–through amendment of old laws

WITH the new oil and gas sector taking shape and more foreign companies registering interest in doing business in Guyana, there has been talk of overhauling the existing legislative framework to create one conducive to creating a world class business environment.

Despite some deficiencies and archaic legislation, Guyana’s legislative framework is not entirely an impediment to facilitating a vigorous business environment, as the country does have a robust legislative system which is enabling for commercial development.

These were the sentiments shared by prominent Attorney-at-Law, Devindra Kissoon, founding member of the prestigious law firm, London House Chambers, during an interview with the Guyana Chronicle, discussing the required legislative framework anticipated to facilitate the commercial developments consequent to the oil and gas sector.

“It’s not that we are so deficient that we have these large gaps in our current commercial legislation which is prohibitory to doing business in Guyana, it’s quite the opposite in my view,” Kissoon noted.

Kissoon explained that Guyana has a liberal legislative framework which allows not only foreign companies to conduct business in Guyana, but also allows the Government to enable those companies to enjoy the necessary benefits of doing business here.

He listed a plethora of legislation that is already in place, facilitative to doing business in Guyana, such as the Companies Act, which is based on Canadian’s business cooperation’s law, and consistent with similar legislation in the Caribbean.

And the Income Tax (In Aid of Industry) Act, which has historically been used by Government to allow persons doing business in Guyana to benefit from various concessions.

Further, Kissoon explained that contrary to popular belief, even without the industry to some extent, Guyana does have Copyright Legislation, Trademark and Patents Legislation and Arbitration Legislation.

He noted however that while the legislation exists, laws evolve with society and the existing legislation might not be entirely reflective of the current realities.

AREAS FOR REFORM
He listed a number of areas that are in need of reform, such as the current domestic legislation to facilitate Arbitration, the Arbitration Act 1919, and other legislation.

“So, starting with the enforcement of the ability of persons who have their rights determined abroad, Guyana will need and is in the process of manifesting a revised modern arbitration act,” Kissoon said.

“It will need, and is in the process of, revising its Trademark laws and rules. It will need modern Copyright Legislation to handle things such as the change of technology that has occurred from 1956 to now, to ensure that certain things are copyrighted and of course to make it easier to enforce,” he added.

Further, he explained that legislation to allow the easy enforcement of foreign judgements are also required, and while the country has existing legislative provisions, it has not been enabled.

“We have a foreign reciprocal judgement enforcement act which has not yet been enabled, so the act exists, the legislative framework is there, but the act needs to be enabled to give companies the comfort,” he said.

The prominent attorney added: “… for example, you have an oil and gas contract which has a Texan choice of law, and a Texas forum and you get a Texan judgement; you can now easily enforce that judgement in Guyana. It can be done, but there are now modern mechanisms which are automatic to allow for the enforcement of those judgements in Guyana.”

However, the attorney explained that it is not just commercial legislation that is required to create an attractive business environment and development of the petroleum sector.

HEALTH AND SAFETY
“There are other things that can be strengthened in Guyana such as our Occupational Health and Safety Act. You would look around construction for example and they ought to be strengthened provisions which mandate that persons wear certain safety equipment,” he said.

“For the growth of Georgetown, we need a comprehensive zoning legislation which would allow the city to grow in a structured and not organic manner,” he added.

Kissoon explained that while these legislative reforms are “baseline”, there are other “sophisticated” reforms that are necessary in anticipation of the realties the oil and gas sector will present, for example, a revision of the archaic Petroleum Act.

“Similarly, with our environmental laws they will need to be updated to reflect the current realities as we know the environmental concerns would have changed from when that legislation was drafted to now; it’s not that these legislations are in any way deficient. They can just be simplified,” he said.

Since the discovery of first oil in Guyana, there has been a lot of talk about local content. Recently, the Government held major consultations regarding local content policy, something that Kissoon perused and is satisfied with.

He noted that local content has to be balanced with allowing persons the opportunity to provide local content against the backdrop of capacity building.

In the short-term, it ought to be ensured that persons doing business in Guyana must first scour the local market to ensure that they cannot get the services they are looking for here before looking elsewhere, and, in the long term, local capacity must be built and experience strengthened.

“For example, the lawyers’ profession. It could very well be seen that we don’t have the experience to, for example, draft or implement oil and gas legislation and oil and gas contracts, but at the end of the day if the Government were to suggest that whenever a foreign company hires a foreign firm it must work with a local firm, in so doing that local firm capacity would be built,” he explained.

Kissoon explained that this model should be applied across the board to ensure foreign companies consume local products first, and to build local capacity to provide the products they need.

OVERHAULING EXISTING FRAMEWORK
The current People’s Progressive Party Civic (PPP/C) Government has recognised these inadequacies and gaps in the country’s legislative framework and has embarked on an overhauling of the existing framework to implement modern legislation.

For example, Attorney-General and Minister of Legal Affair, Anil Nandlall, S.C., has engaged the services of retired Justice of the Supreme Court of Belize, Courtney Abel, to undertake the task of upgrading Guyana’s existing Arbitration legislation and make recommendations on developing the country into an arbitration empire.

Kissoon noted that presently Guyana is heading in an excellent direction, displaying superiority to many countries where they would have been at the same point in time with their oil discoveries.

“We are very bright people, we are very keen people and the Government currently is made of persons that are very alert to not only doing business but to the protections that are needed to ensure that business is done in a matter that benefits citizens, not only from a commercial standpoint but from a regulatory standpoint and an environmental standpoint,” he said.

He applauded the Government for taking strong steps in such a short period of time since assuming office to ensure that these deficiencies in the current legislative framework are resolved, and for consulting with the wider society.

“I think that the current methodology employed is excellent whereby the Government is ensuring that it has at its disposal international professionals who has experience in the field to assist us in getting the framework together

“As well as the same time taking those foreign views and matching it with the local concerns to ensure that we have a proper framework that suits and benefits the uniqueness of Guyana’s economic landscape,” he noted.