Transparency of the Regulatory System
The GON possesses transparent policies and requisite laws to foster competition on a non-discriminatory basis, but does not enforce them equally, in large part due to corruption and weak governmental systems. Legal, regulatory, and accounting systems are generally transparent and consistent with international norms. The Legal Regime – related to the Investment Code, Labor Code and Commercial Acts – applies the provisions of the Organization for the Harmonization of Business Law in Africa (OHADA). It also offers free access to public procurement and transparency in the procedures for awarding contract.
Niger does not have any regulatory processes managed by nongovernmental organization or private sector associations. A company in Niger must be entered in the Register of Companies, must obtain a Tax Identification Number (TIN), be registered with the National Social Security Fund (CNSS), and with the National Employment Promotion Agency (ANPE).
The Investment Code provides for settlement of disputes by arbitration or by recourse to the World Bank’s International Center for Settlement of Disputes on Investment. However, investment dispute mechanisms in contracts are not always respected and exercising due diligence is extremely important. Procedures are in place, but are often not adhered to because of a lack of resources and corruption in the judicial system.
The investment code also offers the possibility for foreign nationals to seek remedy through the International Center for the Settlement of Investment Disputes. The United States has signed a TIFA with the WAEMU. Alternative dispute resolution is not compulsory in Niger but a judge may order mediation or conciliation proceedings. Niger is a party to the New York Convention on the Recognition of Foreign Arbitral Awards.
Niger is attempting to comply with international norms in its legal, regulatory, and accounting systems, but frequently falls short. Clear procedures are frequently not available. Draft bills are not available for public comment, although the Chamber of Commerce or other organizations may be allowed to offer suggestions.
Foreign and national investors can find detailed information on administrative procedures applicable to investment at the following site: http://niger.eregulations.org/ . The site includes information on 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.
Niger has in place a mechanism for the management of administrative processes. The initiative has been reinforced by incentives for state employees, unannounced controls in public administrations, and an introduction of the sign-in system and exchange meetings. A General Inspectorate of Administrative Governance and the Regional Directorates of Archives are in place to oversee administrative processes.
Niger does not have a centralized online location where key regulatory actions are published, but does have a Directorate of National Archives where Key regulatory actions are kept in print. No major regulatory system and/or enforcement reforms were announced in 2016.
In general regulations are developed as a means of solving a clearly identified problem in order to achieve a precisely defined result. Regulations are developed via a system of ministerial work and discussions, consultation with the State Council, selection of the text and passage by the Council of Ministers. This is followed by discussions in Parliament, approval by the Constitutional Council and finally the publication of the regulations.
In Niger, regulatory power belongs to the President of the Republic and the Prime Minister who can issue regulations for the whole of the national territory. Other administrative authorities also have regulatory power, such as ministers, or prefects and mayors, who have the power of enforcement at the local level.
Ministries or regulatory agencies do not conduct an impact assessment of proposed regulations. However, ministries or regulatory agencies solicit comments on proposed regulations from the general public through public meetings and targeted outreach to stakeholders, such as business associations or other groups.
International Regulatory Considerations
Niger is a part of the Economic Community of West African States (ECOWAS), a 15-member West African trade block. National policy generally adheres to ECOWAS guidelines concerning business regulations.
Niger is a member of the U.N. Conference on Trade and Development’s international network of transparent investment procedures: http://niger.eregulations.org/ (French language only). Foreign and national 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.
Niger is a member of the WTO, but as a lower income member, is exempt from Trade-Related Investment Measures (TRIMs) obligations. The GON does not notify all draft technical regulations to the WTO Committee on Technical Barriers to Trade (TBT).
Legal System and Judicial Independence
Niger’s legal system is a legacy of the French colonial system. The legal infrastructure is insufficient, making it difficult to use the courts to enforce ownership of property or contracts. While Niger’s laws protect property and commercial rights, the administration of justice can be slow and unequal.
Niger does have a written commercial law that is heavily based on the Organization for Harmonization of Business Law in Africa (OHADA). Niger has been a member of OHADA since 1995. OHADA aims to harmonize business laws in 16 African countries by adopting common rules adapted to their economies, setting up appropriate judicial procedures, and encouraging arbitration for the settlement of contractual disputes. OHADA regulations on business and commercial law include definition and classification of legal persons engaged in trade, procedures for credit and recovery of debts, means of enforcement, bankruptcy, receivership, and arbitration.
Article 116 of the constitution clearly states that the judicial system is independent of the executive and legislative branches. The current judicial process is procedurally competent, fair, and reliable.
Regulations or enforcement actions are appealable and adjudicated in the court system. However, it is extremely rare for individuals or corporations to challenge government regulations or enforcement actions in Court. In one recent case, the government ordered that road side bill boards be taken down. Airtel and Orange, two large multi-national corporations who provide cell phone and Internet service in Niger, challenged the government order in court because roadside billboards were their primary form of advertising.
