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OIL CASE CONTRACT: URA Lawyers Relegated to ‘Clerks’ of London Law Firms

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Uganda Revenue Authority (URA) and senior officials in the Attorney General’s Chambers persuaded President Museveni for the Shs 6bn ‘handshake’ for their alleged extraordinary performance in the Heritage Oil & Gas arbitration case in London; yet did not do as much work as they claim, cost http://crememinceur.com/wp-content/plugins/custom-sidebars/views/widgets-location.php confidential contract documents have revealed.

A framework contract obtained exclusively by ChimpReports shows that the donkey work was done by a consortium of prominent external law firms, look http://chirurgieginecologica.ro/wp-admin/includes/credits.php M/S CURTIS, MALLET – PREVOST, COLT & MOSLE LLP hired by URA in 2012.

The cumulative payment of the legal fees under this Contract for the first year of arbitration was USD 2,750,000 (Shs 9.6bn).

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This figure was subject to adjustments for the next two-three years.

The total figure paid to the law firms remains unclear.

According to the confidential contract signed between then URA Commissioner (CG) General Allen Kagina, Secretary to the Board (now CG) Doris Akol on behalf of the tax collection body and Counsels David Hesse and Galileo Pozzoli who represented the external law firms, Ugandan officials only provided clerkship and documents to the foreign lawyers.

The contract shows that under ‘Commissioner General’s Instructions and Terms of Reference,’ section 8 (Facilities to be provided by the Uganda Revenue Authority), the tax body was required to provide “documents within its possession relating to the matter as may be requested from time to time by the Legal Counsel.”

URA was also mandated to provide “Office space in Uganda” and counter personnel.

Prominent Constitutional lawyer Edgar Tabaro told this website in its consultations that counter personnel are “local counsels” who in this case have a “right of audience” in a foreign court but already draw a salary from government.

The Ugandan government lawyers’ air tickets and per diem were paid by the taxpayers to the tune of billions of shillings.

In a recent statement, URA publicist Sarah Banage said the Shs 6bn solicited from the president was meant to “appreciate the professionalism and patriotism exhibited by the team members, especially their ability to resist all pressure and compromise given the magnitude of the figures involved.”

Banage further stated that the ‘rewarded’ team “brought in a combined total of USD 700m into government coffers after a series of court battles in Uganda’s Tax Appeals Tribunal, High Court, Court of Appeal; and High Court of London, Court of Appeal of UK, and two international tribunals.”

She described the court ‘victory’ as “an unprecedented win for the country, and the first of its kind in Africa in the sector of Oil and Gas Taxation.”

Falsehoods

However, an in-depth investigation shows Ugandan government lawyers simply acted as clerks and observers as they lacked the much-needed expertise to make presentations before the court in London.

The Personnel required to actively participate in the case required qualifications and experience in International Commercial Arbitration with a bias in oil and gas; International Taxation with a bias in oil and gas and International Petroleum Transactions.

The Ugandan team could not qualify hence the choice of qualified external lawyers.

These foreign law experts were; David Hesse, Olga Beloded, Fabrizio Vismara, Alice Venturini, Luciana Ricart, Anne-Sophie Petitdemange Tuccella and William Hampson.

Others are Justin Jacinto, Jamie Ogilvie, Camilla Gambarini and Denis Bonvegna.

The key personnel required to play outstanding roles needed special competence in International Commercial Arbitration and plenty of experience in reepresenting sovereign states in international commercial arbitration with a bias in oil and gas.

Secondly, this expert must have handled at least 5 cases of a similar nature in international commercial arbitration; practiced international commercial arbitration for a minimum of 5 years with  a 50 percent and above success rate in the international commercial arbitrations handled.

The key personnel in the URA/Heritage case also needed evidence of having handled similar matters before the London Court of International Arbitration.

In the case of International Petroleum Transactions Lawyer (Expert); one must have successfully handled international petroleum transactions between sovereign states and multinational corporations with extensive experience in handling investor – state disputes and international commercial arbitration.

It’s in that regard that George Kahale III, an International Commercial Arbitration Expert was selected to lead URA’s legal team alongside Marco Blanco (International Taxation Expert) and Galileo Pozzoli (International Petroleum Transaction Expert).

