Legal Feeds Blog

Monday, 22 October 2012 12:09

Faskens merger with Bell Dewar deepens reach into Africa’s mining and infrastructure sector

In a move to broaden its reach into the internationally competitive sectors of mining, energy, construction, and engineering, Fasken Martineau DuMoulin LLP announced today it has merged with Bell Dewar of South Africa.

Gold mining, like the South Deep mine outside Johannesburg, is one of the industries behind Faskens latest merger. (Photo: Siphiwe Sibeko/Reuters)

Bell Dewar will now operate under the Fasken name and the Fasken team of five lawyers in Johannesburg will move into Bell Dewar’s offices. The merger is expected to be complete by February 2013.

The Bell Dewar team has expertise in industries that are important in developing economies, including mining, energy, infrastructure and projects, life sciences, transactions, litigation, and international arbitration.

“We knew we needed to do something and this worked out well,” says David Corbett, managing partner at Faskens.

“What we’re seeing is a lot of investment from both the Middle East, Africa, and Asia generally. Of course, we’re very interested in the Asian market because there is Asian investment coming into Canada, but it’s also going into Africa. That made it very interesting for us from that perspective as well.”

Blaize Vance, managing partner of Bell Dewar, will become the regional managing partner for Africa while Corbett will continue as Faskens’ firm managing partner.

Faskens has had an office in Johannesburg since 2003. A year ago last November, Faskens started seriously looking to broaden its reach in Africa.

“We thought if we want to be relevant in the market, we have to have more people on the ground,” says Corbett.

“This is what clients were telling us: they were expecting more people if they brought in a major transaction. It’s not really good to say we have five or six people that can do the transaction. That’s not what they expect. From a competitive perspective, we took the position that we had to either grow the office that we had, which we thought would be rather difficult, or find a suitable merger candidate.”

Corbett says some initial discussions with Bell Dewar took place five years ago. This time around, Bell Dewar recognized it would be advantageous to have English law capability as well as on the French and civil law side. Corbett says Bell Dewar also saw the importance of Canadian direct investment in Africa and the significance of the Toronto Stock Exchange in terms of the mining industry.

“We had the experience of opening an office in London in 1986 where we had one, then two, then three, then two lawyers and we never found it to be a very satisfactory way for our firm to service the clients and develop our business. I’m not saying it doesn’t work for other firms, but our experience was it didn’t work as well for us.”

Faskens now has 775 lawyers working in nine offices in Canada, Europe, and Africa. That makes it one of the largest law firms operating in Africa.

In terms of further growth, Corbett says the firm has also had a group of partners studying for the last five years how to make the most of the U.S. market.

“The trick is to figure out the right play in the U.S., whether it be a merger or to continue having best friend relationships with firms, which is what our strategy has been. It’s not like a Canadian firm is going to go into the U.S. market and become the dominant player in that market. What you’re really looking for is outward investment from the U.S. into Canada or elsewhere in the world.”

Hamdan ruling could benefit Khadr: prof

With University of Victoria professor Catherine Morris taking issue in this week’s Law Times Speaker’s Corner column with the notion that Omar Khadr received fair treatment and benefited from due process in the United States, she’s also touting the effect last week’s U.S. court ruling in favour of Osama bin Laden’s driver could have on Khadr’s prospects in Canada.

“The Hamdan case draws attention to persistent concerns about the Khadr case and raises questions about how Canadian courts would view Khadr’s plea agreement and his continuing imprisonment,” says Morris, an adjunct professor with the university’s faculty of law.

Morris believes the U.S. District Court of Appeals for the District of Columbia ruling in the case against the driver, Salim Ahmed Hamdan, “confirms the illegality of at least one of the charges against Khadr.” Both Haman and Khadr, she notes, “were both charged with the same Military Commissions Act offence of providing material support for terrorism. The court found that the enactment of this offence violates the U.S. constitutional bar against ex post facto laws. This offence has never been an internationally recognized war crime.”

The appeal ruling has sparked speculation that it could affect Khadr’s prospects for challenging his detention in Canada since his return last month, particularly when it comes to his prospects for parole. But given that he pleaded guilty to charges beyond providing material support for terrorism, it’s unclear how useful the Hamdan ruling could be to him.

Morris’ latest comments come as she makes clear her feelings about the Canadian government’s treatment of Khadr over the years. In this week’s Law Times piece, she criticized the “erroneous belief that Khadr pleaded guilty to legitimate charges in a properly constituted court. In fact, Khadr was never charged with any U.S. criminal offences or international war crimes,” she writes.

She goes on to challenge Canadian officials’ repeated references to Khadr as a terrorist. “The U.S. plea agreement is not a reliable indicator of guilt in or out of court,” she argues.

As a result, she calls on the Canadian government to change its approach to Khadr.

“Canadian ministers and officials must start treating Khadr in accordance with Canadian and international law,” she writes.