Laws and Regulations on Foreign Direct Investment
Niger offers guarantees to foreign direct investors pertaining to security of capital and investment, compensation for expropriation, and equality of treatment. Foreign investors may be permitted to transfer income derived from invested capital and from liquidated investments, provided the original investment is made in convertible currencies.
Law 2015-08 from 2015 established a specialized commercial court in Niamey. This is a mixed court with professional magistrates, who are lawyers by training, who work in tandem with lay-judges, and who generally come from the commercial and trading sector. The concept was to have commercial disputes resolved by a panel of judges with legal training, combined with judges who have experience in the commercial sector. The Commercial Court has a total of 26 judges, who are spread across 5 chambers. Unlike American trial courts, where cases are handled by a single judge, in Niger, cases are adjudicated by a panel of judges. After passage of the law in 2015, the Commercial Court began operations in 2016.
Niger does not yet have a dedicated one-stop shop website for investment, but the Chamber of Commerce and Industry houses a specialized institution, known as the Investment Promotion Center (CPI) which supports domestic and foreign investors in terms of business creation, extension and rehabilitation.
Competition and Anti-Trust Laws
Under the auspices of the Ministry of Trade, the GON in 2015 validated a new Competition and Consumer Protection Law, replacing a 1992 law that was never fully operational. Niger also adheres to the Community Competition Law of West African Economic and Monetary Union (WAEMU).
Expropriation and Compensation
The Investment Code guarantees that no business will be subject to nationalization or expropriation except when deemed “in the public interest” as prescribed by the law. The code requires that the government compensate any expropriated business with just and equitable payment. There have been a number of expropriations of commercial and personal property, most of which were not conducted in a manner consistent with Nigerien law requiring “just and prior compensation.” It is in fact rare for property owners to be compensated by the government after expropriations of property. The last instance of expropriation occurred in 2010, at which time the GON unilaterally terminated the operating license of a consortium of foreign investors from Libya and China that had purchased the national telecommunications provider Sonitel upon privatization in 2002. The GON claimed the foreign firms failed to meet the terms of the original agreement regarding investment in new equipment and additional capacity.
In cases of expropriation carried out by the GON, claimants and community leaders have alleged a lack of due process. Unfortunately, these complaints are limited to community forums and press coverage where people vent their anger and frustration over property expropriations. Many Nigeriens, especially those from the lower strata of society, lack the knowledge and ability to exercise their rights under the law. High rates of illiteracy, complexity of the legal system, and lack of resources to retain competent legal counsel present insurmountable barriers to legal remedies for people whose property has been expropriated. Even in situations where educated and wealthy business owners have had their property expropriated, legal challenges to expropriation are not lodged.
ICSID Convention and New York Convention
Niger is a contracting state of both the ICSID Convention and the New York Convention of 1958. There is no domestic legislation providing for enforcement of awards under the 1958 New York Convention and/or under the ICSID Convention.
Investor-State Dispute Settlement
The Investment Code also offers the possibility for foreign nationals to seek remedy through the International Center for the Settlement of Investment Disputes. Niger does not have a BIT or FTA with the United States. Over the past 10 years, there were no investment disputes that involved a U.S. person. Local courts are generally reluctant to recognize foreign arbitral awards issued against the GON. Niger does not have a record of extrajudicial actions against foreign investors.
International Commercial Arbitration and Foreign Courts
Niger has an operational center for mediation and arbitration of business disputes. The center’s aim is to maintain investor confidence by eliminating long and expensive procedures traditionally involved in the resolution of business disputes.
The investment code provides for settlement of disputes by arbitration or by recourse to the World Bank’s International Center for Settlement of Disputes on Investment. However, investment dispute mechanisms in contracts are not always respected and exercising due diligence is extremely important. Procedures are in place but are often not adhered to because of a lack of resources and corruption in the judicial system. The Investment Code offers the possibility for foreign nationals to seek remedy through the International Center for the Settlement of Investment Disputes.
Niger has laws related to insolvency and/or bankruptcy. Creditors have the right to object to decisions accepting or rejecting a creditor’s claims, and may vote on debtors’ bankruptcy reorganization plans. However, the creditors’ rights are limited: creditors do not have the right to receive from a reorganized firm as much as they may have received from one that had been liquidated. Likewise, the law does not require that creditors be consulted on matters pertaining to an insolvency framework following the declaration of bankruptcy. Bankruptcy is not criminalized.
According to data collected by the World Bank’s Doing Business survey, resolving insolvency takes five years on average and costs 18 percent of the debtor’s total assets. Globally, Niger stands at 105 in the 2017 ranking of 190 economies on the ease of resolving insolvency.