisions of the Liberian Business
Corporation Act, its organizational jurisdiction’s requirements would govern
such an acquisition.
1.4.1
Notwithstanding
the above, if a local entity has been granted a “concession” under
Liberia’s Natural Resources Law and/or “investment incentives” under
Liberia’s Investment Incentive Code, there may be restrictions or even
prohibitions on the transfer of the concession or incentives to another party.
In any event, where such an entity hold concession or incentive rights granted
by the Liberian government, the government of Liberia would need to authorize or
grant the transfer of these rights, or may even have to approve the acquisition,
if so required under the terms of the concession or incentive grant.
2
Regulations,
Registration, Licenses, Consents etc. (excluding data protection issues)
2.1
As a general rule, Liberia imposes no restrictions on legitimate business
dealings between private business entities, nor is there a requirement for
public disclosure. There are no rules, license, consent or authorization that
are applicably relevant under Liberian law that would affect The International
Firm trading entity based outside Liberia, if it wanted to advertise, market or
otherwise solicit local counterparties or customers in Liberia to enter into
trades with it in natural resources and natural resources derivatives. We note
that The International Firm trading entity does not propose to deal with
consumers. It is advisable that any advertisement, marketing or solicitation
restricts responses to entities authorized to engage in trades in Liberia in the
natural resources products in which The International Firm entity is interested,
or already has applied for such authorization from the Liberian authorities.
This will aid in reducing the prospect of The International Firm entity dealing
with “unqualified start-ups.”
The
International Firm trading entity is not required to obtain any license, consent
or authorization or be registered in Liberia before being able to trade
derivatives of any nature described in this due diligence questionnaire so long
as it does not directly establish a local presence in Liberia. Liberian law does
not provide for a foreign trading partner of a local entity to obtain any
license, consent or authorization or be registered in Liberia before being able
to trade Liberian natural resources derivatives.
2.2.1
There is no requirement for a license, Liberian government’s
consent or authorization or to be registered in Liberia, before being able to
trade derivatives as an overseas The International Firm trading entity, without
a local presence, as stated in 2.1 above.
In
the event The International Firm trading entity desired to establish a branch in
Liberia, it would make an application for authorization to do business in
Liberia as a foreign corporation under the Business Corporation Act. In the
event, The International Firm trading entity desired to form a Liberian
corporation, appropriate articles of incorporation would be filed under the
Business Corporation Act. Authorization under either scenario as presented in
2.2.2 or 2.2.3, below, could be obtained in 30-60 days. Liberian government fees
and taxes and attorney’s fees under either scenario are approximately
US$2000.00.
In
addition, a local presence entity of The International Firm trading entity would
also need to obtain a local general business license by filing an application
with the Ministry of Commerce and Industry. Liberian government fees and taxes
and attorney’s fees for obtaining a business registration is approximately
US$1500.00, and would take 30-60 days.
Specific
Other Authorizations Required for Local Presence in Liberia:
(a)
A business seeking to engage in any form of trade within Liberia’s
national territory in lumber and logs require authorization from the Forestry
Development Authority of Liberia, and must obtain a “concession.”[3]
Estimation of government fees and taxes is not possible because their
calculations are directly correlated to the “concession” agreement
negotiated and obtained from the government. Attorney’s fees would be a
function of the duration and complexity of the negotiations. Appropriate
application would be made to the Authority. It is not realistically possible to
estimate the length of time for this process.
(b)
A business seeking to engage in trading wood products, pulp and paper in
Liberia, as separate from an overseas international trading firm, would require
authorization from the Ministry of Commerce and Industry, in the form of a
general business registration license. Liberian government fees and taxes and
attorney’s fees for obtaining a business registration license is approximately
US$1500.00. This process would take about 30-60 days.
(c)
A business seeking to engage in any form of trade within Liberia’s
national territory in mcontractl, mineral, crude and their derivatives, and
natural gas require authorization of the Ministry of Lands, Mines and Energy,
and depending on the size of the business may seek a “concession,” which
would require negotiation with the National Investment Commission and the
Ministry of Finance. Estimation of government fees and taxes is not possible
since their calculations are directly correlated to the “concession”
agreement negotiated and obtained from the government. Attorney’s fees would
be a function of the duration and complexity of these negotiations. Appropriate
applications would be made to the government. It is not realistically possible
to estimate the length of time for this process.