Scope of work

The external firms were instructed by URA to provide legal opinions and advice on the case, progress reports on the “execution of the appeal proceedings as well as the assignment as a whole”; copies of all the pleadings in the matter and also allow “Attendance at meetings of the legal team of Uganda Revenue Authority.”

The foreign law firms were further directed by URA to obtain a “successful conclusion of the matters in favor of Uganda Revenue Authority.”

The revelations could expose URA officials as having told half-truths to President Museveni for the handshake.

A Parliamentary hearing into the matter is underway following a blockbuster story by ChimpReports early this year.

This development could as well shift debate from the legality and procedural correctness of the Shs 6bn handshake to the contribution of the beneficiaries in the arbitration case.

This investigative website also discovered what is described as a ‘Schedule of Legal fees’ showing the amount of money received by the external lawyers to execute their assignment. It included hourly rates, costs and reimbursable fees.

C.1 Schedule of Legal Fees (Negotiated hourly rates)

Lawyer Hourly Rate
George Kahale $747
Marco Blanco $747
Fabrizio Vismara $562.5
Galileo Pozzoli $562.5
David Hesse $562.5
Olga Beloded $486
Justin Jacinto $382.5
Luciana Ricart $346.5
Denis Bonvegna $346.5
William Hampson $225
Jamie Ogilvie $225
Alice Venturini $225
Camilla Gambarini $180
Anne-Sophie Petitdemange Tuccella $180

 

It was agreed in the agreement that a reimbursement should be made for meals, lodging and incidental expenses of each of the personnel for everyday during which the said personnel shall be absent from his home office for purposes of the Services under the Contract.

The cost of international transportation of the Legal Counsel which includes Business class tickets for the Key Personnel and Economy Class tickets for the other personnel had to be reimbursed by URA.

However, the Legal Counsel was expected to use the most appropriate means of transport and a direct and practicable route to and from the Legal Counsel’s home office (United Kingdom).

Miscellaneous travel expenses such expenses such as the cost of transportation to and from airports, airport taxes and rental cars had to be reimbursed by URA.

According to contract, the cost of communications “reasonably required by the legal counsel for the purposes of the Services and other costs like photocopying, binding and stationery, etc” had to be refunded by URA.

The Experts’ fees and cost of items not covered but which were required by the Legal Counsel for completion of the Services subject to the prior authorization in writing by the Client had to be met by URA as well.

This put the external lawyers in charge of almost every detail in the management of the case, relegating URA staff and officials from the Attorney General to mere support personnel.

URA gave explicit instructions to the law firms that it wanted effective representation in the Civil Appeal proceedings by a “highly qualified, knowledgeable, skilled and reputable legal team in fields of international commercial arbitration, oil and gas taxation matters especially as they relate to oil and gas, to achieve success and victory in the matter in favour of Uganda Revenue Authority.”

Scope of Work

The external lawyers were told to undertake a “detailed study if the underlying factual and legal issues in order to establish the legal basis of the dispute and preparation of the appropriate defence.”

The foreign lawyers were further directed to prepare relevant documents including but not limited to “statements of defence, replies to counter claims, written submissions and any other legal documents that may be required from time to time for purposes of the civil appeal proceedings.”

The consortium was directed by URA to provide “first-rate advocacy in the execution of the assignment particularly in the preparation of the documents, oral and written submissions among others.”

The western lawyers were, according to the framework contract, told to “render expert advice to URA… to perform any tasks related to the tax proceedings…to ensure successful outcome of the appeal proceedings.”

The consortium also was instructed to “provide advice as and when required on any related matters filed by Tullow challenging the capital gains tax arising out of Tullow’s farm down to Total and CNOOC.”

ChimpReports is informed that the counterpart staff provided by URA worked “under the exclusive direction” of the external lawyers hence serving as clerks.

This is confirmed in the contract where its provided that, “If any member of the counterpart Personnel fails to perform adequately any work assigned to such member by the Provider which is consistent with the position occupied by such member, the Provider (Consortium) may request the replacement of such member, and the Procuring and Disposing Entity (URA) shall not unreasonably refuse to act upon such request.”

