Africa Newsletter - Q1 2017



Africa is currently experiencing exponential growth due to a business environment strongly fostering project development. Farming, extractive industry, infrastructure works and services are the driving forces of this economic development.

With the benefit of many years of involvement with Africa, Bird & Bird is able to assist with diverse projects, providing its legal knowledge and experience of Africa to institutions, companies and investors.

This newsletter, to be published on a regular basis, gives an overview of some of the key events impacting the African continent on both legal and economic level.

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• Interview: with Brahim BENABDESLEM, vice-chairman of the Algerian Business Leaders Forum (FCE)
• Business Environment by Practice
• Legal and Economic information by Country
• Bird & Bird recent work in Africa
• Contact

with Mr. Brahim BENABDESLEM, vice-chairman of the Algerian Business Leaders Forum (FCE).
You are vice-chairman of the Algerian employers and, as such, take the economic pulse of the country on a daily basis: can you summarize the current economic situation of Algeria and what to draw as conclusions when seeking to invest?

Business Environment

South Africa: Draft Regulations on Mediation Rules for investor-state disputes
Annet van Hooft, Co-head of our International Dispute Resolution Group

Since 2012, South Africa, dissatisfied with its bilateral investment treaties (BITs) (1), has either been terminating or non-renewing several of these, including those concluded with United Kingdom and France (2). In substitution, South Africa passed a law on the protection of investments in December 2015 (3). This law establishes an uniform system for the investments in South Africa with a specific dispute resolution mechanism between the State and the investors (Article 13 of the said law).

The new challenges of data protection for African companies
Merav Griguer, Partner in our International Privacy & Data Protection Group in Paris

The European data protection framework is currently undergoing deep mutations. The new General Data Protection Regulation, passed on April, 27th 2016, will be enforceable from May 2018. It will bring important changes to the applicable rules, and will enhance the applicable penalties in case of infringement or lack of compliance up to €20M or 4% of the overall turnover of the concerned company.

The new legal framework for foreign investment in Algeria: Progress to be confirmed?
By Brahim Benabdeslem, vice-chairman of the Algerian Business Leaders Forum (FCE) ; Sophie Pignon, Public Law Partner and co-head of the Africa Desk at Bird & Bird Paris; and Ali Hojeij, Attorney at law within the same department and member of the Africa Desk.

This article was published in the Algerian paper La Tribune de l’Economie on September 19th 2016. Since then, the Minister of Public Works and Transport, Boudjemaa Talaï, has announced the preparation of a bill on financing infrastructures projects through public-private partnership.

Notwithstanding the extent of the foreign exchange reserves which the Algerian Republic continues to enjoy, the collapse in the prices of raw materials has had a considerable impact on its trade balance in recent years. Algeria derives a considerable share of its budgetary revenues from oil and gas. However, in an economy where public investment continues to play a leading economic role, the adoption of dynamic measures to facilitate investment, in particular foreign investment, appears highly imperative.

Regionalization in Morocco: Progress to be consolidated
By Sophie Pignon, Public Law Partner and co-head of the Africa Desk at Bird & Bird and Stéphane Braconnier, Public Law Associate Professor and Counsel at Bird & Bird

This article was published on 8 December 2016 in the Moroccan newspaper L'Economiste.

The Kingdom of Morocco can rely on a long decentralizing tradition, which was initiated in the early 1960s by the creation of autonomous municipalities. Recognition of the power to manage local affairs to local elected assemblies was thus recognized in the early years of independence, before being deepened and developed throughout the decades that followed, 1976, 1992, 2002 and 2009. In order to deepen the process of strengthening regional representative democracy and make the regions a powerful instrument for economic development, on 6 November 2008, a vast plan of increased regionalization of the Kingdom was launched. To this end, an advisory commission on regionalization was set up on 3 January 2010 to make innovative proposals in this area.

Improving the business environment in Tunisia
Salah Dakhlaoui, Managing Partner in our partner firm in Tunisia: Dakhlaoui & Partners

In order to achieve legal and regulatory stability, the Tunisian government has created a solid legal framework consisting of a set of laws and policies that also aims to improve the business environment in Tunisia.

