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Viewing cable 09BAMAKO68, INVESTMENT CLIMATE STATEMENT MALI: FY 2009
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| Reference ID | Created | Released | Classification | Origin |
|---|---|---|---|---|
| 09BAMAKO68 | 2009-02-02 14:09 | 2011-08-25 00:00 | UNCLASSIFIED | Embassy Bamako |
VZCZCXRO0836
RR RUEHMA RUEHPA
DE RUEHBP #0068/01 0331409
ZNR UUUUU ZZH
R 021409Z FEB 09
FM AMEMBASSY BAMAKO
TO RUEHC/SECSTATE WASHDC 9969
INFO RUCPDOC/USDOC WASHDC 0185
RUEATRS/DEPT OF TREASURY WASHDC
RUCPDOC/USDOC WASHDC 0186
RUEHZK/ECOWAS COLLECTIVE
RUCPCIM/CIMS NTDB WASHDC
UNCLAS SECTION 01 OF 08 BAMAKO 000068
DEPARTMENT FOR EB/IFD/IOA, AF/W, AND AF/EPS
DEPARTMENT PLEASE PASS AID/AFR
DEPARTMENT PLEASE PASS OPIC/RO'SULLIVAN, EXIM BANK, AND USTDA
USDOC FOR 3131/USFCS/OIO/ANESA/RMARRO/MSTAUTON
USDOC FOR 4510/MAC/ANESA/OA/SMILLER/SLOUCIF
USDOC FOR ITA/JKOZLOWICKI
TREASURY FOR DO/JMACLAUGHLIN
USTR FOR JKALLMER
SIPDIS
E.O. 12958: N/A
TAGS: EINV ECON ETRD EIND EAID EFIN KTDB OPIC USTR ELAB
PGOV, ML
SUBJECT: INVESTMENT CLIMATE STATEMENT MALI: FY 2009
REF: 08 STATE 123907
¶1. In response to reftel, this cable provides the 2009 Investment
Climate Statement for Mali.
¶2. Investment Climate Statement:
¶A. Country Investment Policies and Practices.
A.1. Openness to Foreign Investment:
The Malian government has made efforts to encourage foreign
investment. It treats domestic and foreign direct investment
equally. The series of enhanced structural adjustment facility
(ESAF) agreements signed by the IMF/World Bank and Mali and in place
since 1992 encourages the mobilization of external resources to
boost investment. The government's national strategy to fight
poverty presented to the IMF, World Bank and other donors emphasizes
the role of the private sector in developing the economy.
In the framework of past structural adjustment programs, the
investment, mining, commerce and labor codes encourage investment
and seek to attract foreign investors in particular. The Malian
government has instituted policies promoting direct investment and
export-oriented businesses. Mali guarantees the repatriation of
capital and profit.
Foreign investors can own 100 percent of any businesses they create.
They can also purchase shares in parastatal companies being
privatized or in other local companies. Foreign companies may also
start joint-venture operations with Malian enterprises.
Foreign investors go through the same screening process as domestic
investors. In theory, all investors go through the "guichet unique"
(one-stop procedure) to have a business application processed.
However, the International Finance Corporation's (IFC) Doing
Business 2009 report ranked Mali 162 of 181 countries on the ease of
starting a business, noting that it takes an average of 11
procedures and 26 days to register and open a business in Mali.
Criteria for granting authorization under the investment code
include the size of capital investment, the potential for
value-added, and the level of job creation.
Foreign investors sometimes report that tax collectors interpret tax
laws to discriminate against foreign companies or companies with
foreign capital. The tax system remains complicated in spite of
ongoing efforts to improve it.
The Investment Code gives the same incentives to both domestic and
foreign companies for licensing, procurement, tax and customs duty
deferrals, export and import policies, and export zone status if all
production is to be exported. Export taxes, import duties, and
price controls have been reduced or eliminated as part of ongoing
economic reforms. Work is proceeding to harmonize the investment
for all WAEMU member countries. The investment guide approved by
the government in 2007 provides useful information on how to do
business in Mali and helps protect potential investors, whether
domestic or foreign. The Investment Code was revised in 2005 to
include more incentives. Companies benefiting from the new code may
be exempted from paying duties on imported equipment and machinery.
They may also get tax exemption on the use of local raw materials.
