Niger

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Introduction to the Country

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Population
15,300,000

Capital
Niamey

Government type
Niger has adopted a constitution in July 1999. The executive branch is headed by a president, who is popularly elected for a five-year term and is eligible for a second term. The prime minister is appointed by the president.

The Executive power is held by the -president and prime minister. The Unicameral National Assembly holds the Legislative power. And the Judicial power is held by the Constitutional Court, the Supreme Court, the Court of Appeals, and the High Court of Justice.

The unicameral legislature is represented by 113 deputies elected for a 5 years term under a proportional system of representation.

The National Assembly passed in June 2002 a series of decentralization bills. The administrative powers have been distributed among 265 communes (local councils). The country is currently divided into 8 regions, which are subdivided into 36 districts (departments). The chief administrators in each region (Governor) and department (Prefect) are appointed by the government and function primarily as the local agents of the central authorities.

Legal system
The legal system is based on French civil law, with important customary-law modifications. Niger has not accepted compulsory ICJ jurisdiction.

Economy overview
Niger is a landlocked Sub-Sahara African nation. It is one of the poorest countries in the world, ranking near last on the United Nations Development Fund index of human development. Its economy relies mainly on subsistence agriculture, which accounts for 40% of GDP and engages 91% of the population. The Hausa, Kanuri, and Songhai are mainly sedentary farmers, and the Fulani and Tuareg are principally nomadic and semi nomadic pastoralists. The leading crops are cowpeas, cotton, peanuts, millet, sorghum, cassava, and rice. Cattle, sheep, goats, camels, donkeys, horses, and poultry are raised.

Most of the country's few industries produce basic consumer goods such as processed food and beverages, soap, and textiles. In addition, chemicals, construction materials, peanut oil, and ginned cotton are produced. Niger has some of the world's largest uranium deposits and the mining of high-grade uranium ore began in the 1970s at Arlit in the Air Massif. Small quantities of cassiterite (tin ore), low-grade iron ore, gypsum, phosphates, coal, natron, and salt also are extracted. Gold and petroleum deposits are being explored. There is a fishing industry in the Niger River and Lake Chad.

Drought cycles, desertification, a 3.4% population growth rate and the drop in world demand for uranium have undercut an already marginal economy.

Niger shares a common currency, the CFA franc, and a common central bank, the Central Bank of West African States (BCEAO), with seven other members of the West African Monetary Union.

Map

Next election due
The president of Republic is elected by universal suffrage for a 5 year term (eligible for a second term). The last local election was in July 2004 and the next presidential election is expected on November and December 2009, in two rounds but no specific date yet is selected.

Legal and Regulatory framework

(a) Short introduction to power sector: please highlight the key players/stakeholders in the sector and indicating whether there are any existing independent power projects in development or operation

The production, transportation and distribution of electricity in Niger are handled by the Société Nigerienne d’Electricité, known as NIGELEC. The NIGELEC is a limited company with public participation founded in 1968. It is majority owned by the Government of Niger.

Most of Niger's electrical power is imported from Nigeria, whereby, NIGELEC purchases around 90 percent of its energy needs from the National Electric Power Authority (NEPA) in Nigeria via a 132 kV interconnection that was constructed in 1976 and covers 260 km. The country also receives hydroelectric power from Nigeria and solar installations supply for some rural areas.

In 2006 NIGELEC had 178,964 subscribers and 300 electrified centres. NIGELEC operates four power plants such as Niamey I and Niamey II (in Niamey proper and the suburb of Goudel), the Malbaza Power Station (at Malbaza, near Tahoua) and the Zinder & Maradi Thermal Power Station. All installed capacity is currently thermally fired but Niger has around 230 MW of economic hydro power potential that it could develop. The company divides operations into the Zone Interconnectée, Zone Nord and Centres Isolés areas. Niger has two thermal power stations.

In 2007 the government of Niger had decided against the privatisation of the country's state electricity and fuel distribution utilities based on a World Bank agreement that rendered privatisation reforms unnecessary

In addition to importing power from Nigeria, NIGELEC also purchases power from Société Nigerienne du Charbon d’Anou Araren (SONICHAR). The SONICHAR is a limited company with public participation founded in 1975. It produces electricity from coal it extracts from the site Tefereyre located 75 km north-west of Agadez. The SONICHAR ensures the power generating to mining companies COMINAK (Mining Company of Akouta) and SOMAIR (Air Mines Company) and the towns of Arlit, Agadez and Tchirozérine.

