The policy pursued by Côte d’Ivoire’s government has its legal counterpart in the promotion of private investment. The policy adapts to the changing international economic environment, reflected by the Investment Code adopted in 2012, which was subsequently replaced by the 2018 Investment Code. The most recent update to the code came in 2019 with the adoption of Order 2019-1088 of December 18, 2019, which amended Order 2018-646 of August 1, 2018.
The attention of foreign investment should be particularly drawn to the mechanisms for settling disputes arising from the interpretation and enforcement of the provisions of the new Investment Code. Negotiations to find a friendly solution to any dispute between the state and the investor shall be reaffirmed and may not exceed a period of 12 months. Where the negotiations result in a settlement, they shall be formalised by a settlement agreement, which the state undertakes to carry out in good faith and as soon as possible. Where they had been set aside by the Ordinance of August 1, 2018 on the new Investment Code, the state courts may resume settlements of disputes relating to foreign investment in Côte d’Ivoire. The new wording of Article 50, resulting from the Order of December 18, 2019, indicates that parties may, in the event of failure of their negotiations, bring their dispute before the relevant courts. Depending on the subject matter of the dispute, civil, commercial or administrative courts may be involved. The reforms under way in the judicial system, characterised by the creation of an administrative order alongside an administrative and financial order, explain this return to state courts. Tax disputes should occupy a prominent place and put the administrative courts into perspective. These constitute the largest portion of disputes put to arbitration.
The arbitrability of tax disputes was one of the innovations introduced by the 2018 Investment Code and reflects a change in the policy of attracting foreign investment to Côte d’Ivoire. This choice was reaffirmed by the Order of December 18, 2019, with an amendment reflecting a return to national preference. In its 2018 version, Article 50 of the Investment Code designated the Common Court of Justice and Arbitration (Court Commune de Justice et d’Arbitration, CCJA) as the dispute settlement body, thus reflecting a renewal of Côte d’Ivoire’s commitment to the process of rapprochement of the Organisation for the Harmonisation of Business Law in Africa (OHADA) institutions. The Order of December 18, 2019 turns to the Court of Arbitration of Côte d’Ivoire (Court d’Arbitration de Côte d’Ivoire, CACI). This abandonment of CCJA and the move to CACI can be explained by the fact that tax issues are not among the matters governed by harmonised law in the OHADA area. The decision lacks visibility due to the drafting of paragraph five of Article 50 of the Investment Code, which makes reference to the methods for settling disputes that investors should implement when submitting their approval procedure and seems to go beyond the only arbitration court in Côte d’Ivoire.
The reference to the Conciliation Rules of the UN Commission on International Trade Law has been removed with the new drafting of Article 50 of the Investment Code, resulting from the Ordinance of December 18, 2019. There is a counterpart to this abandonment which takes the form of a stipulation that all of Côte d’Ivoire’s international commitments in the area of investment protection will be respected during the arbitration procedure for dispute settlement. The aim of the wording of the new text is to offer foreign investors greater security for their investments. While the confirmation by the authorities of the arbitrability of tax disputes allows for greater confidence on the part of foreign investors, the objective can only be achieved if arbitrators experienced in tax techniques and disputes are on the list of arbitrators for CACI.
OBG would like to thank Bilé-Aka, Brizoua-Bi & Associés for its contribution to THE REPORT Côte d’Ivoire 2020.