At this year’s General Counsel (GC) Forum hosted by Africa Legal at the Mining Indaba in Cape Town, the overriding theme echoed by various speakers was that GC must see themselves as business people with a legal background, not strictly as lawyers.
Once again the Forum was a huge success, with Kathryn Khamsi, partner at Three Crowns LLP, noting that there’s really nothing else like this event in the world that brings GC together in one place to address their specific concerns and build their networks.
“We began our partnership with Hyve and Mining Indaba five years ago with an agenda to elevate the importance of the legal community within the mining industry,” explained Wendy Bampton, CEO and co-founder of Africa Legal, as she opened the 2024 GC Forum. “This community however has gone much further – you are driving change in your industry, as individuals and as a collective, and we are excited to see how much further you can take the journey today.”
This year the Forum was co-chaired by Nomfundo Ngcobo, MBA, Group Head of Legal, Implats, and Daniel Driscoll, CEO of Lilium Mining.
In her opening remarks, Ngcobo noted that the role of a GC can lead one on a cold and lonely road, but building networks with other GC provides one with a support structure where you can share common purpose and value around sustainable mining.
Ngcobo also pointed out that environmental, social and governance (ESG) issues will continue to remain relevant to all aspects of business, and that lawyers need to assess how they’re dealing with ESG – merely as a tick box exercise or truly as something that is relevant to every area they deal with. “How are we treating people who have a grievance and want an audience to listen to them? In the integration of ESG are we seeing it in its different forms?” she asked.
Driscoll reminded those present that they’re the bridge between the legal and commercial aspects of the business. Having moved from being a GC to a CEO, Driscoll understands better than most the importance of having a solid bridge. He warned those present to remember that businesses should only declare disputes “as a nuclear alternative when the commercial aspect has completely broken down”.
In discussing the ways GC can add value to a business, Driscoll explained that mining companies are effectively engineering companies, and that GC need to find out more about the business and gain a better understanding of it by visiting the mining sites. “Then you’ll be able to better engage in conversation in the boardroom,” he said, adding that GC should also try to understand the finance and accounting side of the business. “The apparently ‘simple’ commercial calls lawyers make can have big practical and financial implications,” he stressed.
The first panel discussion of the day, hosted by Kathryn Khamsi, looked at ways the in-house legal function can minimise risk and cost to the company. Panellists highlighted the importance of the GC collaborating with all legal teams involved in drawing up contracts to ensure they understand the imperatives the business is looking for and to get bespoke contracts in place, eliminating as far as possible the areas that could come into dispute.
“In-house counsel must see themselves as business advisers with a legal background,” emphasised Michael Schottler, Head of Legal – Global Disputes, Anglo American. “Our role as in-house counsel is not to be people who say ‘No’, it’s to find the way for business to do what they need to do.”
Other points raised during the discussion included that GC must ensure they understand why they’re using specific clauses in contracts and must use governing law that’s relevant to the country in which they’re working, because there’s no “one size fits all” contract. GC were also reminded that they’re no substitute for external counsel and need to work together with them.
Liz Snodgrass, partner at Three Crowns LLP, pointed out that GC often need to come up with creative solutions, in this way proving their value as positive disruptors.
Hermien Uys, Chief of Legal at Vedanta Zinc International and 2023 GC of the Year, highlighted the importance of trying hard to ensure the seat of arbitration stipulated in contracts is a neutral venue.
Considering that there have been nine successful coups in West and Central Africa in the last three years – most recently in Gabon in August 2023 – it’s not surprising that the second panel discussion “Coup you gonna call?” was well attended.
Some of the tips for in-house lawyers acting in high-risk areas included advising management on ways to mitigate risk before a coup happens, ensuring you’re compliant with local laws, and hiring good, well-trained security people who can ensure the safety of your people. Underlying all of this was the advice from Elison Karuhanga of the Uganda Chambers of Mines and Petroleum to those who find themselves in the midst of a coup: “Find common sense and use it!”
Martijn Bosboom, General Counsel, Perseus Mining, agreed, stressing that the mining companies which find themselves in the midst of a conflict situation need to emphasise to the authorities that the company is neutral and will work with whoever’s in government.
Abdoul Karim Kabèlè Camara, Director of Legal Affairs West Africa, Endeavour Mining, reminded attendees to always set their standards higher than what’s expected. “Ensure that internally you are compliant with international law anyway, because at some point things will return to normal.”
The quick fire sessions also went down extremely well with the audience, and questions from the floor raised issues of the importance of affected communities having a voice and how to handle surprise back-end positions from states, among other things.
Minister Mike Freer, UK Parliamentary Under-Secretary (Ministry of Justice) also sent a message to the delegates at the event, saying “We recognise the critical role that (GC) play and strongly believe in-house legal teams should increasingly be involved in decision making, bringing their expertise and understanding of reputational and legal risk to the process, especially in light of the immense environmental, technological and geo-political challenges that the mining sector faces. That’s why gatherings such as the GC Forum are so pivotal.”
Hosted by Africa Legal, this year the GC Forum was sponsored jointly by Three Crowns LLP, Shearman & Sterling and the GREAT Legal Services campaign.
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