We now hear from Anisa Rrumbullaku, Partner at CR Partners, who discusses Albania’s M&A climate: “To improve the business climate and FDI attractiveness, significant reforms have been implemented already, such as those concerning one stop shop business registration and licensing, e-governance such as e-procurement and tax reporting, etc.
“However, investors continue to lack trust in the Albanian judiciary, hence I think that the successful completion of justice system reform that is currently under way, will be an enormous step towards improvement of the business climate and that obviously goes hand to hand with addressing other issues raised by investors such as transparency of public procurement and PPP processes, frequency of changes to legislation etc.”.
Lawyer Monthly decided to ask Anisa more about investment development in her respective jurisdiction.
How has the M&A scope changed over the years in Albania?
There has been less M&A activity in the last three years as compared to the previous decade partly due to completion of most privatisation of strategic sector industries. Plans to privatise remaining assets in the future, for example, Albpetrol, the state-owned oil production company can generate new M&A activity in the future.
Due to a non-functioning capital market (i.e. the first privately owned stock exchange was only licensed in June 2017), the deal-making activity is based on direct private transactions where private equity funds show less interest for this market as compared to other SEE jurisdictions. There has been increasing interest from Asian buyers in the last two years. For example, two highlight deals in 2016 included the Chinese Geo-Jade Petroleum purchase of Bankers Petroleum, a Canadian based company with oil state contracts and, the sale of the stake of the only airport company in Albania from Deutsche Investitions- und Entwicklungsgesellschaft (DEG), AviAlliance and the Albanian American Enterprise Funds (AAEF) to China Everbright Limited and Friedmann Pacific Asset Management.
The hydroelectricity sector’s M&A activity may have lost its peak but the energy sector in general continues to be the busiest one along the banking and finance sector and to some extent also the telecoms. The tourism sector can develop some M&A potential (with a decreased 6% VAT rate and the new government promises to enact tax incentives for 5 stars luxury structures). Completion of construction for TransAdriatic Pipeline, on the other hand in 2018, may open the door to new so-called ‘gasification’ projects.
M&A legal experts in the meantime have gained increased confidence to handle complex share purchase agreements or other transaction instruments similar to that of other SEE jurisdictions as the legal framework for M&As is up-to-date and not so different to that of other countries in this region (e.g. merger filing legislation for example is fully harmonized with EU law).
What are the common misconceptions international clients have about doing business in Albania?
In few occasions, some investors think that Albania lacks up-to-date legislation, expertise for complex deals or enforcement and thus one can do away without the law and/or monitoring and enforcement authorities. For example, as typical in M&A deals, in the rush to complete the transaction as soon as possible, parties think that regulatory approvals or merger control clearance can be ignored without any major consequences. Well, this is not the case. Failing to obtain advice and observe required approvals, may indeed result in significant fines or the deal being set aside by the authorities in Albania.
Recent reports claim that the National Association of Judges and the Union of Albanian Judges have filed a lawsuit with the Albanian Constitutional Court; what has been the effect of this and what do you predict will be the outcome?
The constitutional amendments and the legislation package for the so-called “justice reform” passed by the Albanian parliament during 2016 have found opposition mainly from allegedly corrupted judges who see the reform as devastating for their future carrier. Therefore, the National Association of Judges and the Union of Albanian Judges filed a lawsuit with the Albanian Constitutional Court, challenging the legality of several pieces of legislation that are part of the reform. They mainly claim unconstitutionality of provisions regarding scrutiny over ties between the judges, prosecutors and organised crime in the period before January 2012. The Constitutional Court will hear the arguments of the parties and decide by the end of September 2017. It may be that also this time the court will rely on an amicus curia opinion of the Venice Commission which in an earlier case decided that the Vetting Law (part of the reform package) was not unconstitutional.
What challenges do you face as lead adviser in complex transactions? How do you ensure they remain successful for your client?
Deals timeline and completion targets are always challenging. The multidisciplinary team of the firm, pragmatic approach of our lawyers, careful risk assessment and industry knowledge are all very important for the success of a deal. Staying up to date with international legal developments helps in cross-border transactions where client demand for more sophisticated advice and drafting. In foreign to domestic transactions, we always recommend arbitration before foreign arbitration tribunals for the resolution of disputes given lack of trust in Albanian courts. Albania is party to many arbitration conventions (New York Convention, European Convention on International Commercial Arbitration, ICSID, UNCITRAL) and Albanian courts are generally in their track record of recognizing foreign arbitral awards.
Anisa Rrumbullaku is an experienced lawyer of over 12 years. Her areas of expertise are corporate, commercial and competition law with her focus being on M&As, drafting and review of commercial contracts, representing clients before the competition authority in merger transactions and abuse of dominance cases, intellectual property, consumer protection, healthcare & pharmaceuticals, etc.
We are an independent law firm in Albania that draws on the extensive experience and professionalism of its lawyers who are leading professionals in their areas of expertise and have been assisting clients on Albanian law matters for many years.