Investment Law: will foreigners be entitled to own 100% of an Algerian company?

Investment Law: will foreigners be entitled to own 100% of an Algerian company?

The Budget Law 2020, under art. 109, clearly opened the road to the lifting of the limit of 49% of the ownership of a local company by foreign entities, drawing the general legal framework.

Now, on 9 th of May, the Project of Complementary Budget Law 2020 has been released, providing with the necessary specifications to enforce the new Rule.

Foreign investors were waiting for such a decision since years and finally it seems that it will be soon adopted, together with the necessary ancillary rules, such as the abolition of pre-emption right reserved to the State.

Algeria is aiming in that way to attract more foreign investments, enhancing the entrepreneurial freedom, in order to boost the local production and innovate the business environment.

Can a foreign Company own more than 49% of the capital of a local Company?

If the provisions set forth in the Project of Complementary Budget Law 2020 will be confirmed, pursuant to its art. 50 and 51, the foreigners will be entitled to own up to 100% of the shareholding of a local Company active in the field of production of goods or services, except for the Company active in strategic fields and retails.

The list of strategic activities is detailed and exhaustive and it includes the fields usually provided for by the legal framework of most of the other Countries, such as mining, energy, oil & gas, factories related to military services and products, railway, ports and airports and pharmaceutical.

Is the State pre-emption right in case of transfer of shares involving a foreign person still in force?

Under art. 53 and 53bis of the Project of Law, the pre-emption right reserved to the State in case of transfer of shares of a local Company involving a foreign person is completely lift, unless in the strategic fields as provide by the aforementioned art. 51.

This represents a great enhancement in the foreign investment environment, setting aside legal and commercial uncertainties and dramatically reducing the necessary time to complete such kind of transactions.

What about the obligation to resort to local financing?

Pursuant to art. 55 of Budget Law 2016, Algeria imposed that the foreign investment would have been financed only through local financing.

Such provision prevented, de facto, the foreign investor to invest its funds directly, or through a foreign banking institution, in an investment Project in Algeria.

The only residual option was to finance the Project through a huge share capital injection, limiting the business opportunities and leading to a great immobilization of capital.

Now such provision has been lifted and the investment Project in Algeria could be financed directly from abroad by the foreign investor, which will be now free to resort to its usual means of financing.

Also, Algeria will benefit of fresh capital from abroad and potentially of a better quality of investors, endowed of proper self-funding.

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INDEMNIFICATION FOR SUSPENSION OR FORCE MAJEURE IN PUBLIC CONTRACTS IN ALGERIA

INDEMNIFICATION FOR SUSPENSION OR FORCE MAJEURE IN PUBLIC CONTRACTS IN ALGERIA

INDEMNIFICATION FOR SUSPENSION OR FORCE MAJEURE IN PUBLIC CONTRACTS IN ALGERIA

Unlike several other Countries, which went for an explicit declaration of Force Majeure, Algeria opted for setting aside fines and penalties for delays in the Public Contract, through an Instructions to the Wali sent by the Prime Minister on 15th of April.

Such Instruction legitimated an option already undertook by several Public Contracting bodies: the suspension of the contracts through an ODS d’arret

Which challenges are the foreign companies facing now in Algeria?

Indeed, the commercial operators active in the framework of Public Contracts in Algeria are suffering heavy losses due to the actual circumstances and in complying with the necessary measures taken by the Government in order to fight the spreading of Covid-19. 

That is represented mainly in major unexpected costs, direct and indirect damages and the ongoing expenses even in case of suspension of the activities, usually represented mainly by wages and banking fees. 

The effects of suspension in a Public Contract

Here, we have to refer mainly to art. 34 of the CCAG (Cahier clauses administratives générales) providing that in case of suspension of the works imposed by the contracting Party, the contractor has the right to receive a compensation on the prejudice duly proven.

It is worth to note that only strictly direct damages are usually kept in account. Again, if the suspension will last in total (even in case of the addition of multiple periods of suspensions) more than one year, the contractor will have the additional right to terminate the contract. 

It is essential not to wait until the end of the crisis. Indeed, it is the duty of the contractor to notify promptly the contracting party about the prejudices suffered, under a short deadline and in the prescribed forms.

And what if a Company already invoked Force Majeure?