(d)
The government of Liberia has exclusive rights over energy natural
resources trading in and with Liberia. A business seeking to engage in any form
of energy natural resources, as described in the document in or with Liberia
require authorization from the government of Liberia, under terms and conditions
as negotiated between the parties. Estimation of government fees and taxes is
not possible since their calculations are directly correlated to the agreement
negotiated and obtained from the government. Attorney’s fees would be a
function of the duration and complexity of these negotiations. Appropriate
applications would be made to the government. It is not realistically possible
to estimate the length of time for this process.
Additional Local
Requirements
Employers
in Liberia employing more than 24 persons are subject to the pension scheme, and
employers in Liberia employing more than 4 persons are subject to the employee
scheme, respectively, of the National Social Security and Welfare Law.
It
is noted that Liberia’s one-stop application through the National Investment
Commission is not available to the kind of local entity that would be
established for natural resources trading, unless it also engaged in mining,
prospecting, processing or manufacturing.
2.2.2
There are no statutory minimum
capital requirements for a locally established Liberian corporation or for a
local branch of a foreign corporation authorized to do business in Liberia.
Regulations propounded by Liberia’s incorporation authority require a stated
nominal minimum capitalization of $500.00 to incorporate in Liberia, merely for
the purpose of calculating incorporation fees.
2.3
Generally, Liberian law does not permit the assignment or transfer of
licenses, consent or authorization granted by the government, without the
approval of the government.
2.4
There are no local regulations that would apply in Liberia to individual
representatives of The International Firm trading entity located outside of
Liberia.
2.5
The International Firm trading entity not located in Liberia is not
subject to any form of local “conduct of business rules” applicable in
Liberia. The International Firm trading entity located in Liberia would be
subject to the licenses described under 2.2.1 above, and any regulations,
foreign exchange regime or policy that the Central Bank of Liberia may institute
under its regulatory powers. It is noted that Liberia has a very liberal
business climate.
2.6
As a general principle, Liberian law presumes that an international
trading firm, located outside of Liberia, and doing business with a firm located
in Liberia, is authorized by the authorities of its domiciliary or location to
engage in such business. Accordingly, it is a proper conclusion that The
International Firm trading entity could enter into natural resources and natural
resources derivatives trades with counterparties in Liberia as agent for an
unregulated principal, if the location from which it does business permits it to
do so.
2.7
Liberian law imposes no regulatory requirements on firms based
outside of Liberia, even if engaged in trading with Liberian based firms, and
thus, exemptions are not applicable by definition. As stated in 2.6 above,
Liberian law presumes that a foreign-based entity engaged in trading with a
Liberia firm is authorized in its domiciliary or business location to engage in
such trade.
2.8
There are no statutory minimum capital requirements on trading
entities in Liberia, whether based in or out of the country. As stated before,
if a corporation is incorporated, for purposes of calculating fee, the
incorporation authority requires a nominal minimum $500 stated capital in the
articles of incorporation.
2.9
There are no consumer protection laws or regulations in Liberia that
extend to corporations and other similar commercial entities. Business entities
in Liberia have full access to courts to protect their interests and seek
redress of alleged wrongs.
2.10
Liberia’s environmental laws and regulations do not extend beyond its
national territory.
3
Capacity on The International Firm’s counterparties to trade natural
resources and natural resources derivatives
3.1
Generally, Liberian chartered corporations may be organized under the
Business Corporation Act for any lawful business purpose or purposes. The
Business Corporation Act and the articles of corporation filed under the act
define the purposes of Liberian chartered corporations. A corporations
incorporated in Liberia have three options in the way it handles the purpose
clause: (a) it may just state the statutory general purpose clause, noting
simply that that the purpose for which the corporation is formed is to engaged
in any lawful business activity; (b) it may state the statutory general purpose
clause but also add thereto other purposes for which the corporation is formed;
or (c) it may state the statutory general purpose clause and insert such
limitations as are deemed appropriate to limit the activities which the
corporation can engage in or conduct, or alternatively, without stating the
statutory general purpose clause, state only such business purpose or activities
which the corporation may engage in or conduct. Only banking and insurance
corporations must specifically state their banking and corporate purposes. A
foreign corporation authorized to do business in Liberia is bound by the purpose
stated in its charter, as granted by the incorporating domiciliary; the purpose
must be legitimate under Liberian corporate law, which allows any lawful
business activity.
