Corporate M&A 2025

Last Updated April 17, 2025

Ethiopia

Law and Practice

Authors



Mehrteab & Getu Advocates LLP (MLA) is a leading full service law firm with more than 20 lawyers offering quality legal services and representing several local businesses and major multinational corporations in Ethiopia. MLA’s practice areas include corporate and finance, tax, capital markets, mining and energy, intellectual property and technology, employment and immigration, charities and societies, aviation, real estate, litigation, arbitration and regulatory. All practice areas are staffed with high-calibre lawyers and office personnel, who are accomplished in their respective fields of expertise. MLA’s primary focus is optimising clients’ investments based on compliance-driven legal strategies and creative options. MLA’s lawyers work very closely with their clients to proactively structure deals in the best interest of the clients, drawing from the rich experience the office has developed over many years. The firm’s quality services have allowed it to work on some of the most complex transactions, as well as well-known cross-border/inter-jurisdictional matters. MLA’s clientele ranges from start-ups to government entities, multinational corporations, prominent non-profit organisations and diplomatic missions.

The M&A market in Ethiopia seems promising given recent legal and policy developments. However, in comparison with 12 months ago, the actual market does not seem to have significantly changed.

There has been significant attention on the financial sector following the introduction of statutory mergers in the recently approved Banking Business Proclamation (the “Proclamation”). The Proclamation has empowered the National Bank of Ethiopia (NBE) to establish statutory mergers to rescue problem banks and create more viable and stronger institutions.

The Proclamation, in addition to permitting foreign banks to join the Ethiopian market, has provided that the NBE may approve the acquisition of one bank by another, including foreign banks, to ensure the stability of the financial system. This has led to significant attention on M&A in this sector.

Industries experiencing significant M&A activity in the past 12 months include the manufacturing and crypto-mining sectors.

In Ethiopia, the primary techniques/legal means for acquiring a company are:

  • by directly or indirectly acquiring existing shares of a business organisation;
  • by subscription for new shares in a business organisation;
  • by directly or indirectly acquiring assets of a business organisation;
  • through a merger by acquisition; and
  • through the privatisation of public enterprises.

A person may acquire shares in a business organisation by purchasing them from existing shareholders, or by subscribing to new shares that have been issued by the business organisation. Both modalities are practiced in Ethiopia. Merger by acquisition is another means of acquisition, in which entities resolve to merge and with one of the acquiring entities surviving the merger. In this type of acquisition, all the rights, responsibilities, assets and liabilities of the entity that is acquired will transfer to the surviving entity in accordance with the merger agreement, which details all the arrangements of the entities.

In recent times, there has been a move towards privatising some of the large public enterprises that are fully owned by the Ethiopian government. The privatisation of public enterprises involves the sale of the assets or share capital of a public enterprise, in full or in part, to private ownership. The legally recognised modalities for this are:

  • competitive tender;
  • public auction;
  • initial public offering; and
  • sales over time.

A recent development is the introduction of the stock market in Ethiopia, following which public listing and acquisitions by initial public offering are more likely. 

The primary regulators of M&A activity are:

  • the Ministry of Trade and Regional Integration (MoTRI);
  • the Document Authentication and Registration Service (DARS);
  • the Ministry of Revenues (MoR);
  • the Ethiopian Investment Commission (EIC);
  • the Ethiopian Capital Market Authority (ECMA);
  • the COMESA Competition Commission (CCC);
  • the NBE;
  • the Ethiopian Communications Authority (ECA);
  • the Ministry of Mines (MoM); and
  • the Petroleum & Energy Authority (PEA).

Depending on the sector in which a target is engaged, the primary regulator for M&A activity in Ethiopia may vary. The EIC has the mandate of investment promotion and regulation. Foreign investors execute the resolution with regard to M&A before this organ. The merger agreement is signed before DARS, which is a government-run public notary. The MoR must be notified of a merger, and the entity is expected to secure tax clearance in order to proceed therewith.

MoTRI also requires that merger filing and approval be secured. This is a requirement for those who meet the minimum threshold for approval provided by Ethiopia’s anti-competition law, namely a minimum of ETB30 million with respect to the combined annual turnover, assets or registered capital of the parties. Following the application, MoTRI will conduct a study and review the merger agreement and merger report prepared by the parties. MoTRI will then issue a public notice of the merger in a widely circulated newspaper for a period of 15 days, inviting third parties to submit any objection they may have. If there is no objection, then MoTRI will issue a merger approval. 

If the merger involves entities that are subject to sector-specific regulation by the ECA (for telecoms and data centres), the NBE (financial services), the MoM (mining, oil and gas, other natural resources), the PEA (petroleum and energy), or the ECMA (secondary market), then merger notification and approval may also be requested by the regulators of the sectors prior to proceeding.

For states that are members of the Common Market for Eastern and Southern Africa (COMESA), the regulations of COMESA provide a comprehensive framework for regulating mergers within that market. The filing threshold for COMESA is fulfilment of the following requirements:

  • at least two of the merging parties must have operations in two or more COMESA member states; and
  • each must have an annual turnover or asset value of at least USD10 million in the COMESA region.