The Code also allows for the negotiation of specific incentives on a
case by case basis. In September 2005, the government created a new
agency, Agence pour la Promotion de l'Investissement (API-Mali), in
charge of investment and export zone management to facilitate the
creation of domestic and foreign companies. Mali has also created,
with World Bank support, a Presidential Investment Council. This
Council is comprised of foreign and national businesspeople, and is
aimed at improving the business climate in Mali and identifying best
prospects for investment.
A.2. Conversion and Transfer Policies:
The Investment Code allows the transfer of funds associated with
investments, including profits.
As a West African Economic Monetary Union (WAEMU) member, Mali uses
the CFA franc currency. Linked to the Euro, the CFA is fully
BAMAKO 00000068 002 OF 008
convertible at a rate of Euro 1 = CFA franc 655.957. No parallel
conversion market exists because the CFA franc is a fully
convertible currency supported by the French treasury, which ensures
a fixed rate of exchange.
As of January 2009 the U.S. Embassy purchased local currency at a
rate of approximately CFA franc 495 per one U.S. dollar. The U.S.
Embassy obtains currency through the Charleston Financial Service
Center in Charleston, South Carolina, and a local bank.
The CFA franc was devalued in January 1994. According to officials
from the central bank BCEAO, devaluation in the short term is
unlikely. In the medium and long term, however, the political
situation in Cote d'Ivoire and its impact on the economy of the
WAEMU countries will continue to affect the stability of the CFA.
There are no limits on the inflow or outflow of funds for
remittances of profits, debt service, capital, or capital gains. In
the CFA zone there is no restriction on the export of capital
provided that adequate documentation to support a transaction is
presented. Most commercial banks have direct investments in western
capital markets.
Central bank rules require that all remittances go through its
channels, with supporting commercial documents required. Exceptions
are occasionally made as part of incentive agreements, as in one
case where the government allowed a British mining company to have
an offshore bank account. No physical transfer of funds is
authorized outside the borders of the CFA zone. It takes less than
a week (usually 3 working days) to remit funds abroad.
Mali is also a member of the larger Economic Community of West
African States (ECOWAS). ECOWAS encourages investment between and
among member countries to promote economic integration by
eliminating trade barriers. Fair competition, profitability and
economic benefits are criteria used to assess eligibility for
investment incentives.
A.3. Expropriation and Compensation:
Expropriation of private property for public purposes is rare. The
only known expropriation against a foreign company occurred in the
early 1960s. By law, the expropriation process should be public and
transparent and in accordance with the principles of international
law. Compensation based on market value is awarded by court
decision. The Malian constitution calls for an independent
judiciary, substantially reducing the risk of "creeping
expropriation".
The government may expropriate property for public projects (major
road or dam construction), in cases of bankrupt companies that have
had a government guarantee for their financing, or in certain cases
when a company has not complied with the requirements of an
investment agreement with the government. In July 2000 the
government expropriated land in the vicinity of the Bamako city
airport for air safety reasons. Notifications of the expropriation
were sent via direct mail and published in public and private media.
A.4. Dispute Settlement:
Disputes occasionally arise between the government and foreign
companies. Some cases involve wrongdoing on the part of companies;
some involve corrupt government officials.
In November 1991, an independent commercial court was established
with the encouragement of the U.S. government to expedite the
handling of business litigation. Commercial courts are located in
Bamako, Kayes, and Mopti. In areas where there is no commercial
court, disputes are first heard at local courts known as "Tribunal
de Premier Instance." Since inception, the commercial court has
handled cases involving foreign companies. The court is staffed by
magistrates assisted by elected Malian Chamber of Commerce and
Industry representatives. Teams composed of one magistrate and two
Chamber of Commerce and Industry representatives conduct hearings.
The magistrate's role is to ensure that decisions are rendered in
accordance with applicable commercial laws, including
internationally recognized bankruptcy laws, and that court decisions
are enforceable under the law.
BAMAKO 00000068 003 OF 008
The judicial system is slow and inefficient and widely reputed to be
corrupt. Low salaries and inadequate resources compromise the
impartiality of the judicial system. In 2006 an appeals court
ordered an American company to pay damages to a Chinese company,
even though it was the American company that had originally filed
charges against the Chinese firm alleging trademark infringement.
