Transparency of the Regulatory System
Although the GON has transparent policies and laws to foster market-based competition, these are not enforced equally. Corruption and limited capacity in relevant government ministries and agencies have limited the implementation and enforcement of these policies.
The Nigerien government enacted a new Competition and Consumer Protection Law in 2015, replacing a 1992 law that was never operational.
Niger adheres to WAEMU’s Community Competition Law. Niger is also a member of ECOWAS and the Multilateral Investment Guarantee Agency (MIGA). All three organizations and communities provide benefits and guarantees to private companies.
There are no informal regulatory processes managed by nongovernmental organizations or private sector associations.
Regulations are developed via a system of ministerial collaborations and discussions. At the national level, the process begins with consultations at the State Council level, and continues with the Council of Ministers, who approve the draft text. Draft regulations then move to Parliament for discussion. After Parliament reviews, regulations are first approved by the Constitutional Council. The President grants final approval, after which regulations are published and available for distribution.
For the telecommunications, procurement, and energy sectors, regulations are established and exercised at the national level. There are exceptions. For example, the Energy Sector Regulatory Agency, an independent administrative authority, has the authority to regulate the energy sector at the national level, but has only enforced regulations at the local level in Niger’s major cities.
While legal, regulatory, and accounting systems exist, their transparency is limited due to corruption and low capacity in the GON’s ministries and agencies. Niger’s legal procedures, including the Tax Code, Customs Code, Investment Code, Mining Code, Petroleum Code, Labor Code and Commercial Acts – adhere to OHADA guidelines. Publicly listed companies adhere to OHADA’s accounting standards.
Environmental, social, and governance (ESG) disclosures are required to facilitate transparency and help investors and consumers distinguish between high- and low-quality investment.
Niger does not have a centralized online location where all key regulatory actions are published. However, at Niger’s Directorate of National Archives, these regulatory actions are available in hard copy.
Foreign and domestic investors, however, 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 basis justifying the procedures.
The General Inspectorate of Administrative Governance and the Regional Directorates of Archives are two oversight mechanisms to ensure the government follows its administrative processes.
No major regulatory system changes, including enforcement reforms, have been announced since the last ICS report.
At the administrative level, ministers, governors, prefects, and mayors have the authority to enforce regulations. The enforcement process is not generally made accountable to the public.
Civil society organizations have reported that public finances and debt obligations are not sufficiently transparent. The U.S. Department of Treasury’s Office of Technical Assistance, the International Monetary Fund, and the European Union are supporting Niger’s efforts to improve transparency of both public finances and debt obligations.
International Regulatory Considerations
Niger is a part of ECOWAS, a 15-member West African trade block. Niger’s national regulatory systems generally adhere 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/
Niger is a member of the WTO, but as a lower income member, it 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). Niger ratified a Trade Facilitation Agreement (TFA) in August 2015, and has made some progress on implementing TFA requirements.
Legal System and Judicial Independence
Niger’s legal system is a legacy of the French colonial system. Investors report the legal infrastructure is insufficient, and it is difficult to use the courts to enforce ownership of property or contracts. While Niger’s laws protect property and commercial rights, in practice the administration of justice can be slow and unequal.
Niger has a written commercial law that is heavily based on the OHADA. Niger has been an OHADA member 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. In 2015, Niger established a Commercial Court.
Niger’s Constitution states that the judicial system operates independently of the executive branch. However, political appointees at the Ministry of Justice oversee the personnel management process for assignments and promotions, a practice that has weakened judicial independence and raised concerns about impartiality in the judicial process. Businesses and civil society contacts report both the civil and criminal justice systems struggle with improper influence, which is widespread across institutions, with prosecutors receiving the lowest scores for independence. Businesses assess that the current judicial process is not 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 due to high financial costs and administrative obstacles.
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 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 26 judges, who make up five chambers. Unlike U.S. 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.
Judicial decisions that have come out in the past years can be found on the Commerce tribunal of Niamey website:
From December 1 to 31, 2020, 453 cases, including 24 inherited from 2019, were in summary proceedings, of which 351 were the subject of a judgment and whose minutes are available, 38 conciliation, 68 cases canceled and 02 remaining and postponed to 2021: the average processing time being 37 days.
The GON established a “Guichet Unique du Commerce Exterieur du Niger,” or Single Window for Foreign Trade, a website for investment with that provides relevant laws, rules, and procedures for investors seeking to import, export, and transport goods in Niger. https://guce.gouv.ne/fr/
Competition and Antitrust Laws
The Ministries of Trade and Finance review transactions (mergers, acquisitions, etc.) and conduct (cartels, monopolization) for competition-related concerns. In 2019, Niger adopted a new competition law, infractions and penalties related to consumer protection.
Niger also adheres to the WAEMU’s Community Competition Law.
There were no significant competition cases on which there have been developments over the past year.
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. In practice, there have been a number of expropriations of commercial and personal property, most of which claimants allege were not conducted in a manner consistent with Nigerien law requiring “just and prior compensation.” In practice, the government rarely compensates property owners after it expropriates property.
There is a history of alleged expropriations. To facilitate the construction of the Kandaji Dam, for example, the government offered to resettle approximately 38,000 individuals and their livestock. The government created an agency to conduct all resettlement related activities upstream and downstream of the dam construction. The agency conducted a census to determine who would be impacted, and public consultations were made to meet the populations and collect their concerns and complaints. The process is ongoing, and some individuals have expressed concern with the proposed amount of compensation, as well as their ability to continue to farm on the land at proposed resettlement sites.
In cases of expropriations, claimants and community leaders have alleged a lack of due process and have voiced their concerns in community forums and the press. Many of the impacted individuals 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 barriers to claimants. Even in situations where educated and wealthy business owners have had their property expropriated, legal challenges to expropriation are not lodged.
The government has not taken measures alleged to be indirect expropriation.
ICSID Convention and New York Convention
Niger is a member state of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention, also known as the Washington Convention) and a signatory of the New York Convention of 1958.
There is no specific domestic legislation providing for enforcement of awards under the 1958 New York Convention or the ICSID Convention. Niger does not have a record of extrajudicial actions against foreign investors.
Investor-State Dispute Settlement
Niger’s Investment Code states foreign nationals may seek remedy through the International Center for the Settlement of Investment Disputes.
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 issues against the government.
Niger does not have a record of extrajudicial actions against foreign investors.
International Commercial Arbitration and Foreign Courts
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.
Niger has an operational center for mediation and arbitration of business disputes. The center’s stated aim is to maintain investor confidence by eliminating long and expensive procedures traditionally involved in the resolution of business disputes.
Generally, local courts are reluctant to recognize and enforce foreign arbitral awards.
Information on SOEs involved in investment disputes is not publicly available.
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.