How does new Côte d’Ivoire legislation enable secure investment

The legal system in Côte d’Ivoire has historically proven to be highly adaptive, evolving to offer legal frameworks that facilitate the proper functioning of the economy. Regulations provide order and stability, two factors that are critical for the progress of economies and societies. It is important to note that they underpin markets, protect the rights of citizens, and ensure the successful delivery of public goods and services. In recent years the government of Côte d’Ivoire has made a concerted effort to establish institutions with exclusive jurisdiction over economic activity, such as the Economic and Financial Criminal Division.

Ivorian law has also shown significant responsiveness in adapting to economic challenges. For example, the recent introduction of regulations regarding remote work into the legal system illustrates the commitment of the government to amend laws in line with the evolving needs of the business community.

Enabling Environment

Côte d’Ivoire has increased its efforts to provide a secure climate for economic activity. The country joined the Organisation for the Harmonisation of Business Law in Africa (OHADA), which resulted in the acceptance of the jurisdiction of the Common Court of Justice and Arbitration (Court Commune de Justice et d’Arbitration, CCJA), the apex court for resolving disputes related to business law.

OHADA was established in 1993 to harmonise economic laws and improve the functioning of judicial systems in Africa to restore investor confidence, facilitate trade between countries in the region and develop a vibrant private sector. As of mid-2022 there were 16 members of the organisation and its legal framework was first implemented in Côte d’Ivoire in 1996.

A commercial court was established in 2012, which was later upgraded to become the Commercial Chamber of the Court of Appeals to settle disputes related to economic activities. A plan to extend the court to cities other than Abidjan has yet to be realised.

Companies operating in Côte d’Ivoire also have access to an arbitration framework, which recognises decisions made by foreign arbitration bodies. In 2022 the Economic and Financial Criminal Division was created to add to the judicial infrastructure designed to improve the business climate.

With its headquarters in Abidjan, the Economic and Financial Criminal Division is, according to Article 1 of Law No. 2022-193 implemented in March 2022, “a criminal court of first instance, specialising in economic and financial crime, and responsible for the prosecution, investigation and trial of offences within its jurisdiction”.

These efforts reflect the country’s willingness to fulfil international obligations to combat corruption and money laundering. They also highlight the prioritisation of the protection of the business community by organising dedicated and specialised system. The evolution of the judicial branch to safeguard economic activity is expected to attract both local and foreign investors and other stakeholders.

Risks & Challenges

However, concerns remain regarding the creation and implementation of the criminal division. These reservations arise from an analysis of the law in light of certain principles of criminal law and from the scope of its jurisdiction that entails a risk of overlap with other pre-existing bodies or administrations. The offences falling within the jurisdiction of the Economic and Financial Criminal Division were defined in line with international standards. Article 4 of the law defines crimes based on material acts, using expressions such as Customs and tax offences instead of detailing them individually.

Article 4 of the law on the creation, competence, organisation and functioning of the Economic and Financial Criminal Division states, “Customs, tax and foreign exchange offences; offences relating to financial markets, banking and financial institutions; [and] offences relating to commercial and economic activities” constitute offences within the law. This text reveals repetitions and risks of overlapping offences due to the procedure used. For example, it is unclear whether a Customs or tax offence would be considered an economic offence. Under the principles of criminal legality and the restrictive interpretation of criminal law, it would have been desirable to include a comprehensive list of tax and Customs offences, along with other crimes that relate to commercial activity and fall within the scope of the Economic and Financial Criminal Division. Côte d’Ivoire would do well to ensure the efficiency and briskness of the division, which justified its establishment, by addressing these issues.

The risk of overlapping jurisdictions is also concerning. Customs officers are authorised to establish, confiscate, seize, apprehend and carry out transactions. The establishment of the division raises several questions about these powers. The interpretation adopted could recommend an implicit synergy between the criminal division and other administrations that are competent in fields affected by fraud and other economic offences.

It will be important to establish a dialogue between the Economic and Financial Criminal Division and representatives of other regulators with overlapping competencies. The institution is likely to undergo several adjustments in the future. However, its establishment has noticeably changed the Ivorian legal order, particularly in terms of the implementation of the OHADA law.

OHADA Alignment

Indeed, to regulate business law, OHADA has to determine the offences that fall within the body’s domain. This requires countries to grant their sovereignty in criminal matters to the organisation. Since a complete surrender of authority is impossible, member states collaborated to list the offences for OHADA, but the definition of these crimes is determined based on domestic competence.

OHADA has included criminal offences in its uniform rules since the first Uniform Acts. However, member states have not kept pace by adapting their national criminal laws to reflect the changes brought about by the system. Côte d’Ivoire has only relatively recently made this adaptation in 2017, with Law No. 2017-727 implemented in November 2017, on the repression of offences provided for by the Uniform Acts of the Treaty on the Harmonisation of Business Law in Africa.