In January 2009 the Malian Supreme Court overruled the appeals
court, and sent the case back to the appeals court for a new
hearing. Litigation in this case is ongoing. U.S. companies, bound
by anti-corrupt practices legislation, may feel at a disadvantage
when it comes to legal proceedings vis-`-vis other foreign companies
that are not bound by similar legislation.
The Investment Code allows a foreign company that has a signed
agreement with the government to refer to international arbitration
any case that the local courts are unable to resolve.
Mali is a member of the African Organization for the Harmonization
of Business Law (OHADA) and has ratified the 1993 Treaty creating
the Joint Arbitration Court. OHADA has a provision for allowing
litigation between foreign companies and domestic companies or the
government to be tried in an appellate court outside of Mali. Mali
is a member of the International Center for the Settlement of
Investment Disputes (ICSID - also known as the Washington
Convention). Mali is a member of the New York Convention of 1958 on
the recognition and enforcement of foreign arbitrage awards. Mali
has been a member of the World Bank Multilateral Investment
Guarantee Agency (MIGA) since 1990.
A.5. Performance Requirements/Incentives:
The investment code offers incentives to companies that reinvest
profits to expand existing business or diversify in another relevant
sector. The code also encourages the use of locally sourced inputs
which could lead to a tax exemption. Local value-added is one
criteria used for approving investment projects and in calculating a
tax exemption period.
There is no requirement that Malians own shares in a foreign
investment or that foreign equity be reduced over time. In the case
of joint ventures with the government, the government share may not
exceed 20 percent ownership. OHADA regulations specify that a
company with less than 35 percent government equity is legally
considered a private company.
Because most businesses are located in the capital city, the
Investment Code encourages the establishment of new businesses in
other areas. Incentives include income tax exemptions for 5-8 year
periods, reduced-energy prices, and the installation of water
supply, electric power and telecommunication lines to areas lacking
water, energy and telecommunication facilities.
Title V of the Investment Code relates to free trade zones. Any
company, domestic or foreign, that plans to export at least 80
percent of its production is entitled to tax-free status.
Production that is not exported would be subject to taxation. Mali
currently has no dedicated free trade zones.
The National Assembly approved a new oil code in June 2004. The
code is based on incentive, stability and competition. The initial
span allowed for oil prospecting is four years renewable for two
successive periods. Prospecting and exploitation permits, as well
as their renewal, are subject to the payment of fixed taxes ranging
from one million to ten million CFA francs (approximately USD 1,900
to 19,000). In addition, permit holders are liable for the payment
of charges on the production of hydrocarbons and a tax of 35 percent
from the industrial and commercial profits. Yet, they benefit from
tax exemption on the petroleum and hardware-based products in
compliance with the oil list set by the government of Mali. A
permit holder exploits the oil deposit and the government collects a
charge varying between 7.5 and 15 percent, from a production of
between 50,000 and over 500,000 barrels per day.
On July 14, 2004, the government created an authority in charge of
oil research promotion in Mali (AUREP). This new agency has been
tasked with drafting, planning and implementing oil research
promotion programs, and collecting data on oilfields. The agency is
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also the interface with the government for private sector
investors.
The government has identified priority sectors for furthering
economic development. Special incentives are offered for investment
in the following areas:
--Agribusiness
--Fishing and fish processing
--Livestock and forestry
--Mining and metallurgical industries
--Water and energy production industries
--Tourism and hotel industries
--Communication
--Housing development
--Transportation
--Human and animal health promotion enterprises
--Vocational and technical training enterprises
--Cultural promotion enterprises
Job creation is an important criteria used in determining tax
exemptions and other incentives. Employers who hire young graduates
can pay reduced rates of social security taxes.
A.6. Right to Private Ownership and Establishment:
Domestic and foreign investors share equal rights to private
ownership and establishment as long as they go through the approval
process and abide by relevant regulations.
The government allows the free market to determine prices. Domestic
and foreign companies compete on an equal basis with public
enterprises. The government's privatization program for state
enterprises creates opportunities for both domestic and foreign
private firms to acquire those entities through open international
bidding. In the past several years, the government has privatized
parastatal enterprises including the cotton processing company,
Huilerie Cotonniere du Mali (HUICOMA); Mali International Bank
(BIM); and the telecommunications company, Societe des
Telecommunications du Mali (SOTELMA). The government is currently
in the process of privatizing the cotton marketing parastatal,
Compagnie malienne pour le developpement des textiles (CMDT) and the
Malian Energy Company (EDM). In some cases, the local media have
questioned the transparency of the bidding and contracts award
process.