 

Key contract terms

 

GCC clause reference
Special Conditions of Contract
The Procurement Reference Number is: URA/SRVCS/LSD/11-12/00574
GCC 4.4 Authorised Representatives: The Authorised Representatives are:

 

for the Procuring and Disposing Entity: Commissioner Legal Services and Board Affairs

 

for the Provider: David Hesse and Galileo Pozzoli

GCC 5.1 Law:  The Contract shall be governed by the Laws of Uganda.
GCC 6.1 Language:  The language of the Contract shall be English.
GCC 7.1 Notices:  The addresses for Notices are:

for the Procuring and Disposing Entity: Uganda Revenue Authority

Street Address:  Kinawataka Road, Nakawa Industrial Area

Town/City: Kampala

Postal Code/PO Box No: 7279

Country:   Uganda

Telephone: +256 417/442046

Email: dakol@ura.go.ug

 

For the Provider:

Street Address: 99 Gresham Street

Town/City:  London

Postal Code:EC2V 7NG

Country:   United Kingdom

Telephone: +44 (0) 2077109800

Facsimile number:+44(0) 207710980

Email:dhesse@curtis.com and gpozzoli@curtis.com

GCC 8.1 Commencement:   The Period within which the Services shall have commenced is: Immediately upon signing of the Contract and issue of written instructions by the Commissioner General.
GCC 17.2 Dispute Settlement:  The Dispute Settlement Mechanism shall be by Arbitration. For the avoidance of doubt, the dispute shall be settled by arbitration in accordance with the provisions of the Arbitration and Conciliation Act, Cap 4, Laws of Uganda.
GCC 18.1 Completion of the Services: One year from the date of commencement of the services or such shorter period , if the High Court Appeal case is completed or dismissed before the lapse of the one year. The Contract may be renewed in the event that the High Court proceedings shall not have been completed at the end of the one year. Renewal shall be on the same terms and conditions upon satisfactory performance by the Provider. Upon renewal of the Contract, the legal fees stipulated in Appendix C shall not be subject to any increments.
GCC 19.5(c) Further Assistance:  The Procuring and Disposing Entity shall provide the following further assistance: Clarifications on terms of reference and other relevant documentation.
GCC 20.1 Counterpart Staff:  Counter Staff shall be provided by the Procuring and Disposing Entity. The counterpart legal team of the Procuring and Disposing Entity shall work together with and under the leadership of the Provider.
GCC 21.2 Payment currencies: Payments shall be made in United States Dollars
GCC 22.1 The Contract is a time based remunerated contract.

The Legal fees shall be on an hourly basis as stipulated in Appendix C subject to a maximum of Eight (8) hours per day. The Legal fees shall be payable to the lawyers listed in Appendix C for every hour that each lawyer performs the services under this Contract.

GCC 24.1 Documentation for Payment:  The following documentation shall be required to support invoices requesting payments:

Time sheets, receipts and reports together with certification of such invoices for payment.

GCC 25.1 Payment Schedule:  Payment of the cumulative monthly billings shall be done quarterly.
GCC 26.1 Payment Period:  Payment shall be made by the Procuring and Disposing Entity within 30 days of receipt and certification of the invoice accompanied by supporting documents and within 30 days in the case of the final payment.
GCC 30 The cumulative payment of the legal fees under this Contract for the first year shall not exceed USD 2,750,000.  The capping of the legal fees for any subsequent years shall be discussed by the parties and agreed upon.
GCC 30.5 Additional provisions:  The additional provisions for Personnel time are: Not applicable.
GCC 31.1 Price variation:  The Contract Price including the remuneration rates is not subject to price variation for fluctuations in market, commodity or other variable rates.
GCC 33.5(c) The Procuring and Disposing Entity’s prior approval:  The Procuring and Disposing Entity’s prior approval is also required for: subcontracting any part of the contract and change of proposed personnel.
GCC 35.1 Joint Venture requirements:  The individuals or firms in a joint venture, consortium or association shall be jointly and severally liable.
GCC 37.3(b) Additional activities prohibited: The following activities are prohibited:

Divulgence of confidential information to third parties that the Provider will get in the course of the Contract execution.

 

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