There are areas of investment in Ethiopia that are partly or fully restricted for foreign investors, such that they can only invest jointly with a domestic investor or with the government of Ethiopia. However, since Ethiopian law follows a negative listing approach in relation to foreign investment, some sectors are open for foreign investors.

Some changes have been introduced in the past few months. The Ethiopian Investment Board has issued a new directive that has lifted restrictions on engagement in areas of investment that were previously reserved for domestic investors, namely:

  • export trade;
  • import trade;
  • wholesale trade; and
  • retail trade.

Foreign investors can now engage in these areas of investment provided that they meet the minimum thresholds provided under the law for each sector.

In Ethiopia, the antitrust regulations that apply to M&A are:

  • Trade Competition and Consumers Protection Proclamation No 813/2013;
  • FDRE Trade Competition and Consumer Protection Merger Directive No 1/2008;
  • the COMESA Competition Regulations;
  • the 2021 Commercial Code of Ethiopia; and
  • the 1960 Civil Code of Ethiopia.

The Ethiopian competition laws require that any business entity that proposes to enter into a merger agreement should first give notice to the relevant authority by providing all the necessary information. MoTRI has a department that specifically deals with the approval of mergers before they come into effect.

MoTRI investigates merger applications from the perspective of anti-trust legislations and will examine the possible adverse effects that the proposed merger may have on trade competition. Merger approval will be granted only if the relevant authority is of the opinion that the merger will not have any adverse effect on trade competition. If MoTRI is of the opinion that the merger may pose adverse effects but believes that these effects may be obviated by complying with certain conditions, then it could approve the merger with the necessary requirements attached as a condition.

For states that are members of COMESA, and if the merger is cross-border in nature within COMESA, the COMESA Competition Regulations will be applicable provided that the activity falls within this jurisdiction. These legislations were adopted to regulate anti-competitive practices within the region.

The primary labour law that applies to M&A transactions is Labour Proclamation No 1156/2029.

According to Ethiopian labour law, the amalgamation, division or transfer of ownership of an undertaking will not have the effect of modifying a contract of employment. The existing terms of the contract of employment that the employees entered into will continue to have effect under the acquirer, unless the contract has been modified in line with a new contract of employment, collective agreement or any written agreement of the parties.

Therefore, acquirers should consider the existing agreements and determine how to proceed with the existing employees and contracts of employment through discussions with the employees.

There is no national security review of acquisitions in Ethiopia.

A significant development in Ethiopia related to M&A in the past three years is the introduction of a new banking business law, Banking Business Proclamation No 1360/2024, which establishes a comprehensive framework for M&A and ownership transfers in the banking sector.

This law mandates that banks have to obtain prior written approval from the NBE before entering into a voluntary merger or acquisition. Additionally, it grants the NBE mandate to facilitate statutory mergers for struggling banks and approve acquisitions by foreign banks under exceptional circumstances to ensure financial stability.

The law also sets clear restrictions to prevent M&A that may harm financial system stability, consumer rights or market competition. Furthermore, it introduces strict oversight on significant ownership transfers and asset disposals, enabling the NBE to nullify unapproved transactions and ensure compliance with banking regulations.

Additionally, the Ethiopian Investment Board issued Directive No 1001/2024 to Regulate Foreign Investors’ Participation in Restricted Export, Import, Wholesale and Retail Trade Investments. This Directive lists investment areas in the export, import, wholesale and retail trade sectors previously reserved for domestic investors in which foreign investors may now participate.

The ECMA has issued Directive No 1030/2024 on Public Offering and Trading of Securities, which includes sections related to takeover with a primary focus on increasing transparency and disclosure requirements for takeover bids and the regulatory process for M&A. This Directive requires listed companies to disclose any public takeover bids that have occurred in both the last financial year and the current financial year. Such disclosure must include the price or exchange terms of the takeover offers. Additionally, issuers must report the outcome of these takeover offers, ensuring that stakeholders are aware of whether the transactions were completed, rejected or modified.

In Ethiopia, it is not customary to build a stake in the target as a strategy to increase influence before a formal takeover.

The Ethiopian Commercial Code provides a material shareholding disclosure, and the disclosure obligation is imposed on a company rather than the shareholders. In the event that a certain company’s shares are open to the public, the company must disclose shareholders having a shareholding of 5% or more to MoTRI or any other relevant authority, as the case may be. In the report, the company shall include both the names of the shareholders and the number of shares they hold.

Similarly, capital markets law obliges interested persons and share companies that are listed publicly to disclose the names of interested persons to the ECMA. An “interested person” is a person having a shareholding of 5% or more. When there is a change in the shareholding of persons having a share of more than 5%, such change must be disclosed.

Under Ethiopian law, a company’s by-laws may introduce a lower threshold for shareholding disclosure than the one required by law – ie, it may stipulate that if a shareholder has a 3% stake, it must be disclosed to the relevant authorities. However, a company’s by-laws may not introduce a higher reporting threshold – ie, they may not stipulate that a shareholder must have a minimum shareholding of 6% for disclosure to the relevant authorities. This is because the reporting threshold set under the Commercial Code is a minimum standard of compliance below which derogation is not allowed, where the aim is to provide transparency for the public and ensure the protection of the investor’s interest.

