Ivory Coast’s New Investment Code: Focus on issues related to sustainable development and dispute settlement

Ivory Coast adopted a new investment code on August 1, 2018.[1] This new law[2] features a variety of innovations ranging from the revitalization of the institutional framework to the reconfiguration of tax rules to new obligations on investors. It therefore supports the aims of transparency and investment attractiveness.

Among the main innovations, two specific elements deserve attention in light of the overall agenda of reform of the international investment regime for sustainable development: (1) investment dispute settlement mechanisms and (2) the promotion of productive and socially responsible investment and local content requirements.

1. Innovations in investor–state dispute settlement

Article 50 of the new code provides for three distinct dispute settlement arrangements.

The first of these arrangements is an amicable settlement procedure. The code specifies that any resulting settlement agreement is legally binding on the parties, who shall endeavour to comply with it as soon as possible. Any violation of the settlement agreement could be sanctioned under civil liability regulations.

Next, unless this amicable settlement procedure enables an agreement to be reached within 12 months, UNCITRAL conciliation rules apply.

Finally, under the new code, the parties can still “agree to submit their dispute to arbitration by the Arbitration Centre of the Common Court of Justice and Arbitration [CCJA] of the Organization for the Harmonization of Corporate Law in Africa [OHADA].[3]” By comparison, the old code stated that “the parties’ consent to the jurisdiction of ICSID or its Additional Facility, as the case may be, … is established by this article, for the Republic of Ivory Coast, and shall be expressed specifically in the authorization application, for the person concerned.”

Three main observations arise from the new dispute settlement provision: (a) the withdrawal of direct access to ICSID arbitration; (b) the inclusion of a fork-in-the-road clause for the investor; and (c) the promotion of OHADA institutional arbitration.

a. Withdrawal of direct access to ICSID arbitration

The legislators opted for deleting the unilateral offer of consent to ICSID arbitration, while favouring the CCJA Arbitration Centre over other arbitration institutions. This does not, in principle, exclude the possibility of investors resorting to other arbitration forums, notably ICSID. This provision suggests that there no longer is direct state consent to investor–state arbitration.

In any case, the choice of an arbitration institution by the investor, including the CCJA, must be made in the authorization application, which is subject to the approval of the state. This therefore presupposes that the state’s consent and its choice of arbitration forum will be expressed in the new authorization template to be adopted.

This innovation appears to respond to the criticism to ISDS in recent years, in particular the thorny issue of host state consent to investor–state arbitration.”[4]

This innovation is probably not unrelated to the case of Société Resort Company Invest Abidjan v. Ivory Coast. In this case, the tribunal explicitly recommended, in the award on jurisdiction of August 1, 2017,[5] that Ivory Coast reform its corresponding legislation due to the ambiguity of its offer to arbitrate. Indeed, the arbitral tribunal considered that an authorization application accepted by the investor constitutes proof of the investor’s consent to ICSID arbitration. The tribunal relied upon the aforementioned Article 20 of the 2012 Ivory Coast Investment Code. The tribunal nonetheless acknowledges that Article 20 is not a model of clarity and would therefore benefit from being reformed:

If the Côte d’Ivoire, upon receipt of the Tribunal’s decision, maintains its disagreement with the majority of the Tribunal’s analysis, then its remedy can be swift and straightforward: it can introduce amendments to Article 20 of the 2012 Code and to its model “demande d’agrément” [authorization application] with the effect that prospective investors will be in no doubt as to the manner in which they are to convey their consent to ICSID arbitration.[6]

b. Inclusion of a fork-in-the-road clause for the investor

The new code provides that the choice made by the investor implies the waiver of any other offer of arbitration. This innovation introduces a fork-in-the-road clause incorporated in some investment treaties. This clause means that by opting for a specific dispute settlement route (for example, national courts), the investor irrevocably waives any other means of dispute settlement (for example, arbitration institutions). Moreover, the recent BITs signed by Ivory Coast entail such commitments.[7]

c. Promotion of OHADA institutional arbitration

The code recognizes the CCJA Arbitration Centre of OHADA as an investment arbitration forum open to the disputing parties. This explicit reference to an African arbitration centre is an innovation that reflects a trend adopted in several recent investment laws in French-speaking Africa.[8]

The inclusion of the CCJA forum in the new Ivorian code is justified by two close relationships: Ivory Coast is a member of OHADA and also home to the OHADA CCJA. This recourse to the CCJA can also be explained by the recent reform of OHADA arbitration law, which now expressly opens the way to investment arbitration. The CCJA Arbitration Centre has thus administered several investor–state disputes on the basis of an arbitration agreement. Overall, the new offer of arbitration contributes to the promotion of African arbitration centres and points to a degree of agreement within the continent on the shaping of international investment law.[9]

2. Strengthened environmental obligations and introduction of local content requirements

Unlike the old code, which made only one-off, sometimes allusive references to sustainable development,[10] the new code expressly states that it aims to promote sustainable development by fostering productive and socially responsible investment.[11]

Thus, the code establishes an express obligation for all investors to comply with existing laws and regulations relating to environmental protection and, in their absence, with applicable international standards.[12] The legislator has thus carried out a certain normative densification of the former provisions, which at the time invited the investors to promote those environmental obligations. In addition to being mandatory, the new provisions are coupled with sanctions for non-compliance: the violation of environmental obligations by the investor entails the withdrawal of its authorization by the Ivory Coast Investment Promotion Agency.[13] This regulatory change responds to the need to reinforce environmental requirements for investment, as recognized by the UN Guiding Principles on Business and Human Rights.

