2009 INVESTMENT CLIMATE STATEMENT: NIGER

UNCLAS NIAMEY 000022

DEPT FOR EB/IFD/OIA, AF/W, AND AF/EPS

SIPDIS

E.O. 12958: N/A
TAGS: EINV EFIN ELAB ETRD KTDB OPIC USTR NG
SUBJECT: 2009 INVESTMENT CLIMATE STATEMENT: NIGER


1. Openness to Foreign Investment

The Government of Niger (GON) welcomes foreign private investment
and considers it to be critical to economic growth. Under the
Investment Code (revised in 2000) industrial investments enjoy tax
and customs exemptions and even, in some cases, exemptions from the
value added tax (VAT). Other tax benefits are possible, but terms
must be negotiated with the GON on a case-by-case basis. All
investors benefit from periods of special tax treatment and tariff
protection, which vary with the level and location of investment.
The Investment Code contains no provisions for screening, and
guarantees equal treatment to foreign investors regardless of
nationality.

Total foreign ownership is permitted in all sectors except those few
restricted for national security purposes, such as arms and
munitions, and private security forces, which require special
arrangements. Foreign ownership of land is permitted, but requires
authorization from the Ministry of Territorial Management and
Community Development.

According to the World Bank, starting a new business in Niger takes
28 days and requires 11 different procedures. Niger ranks near the
bottom rankings in terms of ease of doing business, and the current
regulatory environment is a significant barrier to private sector
growth. In mid-2006, the GON created the National Council of
Private Investors (CNIP),which was charged with reviewing Niger's
investment climate and performance and proposing specific actions to
address the GON investment priorities. The list of proposed reforms
included many factors that are widely recognized as critical for
entrepreneurial development:

-- the number of procedures required for starting a business;

-- the length of time required for starting a business;

-- the administrative costs of starting a business;

-- the number of import tariff rates;

-- the total corporate tax rate as a percentage of gross profits;
and

-- the number of other corporate taxes.

Unfortunately, the CNIP has not met since its formation, and local
entrepreneurs have expressed frustration at the government's delay
in addressing constraints to the growth of existing companies. The
GON has undertaken to improve business conditions as part of the
Millennium Challenge Threshold Agreement, and progress on the
stalled reform agenda will be required before Niger can progress to
full MCC Compact status.

The Investment Code offers advantages to sectors that the government
deems key to the country's economic development: energy production,
mineral exploration and mining, agriculture, food processing,
forestry, fishing, low-cost housing construction, handicrafts,
hotels, schools, health centers, and transportation.

Barriers to investment include the limited domestic market, high
transportation costs, and a cumbersome and slow government
bureaucracy. Given Niger's low literacy rate, a trained labor force
and service providers are not widely available.


2. Conversion and Transfer Policies

Niger maintains a foreign exchange system that is free of
restrictions on payments and transfers. Investment capital and
returns to capital can be transferred to and from Niger via local
banks and international financial intermediaries. Niger is a member
of the CFA (Communaute Financiere Africaine) zone ("franc zone") and
the West African Economic and Monetary Union (WAEMU). Euros and
dollars are convertible for any amount of CFA at local banks. In
order to transfer or convert more than CFA 2 million (approximately
USD 5,000) to dollars or euros, an authorization for foreign
exchange is required from the Ministry of the Economy and Finance.
The international investor community has not complained of
difficulty in the transfer of funds.


3. Expropriation and Compensation

The Investment Code guarantees that no business will be subject to
acts of nationalization or expropriation, except when deemed "in the
public interest" as prescribed by the law. The Code requires that
the government compensate any expropriated business with just and
equitable payment. No expropriations have taken place in recent
years and given the government policy of promoting private industry,
none are expected.


4. Dispute Settlement

While Niger has a court system to, inter alia, protect property and
commercial rights, the administration of justice can be slow. The
Investment Code also provides for the settlement of disputes and
indemnification either by arbitration or recourse to the
international center for settlement of disputes on investment, which
was created in 1965 by the World Bank.

Niger is a member of OHADA, the Organization for the Harmonization
of Business Law in Africa (Organisation pour l'Harmonisation Afrique
des Droits des Affaires). The OHADA Treaty aims to harmonize
business laws in 16 African States by adopting common rules adapted
to their economies, setting up appropriate judicial procedures, and
encouraging arbitration for the settlement of contractual disputes.
The Treaty includes regulations concerning business and commercial
law, such as the definition and classification of legal persons
engaged in trade, proceedings with respect to credit and recovery of
debts, means of enforcement, bankruptcy, receiverships, and
arbitration.