The recent Ethiopian Capital Market Proclamation considers derivatives as a form of security. Under the Proclamation, derivatives are financial instruments that derive their value from relevant assets or rates, such as shares, bonds, commodities and currencies. The Proclamation allows trading in derivatives through a securities exchange, derivative exchange or over-the-counter exchange. Derivatives exchanges are securities exchanges that are specifically licensed to list exchange-traded derivatives. Directive No 1009/2024 on Licensing, Operation, and Supervision of Securities Exchanges, Derivatives Exchanges, and the Over-The-Counter Market governs the manner in which derivatives may be traded. It lists relevant requirements for the licensing of derivate exchanges, securities exchanges and over-the-counter markets. However, even though dealings in derivatives are legally allowed, such dealings do not take place in practice in Ethiopia. 

Under Ethiopian law, there is no specific requirement for filing or reporting derivatives, but the general requirements for securities apply. Accordingly, when a security is issued, the issuer must provide certain information about the underlying security.

The information required includes the financial position, members of the board of directors and managers of the company. Such information must be announced in a register designated for the purpose of disclosure. Licensing law also imposes listing requirements on an exchange, allowing for fair trading of securities, and its listing requirements must be met by the exchange. As a strategy to prevent distorted trading, a licensed exchange must formulate policies to meet reporting and transparency obligations.

Ethiopian law does not require shareholders to make the purpose of the acquisition and their intentions regarding control of the company known.

In Ethiopia, private M&A do not have public disclosure obligations. However, transactions must be disclosed by MoTRI in a newspaper of wide circulation prior to the issuance of merger approval. When the deal is completed, the details and name of the acquiring company must be registered in the commercial registry, which is publicly available.

In contrast, the recently enacted Capital Markets Law provides that listed companies must disclose all material changes that may occur. Further, listed companies and the acquirer company shall notify the ECMA, security exchanges and the issuer of the securities – within five days from acquiring the interest – of any person who acquires 5% or more of the capital of a company (indirectly, directly or in alliance with others).

In addition, an interested person and a share company listed on an exchange shall report to the ECMA, and to the securities exchange on which securities are traded, changes in interest exceeding 0.5% of the issuer’s capital within a period of ten days from the date of the change.

All M&A in Ethiopia are private and are undertaken confidentially without being announced to the public. Disclosure is made by MoTRI in a newspaper of wide circulation prior to the issuance of merger approval. There is no common market practice regarding the timing of disclosure of M&A transactions by the parties. The parties may agree to disclose at any time during the transaction process.

There is no market practice regarding the disclosure of public M&A since such business combinations have not yet been undertaken in Ethiopia.

Most business combinations undertake commercial and financial due diligence, which is conducted by audit firms, as well as compliance and legal due diligence, which is conducted by law firms. Legal due diligence covers general corporate; financial arrangements and borrowings; real property; health, safety and environment; employment, pension and security; intellectual property and information technology; litigations and disputes; insurance; anticorruption; and money laundering.

Legal due diligence entails reviewing the documents and information that the target company provides (as requested) and verifying them against information obtained through independent searches by regulatory organs in order to confirm that the target company is compliant; if it is not, the risks of non-compliance should be highlighted, and solutions recommended.

Commercial and financial due diligence, which may be conducted by financial experts, may cover the market positions, accuracy of the figures, assets, liabilities and financial stability of the target company.

Standstills and exclusivity agreements are commonly required by prospective buyers in the initial stage of the transaction, in the form of term sheets, heads of terms or exclusivity agreements.

Documentation of tender offer terms and conditions in definitive agreements is not prohibited in Ethiopia, though it is not common. This is because public M&A are not yet undertaken, and tender offers are not common in private M&A. Therefore, definitive agreements do not include tender offer terms and conditions, but typically cover transaction processes, conditions, warranties and some common deal-protective clauses.

The timeline for acquiring/selling a business varies depending on the nature of the transactions, the complexity of the deal, the negotiation time and government approvals. Normally, private M&A transactions can be completed within six months if things go smoothly. However, it may take longer if the transaction is complex, the negotiations become hostile and/or government approval is delayed.

In contrast, public M&A require prior approval from the ECMA and the preparation and disclosure of several documents; therefore, these transactions may take longer than private mergers.

The Commercial Code of Ethiopia provides a mandatory offer threshold: 50% or more of the capital of a target company. Therefore, any person who intends to buy shares representing 50% or more of the capital of a target company shall make a tender offer to all remaining shareholders of the company. This gives the remaining shareholders the opportunity to sell their shares to acquirers when control of the target company changes hands. This threshold applies to private M&A.

In public M&A, a bidder who acquires, directly or indirectly, more than the required majority percentage of the shares admitted to trading of a listed company shall – within 30 days from the date of acquisition – submit an offer to purchase all the remaining shares traded in the exchange. The ECMA is mandated to issue a directive determining the majority percentage of the shares admitted to trading of a listed company, but this directive has not yet been enacted.

Cash is the most commonly used consideration in M&A in Ethiopia. The most commonly used tools to bridge value gaps between parties are the earn-out arrangement, equity rollover and vendor take-back loan.

In the case of a private takeover offer, common pre-requisites for the transaction include the seller obtaining the necessary regulatory approvals, tax clearance and certain other legal requirements. There are no restrictions on the use of offer conditions.

