A detailed look at Côte d’Ivoire’s legal system

 

Côte d’Ivoire is a civil law country. As such, the legal system does not rely on prior decisions, but is instead structured by several different specific codes. The supreme law of the country is the constitution adopted by referendum on October 30, 2016.

The legal hierarchy of the country puts the constitution at the top of the legal pyramid. This constitution is followed, respectively, by international treaties legally ratified by the National Assembly and laws adopted by the National Assembly, ordinances and decrees issued by the president of the country, and, at the bottom, ministerial decrees and orders complete the legal framework.

Regional Relations

Côte d’Ivoire is a member of UEMOA and its economy represents about 40% of this regional organisation. Côte d’Ivoire is also a member of a number of different regional organisations such as the Organisation for the Harmonisation of Business Law in Africa (OHADA), the African Intellectual Property Organisation and the Inter-African Conference on Insurance Markets. The aforementioned organisations provide regulations in several different sectors of law, namely:

• Banking;

• Companies;

• Securities;

• Insurance;

• Insolvency;

• Civil proceedings;

• Arbitration; and

• Foreign exchange. Côte d’Ivoire is also a member of a number of international organisations promoting international investments such as the World Trade Organisation, which it joined in 1995, as well as the International Centre for Settlement of Investment Disputes.

The Judicial System

The judicial system is organised under the authority of the Supreme Court. The Supreme Court is composed of:

• The Administrative Chamber of the Supreme Court;

• The Court of Cassation for civil and criminal cases; and

• The Constitutional Court for all constitutional matters. The Administrative Chamber is competent for all litigations to which the state or a public entity is a party. For certain categories of cases, as in some administrative proceedings, the Supreme Court decides in first and last resort.

The Court of Cassation is the higher court for all matters related to and limited to criminal cases, labour and employment disputes, and family law and land disputes.

The Constitutional Court has exclusive jurisdiction over constitutional issues, mainly the constitutionality of laws, the interpretation of the constitution and even presidential elections disputes.

The aforementioned courts are under the authority of the Supreme Court, which decides on their rulings as a last resort. It should be noted that all matters that imply the interpretation or application of any OHADA uniform act shall be referred in last resort to the OHADA Common Court of Justice and Arbitration instead of the Supreme Court.

Lastly, commercial courts are the newest category of courts, created in Côte d’Ivoire on January 11, 2012, to speed up the settlement of commercial and corporate disputes. They decide on first instance and shall render their decisions within three months.

The Court of Appeals

In April 2013 the Commercial Court evolved into the Commercial Chamber of the Court of Appeals. Its role involves ruling on appeals against decisions rendered by the Commercial Court of Abidjan. A plan to extend the court to cities other than Abidjan has yet to be realised.

Arbitration System

The process by which the parties of a dispute submit their differences to be judged by an impartial person or group appointed by mutual consent or statutory provision is recognised in Côte d’Ivoire. Indeed, Côte d’Ivoire is a signatory of the New York Convention, and arbitral awards shall become fully enforceable in the country through the exequatur procedure. The parties may refer their disputes to local or foreign arbitration centres.

The Common Court of Justice and Arbitration (Court Commune de Justice et d’Arbitration, CCJA) of the OHADA was established in 1998 and rendered its first legal decision in 2001. Since April 10, 2015 the it has been composed of 13 judges elected by the Council of Ministers of the OHADA for a seven-year, non-renewable term. Judges are required to elect a president and two vice-presidents for a 3.5-year term in office. The court currently has three chambers: two chambers of five judges and one chamber of three judges. The OHADA Treaty, supplemented by a rule of procedure before the CCJA, organises the functioning of the court and the status of its judges. The court has a seat in Abidjan but may sit at any other place in the territory of one of the 17 member states.

Court of Arbitration

The Court of Arbitration of Côte d’Ivoire (Court d’Arbitration de Côte d’Ivoire, CACI) is a centre for dispute settlement, including national and international non-profit organisations. It was created within the Chamber of Commerce and Industry of Côte d’Ivoire. CACI’s function is to provide economic operators with alternative means to resolve disputes, in particular those related to:

• Arbitration;

• Arbitral proceedings;

• Accelerated recovery of claims;

• Mediation;

• Mini-trial; and

• Expertise. CACI organises and offers economic operators, and to any person who so wishes, different procedures that allow them to find a solution to their disputes outside judicial institutions. CACI, therefore, exercises, like the state courts, the work of justice. The decisions rendered under its aegis have the same legal force as those of the state courts.

