Transparency of the Regulatory System
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. However, at the operational level, lack of regulatory transparency is a concern. Publication of draft legislation and regulations is not required. Foreign and Ivoirian companies complain that new regulations are issued with little warning and without a period for public comment. For instance, new duties and taxes on products are generally reported in the fiscal annexes towards the end of the year and take immediate effect at the beginning of the next year. The Ministry of Commerce supports introducing a period for public comment on new regulations and changes in regulation before they are implemented. The government does often hold ad hoc public seminars and workshops to discuss proposed plans with trade and industry associations. Further work in this area would boost investor confidence.
Regulatory actions, once adopted, are published on the government website. They are also published in the Official Journal of the Republic of Côte d’Ivoire (Journal Officiel de la République de Côte d’Ivoire) , which is available for purchase at newsstands and by subscription on the Journal’s website http://www.sgg.gouv.ci/jo.php and at https://abidjan.net/ .
The National Regulatory Authority for Public Procurement (ANRMP – Autorité Nationale de Régulation des Marchés Publics) polices transparency in public procurement and private sector compliance with public procurement rules. Consumers, trade associations, private companies, and individuals have the right to file complaints with ANRMP to hold the government to its own administrative processes. In February, the ANRMP published on its official website the management review of all 2020 public procurements.
Regulatory bodies regularly publish and promote access to their data for the business community and development partners, allowing for scientific and data-driven reviews and assessments. Quantitative analysis and public comments are made available.
Regulatory authority and decision-making exist only at the national level. Sub-national jurisdictions do not regulate business. For most industries or sectors, regulations are developed through the ministry responsible for that sector. In the telecommunications, electricity, cocoa, coffee, cotton, and cashew sectors, the government has established control boards or independent agencies to regulate the sector and pricing. Companies have complained that rules for buying prices determined by the agriculture commodity regulatory agencies tend to be opaque and local prices are set arbitrarily without reference to world prices.
Côte d’Ivoire’s agency regulating cocoa and coffee (CCC – Conseil du Café et Cacao) has identified the need for a single mechanism to control traceability to prevent child labor and deforestation. This year CCC started the distribution of cards to cocoa farmers for digital traceability, land usage, and digital payment. The private sector and non-governmental stakeholders agree on the need for increased accountability and traceability, but generally prefer a multi-prong approach that incorporates the non-governmental work already being done in this area. Growing international awareness of child labor and environmental challenges in Côte d’Ivoire, and the possibility that this could impact exports, are catalysts for action. In January 2023, the EU launched its deforestation bill, threatening to ban five commodities: coffee, cocoa, palm oil, hardwoods, soy, and all their derivatives products, if the production result from deforestation, forced and child labor. The bill will take effect in June 2023. Companies will be required to provide notification of “reasonable diligence” showing the origin of production, and that the product was not produced by child or forced labor.
The government publishes tender notices in the local press and sometimes in international magazines and newspapers. On occasion, there is a charge for bidding documents. Côte d’Ivoire as a generally decentralized government procurement system, with most ministries undertaking their own procurements. The National Bureau of Technical and Development Studies, the government’s technical and investment planning agency and think tank, occasionally serves as an executing agency in major projects to be financed by international institutions.
The Public Procurement Department is a centralized office of public tenders in the Ministry of Finance tasked with ensuring compliance with international bidding practices. Côte d’Ivoire’s update to its public procurement code in 2019 introduced electronic procurement bidding, provisions for sustainable public procurement, and promotion of socially responsible vendors. While the public procurement process is open by law, in practice it is often opaque, and government contracts are occasionally awarded outside of public tenders. During negotiations on a tender, the Ivoirian government at times imposes local content requirements on foreign companies. There are specific regulations governing the government’s use of sole source procurements, and the government has awarded sole source bids without tenders, citing the high technical capacity of a firm or a declared emergency. Many firms continue to cite corruption as an obstacle to transparent procurement decisions.
The National Authority for Regulation of Public Procurement (ANRMP) regulates public procurement with a view to improving governance and transparency. It has the authority to audit and sanction private-sector entities that do not comply with public-procurement regulations, and to provide recommendations to ministries to address irregularities.
Côte d’Ivoire’s accounting, legal, and regulatory procedures are consistent with international norms, though both foreign and Ivoirian businesses often complain about the government’s poor communication. Côte 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 WAEMU accounting system. In accounting, companies use the WAEMU system, which complies with international norms and is a source of economic and financial data.