Corporations
incorporated in Liberia have the capacity to enter into a natural resources and
natural resources derivatives trade under whatever terms they may conclude with
their counterparties, including cash settlements only, unless their charters
prohibit such trades or settlements or limit their activities to specific
business purposes or activities, and thus impliedly exclude other forms of
business activities. These kinds of activities might also be prohibited or
limited by the by laws or actions/resolutions of their boards of director.
3.2
A Liberia corporation, domiciled in Liberia, or a foreign
corporation authorized to do business in Liberia, would need such license,
consent, or authorization to develop, explore, mine, or prospect for these
natural resources. Strictly construed, however, corporations
incorporated in Liberia are not required to obtain a license, consent or
authorization to enter into such natural resources and natural resources
derivative contracts as contemplated by The International Firm, assuming they
could obtain the products from a properly licensed or authorized corporation to
fulfill the contract. As described in 1.1.3 above, all commercial activities
concerning natural resources within the confines of the national territory of
Liberia are subject to regulations.
3.3
Banks or other financial institutions, and insurance companies are
restricted exclusively to the business for which they are chartered, and could
not directly engage in trading natural resources and natural resources
derivatives under contracts. Such entities may however participate in such
contracts indirectly by supplying the services for which they have been
chartered, such as financing or insurance. Corporate utilities are permitted to
enter such commercial contracts as are necessary to meet their supply needs.
Liberian municipalities are prohibited from trading outside of purchasing direct
supplies and services. A partnership formed for the purpose of engaging in
business as a general proposition could lawfully enter into such contracts. The
activities of a trust under Liberian law are limited to the terms of its
creation.
3.4
An entity that trades in natural resources and natural resources
derivatives would not be limited by law to certain forms of contracts such as
options or swabs. This kind of activity is a business decision and Liberian law
allows wide berth in corporate decision-making.
3.5
There are no such legal restrictions on the ability of corporations
in Liberia to enter into such natural resources and natural resources derivative
contracts, other than restrictions as may be contained in their charter or other
corporate governance documents.
3.6
The International Firm would be required to undertake the following due
diligence to check that a counter party incorporated in Liberia has:
3.6.1
Internal
authority to enter into transaction of the type outlined above: The
International Firm should examine and inspect the corporate charter, authority
of foreign incorporated corporation to do business in Liberia, corporate by laws
and other corporate governance documents, and appropriate resolutions of the
board. The International Firm would be well advised to request a specific
authorization of the board of directors by resolution, to authorize the business
arrangement it contemplates.
3.6.2
Any
license consent or authorization necessary to enter into the transactions of the
type outlined above: The International Firm should verify with the government of
Liberia that any entity engaged in the development or production of the natural
resources and natural resources derivatives within the national territory of
Liberia has been granted the appropriate licenses and authorization to undertake
such development or production.
3.7
Liberian corporations carry no statutory or constitutional immunity
from suits, attachments of assets or executions of judgments, either in the form
of sovereign immunity or otherwise. This includes corporations in which the
government of Liberia holds minority or majority equity. Under Liberian law,
only the government of Liberia, as an entity, is immune unless, by statute, it
waives such immunity. However, in the course of litigation, as provided for
under the civil procedure law of Liberia, a party may be denied attachment or
execution of judgment by the failure of that party to comply with an express
provisions of the civil procedure law. As an example, under Liberian law, the
procedure for attachment must be strictly adhered to; a party’s failure to
strictly adhere to the procedure may result in the denial of a writ of
attachment by the court.
3.7 Liberia’s
contract law principles are founded on its contract statutes and court decisions
stating contract law principles. As a general principle, Liberian law will
enforce any lawful contract. A valid contracts under Liberian law requires
mutuality of consent of all parties, competency to enter into contracts, founded
on sufficient consideration to perform a lawful act or omit to do something,
which performance is not unlawful.
