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Diplomatic Status for International Organisations

Diplomatic Status for International Organisations

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Diplomatic status and the immunities and privileges attached to that status are governed by statute under the Immunities and Privileges Act. The status cam be conferred on international organisations by the minister responsible for foreign affairs.

This is done by order of the minister which is published in the gazette and is ordinarily given after an agreement between the international organization and the government of the republic of Malaŵi.

Such agreements generally relate to cooperation with the government on some matter or the rendering of some service to the government.

Where such agreement exists, the minister may enter a further agreement that your organisations should enjoy immunities and privileges. This shall confer privileges on the organisation itself and also on certain members of staff of the organisations.

Immunities and Privileges of the Organisation

These include immunity from suit in that the organisation cannot be sued in the court of the republic of Malawi for actions in line with its diplomatic objectives. This is subject to certain limitations.

The organisation’s premises are also inviolable. This means no forced entry or entry without the permission of the organisations; this applies to local law enforcement as well. Restrictions on entry also extend to restrictions on search of the organisation’s premises and the organisations other property including, vehicles displaying diplomatic markings or known to enjoy diplomatic immunities, and parcels in transit. This also applies to documents and archives.

The organisation will also be exempt from taxes and rates other than taxes on the importation of goods. However, goods imported for official use or for exportation are exempt.

Immunities of Other officers and Servants

Officials are also immune from suit and legal process in regards to things done or not done in the course of their official duties. They are also exempt from direct taxes upon emoluments received as an officer or servant of the organisation. There is also an exemption on tax or duty on the importation of furniture, personal property and household effects of an officer or servant arriving to take up their post in Malawi.

In regards to immigration, they are exempt from immigration restrictions and any requirement for the registration of aliens in respect of the officers, their spouses, dependents and relatives.

The servants also enjoy exemptions from foreign exchange controls depending on their position and status in the organisation.

Lastly, the officers and servants and their spouses, dependent relatives are availed facilities for repatriation in times of international crises.

Obtaining the Diplomatic Immunities and Privileges

There are no standard forms in the statutes and other rules governing diplomatic immunities. The grant of the status is therefore left to the very wide discretion of the minister responsible for foreign affairs. However, an analysis of the organisations currently holding diplomatic status is informative as to the nature of the organisations that are likely to be granted diplomatic status under the Immunities and Privileges Act. Such organisations as at the latest order in 2016 include the United State Agency for International Development [USAID], World Bank Resident Mission, International Council for Research in Agro-Forestry, Southern African Development Co-ordination Conference, Southern African Trade and Development Bank Centre for Ticks and Tick-Borne Diseases and the International Potato Centre.

These organizations are all multination and operate in Malaŵi for a developmental, aid, or research purpose with some justification for diplomatic status. Is Malaŵi therefore important for organizations seeking such status to compile a compelling profile and provide compelling justifications for being granted diplomatic status

LISTING OF CORPORATE BONDS ON THE MALAWI STOCK EXCHANGE

LISTING OF CORPORATE BONDS ON THE MALAWI STOCK EXCHANGE

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By Madalo Banda | Associate

Background and Introduction

Corporate Financing partly entails raising funds [capital] for a company [corporation]. This is done in a number of ways such as (1) debt (2) private equity  or (3) a public equity through an Initial Public Offer [ IPO].

Locally, corporations often raise capital through debt by getting a loan or issuing a bond. Such bonds are issued and offered on the Malawi Stock Exchange[MSE].  This guide will therefore focus on raising capital on the MSE by means of public offering of bonds.

What is a Bond

A corporate bond is a written acknowledgement of indebtedness offered or issued by a corporation in respect of a loan made or to be made to it. The bond is also an undertaking by the corporation to repay the amount borrowed by it [together with interest on the borrowed amount] over a period of time.

Put simply, the bond functions as a loan between an investor and the corporation where the investor agrees to give the corporation a certain amount of money payable on a specific date on condition that the corporation will be making periodic interest payments at an agreed rate in the period before the date of repayment. The date for repayment is usually called the maturity date.

Legal Framework for issuing and Listing of Bonds

The pieces of legislation that are key in listing bonds on the MSE are the Financial Services Act, the Securities Act, and the Companies Act as well as other regulations, rules and policies made pursuant to or under the Acts mentioned above.

What does Issuing a Bond mean?

Issuing a bond simply refers to a circumstance where a corporation offers or invites the public to provide a loan to it , in a bid to raise capital.  The offer specifically provides that the loan will be  repaid on a specific date with interest, at an agreed rate, paid periodically and in the period preceding the agreed date of repayment.

To Whom are Bonds offered to?

Bonds can be offered to the public or privately. Thus, a bond is a form of a security[1] which a company can offer to the public[2]. An offer to the public is defined broadly to include (1)  an offer of a security to a section of the public, (2) an offer to individual members of the public selected at random, or (3) an offer to a person if the person became known to the corporation offering such security as a result of an advertisement made by or on behalf of the said corporation which was intended to result in the public seeking further information about an investment opportunity. [3]

How are Bonds Offered?

A bond is offered for sale with a face value. This is also called the par value. Par Value  is the amount that the corporation must pay the holder of the bond at the end of the life cycle of the bond or upon reaching date of repayment.