5. Performance Requirements and Incentives

Performance requirements are not imposed as a condition for
establishing, maintaining, or expanding foreign direct investments.
Incentives do, however, increase as the size of the investment and
number of jobs created increase.

The Investment Code offers generous, VAT-inclusive tax exemptions,
depending on the size of the business. Potential tax exemptions
include: start-up costs; property, industrial, and commercial
profits; services and materials required for production; and energy
use. Exemption periods range from 10-15 years and also include
waivers of duties and license fees.


6. Right to Private Ownership and Establishment

By law and in practice, foreign and domestic private entities have
the right to establish and own business enterprises and engage in
all forms of remunerative activity. Private entities can freely
establish, acquire, and dispose of interests in business
enterprises. Legally established private sector companies have the
same access to markets, credit, and other business operations as do
public enterprises (parastatals). As noted above, foreign ownership
of land is permitted, but requires authorization from the Ministry
of Territorial Management and Community Development.


7. Protection of Property Rights

Niger is a member of the West African Intellectual Property
Organization (OAPI),which establishes the legal framework for
protecting intellectual property and approves requests for
registration. Protection is initially granted for 10 years and is
renewable for up to another 10 years.

As a signatory to the 1983 Paris Convention for the Protection of
Industrial Property, Niger provides national treatment under
Nigerien patent and trademark laws to foreign businesses. Niger is
also a member of the World Intellectual Property Organization (WIPO)
and a signatory to the Universal Copyright Convention. In practice,
however, the government lacks the capacity and resources to enforce
copyright violations, and counterfeit CDs and videocassettes are
readily available in most cities. Trade secrets can be adequately
protected within individual business agreements in Niger.

Despite limited resources, the Niger Copyright Office and Niger
Customs make regular, if infrequent, efforts to enforce copyright
laws. In August, 2008, they arrested counterfeiters and seized
audio cassettes, CDs, DVDs, and a disc burner. Given the
profitability of copyright infringement, such episodic enforcement
efforts are not a significant deterrent.


8. Transparency of Regulatory System

The current Investment Code, last revised in 2000, reduced
bureaucratic obstacles to foreign investment and enlarged the scope
of industries accorded special incentives to include air
transportation and the construction and equipping of hotels. The
government now promises to approve an investment three months from
the date of application. Nevertheless, investors should be prepared
for delays caused by the process of acquiring inter-ministerial
approvals.

While efforts continue to make the tax laws more transparent,
investors find it useful to specify financial obligations, such as
tax liability, in individual business agreements.
An updated Petroleum Code, base on international standards, was
adopted in 2007 In 2006 the government also revised the Mining
ode to offer specific incentives beyond those listd in the
investment code: a five-year income ta holiday for large mines
(two years for small mies) and exemption from customs duties on
importe equipment for use in mineral exploration or mining
operations.

A multi-sectoral regulatory agency began operation in 2004 and has
oversight over telecommunications and basic utilities (water and
electricity) pricing.


9. Efficient Capital Markets and Portfolio Investment

The GON's policies do not limit the free flow of financial
resources. Credit is allocated on market terms, and foreigners do
not face discrimination in obtaining it. However, generally only
well-established businesses obtain bank credit, as the cost of
credit in Niger is high. Nigerien banks offer only a limited array
of financial instruments: letters of credit and short to long-term
loans.


10. Political Violence

A previously unknown group, the Mouvement des Nigeriens pour la
Justice (MNJ),emerged in February 2007. The predominantly Tuareg
group has issued a number of demands, mainly related to development
in Niger's north. It has attacked military and other facilities and
laid landmines, particularly in the north. The resulting insecurity
has devastated Niger's tourist industry and deterred investment in
mining and oil. The GON has labeled the MNJ bandits, criminals, and
traffickers, and refuses to negotiate with the group until it
disarms. Students seasonally demonstrate against the Government in
protest either against economic changes or their unpaid
scholarships.


11. Corruption

Official corruption occurs, and the Government publicly acknowledges
that it is a problem and is making efforts to address it. The
problem of corruption is compounded by a poorly financed and trained
law enforcement system and weak administrative controls. Other
major underlying causes of corruption are rampant poverty, low
salaries, the politicization of the public service, the influence of
traditional kinship, ethnic, and family ties on decision-making, a
culture of impunity, and a lack of civic education. Continued
pressure from foreign donors, civil society and NGOs led to some
progress in the fight against corruption. Foreigners are instructed
not to pay bribes to any policemen, border guards, or other
government officials. Bureaucratic processes are slower than
American standards, but this is due more to inefficiency and lack of
information technology than to corruption.