Since 2000 Niger has been part of the West African Power Pool Agreement (WAPP) which has set out to interconnect the electrical power grids of West African countries that are part of the agreement. Niger, along with Nigeria, Benin, Burkina Faso, Cote d'Ivoire, Ghana and Togo have been involved in the first phase of the agreement.

The existing power projects are:

  • The Kandadji hydroelectric project located on the Niger River approximately 120 miles (200 km) upstream of Niamey. The facility would have the generating capacity of 165MW power capacity. The Kandadji project has currently been underway since 2004 and construction is planned to be completed by 2012.
  • Smaller dams are found on the Niger River at Gambou (122 MW) and Dyodyonga (26 MW) have also been considered for hydropower generation.

 Key enabling legislation

(i) Key legislation and regulations: please list the key legislation and regulations that govern a project company and a power project, particularly relating to power supply and generation.

Uniform Act related to Commercial Companies and Economic Interest Grouping: Act adopted on 17th of April 1997 and published in the JO OHADA n°2 dated on 1st October 1997.

Law n° 2003-004 dated on 31st January 2003 related to Electricity Code.

Investment Code of Niger is governed by Ordinance n°89-19 dated on 8th December 8 1989 amended by the Law n°97-19 dated on 27th February 1997, the Ordinance n°99-69 dated on 20th December 1999 itself amended and supplemented by Law n°2001-20 dated on 12th July 2001.

Decree n°2004-266 dated on 14th September 2004 related to the application of the Electricity Code.

Decree n°90-123/PRN/MPE dated on 3rd May 1990 related to the application of the Investment Code.

(ii) Overriding legislation and regulations: is there any legislation or are there regulations that apply to a power project or project company and that prevail over the terms of the project documents, such as the terms of the generating licence?

The regulations which apply directly to the power project are the Electricity Code (see above) and its Decree of application. The terms of the generating licence are set out in the Article 18 of the Electricity Code and especially on the Convention of concession between the State and the Power project.

 Powers and capacity of the Government and Constitutional issues

(i) Governmental involvement: which levels of Government will need to be involved in the Project, e.g. national/federal, state, local?

The involvement of the Government on the project is at a national level.

The authorities which are directly involved in a power project are: the Ministry of Energy and Mine, the “Autorité de Régulation Multisectorielle” (“Multi-Sector Regulation Agency” or “ARM”), and the National Committee of Electricity (CNE).

(ii) Powers of Government: briefly, how are the powers of the Government entities referred to in paragraph (i) derived (under statute?)

The Government has the power to conclude the Concession for power generating.

The Law n°2003-004 dated on 31st January 2003 (see above) sets out the power of the Government of Niger on the project. The environmental rules on which the project has to comply are set out in the Environmental Code dated on 29th December 1998.

(iii) Powers in respect of the project: what are the powers vis-à-vis the Project and a project company?

The Government launches the tender of process for the attribution of the power Generating Project. It issues all the licences and authorizations related to the realisation of the Project. The powers of the Government of Niger vis-à-vis the power project are set out in the Electricity Code (see above).

(iv) Power to contract: does the Government have the power to enter into the project documents to which it is party (and any direct agreement with the lenders relating to them) and perform its obligations thereunder?

The Government has the power to enter into the Concession to which it is party. After the approval of the ARM, the terms of this Concession are taken on Council of Ministers and approved by Decree. The Decree n°2004-266/PRN/MM/E dated on 14th of September 2004 sets out the power of the Government to enter on the project documents.

Note that the Government is represented by the Ministry of Energy and Mine and the ARM which is a decision maker on the project documents.

(v) Are there any legislative restrictions applicable to the giving of sovereign guarantees?

There are no laws or regulations related to the giving of sovereign guarantees.

 

 Regulator

(i) Is there a regulator: please advise whether there are any regulators (independent or otherwise) in the jurisdiction with powers/rights in respect of the power project or Project Company.  If so, how are their powers derived (under statute) and what are their powers vis-à-vis the power project and a project company? 