In
terms of proof, some intelligible conduct, sign or act, gathered from outward
expressions and acts, must manifest the entry of parties into a contractual
relationship. Guided by these principles, it is reasonable to conclude that if
the law of Liberia were the governing law, a court in Liberia would enforce the
termination provisions of the contracts outlined in the Background section
against a counterparty in Liberia. The fact that The International Firm may
terminate the contract immediately on notice is a lawful provision in a Liberian
contract, so long as there is actual mutuality of consent, and that the
provision is a bargained-for-exchange between parties dealing at arm lengths,
and for consideration. There is nothing in this provision, which on its face
would make it unenforceable under Liberian law.
3.9
Based on the principles outlined in 3.8 above, generally, a court in
Liberia would give effect to the closeout netting provisions under the contract
without requiring some additional act or condition, if the terms of the contract
between the parties do not require such additional act or condition.
3.10
Under Liberian law, once the court approves a receiver, all the property
of the insolvent is vested in the receiver. The Liberian statutes specifically
state that the receiver shall hold and administer the property as “if the
insolvent were dead and he was the administrator of his estate.” Under these
provisions, obligations of the counterparty under the proposed The International
Firm contract pass to the receiver. The receiver will be bound by the terms of
the contract, including the termination provisions.
However,
under Liberian law, it is presumed that every insolvent has been insolvent for
the ninety days immediately preceding the date a court grants an application for
bankruptcy. All conveyances, transfers, assignments, and deliveries of
his property made during the ninety day period is void and of no effect. This
means that any performance (through delivery of natural resources) by the
insolvent to The International Firm under their contract during the ninety-day
period would be void. The receiver could challenge the validly of such
transaction in court, as could creditors. In addition, termination of the
contract provision could be challenged as a fraudulent transaction under
Liberian statutes on the ground that the termination constituted an attempt to
conceal money or other property or debts due the insolvent.
It
is reasonable to conclude that a court in Liberia, as a matter of course, would not
generally enforce the termination provisions of a contract against a local
counterparty after a bankruptcy has occurred, if The International Firm trading
entity was not able or failed to terminate the contract before the bankruptcy
event, that is to say ninety days prior to the grant of the counterparty’s
application for bankruptcy.
In
the event of the bankruptcy of the counterparty, The International Firm would be
well advised to work out an orderly termination with the appointed receiver, or
failing that, to make an application to the court in Liberia to effect the
termination provision. However, The International Firm could remain exposed to
liability under Liberian law for deliveries of natural resources during the
ninety-day period prior to the grant of the bankruptcy application, unless it
also included such deliveries in its arrangement with the receiver or its
application to the court.
3.11
There is nothing in Liberia’s bankruptcy law that would prevent
“cherry-picking” as a business decision by the receiver. Such an act,
however, would not deny The International Firm’s rights under the terms of the
agreement; the receiver, who can sue or be sued, is subject to actions of
specific performance or damages as the case may be. The International Firm could
obtain remedy under Liberian law. It is a settled principle of Liberian law that
a party cannot rescind a contract and at the same time affirm it by accepting
benefits under it. A Liberian court would therefore enforce the transaction in
favor of The International Firm on the grounds that the receiver cannot benefit
under the terms of the contract by selecting to continue the transaction in
favor of the local counterparty while at the same time effectively rescinding
the contract by discontinuing the transaction in The International Firm’s
favor under the same contract.
3.12
Since The International Firm could not terminate a contract after
bankruptcy without arrangement with the receiver or by order of court, the
netting provision would also have no effect unless by agreement with the
receiver or by order of court.
3.13
In the case of a transaction where the delivery point is on a border
shared with another jurisdiction:
(i)
Liberian law allows for the terms of contracts on international
transactions to be subject to laws of foreign countries, if the parties so
agree. This is the extent to which a local counterparty may “submit” to the
law of any other jurisdiction, bordering or not. This is the limit of Liberian
jurisprudential choice of law doctrine. There is simply no allowance in Liberian
law that the underlying transaction on which the contract is premised can be
under another country’s law, thus there can be no transference to any foreign
jurisdiction matters such as the law of corporate governance, licensing
requirements, government authorizations, etc. by the local counterparty. This
means that a local counterparty cannot assert that because it is delivering at
the border, its transaction is subject to the law of the neighboring country,
and it is no longer subject to Liberian substantive law.
(ii)
The transaction is subject to all applicable laws of Liberia until such
time that the natural resources are no longer within the national territory of
Liberia.