However, there are no common conditions in the case of a public takeover offer, as such takeovers are not yet practiced in Ethiopia. The relevant capital market laws do not restrict the use of offer conditions, but the offer should comply with these laws, including with respect to the application fees and obtaining prior approval from the ECMA.

In Ethiopia, there is no regulation that provides minimum acceptance conditions obliging the bidder to acquire a certain number of voting rights in the target company. 

The bidder is not required to obtain finance for a business combination. However, the target can contractually require the bidder to obtain finance for the transaction. For legal purposes, as far as the necessary permits and approvals are secured for the transaction, the bidder is not required to obtain finance for completing a business combination.

Parties typically include some deal-protective measures in their definitive agreement. A break-up fees clause, lock-up agreement and no-shop clause are common deal security measures that a bidder may seek. There are no changes to the regulatory environment that have impacted the length of the interim period.

If the bidder does not want to acquire 100% ownership of the target company, it can try to acquire other governance rights, such as decision-making power in some reserved matters in shareholders’ general meetings and board meetings. It can also seek better board and/or management representation in the agreement. However, governance rights that a bidder may seek in the agreement are effective only after the shareholders’ general meeting and entry into the commercial registry.

Shareholders who are unable to be present at a meeting may take part therein, and vote through a proxy, by filling out and depositing a form prepared by the person calling the meeting. The proxy authority does not require authentication or registration. A shareholder who appointed a proxy neither participates nor votes in person.

In Ethiopia, a majority shareholder with 90% or more of the capital of a company has the right to squeeze out minority shareholders. A majority shareholder who wants to buy the shares of minority shareholders during the bid for takeover of the company should notify them in general meetings, require them to transfer their shares to the shareholder within five weeks and specify the price in the request. If no agreement is reached on the requested price for squeeze out, the court appoints an expert upon application by the shareholder who makes the request.

Obtaining irrevocable commitments from the majority shareholder of the target company to tender or vote is not common in Ethiopia.

Private M&A are typically undertaken through personal and private negotiations, in which bidding is not common. In public M&A, any person who wants to submit an acquisition offer (an offer, solicitation to offer or request to own a majority percentage of the listed company that enables the offeror, directly or indirectly, to control the board of directors of the company) is required to submit copies of the offer documents along with the relevant information to the ECMA, the security exchange and the target company.

The bidder cannot take any further steps without obtaining the ECMA’s approval. Existing shareholders of the listed company being offered a takeover or acquisition shall also be provided with adequate information to assess the merits of the proposal. Currently, except for the aforementioned disclosure, there is no requirement to advertise a takeover bid or acquisition offer to the public.

In private M&A, there is no disclosure obligation on the issuer for the issuance of shares. In public M&A, the issuer is required to disclose all documents required for the registration of securities. The documents required for the registration of securities include (i) a letter signed by a duly authorised officer or the transaction advisor; (ii) a prospectus or any other offer document, as applicable; and (iii) accompanying information/documentation such as:

  • a copy of the certificate of commercial registration;
  • copies of the business licences and, if applicable, investment permits of the issuer, as issued by the relevant government organ;
  • an authenticated copy of the memorandum of association of the issuer and other applicable incorporation documents, including amendments thereof, indicating the shareholders, board of directors and capital of the issuer;
  • where applicable, the appropriate tax documentation;
  • a certified copy of the resolution(s) of the shareholders or board of directors authorising the offer of the securities, as applicable;
  • a certified copy of the resolution(s) of shareholders passed at an extraordinary general meeting authorising the increase in capital or the issuance of securities, as applicable;
  • a certified copy containing the details of the board of directors, as applicable;
  • a no-objection notice from the issuer’s primary regulator where the issuer is a financial institution or whenever the ECMA deems it necessary;
  • a copy of the annual report for the preceding three years, signed by the chair of the board of directors, disclosing the audited financial statements and the amount of capital of the company, clearly showing the issued and paid-up capital;
  • a valuation report issued by the transaction advisor on the securities to be issued or offered;
  • a summary and copies, where required, of the issuer’s material contracts;
  • a schedule of pending claims and litigation, if any, affecting the issuer;
  • an external independent legal opinion;
  • a summary and copies of agreements with underwriters, transaction advisors and other agreements entered into with professional parties in respect to the securities being registered;
  • the written consent of experts;
  • a schedule of estimated expenses and fees payable to all external professional parties related to the registration and the offer;
  • evidence of an escrow account opened for subscription monies in a financial institution licensed by the NBE; and
  • where the prospectus indicates that the securities are to be listed on a licensed securities exchange, a letter of provisional approval of the listing from the licensed securities exchange – in the absence of a provisional approval, the issuer shall include in the prospectus a clear indication of the current status, steps required to obtain a listing and how it will meet the listing requirements of the securities exchange.

There is no law that specifically requires bidders to disclose financial statements prepared in accordance with the acceptable standards, although the bidder would be required to disclose the relevant information for approval from the ECMA, including a financial statement. However, since public M&A have not yet occurred in Ethiopia, all the information that will be requested by the ECMA is not known.