The regulator of the energy sector in Niger is the ARM (see above). The ARM was created by Ordinance n°99-044 dated on 26th October 1999. Its powers related to the electricity sector are set out in the Chapter 2 of the Electricity Code (see above).

(ii) Power to contract: does the regulator typically enter into project documents relevant to the Project? If so, does it have power to do so?

The ARM does not contract directly with the Project Company. However, the ARM approves the terms of the Convention of concession, prepares and conducts the tender of process for the award of the concession of generation, transmission, and distribution of electricity.

The ARM also has the jurisdiction to resolve disputes among stakeholders of the electricity sector.

(iii) Licence: what is the form of licence or licences (if any) that the regulator (or relevant entity) typically issues? Is it possible to amend the proposed form of licence?

The regulator issues the Concession. The State and the concessionaire may change at any time by mutual agreement, after consultation with the ARM, the terms of the concession agreement or its annexes. 

(iv) Independence: is the regulator regarded as being genuinely independent from government/the utility? How is the regulator funded?

The ARM is a public body, independent with financial autonomy and management. It is created by the ordinance n° 99-044 dated on 26th October 1999. The funding of the ARM is set out in the Chapter III of its Ordinance of creation (see above).

 Procurement

(i) Procurement process: please advise whether there is any requirement to have pursued any form of procurement or tender process prior to awarding the Project.

The conditions and requirements of the tender of process to award the concession of production, transportation, and of electricity by the Ministry of Mine and Energy are set up by a directive of the ARM and the Decree n°2004-266/PRN/MM/E dated on 14th of September 2004 (see above).

(ii) Other procurement issues: are there any other procurement requirements in respect of the development of the Project, e.g. to source or favour labour, equipment or machinery from the country?  

The Nigerian Investment Code (see above) sets up the procurement process for a Power project. The company applying to be eligible under the Investment Code has to commit to:

  1. Give priority to employ nationals in Niger and present a training program and ongoing development for the staff. 
  2. Use priority materials, raw materials, products and services of Nigerian origin.

 Power plants

(i) Power purchase agreement: is there a standard form of power purchase agreement used in the jurisdiction?

By the Convention of concession, the power project provides directly power to the consumers under the conditions at the Chapter VIII of the Decree n°2004-266/PRN/MM/E dated on 14th of September 2004 (see above). The standard form of a purchase agreement is called “police d’abonnement”. 

(ii) Independent Power Projects: are there any IPPs in existence?

Please see “Legal and Regulatory Framework” section.

(iii) Merchant power: are there merchant power plants in the jurisdiction, and if so, are these plants allowed to (or obliged to) sell power back to the grid?

There are power plants owned by private entities in the Niger. They are allowed to sell power back to the grid.

 Consents required and authorisations from other ministries

(i) Key licences/consents: please list the key licences, permits or consents that are typically required by a project company for the design, finance, construction, operation and maintenance of a power plant.

  1. A Concession signed by the Power project and the Ministry of Mines and Energy
  2. An Environmental Permit issued by the Minstry in charge of Environment.
  3. An Authorisation to Trade issued by the Ministry of Trade and Industry.
  4. A Convention of Eligibility on the Investment Code is signed by the State of Niger and the Power project.

(ii) Security: are these consents capable of being secured and are transferable to the lenders? 

As per Article 4 of the Decree n°2004-266/PRN/MM/E dated on 14th of September 2004 (see above), the Concession is awarded directly to the entity concerned and is not transferable. However, the Concession also sets out the terms and methods of financing the investment plan of the power project.

(iii) Process of application: please also provide details of all conditions applicable, specifying process, timing and costs for obtaining the consents.

  1. The Ministry of Mine and Energy launches a tender for the concession indicating the nature and key terms of the agreement it intends to enter into and specifying the criteria of choice. 
  2. The Power project submits its candidature to apply under the terms of the concession.
  3. The Ministry of Mine and Energy and the ARM approve the dossier.
  4. The Ministry of Mine and Energy takes the dossier of concession in Council of Ministers.
  5. The Council of Ministers approves the dossier by Decree.

