The 16th day of the African Association of Banking and Financial Institutions Lawyer was held from April 3 to 5, 2018 in Bujumbura (Burundi) on the theme of “specificity of the banking activity and effective resolution of the related litigation”.
The subject was treated under the OHADA law and specific regulations.
In fact, it was Albert OKITO’s turn to open the dance, under the moderation of Maitre NIBIGIRWE, lawyer and manager of the Gilbert and Partner business firm, to share with the audience, the concern of the Congolese banks, in relation to the impact of targeted international financial sanctions on the functioning of African banks.
We are well acquainted with the propensity of economically powerful and politically strong countries to impose their views on the weakest, even under the guise of a resolution of the United Nations. It turns out that the bank, wherever it is, is highly regulated and particularly supervised, and can not rely on the injunctions of people who are not authorized to give them, precisely in the absence of respect for the procedures, which are the only ones capable of complying with them. applied, on pain of having their responsibility sought and committed.
the specificity of the banking activity will be the second subtopic approach, a way to set the general context in which the activities of the bank are carried out.
This sub-theme was entrusted to the diligence of Professor Cyrille SIGEJEJE under the moderation of Ms. Minian BERTHE, and will see her presenter mention this feature successively under the prism of the creation, operation and disappearance of the banking institution, highly regulated by a regulator, even beyond the ordinary law regulations.
In line with the specificity of the banking activity, the 3rd subtheme on prudential security according to Bale, still evoked by Abdoulaye Amara Touré, president of Ajbef-Mali, will highlight another interest of the securities, and another mission of the bank lawyer, under the moderation of Mr. Prosper NGENDANGANYA, director of banking supervision at the bank of the Republic of Burundi.
These collateral, distinct from credit, are another manifestation of banking specificity and, alongside traditional collateral, appear as a particular application in the mitigation of credit risk, with a view to determining the solvency ratio of banks. . The lawyers will find a new approach to collateral, built in particular around the concepts of weighting of bank assets, techniques of credit risk mitigation, eligible collateral, prudential validity and legal advice, sources of new investment rules. internal and interpretative procedures by the judges.
On the 4th sub-theme concerning other alternative dispute management methods that are arbitration and mediation, Mr. Ousmanou SADJO, under the moderation of Mr. Caritas NIYONZIMA, lawyer and mediator, will look at the credit agreements regarding their practicalities and strategies for the banks, to highlight the interest of these alternative modes, supposed to rub shoulders with the state justice for the purpose of improving the business climate. Thus, speaking of the practical modalities and strategies for the bank, it has been used, brilliantly it is necessary to repeat it, after some considerations on the framework of the arbitration and the mediation, to draw some lessons the practice of arbitration by banks, before advising some banks on strategies.
While the first four sub-themes focused on a few generalities relating to banking specificity, on the management of the incidents of accounts, the securities as means of securing commitments, on the recovery, the last three sub-themes them, focused on the financing of the company and the innovation of the bank through the digital revolution.
The 5th sub-theme of the financing, is approached first under the angle of attack of the difficulties of repayment of the credit in Africa, by Mr. Leonard GACUKO, magistrate and director of the national service of the legislation, with Master Salvator KIYUKU, bâtonnier the order of the lawyers of Burundi as moderator. The issue raised will have led to the evocation of situations likely to compromise the repayment of credit, as well as the means of their detection and especially the arms available to the banker against the non repayment of the credit granted to his client.
As for the 6th sub-theme relating to the issue of the realization of the guarantees in Burundi and in the OHADA space, its evocation by Maitre Augustin MABUSHI, under the moderation of the bâtonnier Monsieur BAHA Moctar, will make the point between two distinct systems certainly, but based on the same legal base, and allowed for extensive exchanges on various experiences. However, it will be necessary to seek in the various national legislations the provisions which lengthen the procedures of realization to make the contribution of the bank lawyers to the later modification of the internal texts.
As for the 7th and last sub-theme still presented by Abdoulaye Amara under the moderation of Mr. Victor NOUMOUE, Executive Director of ECOBANK-Burundi, it deals with the innovations of the bank in its activities and its regulation, induced by the revolution digital, and whose president Paul DERREUMAUX said, she saw create a large field of innovation and further modernization. It is in this context that banks, including lawyers must invest to face the constraints of a new, dedicated regulation, also a source of regulatory risk, and consequently a source of foreseeable litigation with our clients. , in particular as regards the protection of personal data.
The annual days will have resulted in the following proposals for action:
-To ask APBEFs to become more involved in prudential training for greater ownership of bank lawyers;
-Have experienced bank lawyers to better advise leaders through practical training:
-To encourage bank lawyers from the OHADA countries to work on the creation of AJBEF’s branches and solicit help from APBEF.