Banking regulation follows the Central Bank (BCEAO) monetary policy covering the eight countries of WAEMU: Côte d’Ivoire, Benin, Togo, Guinea, Mali, Burkina-Faso, Senegal, and Guinea Bissau. Ivoirian authorities have limited power to conduct monetary policy. The Central Bank regulates interest rates to control the money supply. IMF assessments confirm Côte d’Ivoire’s creditworthiness; and welcomes the very constructive engagement with the authorities and strongly supports their deep commitment to fiscal and debt sustainability and to building a more prosperous and inclusive society amid rapid demographic change and significant external challenges. The Ivoirian government promotes transparency of public finances and debt obligations (including explicit and contingent liabilities) with the publication of this information through the following websites:
International Regulatory Considerations
The government incorporates WAEMU directives into its public procurement bidding policy, processes, and auditing. This includes separating auditing and regulatory functions and increasing advance payment for the initial procurement of goods and services from 25 to 30 percent.
Côte d’Ivoire is part of the Intergovernmental Action Group against Money Laundering in West Africa (GIABA), whose mandate is to protect economies, reinforce cooperation among member states, harmonize measures, and evaluate current strategies against money laundering and terrorism financing. The government is close to adopt a national strategy to combat money laundering and terrorism financing. Once adopted, this strategy will put in place regulations and institutions that protect the Ivoirian financial system against money laundering and the financing of terrorism. CDI’s National Financial Information Processing Unit (CENTIF – Cellule nationale de Traitement des Informations financières) analyzes, processes, exploits, and circulates information from atypical financial transactions transmitted by professions subject to the law, in the form of “suspicious transaction reports.” These professions include real estate, representing 0.93 percent on a scale from 0 to 1.
Ivoirian laws, codes, professional-association standards, and regional-body membership obligations are incorporated in the country’s regulatory system. The private sector often follows European norms to take advantage of the Ivoirian trade agreement with the EU – CDI’s largest market.
CDI has been a WTO member since 1995 but has not notified all the draft technical regulations to the WTO Committee on Technical Barriers to Trade. The government signed the Trade Facilitation Agreement (TFA) in December 2013 and ratified it in December 2015. The National TFA Committee (NTFC) coordinates TFA implementation. Consistent with the Economic Community of West African States (ECOWAS), CDI applies a Common External Tariff (CET) on goods importations.
Starting in 2023, it is now mandatory for all calling vessels to dispose of onboard waste oils and sludge prior to departure, and to provide the port authority with a copy of the valid International Air Pollution Prevention Certificate (IAPP Certificate) .
Legal System and Judicial Independence
The Ivoirian legal system is based on the French civil-law model. The law guarantees to all the right to own and transfer private property. Rural land, however, is governed by a separate set of laws, which makes ownership and transfer very difficult. The court system enforces contracts.
The Commercial Court of Abidjan adjudicates corporate law cases and contract disputes. Mediation is also available through the Ivoirian legal framework in addition to the Commercial Court and the Arbitration Tribunal. The Commercial Court of Abidjan retains jurisdiction for the entire country.
The Ivoirian judicial system is ostensibly independent, but magistrates are sometimes subject to political or financial influence. Judges sometimes fail to prove that their decisions are based on the legal or contractual merits of a case and often rule against foreign investors in favor of entrenched interests. A frequent complaint from investors is the slow dispute-resolution process. Cases are often postponed or appealed without a reasonable explanation, moving from court to court for years or even decades. Regulations or enforcement actions are appealable and adjudicated through the national court system.
Laws and Regulations on Foreign Direct Investment
The 2018 Investment Code is the primary governing authority for investment conduct. The Code does not restrict foreign investment or the repatriation of funds. The Code offers a mixture of fiscal incentives, combining tax exoneration, patents and licenses contribution, and tax credits to encourage investment. The government also offers incentives to promote small businesses and entrepreneurs, low-cost housing construction, factories, and infrastructure development, which the government considers key to the country’s economic development. Concessionary agreements that exempt investors from tax payments require the additional approval of the Ministry of Finance and Economy and the Ministry of Commerce and Industry. The clearance procedure for planned investments, if the investor seeks tax breaks, is time consuming and confusing. Even when companies have complied fully with the requirements, the Tax Office sometimes denies tax exemptions with little explanation, giving rise to accusations of favoritism. Taxation techniques remain sometimes opaque, creating tax disputes between companies and the General Directorate of Taxes.