 Competition law

(i) Exclusivity: are any rights of exclusivity granted to a project company enforceable?

There are no special Laws or regulations which grant exclusive rights to a project company.

(ii) Restrictions on competition: are there any restrictions on the ability of a project company to compete freely in the country?

There are no restrictions on the ability of the project company to compete freely in Niger. This principle is set out in the Ordinance n°92-025 dated on 07th July 1992 related to the regulation of pricing and competition and the liberalisation of the price system.

 Environmental regulations

(i) Regulations: are there any environmental or health and safety regulations or legislation applicable to power plants?

The Environmental Code dated on 29th December 1998 sets up the general legal framework and basic principles of Environmental Management in Niger. 

(ii) Additional consents: are there any environmental licences, permits or consents that are required by a project company in relation to a Project?   If so, please provide details of how / from whom these licences can be obtained as well as the timing and costs thereof.

The construction of power plant requires an Environmental Permit from the Ministry in charge of Environment based on the Environmental Impact Assessment (EIA). This authorization is delivered by a decision of the Minister in charge of Environment and Sanitation.

Finance and Tax matters

(a) Financial assistance

(i) Are there prohibitions or restrictions on the ability of a company to guarantee and/or give security to support borrowings incurred to finance the direct or indirect acquisition of shares of a project company; or any company which directly or indirectly owns shares in a project company; or shares in a sister subsidiary?

There are no prohibitions or restrictions on the ability of companies to guarantee and/or give security to support borrowings incurred to finance the direct or indirect acquisition of shares of a Project Company.

(b) Lending restrictions/banking monopolies

(i) Please indicate whether there are any restrictions or requirements applicable to the importation of capital by lenders to the Project.

Foreign entities within the meaning of the foreign exchange regulations, which carry an investment in Niger financed in foreign currency, may obtain, in accordance with these regulations, transfers income from any kind of capital invested.

(ii) Is there a requirement for the lenders/security agent to be registered in the jurisdiction?

There is any requirement for the lenders/security agent to be registered in Niger.

(iii) Can foreign lenders lend into the jurisdiction?

Foreign lenders can lend into Niger.

(c) Restrictions relating to repatriation of dividends

(i) Are there any restrictions relating to repatriating dividends?

The Investment Code provides to investors a number of promotional incentives including the right to repatriate earnings and dividends.

(d) Convertibility

(i) Are there any restrictions on the convertibility of the jurisdiction’s currency?

There are any restrictions on the convertibility of the CFA.

(e) Interest payments

(i) Are there any restrictions on the payment and compounding of interest?  If so, does this also affect both local and foreign lenders? 

None known

(f) Tax

(i) Withholding tax: are there any withholding tax issues in relation to interest payments and fees to foreign lenders on loans used by a project company; payment of principal on debt; or payments received under any agreements (other than any referred to above)? 

The rates of withholding taxes depend on the nature of the activity:

  1. for dividends, it is 10% excluding dividends from subsidiaries,
  2. for interest payment it is 13%, 15% and 25%,
  3. for royalty it is 16%, and
  4. for fees on technical and other services it is 16%.

(ii) Double taxation treaties: please note the existence of any double taxation treaties.

Niger has not ratified any double taxation treaties.

(iii) Lender issues: are there any risks that lenders should be aware of in respect of tax liabilities/tax domiciliation as a result of providing debt to the project or project company and/or taking/enforcing security interests?

None known

(iv) Repayment and enforcement: please advise whether loan repayment / enforcement proceeds could be treated negatively from a tax perspective for the lenders.

None known

(g) Stamping costs

(i) Please advise whether stamp duty or similar applies in respect of finance and security documents and security interests (and if so advise on the rate thereof), including the registration of immovable property or vehicles; security documentation; or transfer of assets on enforcement of security; or increase in share capital.

The registration fees are proportional, progressive or fixed depending on the nature of actions and changes that are submitted.

  1. Duties applicable to acts and transactions relating to companies:
  2. The rates of registration fee on capital increase by incorporation of reserves, profits and reserves (which are taxed BIC) is 8%.
  3. Duties applicable to acts and transactions relating to immovable properties: The rate of registration fee on the sales of immovable properties is 10%.
  4. Duties applicable to acts and transactions relating to movable properties: The rate of registration fee on transfer of movable properties is 12%.