What are the advantages of Issuing a Bond?

Raising Capital by issuing a bond presents many advantages to the corporation including (1) not parting with ownership of the corporation since it is a debt and no alteration is done to the ownership structure, (2) flexibility as it allows issuing of bonds of varying terms for various periods to a large pool of investors and not a single investor since there is  access to a large pool of investors with capital (3) liquidity and less risk and (4) from a taxation point, the periodic interest payments made to bondholders may be deductible from the corporation’s taxes.

Issuing bonds on the  MSE

The MSE has a debt market where bonds can be offered for sale by a corporation to the public. Before a corporation can make a public offer of bonds on the MSE debt market, certain requirements must be satisfied as outlined below.

[1] See Section 2 of the Securities Act

[2] See Section 258 of the Companies Act, 2013

[3] See n2 above

Listing Admission Requirements

For a Corporation’s bonds to be listed on the MSE, the following requirements must be met:

  • The company must be duly incorporated in the Republic of Malawi.
  • The Company must be in compliance with the laws of the Republic of Malawi under which it was incorporated.
  • The company must be authorized to issue debt securities by its Memorandum and Articles of Association.
  • The company must obtain all necessary statutory and other consents for the issuance of such debt security such as consent from the Board of Directors where the Memorandum and Articles of Association require the same.

Listing Fees

At the initial issue of bonds on the MSE, a fee in the sum of MK 1, 650, 000.00 is payable by the company that intends to issue the bonds. For more information about listing fees, visit https://mse.co.mw/index.php?route=counter/debt/fees.

Conclusion

Most corporations raise capital or funds to finance its operations and growth by debt in the form of issuing bonds, which is security in the form of an undertaking by a corporation to repay the amount borrowed by it with interest over a period of time. Bonds may be issued publicly or privately. Issuing of bonds presents a number of advantages. In Malawi, the MSE has a debt market where public offers of bonds can be made upon satisfaction of certain requirements.  

LSTING-OF-CORPORATE-BONDS-ON-THE-MALAWI-STOCK-EXCHANGE-Download
AGENTS

THE TRADE FACILITATION AGREEMENT IN MALAWI: CUSTOMS CLEARING AGENTS

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By Tawela Taona Msiska | Associate

‘Trade Facilitation can reduce the cost of trade and spark competitiveness, productivity, innovation and growth’ – Global Alliance for Trade Facilitation.

Introduction

The Trade Facilitation Agreement (TFA or the Agreement) is a binding multilateral trade agreement between members of the World Trade Organization. The agreement was entered into force on February 22nd 2017 and rectified by two-thirds of the WTO members. International businesses face the burden of difficult border requirements and this affects small and medium-sized enterprises the most. The TFA aims to deal with those border requirements by simplifying, facilitating, and harmonizing export and import processes. Furthermore, the TFA sets out provision for release and clearance of goods and expediting the movement of goods, including goods in transit.

Additionally, appropriate authorities of trade facilitation and customs compliance issues are required to effectively cooperate under the Agreement. Malawi has been a member of the WTO since May 31st, 1995 and accepted the TFA by depositing its instrument of acceptance on July 12, 2017. This brief article will discuss the TFA’s operation in Malawi, with particular regard to licencing of customs clearing agents.

Institutional Framework

Currently, the TFA agreement is being implemented in Malawi with the assistance of the Global Alliance for Trade Facilitation [the Alliance]. The Alliance is a public-private partnership led by the Center for International Private Enterprise, the International Chamber of Commerce, and the World Economic Forum, in cooperation with Deutsche Gesellschaft fur International Zusammenarbeit (GIZ). It endeavors to reduce cost and time in trade and to remove obstacles in supply chain. Further, the Alliance facilitates public-private dialogue and delivers various projects around the world through business and political networks. The Alliance is governed by the following donor groups; United States, Canada, United Kingdom, Australia, Germany, and Denmark). The following are the main aims of the alliance:

  1. To establish public-private dialogues on trade facilitation
  2. To deliver country trade facilitation projects
  3. To use data to measure and strengthen the impact of the alliance.

Thus, the alliance delivers projects in countries where governments are dedicated to trade facilitation reforms and where governments and the private sectors are willing to work together Malawi is one of those countries.

Malawi Project: Modernizing Licensing for Customs Clearing Agents

Subject to Article 10.6 of the TFA provides for ‘Use of Custom Brokers’. The Alliance introduced a new licensing framework for agents in Malawi. Under this new scheme or project, the Alliance is working on the licensing framework with the Malawi Revenue Authority (MRA), the Ministry of Trade, Industry and Tourism (MTI), Customs Clearing Agents’ Association as well as Local and International businesses.

The purpose of the project is for the professional development of clearing agents, who take care of customs clearing at borders. The agents will participate in e-learning and get licensed through the support of a scholarship fund. Indeed, this will improve the current state of customs clearing in Malawi which is run by untrained customs agents, inconsistent services, incorrect classification of goods and costly border delays.

The alliance delivered a similar project in neighboring Zambia and the learnings of which will benefit Malawi. The projects in Malawi and Zambia will ensure knowledge and resources sharing to support the harmonization of trade processes in the region.

