Connecting Ghana’s legal education to the world of business

By Nii Arday Clegg
Nii Arday Clegg
Nii Arday Clegg

When I arrived at Harvard in 2013 for my Master of Laws Degree (LL.M.), I took the further step of applying for the Corporate Law, Finance & Governance Concentration.

Together with ten others, I got in. I was bent on making the best of my time at this hallowed institution. I cross-registered at the Harvard Business School to retrofit my intellectual wiring to suit the world of business.

Some of my friends, who like me, were not quantitatively endowed, steered clear of courses such as “Analytical Methods for Lawyers” and “Business Strategy for Lawyers”. I took the former course in the semester in which Professor Kathryn Spier, an economist with a background in Mathematics, taught it. As she announced on the first day of class, she was not a lawyer so quite predictably everything hinged on my worst fears – quantitative methods. The class was comprised of Juris Doctor (JD) students (considered the equivalent of Ghana’s LLB – Bachelor of Laws degree) and LL.M. candidates.

I had a torrid time in her class. My previous studies had not prepared me for that aspect of legal studies. With the selfless help of Michael Waks (the teaching assistant Professor Spier assigned to me) and my proclivity to punch above my weight, I earned a handshake from the inimitable Professor Spier at the end of the LL.M. programme.

Earlier, as a law student in Ghana, I had studied the law of taxation (I actually made a grade A and was adjudged the best student in the law of taxation) but admittedly, there was no way I could have analyzed or competently discussed the liquidity, solvency, managerial efficiency, profitability, earnings per share or price-earnings ratios of any business, at the end of the course, let alone during it.

Of course I studied the Law of Contract in Ghana but I did not exactly study “Contracting”. By that, I mean that I was guided through many common law principles, statutes and case law. However, the core guiding principles for entering into a contract in the first place; the need for valuation, complementarities, the allocation of risk, the position of the borrower and the lender, enlarging the contractual pie, incentive issues, uncertainty and risk-bearing, the issues to consider in performance-based contracts, negotiation and such key concepts as the moral hazard problem and adverse selection did not find a place in the curriculum.

Studying Company Law (Corporations) in Ghana, concepts such as the “agency problem” and the stakeholder versus shareholder primacy debate were never presented to us. Neither did the free-rider problem, the theory of the firm, the time value of money, the efficient market hypothesis, the prisoners’ dilemma, game theory, path dependency, decision analysis, risk and return and diversification ever come up in any identifiable shape or form.
Similarly, there was never the opportunity to study International Commercial Arbitration, International Investment Arbitration, Corporate Governance, Mergers and Acquisitions and Corporate Finance, to name a few.

My legal training in Ghana did not provide me with a framework of analysis with respect to key concepts in economics. Neither did it teach me the fundamentals of statistics nor multivariate statistics with its scatterplots and regression analysis.

In advising businesses in Ghana, quite unlike the report of my colleagues in the West, business executives tend not to expect me to have the foggiest understanding of matters which they consider to be the preserve of economists, accountants and graduates of business school.

The other day, at a meeting with a CEO, he did not bother to ask me whether or not I could interpret a set of financial statements. He proceeded to explain really basic accounting principles to me as I listened in silence. Quite satisfied that he had laid enough of a foundation for our ensuing discussion, he sought my opinion on a thing or two. Shortly, he noticed to his chagrin that I was not the ignoramus that he had imagined me to be.

Some months earlier whilst having lunch with another CEO, he expressed quite a bit of frustration that at the table of complex transactions, he would almost always find himself and his team having to explain basic business concepts to the lawyers present.

When a CEO who graduated from a foreign business school asked me for a likelihood of success analysis of a commercial case on appeal, he was totally surprised and excited to receive an opinion based on decision analysis. It connected with him in a manner that makes him come back for repeat business.

Oh and on radio the other day, whilst I was in the process of making a presentation on the Income Tax Act, 2015 (Act 896), some listeners sent messages around asking that I be told to leave the subject for the “experts” seeing as, to them, I was only a lawyer. Yes, they had a pigeonhole view of who a lawyer is.

Around the world, lawyers are serving in key executive and non-executive business positions including holding the position of CEO and/or board chairman (in Ghana a practising lawyer is not allowed to be a managing director, active partner or executive chairman of any business). They advise investors on capital market transactions, insurance, banking, real estate, media, sport, aviation etc. They assess the viability of business ventures (including mergers and acquisitions) and

They assess the viability of business ventures (including mergers and acquisitions) and advice clients on their tax and financial obligations and decisions. They also apply analytical methods to commercial and non-commercial ligation and arbitration. When they serve on the boards of businesses they tailor-guide critical steps to business success.

My course at the Harvard Business School lasted a full semester of four months. Half of the class was made up of second year MBA students, a quarter of JDs and the final quarter of LL.M. candidates. The idea was to create the well-needed synergy between law and business. I think we should begin to think in that direction as well.
The case studies, textbooks, innumerable articles and seminars were put together by the instructors of the courses who themselves are the leading lights of these areas of academia and practice. The

The founts of industry are invited to share their experiences during courses. Advisors to presidents and the biggest corporations, leading practitioners and the very best of judges teach relevant courses. No one whose area of expertise lies in constitutional law, for example, will be railroaded to teach financial markets, simply because they have a doctorate degree. The experience is manifestly delightful and palpably eye opening.

In Ghana, the slavish regurgitation of legal provisions and cases geared towards the drafting of agreements and making arguments based on templates and dogma must give way to a policy-based appreciation of the ever-changing nature of business law. If we fail to do so, ours shall continue to be a theatre that only serves to burlesque the ideas for transforming our nation into a business haven.

The writer is a corporate lawyer with Nii Arday Clegg & Co.