The goal of sustainable development is also demonstrated by the new local content provisions for the strengthening of the socioeconomic impact of investment within the national territory.

Foreign investors are urged to rely on local companies in the conduct of their operations, in order to benefit from certain advantages offered by the new legal framework. The objective is, of course, to open up areas of opportunity for local small and medium-sized enterprises and to give a more inclusive character to Ivorian economic growth.

As a consequence, large foreign companies eligible for benefits under the new code and belonging to category 1 or 2[14] are entitled to tax credits[15] provided that they apply a local content policy on job creation, the opening of share capital to nationals and outsourcing. In practical terms, an additional tax credit of 2 per cent is granted to the foreign investor if the number of Ivorian executives and management staff (senior management such as directors, production manager, operations manager, sales manager etc.) represents 90 per cent of the total workforce in these two categories of employees.[16]

The same tax credit is granted to companies that subcontract to national companies the production of goods intended to be incorporated in a final product in Ivory Coast or abroad. This benefit is also extended to companies that open their share capital to nationals.[17] An implementing decree of December 18, 2018 makes this tax credit accessible to eligible companies that have opened at least 15 per cent of their share capital to Ivorian nationals.

Conclusion

In short, the new code offers important innovations for the promotion of sustainable development. It remains to be hoped that these innovations will be aligned with the country’s network of BITs as well as with its investment contracts to ensure overall consistency of the legal regime applicable to investments in Ivory Coast.

Authors

Mouhamed Kebe is a lawyer and member of the Bars of Senegal and Ivory Coast; he is Managing partner of the GENI & KEBE Law Office based in Senegal and Ivory Coast. Mahamat Atteib and Mouhamoud Sangare are jurists at the GENI & KEBE Law Office. They are research associates at Gaston Berger University and Cheikh Anta Diop University in Senegal.

Notes

[1] Ordinance No. 2018-646 of August 1, 2018, available in French at http://www.tourisme.gouv.ci/uploads/Ordonnance-2018-646-du-01-08-2018code-investissement.pdf.pdf [2018 Code]. The new code repeals and replaces Ordinance No. 2012-487 of June 7, 2012 on the Investment Code, available in French at http://www.droit-afrique.com/upload/doc/cote-divoire/RCI-Code-2012-des-investissements.pdf [2012 Code].

[2] The code is supplemented by decrees dated December 18, 2018 on (1) the organization and functioning of the Authorization Committee of the Investment Promotion Agency and (2) businesses eligible for the tax credit for the opening of share capital to nationals for investment promotion purposes.

[3] 2018 Code, supra note 1, Article 50.

[4] Mbengue, M.M. (2012, 19 July). Consent to arbitration through national investment legislation. Investment Treaty News, 2(4), 7–9. Retrieved from https://www.IISD.org/pdf/2012/IISD_ITN_july_2012_en.pdf

[5] Société Resort Company Invest Abidjan, Stanislas Citerici and Gérard Bot v. Republic of Côte d’Ivoire, ICSID Case No. ARB/16/11, Decision on the Respondent’s Preliminary Objection to Jurisdiction. Retrieved from https://www.italaw.com/sites/default/files/case-documents/italaw9371.pdf

[6] Ibid., subsection 157.

[7] See, for example, Article 12 of the 2016 Ivory Coast–Turkey BIT, available at https://investmentpolicy.UNCTAD.org/international-investment-agreements/treaties/bit/3694/c-te-d-ivoire—turkey-bit-2016-

[8] See, for example, the 2012 Investment Code of Togo (Article 8), the 2012 Investment Code of Mali (Article 29) and the 2015 Investment Code of Guinea (Article 43), all available in French at http://www.droit-afrique.com, and the 2018 Investment Code of Burkina Faso (Article 39), available in French at https://www.assembleenationale.bf/IMG/pdf/loi_038_portant_code_des_investissements.pdf

[9] Mbengue, M.M., & Schacherer, S. (2017). The “Africanization” of international investment law: The Pan-African Investment Code and the reform of the international investment regime. The Journal of World Investment & Trade, 18(3), 414–448.

[10] 2012 Code, supra note 1, Articles 3 and 38.

[11] 2018 Code, supra note 1, Article 3.

[12] 2018 Code, supra note 1, Article 36.

[13] 2018 Code, supra note 1, Article 48.

[14] Category 1 includes agriculture, agribusiness, health and hospitality. The hospitality sector is eligible only if the amount of the planned investments is equal to or greater than 5 billion [CFA] in zone A, and 2 billion in zones B and C. Note that the Ivorian territory is divided into three zones designated A, B and C as defined by a decree adopted by the Council of Ministers. Category 2 includes first the sectors of activity not included in Category 1, then the sectors of activity not expressly excluded by Article 6 of the Investment Code (the business sector, the banking and financial sectors, the non-industrial building sector and the liberal professions) and finally the hospitality sector for investments involving amounts below the thresholds set for Category 1.

[15] A tax credit is a reduction of a tax paid by a business or an individual, in the form of a refund. It is a fiscal incentive that aims to support certain sectors of activity that take into particular account the requirements of sustainable development.

[16] 2018 Code, supra note 1, Article 21.

[17] 2018 Code, supra note 1, Article 21.