The project shall equip and qualify professional clearing agents who will help improve the custom clearing in Malawi. Consequently, the customs process will become smoother with less errors in classification while creating regulations and fees obligated on all competing goods. The new improvements will enable local businesses to be more internationally competitive and trade will become cost effective for businesses which will make Malawi an investment attraction. Without a doubt, the project will strengthen the trust and constructive relationship between businesses and the Malawian Government.

As part of its mechanisms, the Alliance will evaluate the impact of the project by assessing the reduction of time spent on customs processing, physical inspection and classification of errors. Additionally, the Alliance will determine how well customs and clearing agents are performing their duties.

Conclusion

This has been a follow-up update of Malawi on the International Trade scene. It is a great stride that Malawi is participating in the implementation of the Trade Facilitation Agreement. Malawi needs to compete and have a far greater presence in the international trade scene, which can be achieved through its participation in international trade regulations such as these.

REGULATORY FRAMEWORK FOR COMPETITION LAW IN MALAWI

REGULATORY FRAMEWORK FOR COMPETITION LAW IN MALAWI

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By Lozindaba Mbvundula | Associate, Public Relations Officer and Coordinator of Corporate Social Responsibility.

  1. Introduction

Competition issues in Malawi are governed by the Competition and Fair-Trading Commission (CFTC). This Commission is established under the Competition and Fair-Trading Act No. 43 of 1998. The CFTC is a corporate body with power to sue and to be sued. It is established under Section 4 of the Act. It is the regulatory body for all matters to do with Competition and fair-trading in Malawi. Although it may seek directions from the minister on how to conduct its functions, the Commission is largely autonomous. This paper discusses the nature of the CFTC and how it carries out its regulatory functions.

  1. Composition of the Competition and Fair-Trading Commission

The CFTC is comprised of 10 members, 7 of whom are nominated by the minister and appointed by the president. The other three are ex-officio members. These members are to be chosen based on their suitability for the task. Criteria considered includes their ability and experience in industry, commerce or administration or their professional qualifications. The 7 members comprise of: two persons representing business interests; a lawyer; an economist; an accountant; and two persons representing consumer interests. The Secretary to the Treasury or his representative; the Secretary for Commerce and Industry or his representative; and the General Manager of the Malawi Bureau of Standards or his representative are ex officio members of the Commission. The members of the Commission elect their Chairperson from among themselves. However, the ex-officio members are not eligible for such election. The members are immune law suits or other proceedings brought or instituted personally against any of them regarding their acts done in good faith in the course of carrying out their duties under the Act.

The members of the Commission are not its employees and do not serve on a full-time basis. Except for the ex-officio members, the members of the Commission serve for three-year terms and may be re-appointed when this period has lapsed. However, a person ceases to be a member if she/he resigns from office, dies, is absent from 3 consecutive meetings without valid causes, becomes an undischarged bankrupt, becomes of sound mind or participates in activities which contravene the Competition and Fair-Trading Act. Upon the occurrence of such a vacancy, another member is appointed to fill the position unless the period remaining before the term of the office expires is less than 3 months, in which case the minister may opt to keep the position vacant.

  1. Functions the Commission

As discussed above, the CFTC’s overriding function is to oversee all issues to do with competition and fair-trading and ensure that trade undertakings comply with competition regulations. Its duty is to regulate, monitor, control and prevent practices likely to have a negative impact on competition and fair-trading. This includes:

  • Conducting investigations of its own motion or upon being so re-quested. These investigations relate to
  • the conduct of businesses to ascertain whether an enterprise is committing anti-competitive or unfair trading practices.
  • proposed mergers/acquisitions for possible anti-competitive effects and taking any actions necessary to prevent or redress the creation of an anti-competitive merger or abuse of a dominant position by a trading entity.
  • Providing information
  • Providing information to business entities and consumers regarding the rights and duties of traders and the rights of consumers under the Act.
  • Undertaking studies and providing public reports regarding operation of the Act.
  • Giving advice to the minister on matters relating to the operation of the Act, of its own motion or upon being so requested.
  •  Collaborating with any association or body to develop and promote the observance of standards of conduct to ensure compliance with the Act.

The powers of the Commission are not limited to the above. It may carry out other functions that are not specifically laid out but are necessary to fulfil the objective of ensuring compliance with principals of competition and fair-trading.

  1. Powers of the Commission

Pursuant to its duties, the Commission has been granted extensive powers under the Act. The Commission has power to conduct hearings in order to ascertain compliance with competition laws. Where the Commission is of the view that its investigations will affect a certain person’s rights, it has the power to summon such a person for a hearing. This is discretionary and depends on the Commission’s assessment. However, where a person has made a written request for a hearing showing that he is likely to be affected by an investigation or has to be heard for other reasons, the Commission is obliged to conduct an oral hearing of such a person. This is not discretionary. It must follow as a matter of course.

In the conduct of hearings, the Commission has power to summon and examine witnesses; call for and examine documents; administer oaths; require that any document submitted to the Commission be verified by affidavit; and adjourn any investigation from time to time. It may also order any person, to give it information regarding goods manufactured, produced or supplied by her/him, if this information is necessary to determine whether the conduct of the business in relation to the goods or services constitutes an anti-competitive practice.  Such hearings take place in public.

