2017 Investment Climate Statements: Benin

Policies Towards Foreign Direct Investment

The Government of Benin (GOB) actively encourages foreign investment. The creation of APIEX in 2015 resulted in a dialogue between the Government and investors to implement reforms and improve Benin’s business environment. The APIEX works to reduce and, where possible, eliminate administrative barriers to doing business and to attracting additional foreign direct investment. The agency has successfully reduced processing times for construction permits and registration of new companies from 90 to 30 days and from 15 to 1 day, respectively. On July 4, 2016 Benin passed a law that formally institutes for the first time ever in Benin a commercial tribunal of first instance and a commercial appellate court, a move that is expected to expedite the settlement of business-related disputes. However, these courts are not yet operational because the GOB has not yet appointed judges to them. The full-service office that expedites customs clearances, reduces the cost of clearances, and minimizes processing barriers to clearing cargo at the Port of Cotonou makes it possible to obtain cargo clearance within 48 hours of the date of its off-loading at the Port of Cotonou. However, the April 2017 reinstitution of the cargo inspection program known as PVI, first tried in 2012, is causing some delay in cargo clearance at the Port of Cotonou.

Limits on Foreign Control and Right to Private Ownership and Establishment

Beninese law guarantees the right to own and transfer private property. The court system enforces contracts, but the judicial process is inefficient, plagued by corruption, and enforcement of rulings is problematic. Most firms entering the market work with an established local partner and retain a competent Beninese attorney. A list of English-speaking lawyers and legal counselors is available from the Embassy’s commercial section and on the Embassy’s website https://bj.usembassy.gov/u-s-citizen-services/attorneys/

Other Investment Policy Reviews

In 2015 the GOB conducted an investment policy review (IPR) jointly through the Organization for Economic Cooperation and Development (OECD), the World Trade Organization (WTO), and the United Nations Conference on Trade and Development (UNCTAD). Further to a 2016 fact-finding mission, the UNCTAD Report on the Implementation of the IPR of Benin assesses progress in implementing the original recommendations of the IPR, and highlights a few more policy issues to be addressed in the investment climate. The full report may be found at: http://investmentpolicyhub.unctad.org/Upload/BeninIR2016.pdf 

Business Facilitation

In an effort to attract Foreign Direct Investment (FDI), Benin is in the process of instituting a visa-free system for African nationals. Those traveling on non-African passports will be able to obtain non-immigrant visas at any official point of entry into Benin. The country is also planning to open four new trade offices abroad to enhance Benin’s international business opportunities. One is already underway in Shenzhen, China; others in Europe, the United States, and the Middle East are in the planning stages.

Benin made property registration simpler and less expensive in order to boost the mortgage market and improve access to credit. The measures aim to reduce corruption in the property registration process and apply to real personal property, estate and mortgage taxes, and property purchase receipts. In order to register property, individuals and businesses must present a taxpayer identification number (registration for which is now free). Land registration and property purchase certifications are free. In a related measure, the GOB issued 2,513 titles free of charge in 2016 for owners of land that had been registered with the financial and technical assistance of the Millennium Challenge Corporation’s first compact with Benin.

Benin’s World Bank Starting a Business rank has considerably improved by 60 points from 117 in 2016 to 57 in 2017 thanks to measures the country put in place to attract investment.

It should take roughly 24 hours to register a business, and there is no need for a notary’s assistance. APIEX serves as the single investment promotion center between the foreign investor and the Beninese government.

Benin defines:

• Micro-enterprises as having less than 5 employees;
• Small and medium size enterprises (SMEs) as having between 5 and 99 employees. SMEs may be a subsidiary of an international firm.

The full-service office – run by a private company under the supervision of the Ministry of Infrastructure and Transport – that expedites customs clearances, reduces the cost of clearances, and minimizes processing barriers to clearing cargo at the Port of Cotonou makes it possible to obtain cargo clearance within as little as 48 hours after its off-loading at the Port of Cotonou, though in practice this has tended to take somewhat longer in 2017.

Outward Investment

The GOB has no policy or incentive in place to encourage the country’s businessmen to invest abroad. The Beninese government does not restrict domestic investors from investing abroad.

Benin has bilateral investment agreements with the United States, France, Germany, the United Kingdom, Switzerland, Portugal, Canada, Guinea-Conakry, Ghana, Mauritius, Chad, Mali, Burkina Faso, the Netherlands, and China. Benin is listed as a member country to International Investment Agreements with the Economic Community of West African States (ECOWAS), the African Union, and the West African Economic and Monetary Union. Benin does not have a bilateral taxation treaty with the United States, though it is eligible under the African Growth and Opportunity Act (AGOA) to export certain items duty-free to the United States.

