Transparency of the Regulatory System
The government has taken steps to encourage a more transparent and competitive economic environment, and the IMF, World Bank, EU, and other large donors continue to urge the government to make further reforms. The government aims for transparency in law and policy to foster competition and provide clear rules of the game and a level playing field for domestic and foreign investors. Transparency of the regulatory system, however, is a concern in Cote d’Ivoire, as companies complain that regulations are issued with little warning and without a period for public comment.
In general, regulatory authority exists at the national level and is the most relevant for foreign businesses. For most industries or sectors, regulations are developed through the relevant ministry. In the telecommunications, electricity, cocoa, coffee, cotton, and cashew sectors, the government has established control boards or independent regulatory agencies sto regulate the sector and establishes prices. Regulation is reviewed on data-driven assessments, as regulatory bodies regularly publish and promote access for the business community and development partners to their data. Quantitative analysis and public comments are made available.
There are no informal regulatory processes managed by non-governmental organizations or private sector associations.
Cote d’Ivoire’s accounting, legal, and regulatory procedures are consistent with international norms, though businesses often complain about the system’s lack of clarity and the government’s poor communication. Cote d’Ivoire is a member of the Organization for the Harmonization of African Business Law (OHADA), which is common to 16 countries and adheres to the West African Economic and Monetary Union’s accounting system. In accounting, companies use the SYSCOA system. SYSCOA complies with international norms in force and is a source of economic and financial data.
Draft bills and regulations are not published and made available for public comment. Still, the National Assembly debates most legislation, and the government often holds public seminars and workshops to discuss proposed plans with trade and industry associations.
Key regulatory actions are published in the Journal Officiel de la Republique de Cote d’Ivoire and each regulatory body provides regulatory actions (laws, decisions, and sanctions) on its website. The regulatory enforcement mechanisms are made accountable to the public through the private and public institutions tasked with controlling and regulating these sectors. There is no centralized online location where regulatory actions or their summaries are published similar to the Federal Register. The website abidjan.net makes the Journal Officiel available for purchase online.
The regulatory body ANRMP ensures transparency and compliance with administrative processes. Consumers, trade associations, private companies, and individuals have the right to file complaints with ANRMP to ensure that the government follows administrative processes.
Post does not have knowledge of any recent regulatory system, including enforcement reforms, that has been announced since the last ICS report. Regulatory reforms announced in prior years have been fully implemented, with the goal to create an enabling business environment, foster competition, and build investors’ confidence in the economy.
International Regulatory Considerations
The Ivoirian government accounts for regional bodies in public procurement by incorporating directives 4 and 5 from the WAEMU into bidding processes and auditing, as well as into the regulation of public procurement within the Union. The public procurement code harmonizes public procurement policy and is in compliance with WAEMU directives. Changes include the separation of auditing and regulating functions, the transformation from a national to a regional system of procurement for intellectual services, and an increase from 25 to 30 percent of advance payment for the initial procurement of goods and services. The ANRMP regulates public procurement with a view to improve governance and transparency. It may sanction entities which do not comply with public procurement regulations.
Cote d’Ivoire’s laws, codes, professional association standards, and regional directives are incorporated in the country’s regulatory system. European norms are often followed due to Cote d’Ivoire’s free trade agreement with the EU.
Cote d’Ivoire has been a WTO member since 1995 but has not notified all draft technical regulations to the WTO Committee on Technical Barriers to Trade. Cote d’Ivoire signed the Trade Facilitation Agreement (TFA) in December 2013 and ratified it in December 2015. There have been notable efforts to implement the TFA requisites with the establishment of the TFA National Committee to coordinate its implementation. Other efforts include the USAID trade facilitation support program which has helped in the national implementation of the TFA.
Legal System and Judicial Independence
Cote d’Ivoire’s legal system is based on the French civil law model. The law guarantees the right to own and transfer private property. While this right is respected in most instances, the law regarding rural land tenure make it prohibitively difficult to do so. The court system enforces contracts.
Cote d’Ivoire is signatory to the Organization for the Harmonization of Corporate Law in Africa (OHADA) that provides common corporate law and arbitration procedures for the 16 member states.
The Commercial Court of Abidjan handles business cases. Mediation is also available through the Ivoirian legal framework in addition to the Commercial Court and the Arbitration Tribunal. Following the recommendations of business associations and commercial law experts, in August 2017, the government established the Court of Appeals of the Commercial Court of Abidjan. The IMF has recommended the creation of other commercial jurisdictions in the interior of the country.
Cote d’Ivoire’s judicial system is ostensibly independent, but magistrates are sometimes subject to political or financial influence. Judges sometimes fail to base their decisions on the legal or contractual merits of the case and are seen to rule against foreign investors in favor of entrenched interests. The greatest complaint from investors is the slow process. Cases are often postponed and appealed without a reasonable explanation, moving from court to court for years or even decades. With international assistance, the government is making an effort to reform the judiciary system to make it more efficient and transparent.
Regulations or enforcement actions are appealable and adjudicated in the national court system.