4.1
There is no legal requirement as to the type of documentation that must
be used in order for companies incorporated in Liberia to enter into
transactions of the type outlined in the questionnaire. This conclusion is
subject to the proviso that some intelligible conduct, sign or act, gathered
from outward expressions and acts, must manifest the entry of parties into a
contractual relationship.
4.2
There is no legal requirement for the documentation to be governed
by the laws of any particular jurisdiction.
5
Exchange and moncontractry control
As
a matter of policy, there are no statutory foreign exchange controls in Liberia,
and funds may generally be freely remitted into and out of the country. The
Central Bank has the authority to manage foreign exchange and availability has a
direct impact on remittances out of the country. If cash payments were required
to be made to The International Firm entity located in Liberia by the
counterparty located in Liberia, no foreign exchange issues other than
availability comes into question. If cash payments were required to be made to
The International Firm entity outside of Liberia by the counterparty located in
Liberia, this can be ordinarily be done without restrictions and might only be
affected by availability. However, such payments may be subject to any
appropriate foreign exchange regime or policy that the Central Bank may
institute under its regulatory powers, and be in effect at the time.
There
are no legal issues that are likely to arise in Liberia as a result of The
International Firm making available to counterparties in Liberia contracts
traded on the London Mineral Exchange. There are no restrictions apparent in the
laws of Liberia that would prohibit this. This lawful activity in another
jurisdiction ought to pose no problem to Liberian based couinterparties engaged
in lawful international transactions. As The International Firm does not propose
to deal with consumers, but with informed and sophisticated businesses, and the
Liberian government does not regulate marketing and solicitations in
transactions of that nature, there are no legal issues that The International
Firm needs to take into consideration. Liberia does not have a regulatory regime
in place governing marketing and solicitation of the sort contemplated by The
International Firm.
7
Internet
Liberian law is silent on the type of contract
formation proposed herein. There are no statutes, specific laws, rules, and
regulations currently in force in Liberia that govern the use of the Internet
for contractual or business purpose. Moreover, the Supreme Court of Liberia has
not had the occasion to rule on such transactions. Considering Liberia’s
liberal approach to international transactions between parties, and the
acceptability of this form of transactions by the major economies, it is
reasonable to presume that Liberian law and courts’ decisions in the future
will work to promote theses forms of transactions.
It is noteworthy that where Liberia’s statutes
and judicial decisions are silent, and a matter arises in litigation that raises
issues of first impression, the Liberian Supreme Court favorably considers
United States Supreme Court jurisprudence for guidance. The Court also looks
favorably to major international commercial jurisdictions, such as the State of
New York or England for aid in deciding international commercial and business
issues for which there are no precedential Liberian jurisprudence. We hold the
view that the Internet contract formation outlined in the document under review
is compliant with general Liberian contract principles, and offer an acceptable
form upon which a legally binding contact may be reached with a Liberian based
counterparty, and which would be enforceable in Liberian courts for breach.
7.1
Contract Formation
7.1.1
Subject to the statement made under
number 7 above, and having reviewed the contract formation structure proposed in
the document under review, there are no laws extant in Liberia, other than
ordinary principles of contract law, in the nature of common law contract
principles, which may have an impact on the proposed contract formation and
enforceability.
7.1.2
Subject
to the statement made under number 7 above, and having reviewed the draft
agreement, we conclude, that:
(i)
there does not appear to be any areas in the draft agreements that are
unenforceable in Liberia; and
(ii)
there does no appear to be any implied terms and conditions in Liberia
that may impact on these agreements.
7.1.3
Subject
to the statement made under number 7 above, there does appear to be a measure of
risk associated with The International Firm relying on the “once only signing
of the Password application to govern access to the website.” To meet the
mutuality of consent principle of Liberia contract law, it is advisable that the
terms of the Password Application should be “accepted” by the counterparty
each time they trade. This will clearly show mutuality of consent for each
transaction. We conclude that while specific wording on the website, confirming
that the terms and conditions of the Password Application apply generally to
trades conducted under the contract, would constitute evidence of a contract, it
does not provide the same level of protection as a discreet “acceptance”
each time a transaction is done. This will serve as a “signature” for each
transaction, and confirm the required mutuality of consent.
7.1.4
Subject
to the statement made under number 7 above, utilizing the general practice
acceptable in international trade via electronic documentation, using either the
hotlink method or the full screen method should be sufficient, as the case might
be.