Indeed, the Law on investment is part of the new generation of economic reforms under the policy of diversification of the economy adopted by the Tunisian government. It regulates the framework for foreign direct investment in order to adapt it to the place foreign capital has in the national economy.

Senegalese Economic Resiliency Plan (PSE): what contribution from the national private sector 
Moustapha Guirassy, Chairman of the African Institute of Management (IAM)

As a major player in private higher education, IAM (African Institute of Management), which I chair, is very interested in the Senegalese Economic Resiliency Plan (PSE). PSE aims to bring Senegal into the ranks of the emerging countries by 2035. We have also endorsed the proclamation of the Minister of the Economy, Finance and Planning of Senegal, Mr Amadou BA in the direction of the Private sector, which stated that the private sector must be at the forefront of job creation and wealth in implementing the Senegalese Economic Resiliency Plan (PSE).

Legal and economic information by country

Benin: Adoption of a "PPP Law"

Complementing the normative and institutional frameworks for public procurement in Benin, on 11 October, the National Assembly adopted a law on the legal framework for public-private partnerships in the Republic of Benin. In addition to the classic distinctions provided for in the UEMOA directives (notably public service delegations: concession, affermage, régie intéressée), this text institutes a "public payment" public-private partnership contract, corresponding to the French new "marché de partenariat". The implementing decree, which is expected to take place in the coming months, will make it possible to know more precisely the conditions governing the use of this public-private partnership contract and the content of the various preliminary studies.

Benin: Termination of the Delegation Agreement for National Aeronautical Activities

The Agency for the Safety of Air Navigation in Africa and Madagascar (ASECNA) is an international public institution providing cooperative management of airspace on behalf of its 18 Member States.

Among the latter, Benin, whose Minister of Infrastructure and Transport has just announced the decision taken on 11 January by the Council of Ministers to terminate the contract for the delegation of national aeronautical activities, concluded with the ASECNA.

Following an invitation to tender procedure, Benin intends to entrust the management of its airspace to an economic operator, by way of delegation of public service, in accordance with the provisions of Law No. 2009-02 of 7 August 2009.

Côte d'Ivoire: adoption of an ordinance on titles of occupation of the public domain

The Ivorian government has adopted an ordinance on titles of occupation of the public domain.

This includes facilitating access for public investors to public land. Thus, public entities may conclude emphyteutic leases with economic operators in the public domain for the "execution and management of infrastructures and equipment relating to the performance of a public service mission or to the realisation out of a general interest operation".

Côte d'Ivoire: Construction of a gas terminal

The signing of the shareholders' agreement at the end of November confirms a decision announced by the Ivorian government on 4 October. The CI-LNG consortium led by Total (34% shareholder) will be responsible for developing and operating a liquefied natural gas regasification terminal for commissioning expected mid-2018. Côte d'Ivoire is contributing 11% of the capital of the new company through its public oil operators. The terminal, with a capacity of 3 million tonnes, should enable Côte d'Ivoire, whose energy needs grow by 10% each year, to cover domestic and regional demand.

Mali: Adoption of a "PPP Law"

Imitating several of its neighbours, Mali has adopted a "PPP law" with Law No. 2016-061 of 30 December 2016 on public-private partnership. This law, which envisages both public and user-pay PPPs, provides, inter alia, for setting the institutional framework, governing the award and the execution of the contract and establishing methods of dispute settlement.

The law specifies that PPP projects must be the subject of a prior assessment sent to the PPP Unit, the Minister for Finance and the regulator of the concerned sector. Decrees should be issued in the coming weeks to clarify certain aspects such as the conditions for the award of mutual agreement PPPs in case of spontaneous offers.

Mauritania: Evolution of ICT law / By Mr Aliou Sall, Managing Partner of our partner firm in Mauritania: Mauritania Associate Lawyers

The general legal framework and the criminal field of information and communication technologies (ICTs) have remained, for several years and despite a very strong evolution of the use of ICT tools, characterized by a legal vacuum. In order to fill these gaps, Mauritania adopted Law 2016-006 of 20/01/2016 laying down the orientation law of the information society (Official Gazette No. 1354 of 29/02/2016) and Law 2016-007 of 20/01/2016 on cybercrime (Official Gazette No. 1354 of 29/02/2016).