Commercial Companies Law

In Côte d’Ivoire commercial companies are governed by the OHADA Uniform Act on Commercial Companies and Economic Interest Groups, which has been in force since January 1, 1998. The most commonly used forms of commercial companies are as follows:

• Société à responsabilité limitée (private limited liability company);

• Société anonyme (public limited liability company); and

• Société par actions simplifiée (simplified joint-stock company).

The Private Model 

The private limited liability company model is the simplest and most common form of business structure in the country. Indeed, this structure is flexible and easy to use.

This type of company can even have only one shareholder, and this shareholder can be an individual or a corporation. In addition, there are no mandatory minimum capital shares. Nevertheless, the nominal value of the shares is at least CFA5000 (€7.50) each. The corporate law limits the liabilities of the shareholders to their contributions.

The responsibility of the management lies with the manager. The manager is vested with the widest powers to act with third parties on behalf of a private limited liability company, even with respect to matters falling outside the scope of the corporate purpose.

Collective decisions are taken at a general meeting by an absolute or a simple majority of the votes. Extraordinary decisions are taken by a three-quarters majority of the votes.

The Public Model

The public limited liability company model is a form of enterprise that is often used for more important commercial activities, since the procedures applicable to this corporate form are more complex. Nevertheless, this company may also have only one stakeholder, and the corporate law limits the liabilities of a stakeholder to its contributions. The minimum share capital for a public limited liability company is CFA10m (€15,000), divided into shares (actions) of a nominal value of at least CFA10,000 (€15). Since May 5, 2014 the restriction on the selling of shares is expressly recognised, provided that this clause is justified by a serious and legitimate cause. Thus, any transfer of shares made in violation of this clause would be void if the stipulation was in the articles of association or if it is clear that the buyer knew or should have known of the existence of this clause. Therefore, the reform clarified the regime of opposability of this clause.

At least one-quarter of the nominal value of the shares subscribed in cash must be paid up during capital subscription. The partners are liable for the company’s debts up to the limit of their capital contributions. Moreover, a public limited liability company may be formed with or without a board of directors consisting of at least three members and a maximum of 12 members. In the first case, a président board of directors), or directeur général (managing director), assumes responsibility for the general management of the company, while in the second case a administrateur général (general manager) takes on this responsibility.

Furthermore, the manager(s) are vested with the widest powers to act in all circumstances with third parties on behalf of the public limited liability company. Since May 5, 2014 the shareholders of a public limited liability company can delegate to the board the power to raise the capital of the company. Lastly it is possible to organise board meetings via video conference.

The introduction of the simplified joint-stock company under OHADA Law dates back to the OHADA reform of May 5, 2014. This corporate form is the more flexible form available and is thus attractive to investors since the stakeholders can adapt the articles of association to their precise needs.

Indeed, there are no mandatory rules relating to governance and organisation of the company, and the only requirement is that the simplified joint-stock company must be represented by a president. Furthermore, the Uniform Act provides that the action that violates an essential stipulation of the articles of association would be/is non-effective and a forced execution is possible.

Other Company Structures

The OHADA Uniform Act on Commercial Companies and Economic Interest Groups also provides the possibility of forming other types of commercial companies, including:

• Société en nom collectif (general partnership company), in which all the partners are traders and have unlimited liability for the company’s debts.

The management has the most extensive powers to manage the company; and

• Société en commandite simple (limited partnership), in which there are one or more general partners that have unlimited liability for the debts of the partnership, and one or more limited partners whose exposure to the debts of the partnership is limited to the contribution each has made to the partnership.

Security, Commercial & Insolvency Laws

The new Uniform Act on Secured Transactions came into force on May 16, 2011. The major innovations resulting from the amended Uniform Act on Secured Transactions may be summarised as follows:

• Security may be granted over any asset, whether present or future, and may secure any present, future or conditional obligation;

• New security mechanisms allow for the transfer of cash by way of security and simplified assignment of receivables by way of security in favour of banks;

• Creation, perfection and enforcement of security interests have been simplified;

• It is possible to appoint a security agent for the creation, perfection, management and enforcement of any security interests; and

• Creation of non-possessory pledges on tangible assets is now allowed. The new Uniform Act on General Commercial Law and Uniform Act on Cooperatives was adopted on December 15, 2010. The major innovations resulting from the amended Uniform Act on the General Commercial Law include the introduction of entrepreneurs to be governed under the framework, a move which aims to encourage informal entrepreneurs to join the formal economy. The act also provided for the creation of the three-tiered, computerised Registry of Companies and Secured Transactions, in which companies and secured transactions are recorded. Furthermore, it should be noted that the business creation process in Côte d’Ivoire was streamlined through the implementation of a single window bureau.