7.1.5
Subject
to the statement made under number 7 above, if the contract is updated or
changed during the life of this website, the fact of an amendment to the
contract should be specifically brought to the attention of Liberian
counterparties. We hold the view that The International Firm cannot rely on
simply “presenting” the contract to the counterparty at the time of each
trade, since a counterparty may not take notice of any change or update,
although, the change or update may have influenced the transaction. Merely
presenting a changed or updated contract will fail to meet the mutuality of
consent standard of Liberian contract principles.
7.1.6
Subject
to the statement made under number 7 above, we hold the view that there are no
or minimal risks associated with relying on the statement that The International
Firm’s electronic record will be conclusive proof of that trade. However, we
observe that in the event, counterparty alleges that The International Firm
holding exclusive control over the electronic record has fraudulently
“created” a transaction to its liability, The International Firm would have
to rebut this allegation.
7.1.7
Subject
to the statement made under number 7 above, The International Firm is bound by
the terms of its agreements with counterparties. The International Firm may
legally dispense with sending a written confirmation of sale by fax or post
following the conclusion of each trade via The International Firm Online, in so
far as it is not contractually obliged to do so. If The International Firm is
not bound by agreement to send written confirmations of sale, it may dispense
with it at its discretion, but would be well advised to serve notice of any end
to that practice. We do not make any distinctions between the transactions, and
offer the same advice in respect to cash settled natural resources and
contractual derivatives, London Mineral Exchange contracts and physically
settled trades. We, however, do advise that The International Firm make sending
written confirmation of sale by fax or post a routine part of business when
dealing with Liberian counterparties; it would be to its advantage in the event
a dispute leads to litigation in Liberia.
7.1.8
Subject
to the statement made under number 7 above, we conclude that The International
Firm’s website itself would not be considered an offer under Liberian law, and
that this would be enforceable under Liberian law. The contract clearly provides
terms for offers and acceptance under the agreement. It is sufficient that the
relevant terms and conditions make the disclaimer that The International
Firm’s website itself does not constitute and offer, and we see no need to
advise the placement of any other specific wording on the website or included in
the contract.
7.2
Exclusions/Restrictions on Liability
7.2.1
As a
general principle, Exclusions/Restrictions on Liability appear to be enforceable
under Liberian law. The Liberian
Supreme Court has not spoken directly on point regarding exclusions and
restrictions on liability, and Liberian statutes have no provisions for them.
However, in discussing warranties, which are analogous in class to exclusions
and restrictions on liability, the Court has held that a warranty is a contract,
and the general rules of contracts determine its validity and enforceability. It
is therefore reasonable to conclude that having determined that the contract and
the Password Application meet the Liberian standard of enforceable contracts,
their exclusions and restrictions on liability clauses would probably be held to
be valid under Liberian law. Relatedly, under Liberian law, these types of
clauses do not deny a party the right to bring a lawsuit because their contracts
include such clauses, or a competent court to assume jurisdiction in these
actions, but the Liberian Court has held that the clauses merely tend to limit
liability.
7.2.2
It
appears that Liberian law recognizes that a party to a contract may exclude
liability for consequential, special, direct and purely economic losses. The
Liberian Court has spoken directly on the issue. In a case in which such a
clause was at issue, the Court sustained a party’s contention that the trial
judge committed error when he overruled the party’s contention that it was not
liable for damages since the contract excluded consequential loss or damages.
Our review of the wording in the documents under consideration leads us to
conclude that these are lawful and valid contractual terms under Liberian law.
7.2.3
There
are no specific Liberian law provisions regarding the Internet. Consistent with
our statement in number 7, we therefore hold the view that if the liability
exclusions and limitation issues are what are generally contained in contracts
of this nature in the major commercial centers, Liberian courts are not likely
to require more, especially if courts in New York or England have pass on such
clauses and found them sufficient.
7.3
Choice of Law
Liberian
jurisprudence recognizes that international commercial transactional agreements
involving Liberian based counterparties may contained a provision for governing
law other than Liberian, and Liberian courts will therefore applied that
governing law to the contract, should legal action be brought in Liberia. There
are no overriding laws in Liberia that would impose a different governing law.
We observe that even the government of Liberia enters into contracts governing
international transactions that are governed by foreign law.