The first law sets the orientations of the Mauritanian information society by determining its legal and institutional bases. Therefore, it is a framework law to which the other instruments should refer.

As for the second text on cybercrime, it defines all aspects related to the criminal law of activities related to the use of ICT tools, such as computers, mobile telephones and connected objects in general. In this area, it also provides for the liability of legal persons, rules of procedure, competent jurisdiction and international cooperation.

Senegal: Inauguration of a new solar power plant in Malicounda

President Macky Sall inaugurated the solar power station of Malicounda after Bokhol on 3 November. It results from the conclusion of a concession contract between the national electricity company of Senegal (Senelec) and Solaria Group, an Italian company that invested 22 billion CFA francs (33.5 million euros). The plant should cover the consumption of 9 000 households with a producible of 36 GWh. The president also announced the commissioning of five new photovoltaic power plants by 2017, bringing the rate of renewable energies to 21% in the energy mix. The electricity produced will be sold under an independent producer contract with an energy purchase contract concluded for 25 years with Senelec.

Tunisia: Publication of Decrees Implementing the Law on Public-Private Partnership Contracts
Salah Dakhlaoui, Managing Partner in our partner firm in Tunisia: Dakhlaoui & Partners

As provided for by law No. 49 of 27 November 2015 on public-private partnership contracts, which mainly aims to promote investment and public-private partnership in Tunisia, the main implementing decrees are as follows:
  • Government Decree No. 2016-771 of 20 June 2016 laying down the composition and prerogatives of the Strategic Council for Public-Private Partnership, the Council adopts national strategies and policies in the area of public-private partnership and sets priorities according to the orientations of the development plans. It is also responsible for approving the national public-private partnership strategy and proposals for its updating and development as well as for monitoring and evaluating the implementation of the national public-private partnership strategy.
  • Government Decree No. 2016-772 of 20 June 2016 laying down the conditions and procedures for awarding partnership contracts between the public and private sectors. The decree lays down the procedures for preparing the preliminary study and the study As well as the procedures for the award and conclusion, as well as the content and procedures of mandatory entries for public-private partnership contracts and the procedures for publishing extracts from contracts signed on the website of the general body on public-private partnership.

Tunisia: A new text on investment
Salah Dakhlaoui, Managing Partner in our partner firm in Tunisia: Dakhlaoui & Partners

The new Law No. 2016-71 of 30 September 2016 on investment law repealed and replaced the Investment Incentive Code promulgated by the Law of 27 December 1993. The aim of the Law is to promote investment and to encourage the creation of enterprises and their development according to the priorities of the national economy, in particular by increasing the added value, competitiveness and export capacity of the national economy and its technological content at the regional and international levels, as well as the development of priority sectors; job creation and the promotion of human resources competence; the achievement of integrated and balanced regional development. Moreover, the Law has established the legal regime for investment by natural or legal persons, whether resident or non-resident, in all economic activities.

Our recent work in Africa

Republic of Congo
World Bank council on a Congolese State assistance mission for the recruitment of an economic operator to operate and market a fiber optic network (CAB Congo);

Ivory Coast
Council of the National Agency for Universal Telecommunications / ICT Service as part of the award procedure for the award of the public service delegation for the operation and marketing of the Côte d'Ivoire National Broadband Network.

Council of the Malagasy State in the framework of a procedure for the selection of four economic operators to design, finance, construct and operate four hydroelectric sites;

Council of the National Airports Authority of Morocco (ONDA) in the framework of a study for the definition of the strategy of introducing the Public-Private Partnership in the airport sector in Morocco;

Advising funds on minority investment /divestment operations (infrastructure, energy, etc.).

Africa Desk
Tel: +331 42 68 60 00
Fax: +33 1 42 68 60 11
[email protected]