Some sectors have additional laws that govern investment activity in those sectors. In mining, for example, the Mining Code allows for a ten-year holding period for permits with an option to extend the permit for an additional two years on 400 square kilometers. The government imposes local-content requirements in the oil and gas sector, such as the requirement that companies hire locals, finance personnel training, and support local SMEs. The government in partnership with the French Institute of Petroleum, created the National School of Petroleum and Energy to train professionals in the sector.
The government is actively seeking to increase the share of local processing of raw agricultural commodities for export from 10 percent to 50 percent by 2025 and is looking for private investments to help reach this goal.
Côte d’Ivoire is a net energy exporter and is making investments to retake that position as the sub-region’s energy hub. Côte d’Ivoire entered contracts with neighboring countries (Ghana, Mali, Burkina-Faso, and Guinea) to supply electricity through its relatively well-established transmission network. According to 2021 data, the country production of oil reduced moving from 38,000 to 24036 barrels-per-day (bpd) of oil from four blocks and 213 million cubic-feet-per-day of gas. The country has divided its offshore Exclusive Economic Zone into 51 hydrocarbons blocks, of which 18 blocks remain available for bid. Currently, the production of gas is entirely used for electricity production. The government seeks to attract more foreign companies to invest in the oil and gas sector. In 2021, the large Italian oil company ENI discovered oil and gas at an offshore well site called “Baleine.” It is expected to enter production in the second quarter of 2023, with daily output of 12,000 barrels of oil and 17.5 million cubic feet of gas. The government purchases all the local gas production for its electricity production, via guaranteed “take or pay contracts.”
The CEPICI provides a one-stop shop website to assist investors. More information on Côte d’Ivoire’s laws, rules, procedures, and reporting requirements can be found at:
Competition and Antitrust Laws
The Ministry of Commerce, Industry 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 last updated in 2013. ANRMP is responsible for reviewing the awarding of contracts.
No significant competition cases were reported over the past year.
Expropriation and Compensation
The Ivoirian constitution guarantees the right to own property and freedom from expropriation without compensation. The government may expropriate property with due compensation (fair market value) at the time of expropriation in the case of “public interest.” Perceived corruption and weak judicial and security capacity, however, 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
Côte 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 a firm does not meet the nationality conditions stipulated by Article 25 of the Convention, the dispute must be resolved within the provisions of the supplementary mechanisms approved by the ICSID.
In September 2021, Côte d’Ivoire and China signed an agreement to settle commercial disputes between Ivoirian companies and Chinese companies.
Investor-State Dispute Settlement
Côte d’Ivoire is a signatory to investment agreements prescribing binding international arbitration of investment disputes. Côte d’Ivoire recognizes and has been known to enforce foreign arbitral awards, but enforcement is inconsistent.
In the past 10 years, foreign investors have had investment disputes, which have often been resolved through arbitration or amicable settlement. Recently some U.S. firms encountered tax disputes with the government. As Côte d’Ivoire is 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. However, one U.S. company has complained about unfair practices and competition by the telecommunication regulating agency pertaining to access to airtime and network access.
The U.S. government 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 Court of Justice and Arbitration (CCJA) provides a means of solving contractual disputes. The arbitration tribunal can enforce awards quickly, but most business contracts are written to specify that disputes will be settled in Ivoirian courts, thus the Ivoirian court system is the first resort.
Côte d’Ivoire is a member of the Organization for the Harmonization of Business Law in Africa (OHADA – Organisation pour l’harmonisation en Afrique du droit des Affaires) whose provisions, adopted in 1999, have replaced domestic law on arbitration. The unified law is based on the model law of the United Nations Commission on International Trade Law (UNCITRAL).
Judgments of foreign courts are recognized but difficult to enforce in local courts. To avoid being forced to work through the Ivoirian legal system, some investors stipulate in contracts that disputes must be settled through international commercial arbitration. Even if stipulated in the contract, decisions reached through OHADA are sometimes not honored by local courts.
The U.S. government is not aware of cases in which Côte d’Ivoire’s domestic courts have shown preferential treatment for state-owned enterprises involved in investment disputes.
The International Chamber of Commerce (ICC) created the African Commission to build capacity in the region and strengthen the arbitration infrastructure throughout the continent while engaging with a range of stakeholders to promote ICC Arbitration, as well as ICC’s alternative disputes resolution services.
Côte d’Ivoire ranked 85 out of 190 countries for ease of resolving insolvency, according to the World Bank’s 2020 Doing Business Report (the last available). As a member of OHADA, Côte 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, like 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. Court-ordered monetary settlements resulting from declarations of bankruptcy are usually paid out in local currency.
The joint venture Credit Info – Volo West Africa manages regional credit bureaus in WAEMU.