7.4
Verification
Subject
to the statement made under number 7 above, we hold the view that use of the
password would be sufficient verification of the counterparty. This is based on
the specific terms of use of the password contained in the Password Application,
which document we have previously concluded is legally enforceable in Liberia.
We note that there are no apparent specific laws, rules, regulations, procedures
or other evidential issues concerning verification of persons for purposes of
electronic transactions in force in Liberia.
Subject
to the statement made under number 7 above, we conclude that the terms of the
contract would be enforceable if a third party obtains the counterparty’s
password and purports to trade with The International Firm via the Internet. It
is doubtful that The International Firm would have any liabilities should the
counterparty refuse to honor a trade made by someone unlawfully obtaining the
password. Liberia’s equitable jurisprudence would probably not allow such an
outcome. Liberian law is likely to consider it probative evidence that the
password has been used to consider all offers to have emanated from that
counterparty. We hold the view that the Liberian courts would recognize that if
a counterparty were allowed to claim that its password had passed into the wrong
hands to void transactions, this would mean that any counterparty willing to do
so could vitiate the terms of the contract at will simply by claiming that its
password had passed into the wrong hands.
7.5
Advertising
Subject
to the statement made under number 7 above, we conclude that the only
limitations or restrictions that would be placed on The International Firm under
Liberian law are the general prohibitions against fraudulent, false or
misleading advertisements. There are no other restrictions on advertisements
apparent under Liberian laws and regulations.
7.6
Data Protection
There
are no apparent data protection laws in force in Liberia. Considering our
statement made under number 7 above, however, we are not in the position to
determine the extent to which if any, a Liberian court may consider and apply
data protection law principles from other appropriate jurisdiction to the
venture discussed herein. Similarly, we are unable to determine whether or not
any of the attached documents need to be amended to comply with such principles
of laws. We conclude that to the extent that these documents represent industry
standard agreements, which international commercial entities utilize in doing
business over the Internet, the Liberian courts are unlikely to seek to remake
the contracts by deciding that data protection laws not enacted by the Liberian
legislature, are applicable to such contracts.
7.7
Intellectual Property Rights
Liberia’s
present intellectual property rights regime does not address the issue of
electronic intellectual property. Even in those cases where the provisions of
Liberia’s current intellectual property law could reasonably be extended to
electronic intellectual property, there is nothing in the text of the law or
that could be gathered from its reasonable interpretation, which would allow it
to be applied adversely to The International Firm in carrying out this activity
or give rise to intellectual property rights in favor of a counterparty engaged
in trading with The International Firm under the terms and conditions of the
agreements we have discussed here.
7.8
Other Issues
The
primary other issue that we would suggest that The International Firm consider,
is that its business with Liberian counterparties is likely to be affected by
the state of electricity and telephone services in Liberia. These services are
sometimes interrupted, and for significant periods of time.
The
International Firm should also monitor international decisions concerning
Liberia that might have an impact on the trading it envisions. For example,
presently, there are restrictions on the export of diamonds from Liberia.
8
Termination of the Contract
There
are no apparent overriding laws in Liberia to which the referenced provisions
would be subjected, which would render the termination provisions problematic,
such that they would not be permitted to stand or would be subject to further
requirements.
9
Amendments of the Contract and General Terms and Conditions
There
are no apparent overriding laws in Liberia that may impact the procedure
described in this section. In addition, we refer The International Firm to 7.1.5
above.
10.1
Under the Revenue Code of Liberia Act of 2000, approved December 15,
2000, The International Firm would not be deemed to have a permanent
establishment in Liberia, and therefore not a resident.
10.2
If The International Firm were to host a website in Liberia, by
locating a server in the country, the entity operating the server would be
deemed a resident for tax purposes and subject to the tax code.
10.3
Considering the premise upon which the question is laid, withholding
tax requirements will not apply to payments made to The International Firm
entity in respect of online transactions.
10.4
No local taxes apply to The International Firm entity contracting
via the Internet from outside Liberia.
10.5
Our review of the tax code of Liberia and applicable regulations of
the Ministry of Finance show no recent developments in Liberia with respect to
the taxation of Internet transactions that may affect the project.
11
Miscellaneous
There
are no apparent other legal, regulatory or customary requirements or procedures
which must be followed by a party before it can begin to trade natural resources
and natural resources derivatives in Liberia or to which The International Firm
will be subject to.
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