Five years later, in 2022 the country instituted an economic and financial criminal division. With the transformation of the Ivorian criminal system, the country has set an example by not only adapting its criminal legislation to the requirements of OHADA, but also organising a special jurisdiction to deal with offences relating to business law, particularly commercial and economic activities.

Adapting To Challenges

In addition to these changes in criminal law, the country made several advances in labour law. Côte d’Ivoire’s legal system has responded to emergent economic challenges, as evident by the introduction of legislation that outlines regulations related to remote work.

The purpose of any business is to produce goods or provide services. In either case, an employment contract is essential except for sole proprietorships. Events that prevent employees from working, such as riots, public unrest and health crises such as the Covid-19 pandemic impact economic activity. It is, therefore, necessary for any legislation affecting the economy’s growth trajectory to be agile.

Teleworking has been on the rise in recent years, and a rising proportion of the global workforce is employed in the technology sector. Business startups are also becoming increasingly cost-conscious, often opting to share workspaces or avoiding them altogether. These trends have led to a significant rise in the number of employees working remotely, or from home. The pandemic further accelerated this trend, as many companies changed their policy towards fulltime employees, allowing them to work from home. To stay ahead of this trend, the government made changes to the Uniform Act related to labour laws to reflect the growing use of technology and innovative tools throughout the economy. Introduced by Ordinance No. 2021-902 in December 2021, it modifies Law No. 2015-532 of July 2015 related to the labour code. Under the new framework, remote work is mentioned as key to boosting economic activity and a beneficial solution for companies and their employees.

For workers, remote work helps to ensure the continuity of work in the event of a crisis that would otherwise lead to technical unemployment or dismissal for economic reasons. Indeed, remote work can help businesses prevent job losses and absenteeism. This innovation is more than a trend for African countries as it offers long-term stability and job security. This change of work location raises many problems previously unknown to labour lawyers.

Boosting Efficiency

For employers, remote work is an innovation that ensures the maintenance of production during unexpected circumstances. Companies can also save overhead costs such as utilities and resources for in-office employees. However, legal issues can inevitably arise from remote work, which relies heavily on computers, internet connectivity and the availability of electricity. Except in cases where dedicated centres are provided, remote work can only be conceived as any work performed at the employee’s home on behalf of the organisation.

From a technical viewpoint, since work is performed using computers an employee’s performance is dependent on external factors such as an uninterrupted power supply and a stable internet connection. Unexpected stoppages to these utilities could make remote work impossible. Electricity is spotty in many African countries, limiting work hours and reducing productivity. Ensuring constant electricity for teams throughout their working hours is a challenge that needs to be addressed. Furthermore, little progress has been made to extend the internet’s coverage network, bandwidth and speed in markets across the continent.

Legal Considerations

Under remote work, there is a blurring of boundaries between the professional and private lives of employees. This raises questions over which laws are applicable to the employment contract if telework is the result of a relocation of operations to another country or legal territory.

In the context of remote work, an individual’s private residence becomes the workplace during the time that workers perform their duties. The transition from the professional to the personal sphere, and vice versa, is more frequent during a work shift. When a worker participates in a videoconference from home seated on a sofa, should it be considered part of his personal or professional life? The same could be asked about an employee who uses equipment provided by the employer for teleworking for personal purposes, such as sending personal messages.

It is important to determine the laws governing matters such as minimum wage and the right to leave and strike when an employee is teleworking due to relocation of the company to another country. Challenges can arise if remote workers are located in a number of different states or countries. It may be necessary to decide which state’s mandatory laws should govern the right to leave and the guaranteed minimum wage, especially since the minimum wage depends on the standard of living, and the economic and social considerations of each geographic location.

The minimum wage may vary widely from country to country. For example, Côte d’Ivoire’s minimum wage is CFA60,000 ($103.14), while in Burkina Faso, it falls to CFA33,100 ($56.90). If a company relocates from Côte d’Ivoire to Burkina Faso, it will have to decide the new terms of contracts for employees who stay behind and provide their services by telecommuting.

The same applies to traditional labour law issues, which have been made more complex due to remote work. For example, does an accident that occurred while a worker was working remotely from home constitute a workplace accident? And should remote workers be protected like other employees? Employers also have certain obligations towards employees, such as providing an adequate performance framework.

Pandemic Effect

Economies around the world have been significantly affected by the pandemic. Food and fuel costs are rising, and economic growth has considerably slowed, squeezing profit margins for many businesses. In their attempts to mitigate these costs, more companies are likely to implement teleworking. But the legislation governing teleworking arrangements still has limitations. All stakeholders will have to work together to fill this legal void with regulations and policies to improve teleworking arrangements.