Benin

3. Legal Regime

Transparency of the Regulatory System

Benin is a member of UNCTAD’s international network of transparent investment procedures. Foreign and domestic investors can find detailed information on administrative procedures applicable to investment and income generating operations at , including the number of steps, name and contact details of the entities and persons in charge of procedures, required documents and conditions, costs, processing time, and legal bases justifying the procedures. There is no rule to prevent a monopoly over a particular business sector. The Benin Private Investment Council (http://www.cipb.bj/ ) is the only business-related think-tank or body that advocates for investors. Generally, draft bills are not available for public comment though promulgated laws are available at https://sgg.gouv.bj/documentheque/lois/ . Individuals, including non-citizens, have the option to file appeals about or challenge enacted laws with the Constitutional Court.

International Regulatory Considerations

Benin is a member of WAEMU and the Organization for the Harmonization of African Business Law (OHADA) and has adopted OHADA’s Universal Commercial Code (codified law) to manage commercial disputes and bankruptcies within member countries. Benin is also a member of OHADA’s Common Court of Justice and Arbitration and the International Center for the Settlement of Investment Disputes (ICSID). OHADA provisions govern bankruptcy. Debtors may file for reorganization only, and the creditors may file for liquidation only. Benin is member of the WTO and notifies all draft technical regulations to the organization’s Committee on Technical Barriers to Trade (TBT).

Legal System and Judicial Independence

Benin’s has a civil law system. The legal framework includes various legislative and regulatory texts covering family law, land law, labor law, criminal law, criminal procedure, and civil, commercial, social, and administrative proceedings. The Cotonou commercial court, created in 2017, enforces commercial laws and regulations. In 2018, Benin created an anti-terrorism, drugs, and economic crimes court (CRIET), which until recently lacked a mechanism for substantive appeal. The CRIET has convicted and sentenced several of President Talon’s detractors and political opponents, raising concerns about its independence. In February 2020, Benin created an appeals chamber within the CRIET. In general, judicial processes are slow, and challenges to the enforcement of court decisions are common. Magistrates and judges, though independent by law, are appointed by the Executive. Benin’s courts enforce rulings of foreign courts and international arbitration.

Laws and Regulations on Foreign Direct Investment

The Investment Code provides the legal framework for foreign direct investment. The Code establishes conditions, advantages, and rules applicable to domestic and foreign direct investment. https://benindoingbusiness.bj/  makes available online information on foreign direct investment regulations and procedures, though its website is often incomplete and out of date. Benin is a member of OHADA’s Common Court of Justice and Arbitration (CCJA) and the International Center for the Settlement of Investment Disputes (ICSID). Investors may include arbitration provisions in their contracts in order to avoid prolonged entanglements in the Beninese courts. The United Nations investment guide for Benin (https://www.theiguides.org/public-docs/guides/benin/ ) provides a general guide for foreign direct investment steps and procedures.

Competition and Anti-Trust Laws

Benin’s legal framework does not address anti-trust or competition issues. The government does not have an agency or office that reviews transactions for competition-related concerns.

Expropriation and Compensation

The government is forbidden by law from nationalizing private enterprises operating in Benin.

In 2017, the government announced that it was terminating concessions for the management of four state-owned hotels (two in Cotonou and two in northern Benin), and instructed the Minister of Justice to file reparations claims against the concessionaires on the grounds that they had not fulfilled their concession agreements.

In 2012, the government took control of the private bank Banque Internationale du Benin (BIBE) stating that poor management risked leading the bank to bankruptcy and possible systemic risk to the banking sector. BIBE is still in government hands. https://www.ohada.org/index.php/fr/ohada-au-quotidien/role-des-audiences-publiques-de-la-cour-ccja  In 2012, the government seized assets belonging to the parastatal SODECO, a major cotton production company partly owned by President Patrice Talon. In 2014, the OHADA Common Court of Justice and Arbitration (CCJA) judged that the Beninese government had illegally seized SODECO assets. In 2016, after Talon took office, the government returned the assets to SODECO.

https://www.ohada.org/index.php/fr/ohada-au-quotidien/role-des-audiences-publiques-de-la-cour-ccja  In 2012, the government seized assets belonging to the parastatal SODECO, a major cotton production company partly owned by President Patrice Talon. In 2014, the OHADA Common Court of Justice and Arbitration (CCJA) judged that the Beninese government had illegally seized SODECO assets. In 2016, after Talon took office, the government returned the assets to SODECO.

Dispute Settlement

ICSID Convention and New York Convention

Benin is a member of ICSID. Benin is a party to the New York Convention of 1958 on the Recognition and enforcement of Foreign Arbitral Awards.

Investor-State Dispute Settlement

Benin does not have a bilateral investment treaty with the United States.

There is an ongoing investment dispute between the Beninese government and a U.S. immigration and aviation security company. In 2016, the U.S. company alleges the government canceled a contract for the provision of immigration security systems at Cotonou’s airport. In 2017, the U.S. company filed a request for arbitration with the International Chamber of Commerce (ICC). In 2019, the ICC found the government at fault for cancelling the contract and issued a $95 million judgment in favor of the U.S. company. The government is currently appealing the decision.

Since 2010, three other disputes between U.S. investors and the Beninese government were resolved in favor of the U.S. investors.

International Commercial Arbitration and Foreign Courts

Benin has adopted OHADA’s Universal Commercial Code (codified law) to manage commercial disputes and bankruptcies. Benin is a member of the OHADA, CCJA, and ICSID.

Bankruptcy Regulations

OHADA provisions govern bankruptcy. Debtors may file for reorganization only, and creditors may file for liquidation only. Benin ranked 108 out of 190 in the “Resolving Insolvency” category of the 2020 World Bank Doing Business report.

5. Protection of Property Rights

Real Property

The Land Act, amended in 2017, codifies real property rights. Land ownership disputes account for roughly 80 percent of the cases seen by Beninese tribunals. The Land Act is designed to ensure fair access to land and protect ownership rights. The Land Act establishes a transparent legal procedure for obtaining and documenting ownership, reduces property speculation in urban and rural areas, and encourages land development. The Land Act stipulates that development projects financed by international or multinational agencies cannot implement or result in forced evictions. The state is obligated to do everything possible at each stage of project development to ensure due respect of economic, social, and cultural rights recognized by international conventions and the Beninese constitution.

Secured interests in real and personal property are recognized and enforced. Secured interests in property are registered with the Land Office of the Ministry of Finance. However, it is recommended that foreign and non-resident investors buy land with title deeds and the intervention of a notary public in order to avoid land disputes that may result from the acquisition process. Large land leases for investment in rural areas are enforced by local city halls in conformity with the Land Act. Additional information regarding the acquisition of property may be found at the Beninese Land Agency’s website at https://www.andf.bj/ 

Intellectual Property Rights

The 2005 Law on Copyright and Related Rights regulates intellectual property rights. Benin is a member of the World Intellectual Property Organization (WIPO) and has acceded to WIPO treaties and conventions on copyrights and intellectual property protection. However, enforcement of intellectual property rights in Benin is constrained by the government’s limited capacity.

Benin is not included in the United States Trade Representative (USTR) Special 301 Report or the Notorious Markets List.

For additional information about treaty obligations and points of contact at local IP offices, please see WIPO’s country profiles at http://www.wipo.int/directory/en .

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