A.7. Protection of Property Rights:
Property rights are nominally protected in Mali. The government
created a new agency, Malian Center for the Promotion of Industrial
Property, to replace the National Manufacturing Office through its
Department for Intellectual Property Rights. The Center is charged
with implementing the legal system of protection, including the
World Trade Organization (WTO) TRIPS agreement. This agency is a
member of the African Property Rights Organization (OAPI) and works
with international agencies recognized by the United Nations
Industrial Development Organization (UNIDO), which are concerned
with these issues. Patents, copyrights, and trademarks are covered.
These structures notwithstanding, property rights are not always
protected. A recent example is that of a U.S. herbicide
manufacturer, which has been mired in a three-year long legal battle
in the Malian courts with a Chinese company allegedly selling the
same products under a different brand name. In spite of a recent
favorable ruling by the Supreme Court, the case was remanded to a
lower court and the outcome of the case remains unclear.
A.8. Transparency of the Regulatory System:
As reflected in agreements with the IMF and World Bank, the
government of Mali has adopted a transparent regulatory policy and
effective laws to foster competition. The commerce and labor codes
adopted in 1992 are designed to meet the requirements of fair
competition, to ease bureaucratic procedures, and to facilitate the
hiring and firing of employees. The Investment Code shortens the
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application process to establish a business (maximum 30/45 days
turnaround time), and it favors investments that promote
handicrafts, exports, and labor-intensive businesses. The Mining
Code encourages investments in medium and small mining enterprises,
awards two-year exploration permits free of charge, and does not
require a commitment from the exploring firm to lease the area
explored thereafter. Mali is a member of the African Organization
for the Harmonization of Business Practices (OHADA) and implements
the SYSCOA accounting system which harmonizes business practices
among several African countries consistent with international norms.
A.9. Efficient Capital Markets and Portfolio Investment:
WAEMU statutes determine the banking system in Mali. The WAEMU
central bank, Banque Centrale des Etats de l'Afrique de l'Ouest
(BCEAO), is located in Dakar, Senegal. Commercial banks enjoy
considerable liquidity. They tend to prefer investing funds in
western capital markets, thereby reducing credit available to local
entrepreneurs. The government and WAEMU have engaged in a
restructuring of the banking system to increase the capital
available to local investors. The government's privatization
efforts should make more credit available to the private sector.
External financing and guarantee programs are alternatives to local
bank credit.
Portfolio investment is not a current practice, although the legal
and accounting systems are now transparent enough and are similar to
the French system. In 1994 the government instituted a system of
treasury bonds available for purchase by individuals or companies.
The payment of dividends or the repurchase of the bonds may be done
through a compensation procedure offsetting corporate income taxes
or other sums due to the government.
The WAEMU stock exchange program based in Abidjan opened a branch in
each WAEMU country, including Mali. To date, no Malian company is
listed on the stock exchange. The privatization programs of the
electric company EDM and the state-owned telecommunications entity
SOTELMA and cotton ginning company CMDT offer good prospects for
some state-owned companies to be listed on the WAEMU stock
exchange.
The Bamako-based office of the Societe de Gestion et
d'Intermediation (SGI) has conducted awareness campaigns to educate
the business community. Domestic companies are now looking into the
possibility of applying to be on the list of stock exchange.
The government of Mali has agreed to participate in the Sovereign
Credit Rating Program sponsored by the State Department. The U.S.
Treasury Department provided technical assistance to the Malian
Ministry of Economy in this endeavor with the support of the U.S.
State Department. The firm Fitch completed its rating and awarded a
B- to Mali. Parallel to this effort, Standard & Poor's awarded Mali
B ratings in 2004 and 2005 through a UNDP-funded program.
A.10. Political Violence:
Mali's multi-party democracy, now almost two decades old, has
consistently encouraged private enterprise and investment.
Occasional student and labor strikes and small-scale political
demonstrations have sometimes resulted in political vandalism and
violence, but not enough to substantially impact the investment
climate. President Amadou Toumani Tour was first elected in 2002.