The disclosure of transaction documents is not specifically regulated in Ethiopia. However, it is necessary to disclose transaction documents that constitute relevant information.

Under Ethiopian law, only share companies are required by law to have a board of directors. Another type of company, the private limited company, is not required to have a board of directors but can have shareholders. Under Ethiopian law, directors:

  • are responsible for exercising the duties imposed on them by law, memorandum of association and the resolutions of general meetings of shareholders;
  • are responsible for managing the company according to the law, its memorandum of association and shareholder resolutions, including but not limited to overseeing finances, governance and risk management, providing information to the supervisory board, preventing company damage and maintaining the required records;
  • are responsible for financial reporting, convening meetings, addressing capital loss, establishing reserve funds and pursuing restructuring or bankruptcy when necessary;
  • must act in good faith to promote the company’s success and benefit the shareholders as a whole, considering long-term interests, employee and creditor interests and the company’s impact on the community and environment;
  • must exercise independent judgment, although pre-existing agreements or company resolutions may guide their actions; and
  • must act with care, skill and diligence, where they can be held liable for damages caused by failure to do so.

Concerning business combinations, directors are generally required to fulfil the foregoing duties, and they are also required to ensure that:

  • merger plans and reports are prepared properly;
  • merger plans and reports are examined by an independent and impartial expert;
  • the merger plan is publicised via a newspaper having nationwide circulation; and
  • the shareholding of the combined business is properly restructured.

The chairperson of the board of directors is required to sign the merger plan and merger reports. Generally, directors’ duties are owed not only to the shareholders of a company, but also to all stakeholders.

The board of directors may give a special mandate to one or more of its members regarding one or more specific matters, including representing the company in a specific transaction. The board of directors may also decide to create committees, consisting of directors, to review matters and recommend a course of action as and when it deems this appropriate. In doing so, it shall determine the composition and powers of the committees that it establishes without exceeding the powers vested in the board itself. The board is also required to establish an audit committee consisting of its members. However, even though it is possible under Ethiopian law, it is not common to establish special or ad hoc committees in business combinations in Ethiopia.

In principle, courts do not interfere in the judgment of the board of directors or CEOs in takeover situations. If the board of directors and/or shareholders’ meeting decides to approve the takeover transaction in accordance with the minimum and mandatory conditions provided under Ethiopian law on matters including, but not limited to, quorum and majority vote, the courts normally uphold the decision. Therefore, Ethiopian courts follow the “business judgment rule” unless the rights of minority shareholders granted by law and company by-laws are violated.

The board of directors may seek expert independent outside advice concerning the company it is running on various matters, including in business combinations. The directors may seek outside advice from a legal counsel, financial advisers and tax advisers.

The outside advice may pertain to:

  • the legality of the business combination;
  • the legal capacity of the parties to execute documents;
  • the valid establishment of the target companies;
  • the assets and liabilities of the target companies;
  • fulfilment of the documentation requirements;
  • the tax implications of the business combination transaction; and
  • other general due diligence reports.

A director shall be dismissed from his or her position where it is proven that they used their powers in such a way that a conflict of interest arose with the company, and they directly or indirectly obtained undue benefit. A director of a company must avoid a situation in which he or she has a direct or indirect interest that conflicts, or may conflict, with the interests of the company.

If a director is found to violate these legal requirements, either the board of directors or the general meeting of shareholders may scrutinise the matter and remove him/her/it from the position. The company or the shareholders may also lodge a complaint before the court to remove the director from their position and/or request compensation for damage.

Where the interests of a shareholder, acting on his or her own behalf or on behalf of a third party, conflict with the interests of the company on a matter, such shareholder may not exercise his or her right to vote on such matter. Directors, even if shareholders, may not vote on resolutions relating to their duties, liabilities and matters that directly or indirectly involve conflict between the interests of the company and their own interests.

If resolutions are passed contrary to these legal prohibitions, any person (specifically shareholders) whose interest is jeopardised by the resolution may apply to a court to set aside such resolution. The court may, where it believes that the execution of the resolution would cause irreparable damage to the company, suspend the execution of the resolution challenged pending the court’s decision. Where a resolution is set aside, the decision of the court shall bind all shareholders. The same scrutiny also applies to conflicts of interest with the company of managers, advisors and auditors.

Merger decisions are made at the extraordinary general meeting of the shareholders of a company under Ethiopian law. Therefore, hostile tender offers can be made to the shareholders, who shall decide on the matter in the extraordinary shareholders’ meeting. Unless the merger decision is approved by the extraordinary general meeting of the shareholders, a hostile tender offer made to all or some of the shareholders will not have legal effect.

Under existing law, shareholders that are the recipients of a takeover offer must be:

  • given reasonable time to consider the proposal;
  • provided with adequate information to enable them to assess the merits of the proposal;
  • given reasonable and equitable opportunities to participate in any benefits accruing to shareholders under the proposal; and
  • accorded fair and equitable treatment in relation to the proposal.

However, in practice, hostile tender offers for public mergers have not been seen, since Ethiopian capital market practice is yet to be developed.

Since the power to decide on a merger lies with the shareholders through their extraordinary general meeting, defensive measures by directors do not apply in principle under Ethiopian law.