Security, Enforcement and Insolvency

(a) Overview of security regime

(i) Nature of security: can a security interest be obtained over a company’s assets, e.g.:

(A) Accounts receivable (book debts); pledge

(B) Inventory (stock in trade); pledge

(C) Shares of a company (issued and authorised); pledge

(D) Equipment; pledge

(E) Real property; mortgage

(F) Insurances; pledge

(G) Project contracts.  Pledge

(ii) Shares: can shares of a project company validly be pledged and enforced under an English law share charge?

Shares of commercial company are validly pledged and enforced under the act uniform on security.

(iii) Debt obligations: can a company grant a security interest in order to secure its obligations (i) as a borrower under a credit facility, and (ii) as a guarantor of the obligations of other borrowers and/or guarantors of obligations under a credit facility?

A Company can grant a security interest in order to secure its obligations.

(iv) Revolving credit facility: if the borrowings to be secured are under a revolving credit facility, are there any special priorities or other concerns?

There are no special laws or regulation relating to a revolving credit facility.

(v) Security agent/trustee: can the relevant security interests be granted to a security agent or trustee on behalf of the lenders from time to time under a credit facility agreement, where the identity of the lenders may change from time to time because of transfers (effected either by assignment or novation) by certain lenders of their interests in the credit facility? Are any steps required to ensure that a transferee of a lender will receive the benefit of the relevant security interests?

The concept of security trustee is not provided by the act uniform on security.

(vi) Preferred creditors: please indicate the claims that would have priority over the relevant security interests.

(A) The rank following the liquidation of the immovable property is as follow

  • Costs of the court and legal process
  • Unpaid salaries
  • Mortgages
  • General privileges subject to publicity
  • General privileges not subject to publicity
  • Unsecured creditors with enforceable title

(B) The rank following the liquidation of the movable property is as follow

  • Costs of the court and legal process
  • Expenses incurred to hold the assets of the debtor
  • Unpaid salary
  • Pledges
  • Other privileges subject to publicity
  • Special privileges
  • General privileges not subject to publicity
  • Unsecured creditors with enforceable title

(vii) Public registry: please confirm if there is a public registry that can be searched to confirm whether a project company has any security documents or any document dealing with any finance arrangement in place, such as guarantees, indemnities or surety ships given by or for the benefit of a project company.

The register of trade and credit can be consulted to confirm whether a project company has any security interests registered against it.

(viii) Formalities: in connection with the creation of a security interest in shares or other assets.

(A) Are any governmental or other consents or filings (consider exchange control and similar regulations, perfection, etc.) required;

Security interest must be made by deed or by private act duly recorded. This act is effective only if it is registered at the register of trade and credit.

A pledge must, on pain of being void, contain the particulars set out by the article 70 of the uniform act.

(B) Are any other formalities (for example, notice to creditors, shareholder approvals, notarisations, etc.) required; and

Pledging of shares is not possible without the approval of the majority of shareholders, representing the 75% +1 of the issued share capital.

(C) What steps are required to register or otherwise perfect security in the jurisdiction and how long do these steps typically take?

See above at (A)

Provisional registration and enrolment must be taken immediately, following the decision authorizing the pledge.

Registration protects the rights of the creditor for 5 years, after which a renewal must be done.

Notice of the pledge must be delivered to the company.

(D) Are there any significant financial costs (including stamp tax, registration, notarial fees, etc.) or significant time delays which would be required in order to create and perfect the relevant security interest?

The notary fees are significant but negotiable. Registration fees are ad valorem.

(b) Insolvency and enforcement regime

(i) Public register: is there a court or similar register that can be searched in respect of proceedings and insolvency actions?

Yes at the register of trade and credit.

(ii) Insolvency process: please provide a summary of the different options for an insolvency related process.

Insolvency processes are set out in the act uniform of OHADA on the organization of simplified procedures for debt recovery.

In brief, 8 days after an unsuccessful payment order, the creditor may proceed with the seizure of the secured assets. Seizure must be notified to the debtor within 8 days. A minute is then drafted. One month from the service of the minute on the debtor, a forced sale may be initiated if the goods have not been sold privately before then.

