GHANA Law and Practice Contributed by: Adelaide Benneh Prempeh, Michelle Nana Yaa Essuman, David William Akuoko-Nyantakyi and Audrey Nana Oye Addy, B&P Associates
1. Specific Financial Asset Types 1.1 Common Financial Assets Securitisation in Ghana still remains largely unexplored. However, in the few instances where it has been explored, the assets utilised included future receivables, tax receipts, and consumer loans. Currently, the Securities and Exchange Commission (SEC) has approved three primary securitisation transactions. In these transac - tions, the financial assets are categorised as follows. • Cash flows – levies paid to the government, such as the GetFund and Energy Sector Levy. • Consumer loans – loans issued to public sec - tor employees, as seen in the Controller ABS PLC transaction. 1.2 Structures Relating to Financial Assets The most common form of securitisation in Ghana is Future Flow Securitisation (FFS) – a traditional structure that is based on the govern - ment’s future levies and tax revenues. Here, the originator, the government of Ghana, transfers its right to these cash flows to a Special Purpose Entity (SPE). This SPE, established as an inde - pendent public liability company, then issues bonds backed by these cash flows. Investors purchase the bonds, providing upfront capital to the originator, and the subsequent cash flows are used to service the bond payments. 1.3 Applicable Laws and Regulations Ghana does not have a particular piece of leg - islation that specifically governs securitisation. However, the securities industry in Ghana is generally governed by the Securities Industry Act, 2016 (Act 929) and its regulations, with the Securities Exchange Commission (SEC) being the industry regulator that regulates and pro -
motes the growth and development of the secu - rities market. Additionally, the following laws and regulations are relevant to securitisation transac - tions in Ghana. • Companies Act, 2019 (Act 992). • Securities Industry Act, 2016 (Act 929), as amended. • SEC Regulations, 2003 (LI 1728). • Securities and Exchange Commission (Amendment) Regulations, 2019 (LI 2387). • Energy Sector Levy Act, 2015 (Act 899). • Ghana Education Trust Fund (GetFund) Act, 2000 (Act 581), as amended. • Listing Rules of the Ghana Stock Exchange. • Securities Industry (Over-The-Counter Mar - ket) Guidelines, 2022. • Corporate Governance Code of the Securities and Exchange Commission. 1.4 Special Purpose Entity (SPE) Jurisdiction Although securitisation transactions are rare in Ghana, there are no specific legal restrictions preventing Special Purpose Entities (SPEs) incorporated in other jurisdictions from partici - pating in the Ghanaian market. Therefore, the choice of jurisdiction for incorporating SPEs depends on the objectives of the originator. Generally, SPEs are often established to capi - talise on specific benefits offered by the host jurisdiction. One of the most desirable charac - teristics of an SPE in a securitisation transaction is its degree of bankruptcy remoteness. Coun - tries with more favourable insolvency laws may be particularly attractive for establishing an SPE to facilitate securitisation transactions.
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