As long as a merger is approved by the shareholders of a company, there are no common defensive measures for directors under Ethiopian law.

Since the power of merger approval is given to the shareholders’ general meeting, and that there are no common defensive measures under Ethiopian law, there are no directors’ duties in relation to enacting defensive measures.

As long as the shareholders decide in favour of a merger/ business combination, the directors cannot “just say no” and take action that prevents the combination.

Litigation is not common in connection with M&A deals in Ethiopia.

Although not common in Ethiopia, litigation may occur at any stage of a transaction.

There were no disputes between parties with pending transactions in Ethiopia in early 2020 with publicly available details.

Shareholder activism is not a common practice in Ethiopia.

Since shareholder activism is not a common practice in Ethiopia, it is not feasible to discuss whether activists seek to encourage companies to enter into M&A transactions, spin-offs or major divestitures. However, activists who are not shareholders have tried to discourage companies from entering into similar transactions, especially those that are not common in Ethiopia.

Shareholder activist interference with the completion of announced transactions is not common in Ethiopia.

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Trends and Developments


Authors



Mehrteab & Getu Advocates LLP (MLA) is a leading full service law firm with more than 20 lawyers offering quality legal services and representing several local businesses and major multinational corporations in Ethiopia. MLA’s practice areas include corporate and finance, tax, capital markets, mining and energy, intellectual property and technology, employment and immigration, charities and societies, aviation, real estate, litigation, arbitration and regulatory. All practice areas are staffed with high-calibre lawyers and office personnel, who are accomplished in their respective fields of expertise. MLA’s primary focus is optimising clients’ investments based on compliance-driven legal strategies and creative options. MLA’s lawyers work very closely with their clients to proactively structure deals in the best interest of the clients, drawing from the rich experience the office has developed over many years. The firm’s quality services have allowed it to work on some of the most complex transactions, as well as well-known cross-border/inter-jurisdictional matters. MLA’s clientele ranges from start-ups to government entities, multinational corporations, prominent non-profit organisations and diplomatic missions.

Overview of the Ethiopian Market

Ethiopia has a large domestic market with a rapidly growing population of more than 120 million people. Ethiopia presents a compelling investment opportunity, having one of Africa’s fastest-growing economies. The country’s market is attractive for investors due to the following factors:

  • ongoing economic growth at a promising rate and the development of investment-friendly policies, especially in the agriculture, manufacturing, mining, tourism and service sectors;
  • competitive production costs, including energy and labour costs, which is advantageous for investors in the agricultural, manufacturing and service sectors;
  • enabling infrastructure including several hydroelectric power generation dams, railways and airports;
  • access to regional and international markets through membership of the Common Market for Eastern and Southern Africa (COMESA) and the African Continental Free Trade Area (AfCFTA), and pending accession to the World Trade Organization (WTO), where the accession process is now in the final stage;
  • abundant natural resources such as tantalum, potash, gemstones, gold and iron ore, which offer huge potential opportunity for exploration and development; and
  • attractive investment incentives such as income tax holidays, duty-free privileges, loss carry-forward rights, a guarantee against expropriation and a guarantee of efficient and effective repatriation of funds.

Market Liberalisation Trends

Prior to 2020, Ethiopia was implementing a positive listing approach in relation to foreign direct investment, with certain investment areas being inaccessible to foreign investors. In April 2020, however, a new investment proclamation was enacted by the Ethiopian Parliament as part of the country’s market liberalisation initiative, and Ethiopia changed to a negative listing approach such that all investment areas not specifically reserved for domestic investors, joint investment with the government and joint investment with domestic investors became accessible to foreign investors.

Spurred by this foreign direct investment-friendly approach, the Ethiopian government has been liberalising the Ethiopian market almost in all investment sectors, including the following.

Banking

For a long time, banking was reserved for domestic investors only. The Ethiopian banking business, which has a long history of domestic ownership, has been facing challenges such as a lack of competition, a complex and underdeveloped regulatory environment and a shortage of skilled professionals. However, the government has recently opened the sector to foreign investors, a significant development that has the potential to accelerate growth and development through the attraction of new capital, technology and expertise. Foreign investment in the banking sector has been permitted by Banking Business Proclamation No 1360/2024, which was enacted by the Ethiopian Parliament in December 2024.

The Banking Business Proclamation, among other things:

  • opened the banking sector to foreign investors and provides that foreign banks can join the sector by establishing a subsidiary, branch, or commercial representative office (CRO), or by acquiring shares in a bank;
  • introduced statutory mergers, in addition to voluntary mergers, of banks, with the aim of rescuing problem banks and creating more viable and stronger institutions; and
  • mandates that a national financial crisis management committee develop a robust financial crisis management framework.

Payment systems

Prior to 2023, foreign investors were not allowed to operate payment systems in the Ethiopian market. However, in February 2023, the Ethiopian Parliament issued National Payment System (Amendment) Proclamation No 1282/2023, which allows foreign investors to engage in the payment system business in the Ethiopian market. Foreign investors can establish and register a subsidiary company, and be licensed as payment system operators, to engage in payment system business – ie, to a operate payment system allowing for the routing, matching, clearing, netting and settlement of payment instructions in Ethiopia. Licences that can be obtained by payment system operators under Ethiopian law are:

  • a national switch operator licence;
  • a switch operator licence;
  • an automated teller machine operator licence;
  • a point-of-sale machine operator licence; and
  • a payment gateway operator licence.