The single window bureau is comprised of all relevant administrative bodies involved in the business creation process, which include tax administration, company registry and the Ministry of Commerce, as well as the National Social Security Fund. It aims to allow the carrying out of all the formalities for starting a business within 48 hours.

The new Uniform Act on Bankruptcy Proceedings was adopted on September 10, 2015. The major innovations of the amended Uniform Act on bankruptcy proceedings include a new definition of cash flow insolvency, the introduction of a new conciliation procedure and a simplified preventative settlement procedure for small companies.

Criminal Provisions on Business Law

The government took legislative action to induce businesses to ensure full compliance with the provisions of the various OHADA uniform acts. In this regard, Law No. 2017-727 came into force on November 9, 2017 and details specific fines and punishments for infringements to the OHADA uniform acts.

Foreign Exhange Controls

As a member of UEMOA, Côte d’Ivoire shares with the region a common central bank, the Central Bank of West African States, and a uniform exchange regulation. Within UEMOA, the foreign exchange control and related issues are governed by Regulation No. 09/2010/CM/ UEMOA of October 2010 and its annexes.

Under this regulation the transfer of funds between UEMOA member countries is free and not subjected to any restrictions. The governing principle is that the UEMOA foreign exchange rules regulate only payments going out of UEMOA and not payments coming into UEMOA, as those payments pose no risk to members.

Under Regulation No. 09/2010/CM/UEMOA, the difference must be covered by residents and non-residents when it comes to foreign currency accounts. According to Article 7 of Instruction No. 08/07/2011, the opening of a foreign currency account by a resident is subject to authorisation by the minister of finance following approval from the central bank. Furthermore, this authorisation cannot exceed one year and must be renewed each year.

Under Article 34 of Appendices II of Regulation 09/2010, foreign currency accounts can be freely held by non-residents in the UEMOA region, provided they are labelled in euro. Otherwise an authorisation is required from the central bank. Lastly, non-residents can freely open regular accounts in CFA franc.

When it comes to investment transactions, it should be stressed that the transfer of funds from within UEMOA to non-member countries in relation to investment transactions requires the prior approval of the Ministry of Economy and Finance (Ministère de l’Economie et des Finances, MEF).

Typically, in cases where a non-resident grants a loan to a resident of UEMOA, this transaction must first be declared to the MEF so that the repayment of this loan can be made easily.

Controlled Banking Systems

Banking regulations are derived from UEMOA rules. The latter are updated from time to time to reflect new banking authorisations and constraints. No banking activity is permitted unless supplied by a commercial bank that is approved and controlled by the UEMOA Banking Commission.

Financial Market Regulations

Abidjan is host to the UEMOA stock exchange, the Bourse Régionale des Valeurs Mobilières. Financial regulations have been enacted by UEMOA and the UEMOA Authority for Regulation of Financial Markets and the Regional Council for Public Saving and Financial Markets in order to authorise, in particular, listings of companies and bonds, including both state-owned and private companies.

Upstream Hydrocarbons

Ordinance No. 12-369 of April 18, 2012 modifying Law No. 96- 669 of August 29, 1996 relative to the Petroleum Code, regulates the industry. The ordinance provides that the state of Côte d’Ivoire remains the owner of its natural resources, but that an exploration and production-sharing contract may be negotiated between oil operators and the state.

Mining

There are three relevant statutes, namely: • Law No.2014-138 dated March 24, 2014, supported by Decree No.2014-397 dated June, 25 2014, which implements:

• The Mining Code and Ordinance No.2014-148 dated March 26, 2014, which relates to fees, royalties and mining taxes; and

• Ministerial Decree No. 002/MIM/CAB of January 11, 2016 which relates to the grant and the renewal procedures of mining titles. Policy direction is given by the Ministry of Industry and Mines (Ministère de l’Industrie et des Mines, MIM), with operational and administrative affairs handled by the State Society for Development of the Mining Industry of Côte d’Ivoire. An exploration permit is required to conduct exploration. It is granted for four years for a surface of up to 98,842 acres, by a presidential decree during the Council of Ministers upon proposal of the minister in charge of the MIM to any person or entity that submitted an application which is in line with legal requirements for its application. This permit is renewable twice for a period of three years.