The Commission also has power to designate some of its employees as investigating officers. The Commission is required to grant such officers certificates of appointment, which they display in carrying out their functions. These officers, upon production of the certificate, may enter any premises to seek out information and records relating to unfair or anti-competitive trading practices.

Upon conducting investigations into trade practices or potential mergers/acquisitions, and upon conducting hearings, the Commission has power to make orders. The Commission can make an order approving of a merger/takeover application, or declaring it anti-competitive.

  1. Enforceability of the Commission’s Decisions

It is evident that the CFTC has investigative and quasi-judicial powers. It conducts investigations through hearings and issues orders thereafter. The Commission is required to cause the order to be published in the gazette no later than 14 days from the date of its issuance. Orders made by the Commission are enforceable. The Commission or any person in whose favour an order has been made may enforce the order by having it certified by the Commission or a person authorised by the Commission, then lodging the certified copy with the Registrar of the High Court. Once this has been done, the Order has the same effect as a civil judgment of the High Court.  

A person aggrieved by an order of the Commission has the option of appealing against the decision. The appeal must be lodged to a judge of the High Court in chambers within 15 days after the date of the order. Pending determination of the appeal, the order or finding or the Commission remains in force, until otherwise ordered by the judge. The judge has power to confirm, modify or reverse the Commission’s findings. The judge may also direct the Commissioner to reconsider the whole matter or certain

aspects. As in all matters, the judge is required to give reasons for her/his direction.

  1. Conclusion

Evidently, the CFTC plays a highly significant and indispensable role in promoting, protecting, and enforcing competition and fair trading practices. The relevant laws have ensured the Commission is sufficiently empowered and well-equipped for such a tas

INSIGHTS INTO PERSONAL DATA PROTECTION IN MALAWI- AN INTRODUCTION

INSIGHTS INTO PERSONAL DATA PROTECTION IN MALAWI- AN INTRODUCTION

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By Gonjetso Dikiya | Head of Legal Services- Dispute Settlement Services

  1. Introduction

Data protection is an emerging field that has taken centre stage in the information age. The information age has witnessed more advanced technology and greater reliance on internet facilities. The scope and reach of social media platforms are but one area that has grown exponentially.  The benefits of the information age cannot be overstated. However, the information age also eased access to personal data which is increasingly processed using modern technological devices.  This has caused many to rethink the boundaries of privacy in the contemporary world.  ‘Everyday millions of ordinary people are subject to a variety of technologies that invade their privacy’. Consequently, it has become critical to consider various privacy issues concerning the protection of personal data in the information age.

Data protection is an ambit of the broader field of privacy law. Privacy refers to the right to be left alone.’[1]It is the claim of individuals, groups or institutions to determine for themselves, when, how and to what extent information about them is communicated to others.[2]Essentially, privacy is one of the ultimate expressions of an individual’s autonomy in that privacy accords the person ‘control over his or her personal information’ and enables one to ‘conduct his or her personal affairs relatively free from unwanted intrusions’.[3] From this perspective, privacy protects the individual from unwanted intrusions from both the state and the public

  1. Guarantees of Privacy under the Constitution of the Republic of Malawi

The right to privacy in Malawi is guaranteed under section 21 of the Constitution. The section is not exhaustive in its provisions but arguably seeks to highlight some crucial contents of the right to privacy. Section 21 sets the framework for the operation of data protection in Malawi as it specifically includes the right not to be subjected to interferences with private communications including mail and all forms of telecommunications. The section is broad enough to cover the discourse of data protection.

  1. Statutory Guarantees on Data Protection

The Electronic Transactions and Cyber Security Act, [ETCSA],2016 is the only legislation that currently expressly provides for data protection in Malawi. The ETCSA contains express provisions that incorporate and infuse most of the governing core principles of data protection recognised internationally. The ETCSA provides for the fair and lawful processing of information, purpose limitation, minimality, quality, openness and transparency, security, and accountability. The Act also provides extensively for the participation of data subjects in the processing of their data.  Most of these data protection principles under the ETCSA are expressed in terms similar to most recognised international data protection principles.

The ETCSA, however, omits several key principles that have internationally been embraced as core to any data protection regime. To highlight a few areas, the ETCSA does not provide for the protection of sensitive data and children’s data. The international best practices require a higher threshold for the protection of such data. The ETCSA does not fully embrace principles of data participation in the processing of their personal data and other crucial areas like the right for data subjects to withdraw consent to the processing of their personal data are visibly missing from the ETCSA.

  1. The New Dawn: Data Protection Bill [DPB]

Considering the foregoing, there have been several calls for Malawi to adopt a comprehensive data protection regime. The draft DPB aims to bring about a comprehensive regime regulating data protection in all areas where personal data is being processed. The DPB is very progressive and comprehensively incorporates the key norms on data protection that have been embraced on the international platform.