The licensing authority of payment system operators is the National Bank of Ethiopia (NBE). Once a foreign investor establishes its subsidiary company and obtains its commercial registration certificate from the Ethiopian Investment Commission (EIC), it can apply to the NBE for one or more of the above-listed licences to operate a payment system in the Ethiopian market.

The trade sector (wholesale, retail, import and export)

Investment Regulation No 474/2020 initially shielded wholesale, retail and import trade, as well as the export of some goods, from foreign investment competition. However, recognising that the policy objective of building a sustainable national economy anchored in domestic capabilities was not fully realised, the Ethiopian Investment Board’s Directive to Regulate Foreign Investors’ Participation in Restricted Export, Import, Wholesale and Retail Trade Investments No 1001/2024 was issued in March 2024. This Directive lifts restrictions previously laid down on these trade sectors, allowing foreign investors to participate therein upon fulfilment of certain prescribed conditions.

Foreign investors who want to engage in these trade sectors in the Ethiopian market need to enter into an agreement with the EIC, and renewal of their licence depends on the fulfilment of the commitment undertaken in an agreement. Unlike other foreign investments, the licensing authority for foreign investors in trade sectors is the Ministry of Trade and Regional Integration (MoTRI). Therefore, to initiate trade in any of the above sectors, investors must apply to MoTRI to obtain a business licence.

Recent Legal Developments

As part of the government’s plan to liberalise the Ethiopian investment market for foreign investors by creating a conducive investment environment, a number of laws have been enacted, and old laws amended, since 2018. The amendment of all the old foreign exchange laws and enactment of the Data Protection Proclamation are among the legal developments.

The Foreign Exchange Directive and Green Directive

Until July 2024, Ethiopia had been following stringent and restrictive foreign exchange regulations. The foreign exchange rate had been regulated by the NBE. However, the Ethiopian government has recently issued policies and laws that have transitioned the country to a market-based foreign exchange rate system, allowing the value of the birr (the Ethiopian currency) to be determined by the market. This significant shift was accomplished by enacting the NBE’s Foreign Exchange Directive No FXD/01/2024. This policy and legal reform introduces more flexible regulations for the repatriation of funds from Ethiopia, allowing for greater convertibility of the birr. This move is intended to facilitate international trade and investment.

The justifications for revising and consolidating the various directives related to the regulation and operation of Ethiopia’s foreign exchange markets, as stated in the preamble of the Green Directive, are:

  • to ensure there is a well-functioning foreign exchange market with clearly specified rules, roles and responsibilities to promote trade, financial stability and economic growth; and
  • to provide a more open and competitive foreign exchange market in order to attract substantial foreign exchange inflows, ensure efficient resource allocation and foster greater transparency in foreign exchange transaction activity.

The foreign exchange reforms announced on 29 July 2024 involve significant policy changes, as follows.

  • Transition from currency pegging to floating: There has been a shift to a market-based exchange regime, where banks are henceforth allowed to buy and sell foreign currencies from/to their clients, and among themselves, at freely negotiated rates, and with the NBE making only limited interventions to support the market in its early days and if justified by disorderly market conditions.
  • Abolition of the surrender requirement: Previously, exporters of goods and services were required to surrender 50% of their export proceeds to the NBE, and 10% to commercial banks, thus retaining 40%. The Green Directive simplifies this – exporters now surrender only 50% of their export proceeds to the bank, at a freely negotiated rate, while keeping the remaining 50% in their foreign exchange retention account.
  • Abolition of the rules on the allocation of foreign currency: The elimination of the priority list system for foreign currency allocation, which previously categorised essential goods for preferential treatment, is a major policy change. Instead, the Green Directive emphasises the availability of foreign exchange on demand, simplifying the process for importers and ensuring a more transparent and equitable mechanism for accessing foreign currency.
  • Introduction of independent forex bureaus: As one of the natural consequences of implementing market-led and floating rate foreign exchange systems, the Green Directive introduced authorised foreign exchange dealers, also called independent forex bureaus, for the first time in the history of modern Ethiopia.
  • Lifting of restrictions on the import of certain items: The Green Directive lifted the restrictions on importing 38 categories of products that were imposed by the NBE in October 2022, thereby granting greater access to foreign exchange for goods and services imports. However, inconsistency between the Green Directive and the circulars of different authorities presents a potential challenge. The Ministry of Finance, in a letter to the NBE dated 30 July 2024, stated that the foreign exchange restriction on fuel-powered car imports would remain in place, while the restrictions on the other 37 banned categories of items would be lifted. This inconsistency could lead to confusion and complications for importers and financial institutions attempting to navigate and comply with the differing regulations.
  • Recognition of new international remittance service providers: The Green Directive allows companies whose payment systems, platforms, gateways or physical branch networks can be used to effect remittance payments to beneficiaries – such as telecom companies, payment system operators and other similar entities designated and approved by the NBE – to provide international remittance services. Under Directive No FXD/74/2021, only banks, Ethiopian postal services and payment instrument issuers could provide remittance services in association with international remittance service providers after obtaining approval from the NBE.
  • Abolition of the interest rate cap on foreign loans and supplier credit: The Green Directive removes the ceiling on the “all-in cost” rate, which is the rate of interest, other fees and expenses in foreign currency excluding commitment fees and pre-payment fees. Now, parties have the discretion to negotiate and agree on the all-in-cost rate; however, the borrower shall present and transparently disclose the all-in-cost rate at the time of application.
  • Eligibility of construction companies for supplier credit: Unlike Directive No FXD/82/2022, under which only exporters and importers of agricultural machines or inputs and liquefied petroleum gas (LPG) gas importers were eligible for supplier credit, the Green Directive makes construction sector companies eligible for the same.
  • Opening of Ethiopia’s securities market to foreign investors: The Green Directive opens Ethiopia’s securities market to foreign investors. Accordingly, foreign portfolio investors seeking to participate in Ethiopia’s capital markets will be permitted to do so subject to specific regulatory requirements that shall be set by the NBE and the Ethiopian Capital Markets Authority (ECMA).
  • More flexible foreign exchange regulation in special economic zones: The new policy grants foreign exchange privileges to companies within special economic zones, including the ability to retain 100% of their foreign exchange earnings.