Transparency of the Regulatory System

Benin is a member of UNCTAD’s international network of transparent investment procedures http://benin.eregulations.org/ . Foreign and domestic investors can find detailed information on administrative procedures applicable to investment and income generating operations 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-CIPB is the only business related think-tank or body that advocates for investors, http://www.cipb.bj/ . Generally, draft bills are not available for public comment. However, individuals have the option to file appeals about or challenge passed or enacted bills with the country’s Constitutional Court.

International Regulatory Considerations

Benin is a member of the Organization for the Harmonization of African Business Law, known by its French acronym OHADA, and has adopted OHADA’s Universal Commercial Code (codified law) to manage commercial disputes and bankruptcies within French-speaking African 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 creditor may file for liquidation only.

Legal System and Judicial Independence

The preamble of the Beninese Constitution, adopted on December 11, 1990, highlights the attachment of the Beninese people “to principles of democracy and human rights as they have been defined by the Charter of the United Nations of 1945 and the Universal Declaration of Human Rights of 1948, the African Charter on Human and Peoples’ Rights adopted in 1981 by the Organization of African Unity and ratified by Benin on 20 January 1986 and whose provisions form an integral part of this present Constitution and of Beninese law and have a value superior to the internal law.”

Benin’s domestic law 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 civil court enforces commercial related issues, and will do so until the newly created commercial courts become operational. Court cases tend to proceed slowly and there may be challenges in the enforcement of court decisions. Magistrates and judges, though appointed by the Executive, remain independent. Benin’s courts enforce rulings of foreign courts and international arbitration.

Laws and Regulations on Foreign Direct Investment

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. http://www.theiguides.org/guides/benin.pdf  details investment procedures in Benin. In 2014, CCJA condemned the GOB for having illegally seized the ginning assets of the private Cotton Company SODECO (Societe de Developpement du Coton), and for having revoked the Port of Cotonou cargo inspection contract with Benin Control, ordering payment of $267 million in compensation to the two companies owned by then cotton tycoon, and current Head of State, Patrice Talon, http://www.ohada.org/index.php/fr/ohada-au-quotidien/role-des-audiences-publiques-de-la-cour-ccja .

http://benin.eregulations.org/  is the APIEX one-stop-shop website, providing information on regulations and procedures for investment in Benin.

Competition and Anti-Trust Laws

There is no existing agency that reviews transactions for competition-related concerns. Only the local court or international arbitration courts may address these concerns filed with them. There are no recent or existing competition cases to highlight.

Expropriation and Compensation

Based on a 1992 privatization law, the Government is forbidden from nationalizing private enterprises operating in Benin.

In conformity with World Bank structural reform commitments, the Government opened the cotton sector and its related components (namely ginning and inputs) to the private sector in the 1990s and in 2008 totally divested the ginning industry parastatal SONAPRA (Société Nationale pour la Promotion Agricole) while maintaining regulatory control over the sector via the main cotton company SODECO. In October 2012, prompted by concerns over performance and mismanagement the Government assumed control of cotton production and ginning holdings. Under president Talon’s administration, in 2016 SODECO took back control of its ginning facilities.

In 2006, the Government took over the management of previously privatized oil company SONACOP on the grounds that the company was in financial disarray, lacked funds for its operations, and was unable to supply gas stations throughout the country. On February 15, 2017, the Council of Ministers announced that the GOB terminated 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 GOB took control of the private bank Banque Internationale du Benin (BIBE) that, due to poor management, risked leading the bank to bankruptcy and possible systemic risk to the banking sector.

Dispute Settlement

ICSID Convention and New York Convention

Benin is a member of the Organization for the Harmonization of African Business Law, known by its French acronym OHADA, and has adopted OHADA’s Universal Commercial Code (codified law) to manage commercial disputes and bankruptcies. 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) and New York Convention.

Investor-State Dispute Settlement

Post has no reports of GOB interference in judicial handling of investment disputes.

All three known investment disputes between U.S. investors and the GOB were resolved in favor of the U.S. investors. However, in 2016, the GOB revoked the contract of U.S.-based company SECURIPORT for the provision of civil aviation and immigration security services. The local courts recognize and enforce foreign arbitral awards issued against the government. In 2010, Benin’s civil society challenged a contract awarded by the government in the communications sector and the award decision was reversed.