Laws and Regulations on Foreign Direct Investment
The major law affecting foreign investment is the 2012 Investment Code. The code is considered generous as it has no restrictions on foreign investment or the repatriation of funds. The code offers incentives, including tax reductions and in some cases exemptions from value added taxes (VAT) on equipment for private investors. The code also includes planned industrial zones, which offer benefits to investors such as special tax treatment for periods ranging from 8 to 15 years, depending on the location of the investment. There are also incentives to promote sectors, such as low-cost housing construction, factories, and infrastructure development, which the government considers key to the country’s economic development. In mining, the 2014 Mining Code allows a period for holding permits for ten years with a possibility to extend for two more years on a limited permit area of 400 square kilometers. The code has spurred investment in the sector.
CEPICI provides a one stop shop website for investment. More information on Cote d’Ivoire’s laws, rules, procedures, and reporting requirements can be found at: www.apex-ci.org/ ; www.cepici.gouv.ci/
Competition and Anti-Trust Laws
The Ministry of Commerce, Handicraft and Small Business Promotion through the Commission on Anti-Competition Practices is responsible for reviewing competition–related concerns under the 1991 competition law, which was updated in 2013. The National Authority for the Regulation of Public Tenders is responsible for reviewing the awards of contracts.
No significant competition cases were reported over the past year.
Expropriation and Compensation
There is no history of public expropriations. Private expropriation to force settlement of contractual or investment disputes continues to be a problem. Local individuals or local companies, using what appear to be spurious court decisions, have challenged the ownership of some foreign companies in recent years. On occasion, the government has blocked the bank accounts of U.S. and other foreign companies because of ownership and tax disputes.
In cases of illegal expropriations, Cote d’Ivoire law affords claimants due process. Even so, perceived corruption and lack of capacity in the judicial and security services have resulted in poor enforcement of private property rights, particularly when the entity in question is foreign and the plaintiff is Ivoirian or a long-established foreign resident.
ICSID Convention and New York Convention
Cote d’Ivoire is a signatory to the International Center for Settlement of Investment Disputes (ICSID) and a signatory to the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral awards.
In cases where the firm does not meet the nationality conditions stipulated by Article 25 of the Convention, the code stipulates that the dispute be resolved within the provisions of the supplementary mechanisms approved by the ICSID.
Investor-State Dispute Settlement
Cote d’Ivoire is a signatory to investment agreements subject to binding international arbitration of investment disputes. Cote d’Ivoire recognizes and has been known to enforce foreign arbitral awards, but enforcement is inconsistent.
Cote d’Ivoire does not have Bilateral Investment Treaty (BIT) or a Free Trade Agreement (FTA) with the United States.
In the past 10 years, foreign investors have had investment disputes, which are often resolved through arbitration or an amicable settlement. One U.S. firm was involved in tax and customs disputes over its investment in the cocoa sector. As a result, the U.S. firm chose to divest its holdings. One U.S. dispute still ongoing involves the decision of the government to nullify a memorandum of understanding with a U.S. company to fulfill sanitation work.
As a signatory to the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards, local courts are obliged to enforce foreign arbitral awards.
Post is not aware of any history of extrajudicial action against foreign investors, including U.S. firms.
International Commercial Arbitration and Foreign Courts
The Abidjan-based regional Joint Court of Justice and Arbitration (CCJA) provides a means of solving contractual disputes. The arbitration tribunal has the ability to enforce awards more quickly, but the use of the tribunal in lieu of the court system has been limited.
Cote d’Ivoire is a member of OHADA, whose provisions of 1999 have replaced domestic law on arbitration. The unified law is based on the UNICITRAL model law.
Judgments of foreign courts are recognized but difficult to enforce in local courts. To avoid working through the Ivoirian legal system, some investors stipulate in contracts that disputes must be settled through international commercial arbitration. Yet, even if stipulated in the contract, decisions reached through international arbitration or through the African regional arbitration body are sometimes not honored by local courts.
Cote d’Ivoire’s domestic courts have no preferential treatment for state-owned enterprises involved in investment disputes.
As a member of the Organization for the Harmonization of African Business Law (OHADA), Cote d’Ivoire has both commercial and bankruptcy laws that address the liquidation of business liabilities. OHADA is a regional system of uniform laws on bankruptcy, debt collection, and rules governing business transactions. OHADA permits three different types of bankruptcy liquidation: an ordered suspension of payment to permit a negotiated settlement; an ordered suspension of payment to permit restructuring of the company, similar to Chapter 11; and the complete liquidation of assets, similar to Chapter 7. Creditors’ rights, irrespective of nationality, are protected equally by the Act. Bankruptcy is not criminalized. Monetary judgments resulting from a bankruptcy are usually paid out in local currency. Cote d’Ivoire is ranked 77 out of 190 countries for ease of resolving insolvency, according to the World Bank’s Doing Business Report.
The joint venture Credit Info -Volo West Africa manages regional credit bureaus in the WAEMU.