This research work is the result of a thesis defended on June 27, 2019 at the University of Rouen Normandy under the guidance of Mrs. Carine BRIÈRE, concerning “fiscal and customs policies regarding foreign investments in French-speaking Africa: case of the extractive natural resources sector”. It is a theoretical and practical pioneering work in this field of study that embraces tax law, customs law, mining law, investment law in addition to economic, sociological and political analyzes.
The author returns to the exploitation of extractive raw materials in Africa, which is not a recent activity. It originates from before and during the colonial period. However, since their independence, African states confront the question of the efficient implementation of the general interest concept through the use of their resources and the opening of their mining sectors to private investment. Indeed, the sub-soils of French-speaking African countries are rich with a dynamic economic growth that doesn’t materialize in the populations living in extreme poverty. Nearly 80% of Africa’s exports are generated by the extractive sector and the foreign direct investment largely depend on the timely fiscal and customs policies of the supposedly stronger states, which see them as levers of tax levies and customs duties. If the States of French-speaking Africa add up a multitude of handicaps concerning infrastructures, electrical energy, infrastructures, human resources, strong institutions, the latter try to seduce the investors by specific fiscal and customs policies.
For the author, it was important to determine if tax and customs strategies are attractive to foreign investments, to question the relations between tax and customs incentives and the contractual balance that guarantees the sustainability of the state’s contract and assess the effective governance of these policies in order to protect the interests in balance.
Firstly, Mamoudou Barry mentions the legal and strategic challenges of developing attractive tax and customs policies. The author examines the different titles issued by the host States such as prospecting, exploration and exploitation titles and the different contractual forms such as the state contract, service contracts, company contracts, association contracts and production sharing contracts. They are accompanied by a tax and customs regime which may fall under land law or mining royalties. Stability and intangibility clauses are also part of the legal guarantees for foreign investors. The effectiveness of these approaches is practically questioned regarding the instability of mining law or even corruption.
Secondly, the author analyzes the necessity for better governance of the tax and customs policies of French-speaking African states. This governance overlaps with the requirement for quality tax and customs control, the fight against indirect profit transfers and even more equitable management of friendly and arbitral settlement of tax and customs disputes.
Mamoudou Barry concludes his work by proposing recommendations address the shortcomings of French-speaking African states in their relations with private investors. They are legal, technical and institutional.
This innovative thesis is undoubtedly an essential compass for enhancing the contribution of extractive resources to the development of African States, for both state and non-state actors.
Par L'INESI LE 24 Février 2020