Mwaiwathu is an associate in the banking and finance practice bloc of the Firm. He also sits on the Practice Management Committee of the firm with a focus on marketing, business development and client recruitment.
Mwaiwathu received a Bachelor of Laws Degree [LLB] with Honours from the University of Malawi in 2019 and was admitted into the Malawi Bar in the same year. He is a member of the Malawi Law Society.
Mwaiwathu’s core focus area is in banking and finance law. He is involved in the regulatory and corporate finance aspects of corporate finance in infrastructure finance, agricultural finance and sovereign lending and securities. He also assists clients in contesting disputed claims for income tax, value added tax and customs duties in industries such as gaming, manufacturing and agricultural processing and exports. He advises on industrial incentives and priority industries, rebate schemes and tax strategy including matters such as transfer pricing and the regulations around base erosion and profit shifting (BEPS).
Much of his work revolves around: project financing including advisory work on regulatory aspects of the projects (licensing, requirements etc) and corporate due diligence on behalf of international and regional lending institutions in industries such as agriculture and public infrastructure; secured lending including drafting of security agreements and other security instruments. Subordination of lending and syndication structures such as security trusts and security agents; sovereign finance and debt instruments including cross currency swaps, securitization of sovereign controlled or segregated assets such as special levy funds with statutory protections; income Tax [Corporate, Individual and Charities/NGOs],
Transfer Pricing, BEPS and taxation of MNOs, Customs and Excise tax and procedure, Tax Dispute Resolution, Tax Advisory and Planning and, Tax Treaties and International Taxation, Recovery of tax debts from the state, tax appeals, and Tax Litigation; International Commercial Arbitration; Employment, Companies Law, Contracts and Employment, International Trade, Trade Financing and International Investments, Anti – Money Laundering and Terrorist Financing, Debt Collection and Debt Restructuring.
Specific experience in international lending in the role of local counsel including to an International Finance Institution (IFI) in Africa. Most notable of these roles are his roles as team lead on a USD 10 000 000-00 export finance facility extended to a local agricultural outfit in January 2021 and currently team lead on a USD 1 000 000-00 4-year term loan in favour of a Development Finance Institution by the same IFI and on a facilities restatement to a local tobacco export operation which is part of a multinational firm where local facilities are being increased from USD 80 000 000-00 to USD 100 000 000.
In all these team leadership roles he was intimately involved in reviewing English law governed facilities agreements and giving opinions on their validity under local laws and the borrowers capacity to enter them. Additionally, he participated in and oversaw the corporate due diligence exercises, where necessary, and handled the drafting of security instruments and see to their registration and perfection.
Besides the technical tasks, he was able to take on leadership roles in these complex transactions and act competently and effectively whilst managing relatively senior colleagues. He also marshalled communication between the firm, the lender, the borrower’s counsel, the IFI’s English counsel and the borrower.
In December 2021 Mwaiwathu was a lead on a team in our role as local counsel in a carbon credits financing scheme. This presented new and unprecedented challenges and opportunities. It had some of the routine corporate law and finance facets, but it also brought in a new form of complexity which was learning the ropes in an unfamiliar area of law whilst on a deadline and giving correct and definitive opinions.
For this task, he had to organise the team, distribute roles, and provide oversight in a way that allowed for easy sharing of newly acquired knowledge in this thing we had never done before whilst not getting in each other’s way and keeping an eye on everything. He also maintained close contact with regulators who were a cache of expert knowledge and insights, used them as a resource and leveraged that communication to expedite our own research and investigations.
In the end, the team gave advice not only on the corporate standing of a local institution with a product from which carbon credits could be generated, we were also able confidently advise on the verifiability and transferability of carbon credits under the gold standard™ and Reducing Emissions from Deforestation and Forest Degradation (REDD+). This involved looking at end user contracts for certain low carbon products, and examination of technical documentation such as Key Product Information for Voluntary Project Activity (VPA) Design Documentation to advise whether a project would yield verifiable and sustainable emissions reductions, and hence marketable carbon credits. We then proceed to advise on the prepayment agreements for the future credits in this scheme where the international client would finance the local target’s activities in exchange for future carbon credits that the client will market.
In May 2021 Mwaiwathu was a team member on instructions as local counsel in a cross-currency swap transaction for USD 30 000 000-00 between the Reserve Bank of Malawi, an international bank based in London and a local commercial bank. The team’s role was to draft the swap agreement in line with standard International Swap Dealers Association terms whilst also providing for a local bank to act as an agent to hold and invest the local currency given by the Central Bank.
As a member of this team, he participated in the drafting of the agreement in this transaction and gave significant input on the thorny question between the parties of payment netting provisions to offset tax liability for parties receiving payments under that agreement. He also ensured that tax exemptions were in place and made public finance checks and other capacity checks on the central bank for the transaction.
In addition, he maintained communication between the agent bank and the client international bank to make sure their wishes are clearly understood and that we clearly communicated any limitations related to the agreement.
In taxation and customs, Mwaiwathu was a sole practitioner on a matter where a client was contesting the classification of a medicinal lozenge that they imported. The desired classification was medicinal which granted domestic and import tax advantages. The tax authority insisted on classification as sweets. Mwaiwathu handled the litigation firstly internally with the tax authority and then on appeal before a special referee. On that assignment, he relied on the very technical classification in the International Convention on the Harmonized Commodity Description and Coding System (HS Convention) and the explanatory notes, consulted medical experts and secured a win for the client by demonstrating that the authority’s classification was untenable. This result was achieved by gaining a deep familiarity with the complex customs code and related international instruments and communicating them in a clear and compelling manner to the special referee. This was even more critical because the special referee can be any resident magistrate, they have no special customs training.
Team member on instructions to represent a client claiming unpaid agency fees for assisting a multinational company in securing a lucrative energy contract with the state electricity producer. At the time I joined the team, a suit had already been initiated, interim protective reliefs obtained, and the matter was stayed to make way for arbitration under the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules as per their agreement. I prepared the arbitration notices and all other documentation required under the rules to commence the arbitration, reviewed the defendant’s response, and assessed whether it required a reply.
Further down the line, due to deficiencies on the drafting of the arbitration clause, Mwaiwathu simultaneously liaised with defendant’s counsel on candidates for the arbitral panel and selection of a venue under the rules since these could be set by subsequent agreement. Whilst he simultaneously kept in touch with the Permanent Court of Arbitration in case we needed them to step in to select the venue and panel on behalf of the parties in case we did not agree.
That prudence and foresight has assisted in reaching a settlement of the matter amicably because although the defendant was stalling, they knew that we were open to all our options to ensure that the claim went forward.