Observers considered the 2002 elections to be an important test for
Malian democracy as the first democratically elected President,
Alpha Oumar Konar, kept his word and turned power over to newly
elected President Toure.
President Tour was reelected in 2007 with more than 70 percent of
the vote. Several political parties contested the July 2007
legislative elections, and the three major parties got more than 90
percent of National Assembly seats. The elections were considered
free, fair, and transparent. Municipal elections are scheduled for
April 2009.
Northern Mali has traditionally seen occasional friction between
pastoral and sedentary populations. Until May 2006, the Malian
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government had effectively consolidated the peace following the
1990-1995 rebellion in the northern regions. The government, along
with international donors and United Nations organizations, supports
the socioeconomic reintegration of refugees and former combatants.
After several years of relatively peaceful coexistence, Tuareg
unrest in northern Mali restarted in May 2006. In May 2006, a group
of former Tuareg combatants previously reintegrated in the regular
armed forces attacked two Malian military facilities in the northern
towns of Menaka and Kidal. In July 2006, the government of Mali and
the rebels signed a peace agreement known as the Algiers Accords.
In 2007, a dissident group of Tuareg rebels broke with this
agreement by attacking Malian troops and taking several members of
the Malian military hostage. In 2008 Tuareg rebel groups conducted
attacks in the regions of Kidal, Gao and the northern portions of
the regions of Segou and Koulikoro.
The Algeria based terrorist group, Al Q'aida in the Islamic Maghreb
(AQIM), continues to use isolated regions of northern Mali as a safe
haven. Malians practice an open and tolerant form of Islam, and
extremist ideologies like those espoused by AQIM have made few
inroads into Malian society. There is limited infrastructure and
business in the northern desert regions, and past troubles in the
north have had little direct impact on business activities in the
rest of the country. Mali maintains good relations with each of its
several neighbors.
A.11. Corruption:
Corruption is considered a crime punishable under the penal code.
This notwithstanding, there are widely circulated reports of bribery
cases on large contracts and investment projects.
Corruption poses an obstacle to FDI. Government officials often
solicit bribes in order to complete otherwise routine procedures.
Using assessments by the African Development Bank, the World Bank,
and the World Economic Forum, Transparency International assigned
Mali a score of 3,1 on a 10 to 0 scale, zero representing the lowest
score.
Corruption seems most pervasive in government procurement and
dispute settlement. Paying government procurement agents a five to
ten percent commission is common practice. To fight this, the
government requires any procurement contract to be inspected by the
"Direction Generale des Marchs Publiques" that has to determine
whether the procedure meets the requirements of fairness, price
competitiveness, and quality standards. During his swearing in
ceremonies in June 2002 and June 2007, and in subsequent meetings
with the donor community, President Tour defined elimination of
corruption as one of his highest priorities.
The President created an Office of the Auditor General in 2004. The
Office of the Auditor General is an independent agency tasked by the
President to audit any public funding-related operation. After the
President appointed the Auditor General, roughly one hundred support
personnel, including experienced auditors, were hired. In 2006, the
Office of the Auditor General conducted a major investigation at the
Niger Valley Authority (Office du Niger) where they found that more
than USD 1 million was missing in just one department out of six.
Subsequently, several regional directors were suspended and are
awaiting trial. Likewise, in 2007 and 2008, the Auditor General
conducted investigations in several departments, including the Tax
and Customs Offices of Department of Finance, several government-run
hospitals, the gold mining sector, and the cotton marketing
parastatal company CMDT. Several officers and their private sector
accomplices were accused of embezzlement and economic crimes. None
of these cases have yet proceeded to trial. According to the Auditor
General's report published in July 2008, approximately CFA 21
billion (USD 42 million) have been recovered of a total of CFA 31
billion (USD 63 million) initially identified as missing in 2007.
Questionable judgments in commercial cases have occasionally been
successfully overturned at the court of appeals. Yet there continue
to be complaints from the domestic and foreign business community
about the judiciary. During a televised debate in March 2001, the
mayor of Bamako harshly criticized the judiciary, and concluded by
saying that: "everybody knows that magistrates are corrupted and one
can literally purchase a trial when one is rich." As a consequence
of this public statement, the magistrate's union brought an action
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for libel against the Mayor and the public television director who
allowed the debate to be broadcast publicly. The Mayor and the
Director were convicted and sentenced to pay a symbolic 1 CFA franc.