An exploitation permit is required to conduct mining. Pursuant to Article 67 of Decree No.2014-397, dated June 25, 2014, the artisanal mining permit is granted by the Minister of Mines and Industry. Under article 58 of the Decree No.2014-397, dated June 25, 2014, the semi-industrial permit to conduct mining is delivered by the minister of MIM for four years.

Lastly, the industrial mining permit is granted by a presidential decree during the Council of Ministers upon proposal by the minister of MIM, after the provision of suitable evidence of the existence of relevant mineral deposits, as previously indicated in the exploration license. An investigation as to the convenience or otherwise of the exploitation of the resources – whether it is in “commodo” or “incommodo” – under Ivorian law, is required prior to the granting of the authorisation. A person does not need to own or acquire an interest in the land in order to apply for or hold a mining permit. Once this investigation is completed, the entity or the individual is entitled to an exploration permit.

It should be noted that the permit holder is entitled, among other things, to the following tax advantages and incentives:

• Exemption of payment of up to 50% of the registration fees for capital increase in a mining company;

• Exemption of import duties, including value-added tax on import of materials, machinery and equipment for mining activities; and

• Exemption from export duties on mining products. The closure of mining operations should be declared to the MIM. There are other obligations such as:

• The cleaning and rehabilitation of the site;

• The removal of any mining infrastructures; and

• The monitoring of the post-rehabilitation programme. To this end, the holder of a mining title must open an escrow account before starting the activities. These obligations are set out in the closure plan, which is drafted on a case-by-case basis depending on the site and the type of exploitation.

Employment Law

The sources of employment law are:

• The Labour Code adopted on July 20, 2015;

• The different implementing decrees; and

• The professional collective agreements negotiated between employers and employees dated July 19, 1977. Different types of employment contracts may be offered to employees, namely:

• Unlimited-term contracts;

• Fixed-term contracts (according to the law, fixed-term contracts have a maximum cumulative duration of no more than two years); or

• Part-time contracts. The length of a standard working day is eight hours. Overtime is legally allowed with an increase of the pay. There are prescribed premiums payable depending on whether the overtime takes place during the day, the night or on official holidays. Wages of employees must not be lower than the local minimum salary (on a monthly basis), which is CFA60,000 (€90). An employee is entitled to paid annual leave after one year working for an employer. Each employee is entitled to 2.2 working days per month of working, equivalent to 26.4 working days – one month – annually.

The law grants additional paid leave for foreign employees or employees who have reached a specific length of service. A foreign national must hold a work permit before being able to render services locally. A foreign employee may only be recruited by a company if there is a genuine need for the employee and there is no suitable domestic candidate. A fine equivalent to three months’ worth of salary of the employee recruited may be imposed on any employer that has unlawfully employed foreign nationals without complying with the relevant statutory requirements.

As regards fixed-term employment contracts, these are terminated without any notice or compensation at the end of the term. The termination of unlimited-term contracts should be motivated by real and serious grounds, such as personal grounds regarding the employee or economic motives. The employment contract can be terminated by alternative amicable means, such as resignation of the employee, or amicable termination agreements signed by both parties.

Land Ownership

Côte d’Ivoire laws for private and commercial property do not provide for any restrictions on nationality for the possession and ownership of a property in Côte d’Ivoire, except for traditional village lands. Furthermore, any foreigner desiring to lease or acquire property for private or commercial needs may freely do so according to the law.

Procurement Contracts Regulation

Procurement contracts are regulated in Côte d’Ivoire by a decree adopted on August 6, 2009 in line with UEMOA Directives 4/2005 and 5/2005 on procurement contracts. Pursuant to this decree, Côte d’Ivoire has created, via Decree 2009-260 of August 6, 2009, a national authority regulating procurement contracts, which has the power to settle disputes in relation to the granting or execution of a procurement contract. Furthermore, this decree also has the power to have sanctions imposed on the applicants or contractors of a procurement contract for fraud.

Pursuant to an ordinance signed in 2018, which has not yet been published as of early January 2019, the status of the national authority regulating procurement contracts is modified to become an independent administrative authority, extending its powers to litigation and the conduct of audits relating to public-private partnership contracts. In addition, this measure strengthens the organisation and functioning of the national authority regulating procurement contracts so as to enable the new independent authority to fulfil its tasks more effectively.

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The Report: Côte d'Ivoire 2019

Legal Framework chapter from The Report: Côte d'Ivoire 2019

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