(iii) Expedited proceedings: are summary or expedited proceedings available based on the existence of a note, perhaps governed by the laws of the jurisdiction, or is there any other documentation or are there any steps that could be taken to gain the availability of expedited proceedings (or other priority) in the jurisdiction?

There is no special article providing the expedited proceedings.

(iv) Governmental or other consents: are any governmental or other consent (consider exchange control and similar regulations) required in connection with:

(A) The enforcement of a security interest in shares;

Formalities are set up on the Uniform Act of OHADA related to the procedures of debt recovery.

(B) The enforcement of a security interest in other assets; or

Formalities are set up on the Uniform Act of OHADA related to the procedures of debt recovery.

(C) The enforcement of a guarantee (sovereign or otherwise)?

Formalities are set up on the Uniform Act of OHADA related to the procedures of debt recovery.

(v) Environmental liabilities: do lenders inherit all environmental liabilities when they become owner of the shares upon enforcement (or at any other time)?

Lenders inherit all environmental liabilities when they become owner of the shares.

(vi) Enforcement of security: can security interests be enforced by both private sale and public auction, and is it necessary to appoint a court or other official to carry out the enforcement?

The uniform act on organization of simplified procedures for debt recovery lists the steps to follow when enforcing security.

Corporate, Insurance and Employment matters

Corporate vehicle: Project company incorporation

(i) Type of vehicle: what is the most appropriate type of corporate vehicle for a project and can you describe its key features (e.g. limited liability, shareholding requirements, and share capital requirements)?

The legal form of the company for the project company is a “Société Anonyme” (SA).

Its key features are:

  • Can be managed by one person or associated entity.
  • An SA may be administered by a Board of Directors from 3 to 12 members with a Managing Director.
  • An SA may also be administered by a single administrator, with combined power of Managing Director and Board Chairman.
  • Shares can be transferred, sold, or assigned by private treaty

(ii) Thin capitalisation: are there any issues relating to thin capitalisation?

The authorities discourage financing via shareholder loans instead of capital.

(iii) Indigenous shareholdings: We have come across requirements in certain jurisdictions to have a specific percentage of shares in a project company held by nationals of the jurisdiction.  Please advise whether any such requirements apply in the country.  Please indicate any prescriptive requirements or limitations in respect of incorporating a special purpose company such as:

(A) Requirement for a certain amount of equity to be held by indigenous entities;

The Nigerian legislation allows foreign investor to owe 100 % of shares of its company.

(B) Thin capitalisation requirements;

The minimum capital for S.A is CFA 10,000,000 (approx of USD 22,000).

(C) Can a limited liability company be established?

A limited liability company can be established as an SARL “Société à Responsabilité Limitée” or as an SA “Société Anonyme”.

(D) Is it possible to use a foreign company or a branch of a foreign company to act as Project Company?

It is possible to use a foreign company or a branch of a foreign company to act as a Project Company. However, foreign companies acting directly or as a branch require an “authorisation d’exercice” issued by the Ministry of Trade and Industry or the Prefect of the implementation zone of the project. An SA is therefore to be preferred.

(iv) What is the estimated timescale for incorporation in the country? Are there any specific fees or other costs payable to governmental authorities in respect of incorporation?

The estimated timescale for incorporation in the Niger is 30 days. The specific fees and costs payable to governmental authorities for incorporation are: a Registration fee of the Statutes and a Registration fee at the “Greffe du Tribunal”. There are also a fees of CFA 600,000 (US$1,400) for an SA and CFA 300,000 (US$700) for an SARL.

 

(a) General corporate issues

(i) Is a private company free to lend and/or issue guarantees?

Private company is free to lend and/or issue guarantees.

(ii) Are there any restrictions on dividend distribution?

The procedure of payment of dividend is fixed by general assembly.

Distribution of the dividend must be made within a maximum period of nine months after the close of the exercise.

Except, in the case of a reduction in capital, no distribution can be made to shareholders if the equity would become, following this distribution, lower than the amount of the capital.

(b) Insurance

(i) Mandatory insurance: are there any insurances which the project company or the Project is required to have by law (or regulations or similar)?

Mandatory insurance is only for motor vehicles and imports (CIF).