12. Bilateral Investment Agreements

Niger's bilateral investment agreement with the United States dates
from September 1962. Foreign investment in Niger, however, is
predominantly French or has some French participation. The
Investment Code makes no distinction between investors' countries of
origin. The GON welcomes foreign direct investment, regardless of
source. Niger is a member of the Economic Community of West African
States (ECOWAS),the West African Economic and Monetary Union
(WAEMU),and the Lome Convention. There is strong opposition in
Niger to ratifying the Economic Partnership Agreement currently
under consideration by a regional committee made up of ECOWAS plus
Mauritania. In late 2006, Niger qualified for the Millennium
Challenge Corporation's (MCC) Threshold Program, and MCC program
implementation is underway following the March 2008 signing of the
Threshold Agreement. Niger's MCC efforts are focused on promoting
girls' education, fighting corruption, and improving the business
environment.


13. OPIC and Other Investment Insurance Programs

While Niger is eligible for coverage under OPIC programs, OPIC has
not been involved in any Niger investment to date. Sectors for
potential investment guarantees include: gold and other mineral
mining and processing, petroleum production, fruit, vegetable and
meat processing, semi-finished hide production, and small-scale
manufacturing. The U.S. Export-Import Bank (Ex-Im) has a number of
programs in place specifically geared towards helping sub-Saharan
Africa manufacturers expand their business by financing U.S. exports
of manufacturing equipment and services. In 2006, the Ex-Im Bank
credit committee awarded Niger an insured loan worth approximately
USD 699,950 over the next five years.


14. Labor
The supply of skilled workers, technicians, and professionals is
limited.

There are no more than 81,144 salaried (2005),formal sector
workers, approximately 55 percent of whom are employed in the public
sector. Approximately 85 percent of the country's population makes
a living from agriculture, herding, petty manufacturing, artisanal
production, or informal trading. Wages are low.

Labor-management relations are generally good. The National
Federation of Labor Unions (USTN) is well organized and occasionally
presses its salary, benefit, and other demands (mostly for civil
servants and parastatal workers) with limited strikes. However,
high rates of unemployment and the threadbare state of public
finances limit USTN's leverage. Labor law and practice conforms to
International Labor Organization (ILO) principles.


15. Foreign-Trade Zones/Free Ports

Niger has been a member of the WTO since 1996 and as such is
committed to trade liberalization and an opening of its markets to
foreign investments. Local products and traditional handicrafts of
WAEMU origin enter duty free, together with a limited number of
industrial products from producing enterprises approved by the WAEMU
Commission. According to estimates by the IMF, only one third of
the WAEMU's intra-community trade is completely duty free due to the
relatively low level of industrialization of members. Under the
provisions of the African Growth and Opportunity Act (AGOA),most
Nigerien non-textile and apparel exports may enter the U.S. duty
free. In December 2003, Niger qualified for textile and apparel
benefits provided under AGOA. Niger qualified for Category 9 of
AGOA in 2006, which mostly allows the entry of hand woven fabric
into the United States duty free.


16. Foreign Direct Investment Statistics

The government actively seeks foreign private investment and
considers it key to restoring economic growth and development. In
2007, foreign direct investment substantially increased - especially
in the mining sector. More than 120 mineral exploration and
development permits to companies from 12 countries were awarded in

2007. The pace of new permits slowed in 2008, but the earlier
permits are under active development.

Official statistics show Niger's second largest trading partner,
after France, to be Nigeria. Nigeria, however, is Niger's largest
trading partner when informal trade is included. South and East
Asian countries also provide foodstuffs (e.g., rice from Thailand)
and inexpensive manufactured goods (e.g., China, India). Niger also
has trade relations with Japan, Germany, Saudi Arabia and the Gulf
States, the Netherlands, the United Kingdom and, in the region with
Cote d'Ivoire, Ghana, and Benin.

Foreign investments:

Name Product Millions US$ Country
-------------- -------------- -------------- --------------
Sonichar Coal 11.0 (a) France
Somair Uranium 6.9 (a) France (AREVA)
Cominak Uranium 6.3 (b) France (AREVA),Japan, Spain
Braniger Brewing 3.1 (a) France
SONITEL Telecom 9.3 (b) China, Libya
UNILEVER Soap 0.4 (a) Cote d'Ivoire, England
SEEN Water 2.2 (a) France
SOMINA Uranium 334.7 (a) China
Telecom Telecom 68.4 (a) France
Imouraren Uranium 1,500.0 (c) France (AREVA)

(a) data are from 2007
(b) data are from 2005
(c) data are from 2008

ALLEN