Although in the practice, the results of the two options can be assimilated (no liability for the delay and compensation, persistence of the duty to pay the dues originated before the occurrence), it is worth to note that there could be a conflict between the remedies for suspension provided by the CCAG and the contractual provisions. Indeed, the Force Majeure clause of a contract could provide the contractor with broader categories for indemnification.

Again, there could be some remedies provided by some Bilateral Investment Treaties (BITs), where Algeria undertook to grant full protection and security to the investors in case of Force Majeure events, leading potentially to an extension of the categories of the prejudices subject to indemnification.

In addition, the BIT prohibits treatment less favorable than that offered to national or third-party foreign investors.

Furthermore, it is worth to underline that with the issuance of an ODS d’Arret, all the works in the scope of a contract will be suspended, while under Force Majeure, only the obligations set forth in the contract which result impossible to perform will be targeted.

In that case, we highly suggest proceeding with an assessment in order to understand how the different provisions will relate and coordinate each other, with the aim to obtain the most satisfactory result.

Which solutions in case the contractual conditions became too burdensome?

Besides the recognition of actual and direct damages thanks to the provisions of CCAG, it is worth to underline that if the balance of the contract is altered and became, if not impossible, extremely burdensome, it could be possible to ask the contracting Party for it rebalance.

This could claim under the general theory of public contracting, but also based on the international principle of hardship, briefly enounced under art.

107 of the Civil Code. In that case, normally the unit prices could be increased until the neutralization of the disequilibrium. 

In order to have higher chances to invoke successfully such right, the respect of formalities, especially during the crisis, must be absolute and a company should prepare a pertinent detailed file in compliance with the local usages.

Indeed, one of the requirements is to prove that an excessive burden has been met and not only a higher, but tolerable burden, since in this latter case it will be considered implicit to the entrepreneurial risk and it will not entitle to any compensation.

So how a Company should proceed now?

We highly suggest now to be proactive and promptly perform several actions. In particular, you should draft a detailed report of the prejudices suffered, proceed with the draft and notification of formal letters and communication, within the deadlines, with a particular attention to the wording and in compliance with the local usages.

In addition, it is worth to understand if your specific case falls into the scope of a Bilateral Investment Treaty. Again, it is suggested to assess which are the remedies provided for Force Majeure in the executed contracts.

Finally, in case the contract became too burdensome and the conditions changed dramatically, it would be useful to claim for a rebalance.

In lack of the respect of all the provided deadlines, formalities and local usages, it is likely that a request for indemnification will be set aside.

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Algeria enacted new framework

Algeria enacted new framework

Last August, the new investment law N0 16-09 entered into force which is not, as usual, a single piece of legislation gathering investment law, finance laws, tax codes, and regulations exchange control. However, the law should be interpreted as being the preliminary step of a mid-term process for amending the “doing business” framework in Algeria which is a positive signal for foreign investors. In fact, the law repealed many burdensome provisions from the former draft and it aims to prepare the ground for further friendly measures. Indeed, the law shall be fully applicable once the 29 regulations provided thereof shall be issued. Basically, the Law provides a broader notion of investment while reinforcing and facilitating the advantages granted to investors. Equally, the Law shows a clear willing to amend the investment financing system although major steps are still to be achieved on that aspect.

A new definition of investment

Investments are now defined by the New Investment Law (articles 2) as (1) an acquisition (of assets related to the creation of new activities or the extension of production and/or the rehabilitation) or (2) a holding in the share capital of a company.

Unlike the previous law, the shareholding related to the privatization of a public company is not considered anymore as an investment and it is now only governed by Article 62 of the 2016 Budget Law. Equally, the award of a concession or a license still not falls into the scope of investment.

 

A broader notion of contribution in shareholding

Contributions in a company share capital are not limited to the typology of contributions in cash and kind. Unlike the previous law, the investor may enjoy the opportunity to contribute in industry, at least in within the frame of a Limited Liability Company.

Equally, under Articles 6 of the Law, a contribution in kind can be achieved through the importation of used assets provided that they will fall into the scope of a delocalization operation. Such provision was already in force through article 59 of the Budget law 2016 whereby used goods aged less than 2 years where allowed to importation, even if it was not applied in the practice.

The application of this provision is still broad, in particular the concept of delocalization is unclear, as it must be clarified and specified by regulations.

However, it seems under the Custom Code that the goods thereof are those still covered by manufacturer warranty and that have been used previously by the investor abroad. Equally, contribution in kind can be done through the importation of new goods acquired through the scope of an international leasing transaction.