The Personal Data Protection Proclamation

For a long time, Ethiopia had no comprehensive data protection laws, which were dispersed among different pieces of legislation such as the Federal Democratic Republic of Ethiopia (FDRE) Constitution, the Ethiopian Civil Code, the Criminal Code, Computer Crime Proclamation No 958/2016, Communication Service Proclamation No 1148/2019, Mass Media and Access to Information Proclamation No 590/2008 (as amended by Media Proclamation No 1238/2021), the Ethiopian Health and Nutrition Research Institute Establishment Council of Ministers’ Regulation No 4/1996 and other laws of Ethiopia.

In July 2024, Ethiopia enacted Personal Data Protection Proclamation No 1324/2024, with the main purpose of introducing special and comprehensive personal data protection regulations enabling the establishment of a strong personal data protection system that aligns with international standards in order to implement privacy rights in the automatic processing of personal data, as well as to maximise the cross-border transfer of personal data and build the digital economy.

The Proclamation imposes several obligations on data processors and controllers, such as the obligations to be registered with the Ethiopian Communication Authority (ECA) before processing personal data; process personal data lawfully and proportionally; record processing operations; ensure transparency and fairness in processing personal data; ensure personal data is accurate and updated; erase personal data that is not necessary; ensure confidentiality and integrity; and not transfer personal data to other jurisdictions except as permitted by law.

The Proclamation has also provided some rights that owners of personal data (data subjects) are entitled to regarding their personal data. These rights include the right to be informed, the right to postmortem protection, the right to access, the right to erase, the right to rectification, the right to restrict processing, the right to object, the right to not be subject to automated processing and the right to personal data portability.

Non-compliance with the provisions of this Proclamation, and other laws to be enacted thereafter, will result in an administrative penalty of up to 4% of the total worldwide turnover of the preceding financial year, as well as criminal liability of up to 4% of the total worldwide turnover of the preceding financial year.

Mehrteab & Getu Advocates LLP

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Addis Ababa, PO Box 33449
Ethiopia

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Law and Practice

Authors



Mehrteab & Getu Advocates LLP (MLA) is a leading full service law firm with more than 20 lawyers offering quality legal services and representing several local businesses and major multinational corporations in Ethiopia. MLA’s practice areas include corporate and finance, tax, capital markets, mining and energy, intellectual property and technology, employment and immigration, charities and societies, aviation, real estate, litigation, arbitration and regulatory. All practice areas are staffed with high-calibre lawyers and office personnel, who are accomplished in their respective fields of expertise. MLA’s primary focus is optimising clients’ investments based on compliance-driven legal strategies and creative options. MLA’s lawyers work very closely with their clients to proactively structure deals in the best interest of the clients, drawing from the rich experience the office has developed over many years. The firm’s quality services have allowed it to work on some of the most complex transactions, as well as well-known cross-border/inter-jurisdictional matters. MLA’s clientele ranges from start-ups to government entities, multinational corporations, prominent non-profit organisations and diplomatic missions.

Trends and Developments

Authors



Mehrteab & Getu Advocates LLP (MLA) is a leading full service law firm with more than 20 lawyers offering quality legal services and representing several local businesses and major multinational corporations in Ethiopia. MLA’s practice areas include corporate and finance, tax, capital markets, mining and energy, intellectual property and technology, employment and immigration, charities and societies, aviation, real estate, litigation, arbitration and regulatory. All practice areas are staffed with high-calibre lawyers and office personnel, who are accomplished in their respective fields of expertise. MLA’s primary focus is optimising clients’ investments based on compliance-driven legal strategies and creative options. MLA’s lawyers work very closely with their clients to proactively structure deals in the best interest of the clients, drawing from the rich experience the office has developed over many years. The firm’s quality services have allowed it to work on some of the most complex transactions, as well as well-known cross-border/inter-jurisdictional matters. MLA’s clientele ranges from start-ups to government entities, multinational corporations, prominent non-profit organisations and diplomatic missions.

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