They appealed this decision and eventually the case was settled out
of court. In 2002, the Bar Association President stated publicly
that: "the judges are independent from everything but dirty money."
In 1998, the executive decided to tackle the problem by creating a
national commission in charge of reorganizing the judicial system.
In February 1999, a national forum on the judiciary made
recommendations as to ways of modernizing the judiciary. In
December 2001, the National Assembly passed amendments to the penal
code criminalizing corruption. In 2007, The Auditor General
organized a discussion with Magistrates to find ways by which the
Office of the Auditor General and the judiciary could work to bring
"economic criminals" to trial.
¶B. Bilateral Investment Agreements
Mali has signed the CIRDI treaty sponsored by the World Bank group.
During the past six years, Mali has signed investment protection
agreements with South Africa, Algeria, Senegal, and Libya.
¶C. OPIC and Other Investment Insurance Programs
Since October 1997, Mali has been eligible for the U.S. Exim Bank
program for short and medium term financing for the private sector.
Mali is also eligible for certain OPIC programs. Mali has been a
member of the World Bank's Multilateral Investment Guarantee Agency
(MIGA) since 1990.
¶D. Labor
Labor is widely available, albeit at varying skill levels. Many
skilled workers have been laid off from state-owned companies and
are unemployed or hold jobs well below their skill level. Many
recent college and high school graduates are job seekers.
Unfortunately, skilled labor is insufficient in sectors with the
highest growth rate such as mining and construction.
Workers have the right to unionize. Relations between labor and
management have been difficult for the past four years, especially
in new industry sectors such as gold mining. Although a warning
notice for strikes is not required in the private sector, mediation
procedures are generally followed before resorting to a strike. The
government has signed the ILO agreement protecting the rights of
workers. Although the labor code adopted in 1992 improved hiring
and firing procedures, it still requires simplification. Powerful
labor unions play an important role in national affairs.
Compensation plan negotiations and firing procedures are very long
and closely scrutinized by the judiciary. Labor has constituted one
of the major difficulties encountered recently by employers, both
national and foreign. Although not a requirement, it is advisable
to have regular contacts with the labor inspectors, especially when
concluding new hiring contracts or considering terminations or
reductions in force.
¶E. Foreign Trade Zones/Free Ports
There is no discrimination between foreign-owned firms and host
country entities in terms of investment opportunities. Companies
(domestic or foreign) that export at least 80 percent of their
production are entitled to the status of "zone franche" (tax-free
status). As such, they benefit from duty free-status on all
equipment and other input they need for their operations. To date,
there are no dedicated free trade zones in Mali.
¶F. Foreign Direct Investment Statistics
Companies from Japan, Australia, Canada, and South Africa have made
significant investments in the mining sector. France, Germany, and
China have made significant investments in the manufacturing and
food processing sectors. Foreign direct investment in Mali in the
manufacturing industry sector was estimated at USD 2.3 million in
1994, USD 5 million in 1995, USD 8 million in 1996, and USD 15
million in 1997. Investment slowed in 1998, 1999 and 2000 because
of legislative and municipal elections and the shortage of electric
power and the high cost of energy in 2000. Investment picked up
again in 2001, mostly in relation to the African soccer championship
that took place in Mali in February/March 2002. In 2002/2003, more
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investment was made, especially in the textile, housing and
agro-business sectors. In 2004, South African Investors and others
pledged to invest about USD 100 million in agro-business. The
investment was later postponed to FY 2006 and is likely to be
implemented during the summer of 2009. About USD 40 million more
investment was placed into the economy during FY 2004. Half of this
was from a U.S. company in the railroad sector. In 2007, the
company, faced with management problems and labor pressure, withdrew
by selling its shares to a consortium composed of European and
African investors with significant operational experience in Africa.
Foreign Direct Investment picked up during FY 2005 for a total
estimated at more than USD 120 million and continued in FY 2006.
Much of this can be attributed to advances in the gold mining sector
and oil exploration by South African, Australian, Italian,
Venezuelan and Chinese companies. One American company signed an
agreement with the government to do oil exploration in central and
northern Mali. Another American company has been exploring,
together with South African investors, a large-scale sugar growing
project in Mali; intensive efforts over the years had not yet
brought the project to fruition.
MILOVANOVIC