  1. Conclusion

Data protection is of critical importance in the information age. Technological mechanisms can easily be manipulated to the detriment of people’s personal data. This short article has highlighted how data protection should be at the fore in ensuring the right to privacy is preserved.  In my next articles, I shall focus on the DPB and attempt to highlight some of the notable highlights, and I shall explore some of the notable gaps and weaknesses that may need to be resolved before the DPB is passed into law.

[1] Khalid Alkhatib & Ahmad Alaiad ‘The influences of Privacy, Security, and Legal Concerns on Online Banking Adoption: A Conceptual Framework’ in Shadi A Aljawarneh Online Banking Security Measures and Data Protection. (2017) 118.

[2] Roos “Privacy in the Facebook Era: A South African Legal Perspective” (2012) SALJ 378.

[3] South Africa Law Reform Commission Discussion Paper 109. (Project 124) Privacy and Data Protection (2005) 2.

THE IMPLEMENTATION OF INTERNATIONAL TRADE REFORMS ON RECOVERY FROM COVID-19 IN MALAWI

THE IMPLEMENTATION OF INTERNATIONAL TRADE REFORMS ON RECOVERY FROM COVID-19 IN MALAWI

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Tawela Taona Msiska | Associate

Introduction

As of March 11, 2021, the World Health Organization has confirmed 117,332,262 cases of Covid – 19 worldwide. The Covid – 19 pandemic (the pandemic) has caused an unprecedented global health crisis, indefinite lock downs and global production and employment have been slashed. Inevitably, Countries around the world can no longer exchange services and goods as they used to. International trade has been shaken and left vulnerable. However, international trade remains critical to defeating the pandemic. In fact, the pandemic is an opportunity to improve and reform international trade policies and systems.

The United Nations Conference on trade and development (UNCTAD) reports that the decline in the growth of goods and services began in the first quarter of 2020. The growth of trade in goods and services further declined in the second quarter of 2020 by 18 percent, while trade in services experienced a decline of 21 percent. It is no surprise that trade in travel services was hit the hardest by falling more than 24 percent.

Contrastingly, trade on COVID-19 medical products such as sanitizers and protective equipment increased by 186 per cent by May 2020. As the global community became a low touch society, trade in home equipment such as laptops and Wi-Fi routers prospered. Unfortunately, trade in goods carried by sea also fell in the clutches of the negative impacts of the pandemic, by May 2020 global port calls fell to less than 80 percent. Similarly, foreign direct investment flows are estimated to deteriorate further in 2021.

Reforms on International Trade

Now more than ever uncertainty looms for traders and businesses. Businesses are being run at greater risks and moving goods across borders has become more difficult. The focus is to keep trade and businesses going and develop trade strategies to adapt to the reality of the pandemic.

The UNCTAD have proposed the following reforms to keep trade and business going as the world recovers from the pandemic:

  • Restructure of International Production systems and investment for sustainable development

The pandemic has resulted in less tangible production and less dependence on physical assets. However, the pandemic has accelerated technology and digitalization and here lies the window of opportunity for international production systems to rely on digitalized supply chain. The international production system seeks to rely on less physical infrastructure and more on high quality digitalized infrastructure.

Investment policies are critical for the recovery of the international trade from the pandemic. In response to the pandemic, investment policies have adopted online investment facilitation, investment promotion agencies and new incentives for investment in health care. In an effort to protect health care and other strategic industries, several countries have opted to implement stringent foreign investment screening mechanisms. Thus, policy makers in the investment sector are encouraged to accommodate the abrupt changes in international production systems to keep foreign investments flowing.

  • Strengthen Innovation, Science and Technology

The international trade community cannot ignore the critical inputs of innovation, science, and technology in the fight against the pandemic. It is through the development of these sectors that local manufacturers and multinational enterprises may have an enabling environment to continue contributing to the international trade community. For instance, member states at the annual session of the United Nations Commission on Science and Technology for Development in 2020, shared how developing countries are capitalizing on the pandemic response to shed light on their innovative and productive capabilities. Some of those developing countries are successfully proving their capabilities. South Africa and the Philippines manufactured ventilators and personal protective equipment through three-dimensional printing.

It goes without saying that technology has played a major role in the pandemic. The global community has relied heavily on teleworking, teleconferencing tools and e-commerce platforms for goods and services. Technology has been given special attention in the healthcare sector to cater to the medical responses of the pandemic. The heavy reliance on technology is said to continue even after the pandemic according to a survey conducted by the UNCTAD.

  • Enhance transport networks resilience and implementation of trade facilitation

Expediting imports, delivering goods, exports and transit have come under pressure due to the pandemic. Some of the Problems faced include blank sailings, port closures and labor shortages. Disruptions to the maritime transportation systems threatens the 80 percent global merchandise trade handled by shipping and ports. The UNCTAD calls for ‘Effective collaboration, coordination and cooperation among public and private stakeholders at all levels’ to strengthen border agencies and resolve the new challenges. The challenges may be curbed through strengthened international collaboration, transport and logistics solutions tailored to the growth of e-commerce, investment in transport and logistics, embracing technology and addressing long-term concerns such as climate change and carbon emission from shipping.