There is an investment incentive agreement between the Government of the United States of America and the GOB.

International Commercial Arbitration and Foreign Courts

Benin is a member of the Organization for the Harmonization of African Business Law, known by its French acronym OHADA, and has adopted OHADA’s Universal Commercial Code (codified law) to manage commercial disputes and bankruptcies. 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) and as such enforces foreign arbitral awards as well as foreign court rulings. Post is unaware of any investment dispute resolution made in favor of an SOE by domestic courts.

Bankruptcy Regulations

OHADA provisions govern bankruptcy. Debtors may file for reorganization only, and creditors may file for liquidation only.

Benin’s score of 115 on the 2017 World Bank Group Doing Business report’s ‘Resolving Insolvency” category is a downgrade from the 2016 score of 113.

Investment Incentives

Depending on the size of the investment, investors may benefit from reduced tax liability on profits or imported industrial equipment for up to one year from the date of business registration. Investors must meet several criteria including employing a minimum number of Beninese nationals, safeguarding the environment, and meeting nationally accepted accounting standards. The Investment Control Commission monitors companies that receive these incentives to ensure compliance.

Foreign Trade Zones/Free Ports/Trade Facilitation

2008 Investment Code allows for the creation of Free Trade Zones and establishes incentives such as tax reductions for investors. Depending on the size of the investment, investors may benefit from reduced tax liability on profits, exported finished products, or imported industrial equipment for up to one year from the date of business registration. Investors must meet several criteria including employing a minimum number of Beninese nationals, safeguarding the environment, and meeting nationally accepted accounting standards. A local entity and a foreign investor enjoy the same opportunities. The Investment Control Commission monitors companies that receive these incentives to ensure compliance.

Performance and Data Localization Requirements

According to Benin’s 2008 Investment Code, investors must meet certain criteria, including employment of a minimum number of Beninese nationals, in order to qualify for tax reductions and other incentives. These criteria are not rigorously applied to senior management. Union leader participation is required in Board of Directors’ meetings.

Investors may encounter opaque bureaucracy and prolonged procedures with the labor department and the immigration service.

There are no government-imposed conditions on permission to invest and there is no “forced localization” policy pertaining to the use of domestic content in goods or technology. There are no requirements in place for foreign IT providers to turn over source code and/or provide access to encryption.

The Benin Post and Communications Regulatory Authority, ARCEP, ensures the confidentiality of the content of all communications by the service provider or operator, whether this is information or other data the service provider obtains in the course of providing the services offered. No information may be disclosed without the written consent of ARCEP or a signed order of the competent judicial authority. Additional information may be found at www.arcep.bj 

Real Property

Benin’s Land Act enacted on August 24, 2013 codifies real property rights. Land ownership disputes account for 80% of the cases seen by Beninese tribunals. The Land Act is designed to ensure fair access to land and protect ownership rights. It stipulates that unoccupied acquired land cannot be reverted to other or previous owners (though there still exists the risk of squatters). The Land Act establishes a transparent legal procedure for obtaining ownership, reduces property speculation in urban and rural areas, and encourages land development. In an effort to identify property owners and register land titles, the GOB declared that the land registration process would be free of charge for 2016 and 2017.

The Land Act stipulates that development projects financed by international or multinational agencies cannot involve or lead to forced evictions. The state is obligated to do everything possible at each stage of development project implementation to ensure due respect of economic, social and cultural rights recognized by international conventions and covenants and guarantees by the Beninese constitution.

Secured interests in real and personal property are recognized and enforced. Benin’s legal system protects and facilitates acquisition and disposition of property, land, buildings, and mortgages. 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 help avoid any 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 http://www.beninfoncier.bj/?page_id=173 .

Intellectual Property Rights

Benin is a signatory to both World Intellectual Property Organization Internet treaties. However, enforcement of intellectual property rights is constrained by Benin’s limited capacity.

On July 27, 2016 Benin’s Director of Pharmacies announced the seizure of 2.4 tons of counterfeit solid and injectable medication from a private residence in Cotonou and the arrest of a suspect. On February 24, 2017, the GOB seized another 80 tons of counterfeit drugs in Cotonou and the court found 12 individuals guilty of illegally acting as pharmacists.

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 .

