Gabon / Djibouti - Creation of one-stop shops to assist investors with the incorporation and management of companies

After Côte d'Ivoire in 2012 and Madagascar in 2014, Gabon and Djibouti have set up a one-stop shop to assist investors in the creation and management of companies, respectively by Decree No. 00048/PR/ MPIPCTI of February 5, 2018 regarding the creation and operation of the ANPI-GABON Investment Desk and Decree No. 2018-146/PR/MAPCI of April 12, 2018 relating to business creation formalities.

These two new administrative organizations are intended to act as the single intermediary between investors and the various public authorities involved in the incorporation and management of companies to make administrative formalities and procedures easier for investors.

These one-stop shops, known as the "Guichet de l'Investissement" (Investment Desk) for Gabon and the "Guichet Unique" (Single Desk) for Djibouti, both report to the national agencies for investment promotion.

Their missions are similar: they are mainly responsible for carrying out all the administrative formalities in relation to the creation, modification, expansion or cessation of the companies' activities; such formalities will then be invoiced to investors. They also act as intermediaries between investors and the various competent administrations when specific administrative authorizations are required for companies to operate.

The Djiboutian one-stop shop is required by law, except in case of force majeure, to finalize the incorporation of any company within a maximum of 72 working hours from the registration of the complete file.

Gabon and Djibouti have eventually responded to investors' requests for administrative simplification by setting up one-stop shops, a mechanism traditionally used in other African or European countries to attract foreign investments.

Niger – Establishment of an investment promotion agency to promote strategic projects and investments

On May 25, 2018, the government passed a bill establishing an Strategic Projects and Investments Promotion Agency ("the Agency"). This bill amends and supplements the law of April 16, 2014, setting forth the Investment Code in Niger.

This bill aims to improve the business climate by setting an institutional framework to promote investments.

The Agency is a centralized public body, with legal personality and administrative and financial management autonomy. According to the government, it will attract more investors in all economic sectors.

Currently, promotion of investments is ensured by a multitude of actors, with a break-up of activities to support investor services, through two different one-stop shops that operate in a non-attractive environment and with response times that do not seem to conform to international best practice.

The bill intends to correct all these shortcomings and attract more investors to Niger. The bill will be sent to the National Assembly before entering into force.

Ohada - Reversal of ccja case law on the immunity from execution of public companies incorporated as legal persons of law

The Common Court of Justice and Arbitration (CCJA) of the Organization for the Harmonization of Business Law in Africa (OHADA) ruled in decision n° 103/2018 of April 26, 2018 that immunity from execution no longer benefits all public companies incorporated as legal persons of private law.

Immunity from execution neutralizes enforcement proceedings and protective measures so that public companies' creditors cannot compel them to pay their claims. Under OHADA law, the immunity from execution of public companies is set forth in Article 30 of the Uniform Act organizing simplified recovery procedures and enforcement proceedings.

On this basis, the CCJA ruled, in 2005, that any public company enjoyed immunity from execution, even if it was incorporated as a legal person of private law. In 2014, the CCJA extended this immunity to semi-public companies, regardless of the proportion of share capital held by private persons in these companies.

The Court also decided that, pursuant to that solution, the laws of OHADA Member States expressly subjecting public companies incorporated as commercial legal entities to enforcement proceedings, became unenforceable. This decision had been widely criticized because claims held by investors against semipublic companies could never be recovered even though national law offered this possibility.

Finally, following an appeal against a judgment of the Court of Appeal of Kinshasa/Gombe, the CCJA reversed this case law in its decision of April 26, 2018 ruling that the company Les Grands Hôtels du Congo, a public limited company/corporation whose share capital is held equally by private persons and by the Congolese State and its dismemberments, benefited from the immunity from execution.

From now on, a public company can no longer enjoy immunity from execution as long as it is a semi-public company incorporated as a legal person of private law. However, the issue of immunity from execution for public companies incorporated as legal persons of private law but entirely owned by a public person remains unanswered.

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