Implementation of the International Trade Reforms in Malawi

The Ministry of industry, Trade and Tourism (the Ministry) is the primary institution responsible for Investment and trade in Malawi. The Malawi investment and Trade Center (MITC) operates under the Ministry and is responsible for promoting exports and international markets. MITC is established under the Investment and Export Promotion Act 2012 (the Act). The Act is one of the laws under the UNCTAD Compendium of Investment Laws. Thus, as the institution responsible for trade in Malawi, MITC has every reason to pay attention to the trade reforms post Covid-19 provided by the UNCTAD.

The vision of MITC is to attain sustainable economic growth and create wealth through investment and trade. The MITC intends to achieve economic growth and wealth through exports, nurturing foreign and domestic investment while encouraging a conducive business climate in Malawi. It endeavors to promote and facilitate export products and services of Malawi to international markets. Furthermore, MITC advises the government on policies on the business environment in Malawi. Therefore, it is in the best position to initiate and implement the international trade reforms.

As stated earlier, the pandemic has shifted the tides of global dynamics as developing countries are capitalizing from the dysfunction and Malawi should follow suit. Through the MITC, Malawi can use the pandemic as an opportunity to review her current legislation and policies on trade and investment to capitalize on the gaps created by the pandemic, by taking into account the proposed reforms listed above. Essentially, through the MITC, Malawi can critically review the reforms provided by the UNCTAD and apply them to domestic investment and trade laws and policies.

This is not to suggest that the MITC is not taking any steps to improve the trade and investment in the environment in Malawi. On the contrary, steps are being taken by the government and MITC to unify the trade laws of Malawi with the rest of the world. For instance, Malawi became the 35th member state to ratify the African Continental Free Trade Area on 15th January 2021. This opportunity will provide Malawi with the opportunity to be part of the world’s largest free trade area which will involve the removal and reduction of taxes on some products. It is striding like these that will assist Malawi to recover from the pandemic and achieve the mission of the MITC.

Conclusion

This discussion has been influenced by the UNCTAD in hope that Malawian businesses and traders are encouraged to see opportunities in these tough times. As part of the global village, it is the duty of our country to participate in these reforms, to collaborate, coordinate and cooperate with the rest of the world to recover from the pandemic. Malawi, through the MITC and the government, will do well to participate and contribute to the above areas suggested by the UNCTAD.

PROTECTION OF CONSUMERS UNDER THE COMPETITION LAW REGIME IN MALAWI

PROTECTION OF CONSUMERS UNDER THE COMPETITION LAW REGIME IN MALAWI

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Lozindaba Mvundula | Associate, Public Relations Officer and Coordinator of Corporate Social Responsibility.

  1. Introduction

Competition laws exist to ensure that the market place is driven by the forces of supply and demand, thereby ensuring that there is competition in the market. The protection of competition is of great importance to the national and world economy in that it strengthens the efficiency of production and distribution of goods and services and secures the best conditions for freedom of trade. In addition to all this, free and fair competition also ensures that the interests and welfare of consumers are protected. A consumer refers to any person who purchases or offers to purchase goods otherwise than for the purpose of resale or any person to whom a service is rendered. It, however, does not include persons who purchase goods for use in the production and manufacture of other goods for resale.

The protection of consumer welfare is one of the objectives of the Competition and Fair-Trading Act (CFTA). Although the protection of consumers is largely governed by the Consumer Protection Act, the competition regime also has a role to play because competition and consumer protection are essentially two sides of the same coin. This paper discusses the link between competition and consumer protection, and the role of the Competition and Fair-Trading Commission (CTFC) in the protection of consumers.

  1. The Link between Competition Law and Consumer Protection

There exists an undeniable link between competition and the protection of consumers from unfair trade practices. Anti-competitive behaviour e.g., price fixing and exclusionary practices, distort the market force of supply by restricting the entrants into the market. Where supply is low and demand is high, producers will most likely hike their prices. The obvious disadvantage of this on the consumer is clearly a concern of both competition and consumer protection regimes.

Concurrently, consumer protection offences, such as deceptive advertising, distort the market force of demand. They create a false image as to the true nature of a product or service, making it seem to be worth more than it actually is. Unfair trading practices not only affect the welfare of consumers, but also lessen the business of existent or potential trade rivals. Thus, in order to ensure that there is a free market, sufficient protection must be given to both the supply side and the demand side – to both competition and consumer protection regimes. While ensuring that the market force of supply is protected by safeguarding against anti-competitive behaviour, demand must also be protected by safeguarding consumers against unfair and deceptive trade practices, that make goods and services appear to be worth more than they actually are.