Capital Markets and Portfolio Investment

Government policy supports free financial markets, subject to oversight by the Ministry of Finance and Economy and the Central Bank of West African States (BCEAO). Fourteen commercial banks operate in Benin, where the access rate to banking services is estimated at 12 percent. Foreign investors may seek credit from Benin’s private financial institutions and the West Africa Economic and Monetary Union (WAEMU) Regional Stock Exchange (Bureau Regional des Valeurs Mobilieres – BRVM) headquartered in Abidjan, Cote d’Ivoire with local branches in each WAEMU member country.

There are no restrictions for foreign investors to establish a bank account in Benin and get loans on the local market. However, proof of residency or evidence of company registration is required to open a business and a bank account.

Money and Banking System

The banking sector has been generally reliable. Fourteen private commercial banks operate in Benin in addition to the regional central bank (BCEAO) and a soon-to-open subsidiary of the African Development Bank. Only 12 percent of the Beninese population uses banking services. If microfinance institutions are taken into account, banking access may be as high as 18 percent. In the past three years, non-performing loans have been growing at an alarming rate. 15 percent of total banking sector assets are estimated to be non-performing. The total assets of Beninese banks were XOF 2,560 billion ($4.26 billion) on December 31, 2015. Benin is part of WAEMU. The BCEAO regulates the banks in Benin and is present in all member states including Benin.

Foreign banks are required to obtain a banking license before operating branches in Benin. They are subject to the same prudential regulations as local or regional banks. Benin has lost no correspondent banking relationships during the last three years. There is no known current correspondent banking relationship in jeopardy. Foreigners are required to present proof of residency to open bank accounts.

Foreign Exchange and Remittances

Foreign Exchange

All funds entering the country from abroad for investment purposes require reporting and registration with the Ministry of Economy and Finance at the time of arrival of funds. Evidence of registration is required to justify remittances of investment capital, earnings, loan/lease repayments or royalties. Such remittances are allowed without restrictions.

Funds entering the country from abroad for investment purposes must be converted into local currency. For the purposes of repatriating such funds, either the invested funds or the interest/earnings or royalties can be converted into any world currency.

The currency of Benin is BCEAO-CFA Franc (international code: XOF). XOF has a fixed parity with the Euro. This parity was established at the time of the Euro’s creation (January 1, 1999) and has not changed since then. The parity stands at XOF 655.957= €1.00. Under the arrangements between the Treasury of France and the European Union, the French Government guarantees this parity. Therefore, XOF fluctuates against all other currencies based on its parity with the Euro.

Remittance Policies

There have been no recent plans to change investment remittance policies. Banks require documents to justify remittances related to investments. The waiting time to remit investment returns does not exceed 60 days in practice.

Sovereign Wealth Funds

Benin has no Sovereign Wealth Fund.

There are 43 wholly-owned SOEs operating in the country, including mainly public utilities (electricity and water), fixed and mobile telecommunications, postal services, port and airport management, gas distribution, pension funds, agricultural production, and hotel and convention center management. There are also a number of partially-owned SOEs in Benin. Some of these receive subsidies and assistance from the government. There are no available statistics regarding the number of individuals employed by SOEs.

With the exception of public utilities (including electricity and water), pension funds, and land-line telephone service for which the public telephone company retains a monopoly, many private enterprises compete with public enterprises on equal terms.

SOE senior management may report directly to a government ministry or to a board of directors comprised of senior government officials and political leaders along with representatives of civil society and other parastatal constituencies. SOEs are required by law to publish annual reports and hold regular meetings of their boards of directors. Financial statements of SOEs are reviewed by certified accountants and private auditors. Though the government audit institution has the authority to conduct a review of SOE financial statements, it has yet to do so.

SOEs are subject to the same tax policies as the private sector.

SOEs are established pursuant to presidential decrees which define SOE responsibilities. The GOB appoints senior management and members of the Board of Directors. SOEs are generally run as private entities.

Benin is not a member of OECD.

The courts independently process disputes between SOEs and private companies or organizations without GOB interference.

Privatization Program

The GOB has elected to support targeted divestiture programs rather than total privatization of State-Owned Enterprises. The state-owned telecommunications company, Benin Telecom SA, and its affiliate cell phone provider, Libercom, are targeted for a divestiture program. The state-owned electricity utility, Société Béninoie d’Energie Electrique (SBEE) will be managed privately through a management contract, even though the GOB will retain full ownership. Through the second MCC compact on power there will be opportunities for Independent Power Producers (IPP) to participate in power generation.

Foreign investors may participate in privatization programs. In March 2015, the governments of Benin and Niger jointly signed a document that would dissolve the Benin-Niger Railway Organization (OCBN) parastatal and assign its concession to foreign private investors.