Importation procedures thereof shall be simplified and not subject to authorization in both cases.

 

The 51/49 rule is still applicable but removed from the law corpus

Although under the current applicable framework, a foreigner is still not able to own more than 49% of a company share capital, such provision is now removed from the Investment Law and is provided only by the Budget Law 2016.

In other words, the 51/49 rule should not be considered any longer as a mandatory principle and it is very likely that foreigners shall be soon entitled to control companies operating in certain sectors.

For instance, it seems that the next Budget Law shall provide some exception to such rule, probably in the banking sector. In brief, the investment law should be interpreted as the first step of the establishment of a more flexible and friendly system for foreign shareholders.

 

The obligation of local funding is removed

The Law removes as well the obligation for investors to call only for local funding for project finance. It is worth to remind that article 55 of the Budget Law 2016 provides the right to call for foreign funding related to strategic investment projects. Even if a further regulation shall clarify the funding framework, it seems, under the combination of the present Law and the Budget Law 2016 that strategic investment projects can be financed by funds raised abroad.

The granting of advantages is facilitated

The law sets forth an automatic system of facilitations aiming to reduce the impact of bureaucracy. In other words, investors are only required to perform a single registration through the submission of a single document and form. In brief, the granting of facilitations is not subject to decision from Investment Authorities but it is automatic if the investment is eligible. Under the law, any investment is eligible except those pertinent to some listed activities and to the acquisition of certain goods. For major investment projects, a decision from the National Council of Investment is still required because the advantages granted thereof are extraordinary and freely negotiated by the parties.

The Advantages granted to investors are enlarged

The new system of facilitations is now built around 3 different levels in order to give more incentives to the strategic projects.

The first level is a sum of common provisions which introduce more advantages such as estate tax exemptions and allowances. More significantly, all investors are now granted with a 3-year duration exemption of the income tax and professional tax while those hiring at least 100 employees are granted with a 5-year exemption.

The second level is the additional advantages granted to investment project based in some priority zones and/ or pertinent to specific sectors (tourism, agriculture, and industry) or which create new job opportunities. Here, the advantages are significantly enlarged while their duration is extended up to 10 years.

The last level is the extraordinary advantages for those investments falling into the scope of the national interest. Here, the granting of advantages is not automatic but subject to party’s negotiation. Among the several advantages and privileges, it is worth to mention that the law provides for funding facilitations.

Here, further regulations must clarify the applicable regime such as, for instance, the possibility for those projects to call up for foreign funding as allowed by the article 55 of the last Budget Law.

 

The transfer of funds abroad is enhanced

Although the transfer of funds remains quite burdensome because of the still applicable banking regulations, the Law aims to enhance the transfer abroad of the funds falling in the scope of the investment.

Indeed, under its article 31, investments reaching a certain threshold are granted with a guarantee of transfer abroad as well as their generated profits. Beside contribution in cash are now deemed to be an invested capital subject to transfer also any contribution made in kind.

In other words, any invested assets in kind shall imply the right to transfer abroad the corresponding amount. Equally, unlike the former practice, the law now considers reinvestment of the profits and dividends as an investment in the form of an external contribution. Indeed, the obligation to reinvest 30% profits set forth by the last budget law shall considered as an investment.

Moreover, the burdensome obligation provided by the previous law whereby the investor was obliged to maintain a positive balance of currency in favor of Algeria is banned.

In brief, the policy behind the law is to ease progressively the transfer of funds generated by investment abroad in order to attract more IDE.

 

The State Preemption right is still in force

Unlike announced by the initial draft of the law, under article 30 and 31 of the Law, the State “preemption rightis still in force.

Such right grants the Algerian government with the priority in purchasing any share when a transfer is intended to be performed from and/or to a foreign person.

In addition, such right applies also to indirect share transfer whereby a foreign based company holding shares in an Algerian based company which is granted with investment privileges is willing to transfer shares. In those cases and provided that the subject shares transfer shall overcome 10% of the share capital, the Algerian State shall be able, under some conditions, to purchase the target shares.

The policy behind the rule is to provide the hosting state with a right of control towards companies granted with privileges as per the international investment practice and standards.

It is worth to underline that the obligation to provide annual information regarding the shareholding of foreign legal entities owning shares in Algerian companies is removed.

PRACTICAL LEGAL GUIDE

" Doing business in Algeria 2019"

Provide you with an overview of the applicable legal framework in Algeria for international business transactions

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