  1. Prohibited Unfair Trading Acts Against Consumers

The Competition and Fair-Trading Act prohibits any unfair trading acts committed against consumers. The following practices by producers or traders constitute unfair practices towards consumers and are prohibited under the Competition and Fair-Trading Act:

  • Withholding or destroying producer or consumer goods, rendering goods unserviceable or destroying the means of production and distribution of such goods, whether directly or indirectly, with the aim of bringing about a price increase;
  • Excluding liability for defective goods;
  • Making warranties that do any of the following;
  • Limit liability to a particular geographic area or sales point;
  • Falsely represent that products are of a particular style, model or origin;
  • Falsely represent that the goods are new or of specified age;
  • Represent that the products or services have any sponsorship, approval, performance and quality characteristics, components, materials, accessories, uses or benefits which they do not have;
  • Engaging in conduct that is likely to mislead the public as to the nature, price, availability, characteristics, suitability for a given purpose, quantity or quality of any products or services;
  • Supplying any product which is likely to cause injury to health or physical harm to consumers, when properly used, or which does not comply with a consumer safety standard which has been prescribed under any written law;
  • Claiming payment for unsolicited goods or services;
  • Engage in unconscionable conduct in carrying out trade in goods or services;
  • Engage in pyramid selling of goods and services (a scheme which makes money by recruiting people rather than by selling products);
  • Engaging in bait selling (A sales tactic where a store/trader attracts customers by an advertisement for a high quality or low-priced item, that turns out to be unavailable. The trader then uses the opportunity to lure the customer into purchasing a higher priced or lower quality product as a replacement, or to purchase other products offered by the same producer. The advertised unavailable product is only used as bait);
  • Offering gifts or prizes with no intention of supplying them;
  • Putting out an advertisement which is misleading or deceptive; and
  • Engaging in any such acts constitutes an offence.
  1. Role of the Competition and Fair-Trading Commission in Consumer Protection

The CFTC is empowered to enforce the CFTA and regulate, monitor, control and prevent acts or behaviour which are likely to adversely affect competition and fair trading in Malawi.  This includes conducting investigations, whether of its own motion or otherwise, into the conduct of any business to ensure that its acts are not anti-competitive or unfair towards consumers. The Commission sits as tribunal and may hold public hearings in the conduct of its investigations. It has authority to summon and examine witnesses, to call for and examine documents, to administer oaths, to require that any document submitted to the Commission be verified by affidavit; and to adjourn any investigation from time to time. Following such hearings, the Commission may make a finding based on which the Commission can make orders and directions.

Thus, where unfair acts have been committed against consumers, the consumer may report to the CFTC, which will then summon the concerned parties and conduct investigations in the manner discussed above. The Commission also has power to unilaterally commence investigations of suspected unfair practices against consumers, without being moved by anyone. Once the Commission makes a finding, it can issue order and directions regarding the conduct of the trader against consumers. It may require that traders cease certain unfair trade practices or even make payment to consumers for injustices committed against them. Further, the findings of the Commission may be used as a basis for prosecution of those who engage in unfair trading practices. Through this, the welfare of consumers is protected.

  1. Conclusion

The safeguarding of fair competition and the protection of consumers from unfair trade practices are interlinked and indispensable to each other. They both protect the market forces of supply and demand, which are necessary to ensure free and fair trade, as well as efficiency of production and distribution of goods and services. The Competition and Fair-Trading Commission plays a key role in the protection of the welfare of consumers through its findings, orders and directives issued pursuant to its investigative powers.

registered designs in malawi

REGISTERED DESIGNS IN MALAWI

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Madalo Banda | Associate

What is a Registered Design

A design is defined as any feature of shape, configuration, pattern or ornament that is applied to any object by an industrial process and are judged solely by the eye. A design does not include any method of construction or feature which is dictated solely by the function which the object is to perform.

For a design to be registered, it must be new or original and must not be the same as a design which appears on the design register or has been published previously in Malawi. A design which differs with a previously registered design only in immaterial details or in variants commonly used in trade shall not be registrable.

Legal Framework for Registered Designs

Registered Designs are governed by the Registered Design Act [Cap 49:05].

Malawi is also a signatory to various international instruments including:

  • The Paris Convention for the Protection of Industrial Property
  • The Protocol on Patents and Designs within the Framework of the Industrial Property Organization for English-speaking Africa, 1984
  • The Banjul Protocol
  • The Madrid Protocol

Who may apply for Registered Design

The following can apply for registration of a design:

  • The proprietor
  • The author
  • The assignee or legal representative of the proprietor

What Designs can be Registered

For a designed to be capable of registration, it must fulfil the following conditions:

  • Be new or original
    • Must be distinguishable by sight
    • Must be distinguishable from known designs
    • It must not merely be a feature that is commonly used in trade
    • It must not be a feature that is solely dictated by the function that the product must perform
    • Must not contain anything contrary to public order or contain any obscenity

What Designs Cannot be Registered

The following shall be excluded from registration under the Registered Designs Act:

  • works of sculpture other than casts or models used or intended to be used as models or patterns to be multiplied by any industrial process
  • wall plaques and medals
  • printed matter primarily of a literary or artistic character, including book jackets, calendars, certificates, coupons, dressmaking patterns, greeting cards, leaflets, maps, plans, postcards, stamps trade advertisements, trade forms, and cards, transfers and the like.

What is the Procedure for registration of a design in Malawi

Registration of a Design in Malawi can be obtained by filing an application with the office of the Registrar General as follows:

  • The appropriate from in accordance with the Registered Designs Act
  • An Endorsement as to novelty
  • Representations or specimens to be furnished with the application
  • Power of attorney where applicable

The Registrar may then make the necessary searches as to novelty and registrability of the design.

What Rights are Conferred on Registration

The registration of a design under the Registered Designs Act shall give the proprietor or their successors the exclusive copyright in the design.