The government procurement process is specified by the Beninese procurement code (Code des Marchés Publiques: http://www.finances.bj/spip.php?article804). Tenders from the central government are announced in major publications, newspapers, and posted on the website of the Ministry of Finance and Economy at www.finances.bj. Published tenders often include local investor participation requirements.

Beninese procurement law allows for open and closed bid processes. Contracts are often awarded based on government solicitations to short-listed companies with industry-specific expertise, often identified based on companies’ commercial activities conducted in other overseas markets. The public procurement process is not always deemed non-discriminatory. Foreign companies have expressed concerns about unfair treatment, biased consideration, and improper practices specific to the process of selecting short-listed companies.

In general, government policies and public tenders are made public online and in the newspapers. Anti-corruption, human rights, environmental protection, and consumer NGOs and activists are active in Benin and report misconduct and violations of good governance practices. There are also government-funded agencies in charge of monitoring business conduct. They include the Post and Communication Regulation Agency (ARCEP), Anti-Money Laundering Agency, the National Commission on Systems and Freedom, and the National Anti-Corruption Authority (ANLC).

Benin does not currently have a significant extractives/ mining industry, though small-scale or artisanal mining activities do take place in some parts of the country.

Benin has laws aimed at combatting corruption. The Government has demonstrated the political will to reduce corruption and has imposed administrative sanctions and removals from office against high-profile, allegedly corrupt officials. None, however, have faced prosecution in Beninese courts, casting doubts about the effectiveness of anti-corruption efforts. Corruption remains a recurring problem in areas including public administration, government procurement, customs and taxation, and the judiciary.

Bribery is illegal and subject to up to ten years’ imprisonment, but enforcement of this is subject to the same capacity constraints that hamper many rule of law issues in Benin. Private companies establish their own code of conduct to avoid conflicts of interest in line with the country’s laws. The Government has identified the fight against corruption as a national priority. Efforts reflecting government focus on fighting corruption include the 2013 creation of the National Anti-Corruption Authority (ANLC) in charge of referring corruption cases to court. By law, the ANLC has the ability to combat money laundering, electoral fraud, economic fraud, and corruption in the public and private sectors. Benin’s State Audit Office is also responsible for identifying and acting against corruption in the public sector.

Benin is a signatory of UN Anticorruption Convention and the OECD Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions.

Resources to Report Corruption

Contact at government agency or agencies responsible for combating corruption:
Jean-Baptiste Elias
President
ANLC
01 BP 7060 Cotonou, Benin
+229 21 308 686
anlc.benin@yahoo.fr

Gustave Assah
President
Social Watch
02 BP 937, Cotonou, Benin
+229 21042012 – 229 95961644
swbenin@socialwatch-benin.org; assahgustave@yahoo.fr

There has been no political violence affecting private investment in Benin since the end of the country’s socialist period in 1990. The country held a peaceful political transition on April 6, 2016.

The Government adheres to internationally recognized rights and labor standards. Benin’s constitution guarantees workers’ freedom to organize, assemble, and strike. Government authorities may declare strikes illegal if they are deemed a threat to public order or the economy and may require those on strike to maintain minimum services. Approximately 75 percent of salaried employees belong to unions. There are several union confederations. Unions are obliged to operate independent of government and political parties. Benin’s labor code is favorable to employees. Most of Benin’s working population is engaged in agriculture or other primary-sector activities. The official unemployment rate in Benin in 2014 was 14.3%, though estimates of actual unemployment figures are much higher. Unskilled and skilled labor and qualified professionals are generally available. 89.6 percent of youth between the ages of 15 and 29 work in the informal sector. The standard legal work week is 40 hours and payment of overtime is allowed.

Civil courts and the Directorate of Labor deal with labor dispute resolution, and collective bargaining is common in line with the labor law.

To further attract investors, the GOB has, in compliance with the ILO, allowed payment of lay-off compensation ranging between 3 and 12 months’ salary for permanent employment contracts. A short-term employment contract may not exceed two years and may be renewed twice.

The Overseas Private Investment Corporation (OPIC) offers financial underwriting for companies wishing to invest in Benin.

Table 3: Sources and Destination of FDI

Table 4: IMF’s Coordinated Direct Investment Survey (CDIS)

Political and Economic Section
U.S. Embassy, Boulevard de la Marina, Cotonou
00229-21300650
BeninCommercial@state.gov