(ii) Placement of insurance: is there any minimum requirement to place the insurance with local insurers or any other similar restrictions?  If so, can reinsurance be lawfully placed internationally?

There is neither requirement nor restriction to place the insurance with local insurers.

(iii) Security over insurances: are there any restrictions in respect of granting security rights over the insurances or reinsurances?  For instance, can a local insurer or reinsurer grant security (by way of assignment or otherwise) over its policies of insurance or reinsurance?

No restriction is set out by the insurance code for local insurer or reinsurer in granting security.

(c) Employment

(i) Legislative/regulatory issues: is there any legislation or regulation impacting on foreign employees, in particular the conditions relating to work and residence permits?  Please give an indication of the process and costs in relation to obtaining work and residence permits.

Employment contracts of foreign workers must be in writing and submitted for a visa to the Labour Ministry office. The process is set out in the Labour Code in articles 41 to 44.

(ii) Foreign restrictions: are there any restrictions that apply to foreign employees and foreign contractors/subcontractors and if so what do they need to do in order to comply with local legislation?

There are no restrictions that apply to foreign employees and foreign contractor/subcontractors. However,  foreign employees are subject to obtaining a work permit for 5 to 10 years renewable. This is issued by the Ministry of Trade and Industry or the Prefect of the place of  project implementation. 

 

Land

(a) Land registry: is there a land registry (or similar) in the country that can be searched to confirm whether a project company has granted of any mortgage, charge, option assignment, lien or other encumbrance over the whole or part of the properties or assets of a company?

The “rural file” contains all informations relating to land and is held at the local land registry.

(b) Landlord’s rights: please indicate whether there are any rights which accrue to the landlord (or the government or any other bodies) that may override the terms of a land lease or threaten the rights of a project company particularly any right of repossession or acquisition.

The terms of lease may be invalidated by Government, on grounds of public interest (where legally established).

(c) Direct agreement: are you aware as to whether a direct agreement in respect of a lease has been previously been provided to lenders on other transactions?

None known

(d) Forfeiture rights: do relief from forfeiture rights exist and would the lenders be entitled to rely on such rights? 

There are no special laws on forfeiture rights.

(e) Legislative requirements: is there any additional legislation governing property rights? If so, please advise the nature of the requirements thereof.

Property rights are regulated by the Rural Code. The Nigerian Constitution in its article 21 sets out the right to property. Nobody can be deprived, except in the public interest.

However, the Decree n°2004-266/PRN/MM/E dated on 14th of September 2004 (see above) sets up the possibility of a power generation concessionaire to use the procedure for expropriation of public utility assets.

(f) Enforcement formalities: are there any formalities with which lenders need to comply when enforcing security over land?

To enforce security over land, lenders have to follow formalities prescribed on registration of their rights as set out in the Rural Code.

International law and arbitration

(a) Supra-national treaties

(i) Please list the Bilateral Investment Treaties to which the country is party.

Niger is a signatory of a Bilateral Investment Treaties with Algeria, Egypt, Germany, Switzerland and Tunisia.

(ii) Please confirm whether the country is a signatory to the Energy Charter Treaty.

Niger is not a signatory to the Energy Charter Treaty.

(b) Arbitration

(i) Please advise any requirements and restrictions applicable to the choice of arbitration roles and place of arbitration etc.

Parties are free to submit their dispute to arbitration. The procedure of OHADA is applicable only when the seat of arbitral tribunal is in a member state. Note that the ARM also has the jurisdiction to resolve disputes among stakeholders of the electricity sector.

(ii)Please confirm whether foreign arbitral awards / decisions are enforceable in the country (i.e. is the country a party to the New York Convention on the Recognition of Foreign Arbitral Awards)?

Niger is a party to the New York Convention on the Recognition of Foreign Arbitral Awards.

Renewable Energy

(i) Legislation: please confirm whether the country has enacted any legislation specifically designed to promote and enable the development of renewable energy projects.

A national strategy of renewable energy has been adopted in 2004. Legislation is being adopted.

(ii) Kyoto Protocol: please confirm whether the country is a signatory to the Kyoto Protocol.

Niger is a signatory to the Kyoto protocol. The country has ratified the protocol on 30th September 2004.

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