The proprietor shall have exclusive right to sell or use the said design in any trade or business. 

The proprietor also has the right to assign or license the said design to third parties; such assignment may be registered with the office of the Registrar.

What is the Duration of Protection

Design registration is valid for a period of five years from the date of filing of the application and is renewable for two further terms of five years each.

How are Rights Enforced

Any action for infringement of a registered design shall be brought before the High Court where the applicant is at liberty to seek interlocutory remedies.

Conclusion

The law in Malawi allows for the registration of novel designs and vesting of rights in copyright, in their prospective proprietors. Said registration is valid for a renewable period of five years with infringers liable to suit in the High Court.

copyright in malawi

COPYRIGHT IN MALAWI

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Madalo Banda | Associate

What is a Copyright

A copyright is an exclusive property right that belongs to authors of any work by the mere fact of its creation.

Copyright law does not protect ideas, but the expression of ideas, the forms but a work shall be eligible for copyright irrespective of its form of expression, its quality or purpose for which it was created.

Legal framework for Copyright in Malawi

Copyrights are governed by the Copyright Act 2016.

Malawi is also a signatory to various international instruments including:

  • Berne Convention for the Protection of Literary and Artistic Works
  • Universal Copyright Convention (Geneva)
  • Agreement on Trade-Related Aspects of Intellectual Property Rights

Procedure for Registration of a Copyright

There is no registration requirement for copyrights in Malawi. An author of any work shall, by the mere fact of its creation, enjoy an exclusive property right in the work.

Eligibility for Copyright Protection

Any Literary, dramatic, musical or artistic work shall not be eligible for copyright unless:

  • it is original in character; or
  • it is a derivative work including the following:
  1. translations, adaptations, arrangements and any other transformations of original literary, dramatic, musical and artistic works
  1. collections of works, such as encyclopedias and anthologies, which, by reason only of the selection or arrangements of their contents, constitute intellectual creations.

Works not subject to Copyright Protection

Copyright protection does not extend to the following:

  • written laws and decisions of courts and administrative bodies and to official translations news published, broadcast or communicated to the public by any other means; and
  • a report made by a commission appointed by the Government or any agency and which the Government has made available to the public

Rights Conferred by Copyright Protection

Rights conferred by copyright protection are subdivided into two major groups, being, economic rights and moral rights.

Economic Rights

The author of any copyrighted material shall have exclusive right to the following:

  • Reproduction of the copyrighted material;
  • Distribution of the copyrighted material through sales, renting, licensing or lending;
  • Public display of the copyrighted material;
  • Public performance of the copyrighted material;
  • Communication of the copyrighted material to the public; and
  • Translation, adaptation, or any other transformation of the copyrighted material.

Moral Rights

The author of any copyrighted material shall have exclusive moral rights:

  • The right to claim ownership of the work and to demand that his/her name be mentioned in a manner in line with proper usage; and
  • Object to and seek relief from alternation or distortion of their work where such act would be prejudicial to his/her honour or reputation or where such alteration would lead to discrediting of the work.

Ownership of a Copyright

A person vested with copyright shall be the author of the work.

Where two of more persons are authors of the work, copyright shall vest jointly.

Where the work is created during the course of the author’s employment or is a product of commissioned work, the rights in the work shall vest in the employer or party that commissioned the work. 

What is the Duration of Protection

Copyrights shall be protected during the lifetime of the author and fifty years after his/her death.

In cases of joint ownership, during the lifetime of the last surviving author and for fifty years after his death.

In cases where the author is anonymous, fifty years from the date such work was first published.

Infringement of a Copyright

A person infringes a copyright where they, without valid transfer or license, reproduces, duplicates, extracts or imitates such a work, or sell, lends or hands out the said work without consent of the copyright owner.

How are copyrights enforced

Copyright infringement is a criminal offence and on conviction, violators shall be liable to a fine of MK5,000,000.00 and to imprisonment for two years.

A civil action for copyright infringement can also be commenced by the owner of the copyright where they can obtain remedies as follows:

  • Damages;
  • Injunction;
  • Account of profits or otherwise; and
  • Forfeiture of all reproductions to the copyright owner or the government.

Conclusion

Works in Malawi are subject to copyright protection merely by virtue of their creation. Copyrights vest various rights in the creators of works and prohibit unauthorized distribution or reproduction of such works. Where such infringement occurs, the proprietor has various remedies in both criminal and civil courts.

women

RITZ ATTORNEYS AT LAW CONTRIBUTES TO THE WORLD BANK 2021 WOMEN, BUSINESS, AND THE LAW REPORT

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Ritz attorneys at law was invited to contribute to the World Bank 2021 Women, Business and the Law report. This report is a series of annual studies measuring the laws and regulations that affect women’s economic opportunity. The report identifies barriers to women’s economic participation and encourages reform of discriminatory laws. The 2021 report uniquely analyses government responses to the Covid-19 crisis as they relate to childcare and women’s access to justice. Our team advised on the laws relating to maternity, paternity and parental leave for private sector employees as well as the impact of covid-19 on paid parental leave. Our Mr. Wanangwa Hara and Ms. Madalo Banda are credited contributors to this report.

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