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United Nations Economic Commission for Africa: Report on Investment Laws and Regulations in Africa*
Published online by Cambridge University Press: 20 March 2017
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- Copyright © American Society of International Law 1964
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[Reproduced from United Nations Document E/CN.14/INR/28 (October 30, 1963), are port of a study undertaken in accordance with resolution 43 (IV), adopted February 27, 1962, by the Economic Commission for Africa.- Only Part I of the report (pp. 1-39) is reproduced here . For a fuller description of the document, see “Notice of Other Recent Documents” in this issue of International Legal Materials.]
References
page 181 note l /“The teaching of law” it is beginning to be realized “is totally incomplete if it is hot accompanied by a background of economic, social and political sciences” See Statement of the President of Ghana to the Faculty of Law. Journal of African Law, No. 6, 1962 and H.W. Chitepo, in the African Conference on the Rule of Law, (Lagos, January 3-7, l961). International Commission of Jurists. Geneva, 1961.
page 182 note l /A.N. Alott, Judicial and Legal Systems in Africa 1962.
page 182 note 2 /The impact of English law upon Africa can be summarized in two ways: firstly, it had a modifying influence on certain aspects of local customary law and secondly, it filled the gaps in the traditional law of usage brought about by new commercial and economic values. The latter bringing in its orbit mercantile law and commercial law.
page 182 note 3 /See recommendation of the Conference of International Jurists held in Venice in October 1963. The Conference called on all African countries to undertake research in their own traditions and customs to harmonize their legislations.
page 183 note 1 /It has been suggested that there is another positive factor in Africa. Since most of the local laws are unwritten, the existing flexibility may be utilized for new economic needs. See The Future of “Law in Africa. Record of Proceedings of the London Conference. 28 December 1959 - 8 January I960.
page 184 note 1 /They belong to the Equatorial Custom Union (Union douaniere’ equatoriale) to which Cameroun is associated.
page 186 note 1 /There is an exception in the case of the Central African Republic where an article in the Constitution states inter alia that of property from the public to the private sector must be regulated by the authority of the law. Article 17, Constitution de la Republique. January 1963.
page 189 note 1 /See A.H. Hansan, Public Enterprise and Economic Development, London, I960, p. 203. The author takes several examples from under-developed areas and concludes that “the pattern of public enterprise cannot be drawn arbitrarily or solely in the light of ideological considerations”.
page 189 note 2 /The expressions “priority” and “approved” have been used inter-changeably in several laws. Strictly speaking “priority” is an arbitrary selection of industries while “approved” connotes that this “priority“ has been processed by some form of administrative procedure.
page 192 note l /Created by the Capital Investment Act 1963.
page 193 note 1 /See United Nations: Some Problems in the Organization and Administration of Public Enterprises in the Industrial Field.
page 194 note 1 /See Mobilization of Domestic Capital; Report of Second Working Party, where legal distinction is made between a finance corporation and development corporation. For other examples in Latin America and Asia. See United Nations Economic Survey of Latin America, 1953, and ECAFE L/122. 12 March 1957.
page 194 note 2 /According to the rule it must not exceed an amount equivalent to ten per cent of the Liberian Bank's total resources.
page 196 note 1 /Nationalization is an economic expression used here in the sense of “ownership and Control by the State”. Most Investment Codes, use the term ‘expropriation’ which legally means ‘the compulsory acquisition of private property by the State. There is an abundant literature on the subject. For a good summary see Priedmann, W. “Some impacts of Social Organization on International Law”. American Journal of International Law. 1956.
page 197 note l /Most'laws use the words “just”, “appropriate”, “equitable” and “fair“ interchangeably.
page 197 note 2 /There are virtually no restrictions in Sudan on the formation of foreign firms.
page 197 note 3 /Article 17. op. cit.
page 198 note l /West Africa, October 6, 1962, p. 1095.
page 198 note 2 /Rapport de présentation du Code des investissements.
page 199 note l /Senegal has specified that “building” industries, may be nationalized without guarantee.
page 199 note 2 /The two most famous cases in the contemporary world were the Anglo- Iranian Company and the Suez Canal Company, both of which were tak-ento the International Court of Justice. For conflicting opinions of judges, see ICJ Reports 1953 and 1957.
page 200 note l /See annex III.
page 202 note l /‘Employment’ is used in investment laws in the wider sense of training local labour in administrative, technical and managerial skills, sometimes defined in quantitative terms.
page 202 note 2 /This sometimes includes trade activities. In Senegal, the law makes it obligatory that the direction of trade activities be in the hands of the nationals., although foreign nationals are. allowed to participate in trade associations.
page 204 note 1 /These restrictions, however, do not apply to consessions.
page 204 note 2 /It must be noted that the general concepts of taxation is different in common law and civil law countries. Two types of taxes mentioned in part II of this study are different in connotation from the Anglo-Saxon con-cepts. They are (a) Droit fiscal d'entrée or the Entry Tax, levied for revenue purposes on nearly all goods from foreign countries; (b) Taxe forfaitaire or the Standard Tax which is a type of transaction tax based on custom duties and fiscal entry tax.
page 205 note 1 /See Establishment Conventions.
page 205 note 2 /See Report's on national tax systems in World Tax Series, Harvard Law School, especially Brazil, Mexico and India, 1957 and 1960. Also see ECOSOC resolution, 1951, on the need of system information on taxation.
page 205 note 3 /Cameroun has four regimess A, B, C and D.- All of these apply to enterprises according to the degree of their importance to economic development and the related type of economic benefits awarded.
page 205 note 4 /Discussed under Establishment Conventions.
page 206 note 1 /After this period of exemption the Investment Act of Qharia further provides that “Capital allowance” shall also be granted in respect of buildings, plant, machinery, structures, roads, furnitures,- fixtures for the purpose of an approved project.
page 206 note 2 /Senegal is a member of the West African Customs Union which inter alia co-ordinates the tariff rates and customs regulations of member countries. Other members of the Union are Dahomey, Mali, Ivory Coast, Mauritania, Niger and Upper Volta. The regulations for exemptions and tax relief can become effective only upon decision rendered by the Customs Union Committee.
page 208 note l /Established in January 1962. For details see part II.
page 208 note 2 /In addition, a few selected goods are exempted from import duties up to 40 per cent.
page 208 note 3 /Cameroun is an associate member of the “Union douaniere”.
page 209 note 1 /It may be noted that Upper volta is a member of the West African Customs Union and Conseil de l'entente. It also has a special agreement regarding free trade zone with Ghana. Upper Volta is also an associate member of the European Community.
page 210 note l /For example, MIFERMA in Mauritania, FRIA in Guinea, Uranium de Franceville in Gabon.
page 210 note 2 /There are several other examples in “les codes d'investissement” by J. Loyrette in Penant, April - May 1963.
page 211 note l /E.A.K. Akuoko, Impact of Legislation, Taxation Subsidies and Tariffs on the Volta River Project Negotiations. Paper presented to United Nations Conference in the Application of Science arid Technology for the, Benefit of the Less Developed Areas. E/CONF.3910/8. 26 September 1962.
page 211 note 2 /Arbitration is to be contrasted with conciliation or mediation in which the role of the third party- is to persuade the parties in a dispute to accept a settlement rather than impose upon them a: binding decision.
page 213 note 1 /In some cases there is a right to appeal to the National Court.
page 216 note l /United Nations Financing of Economic Development (third Report), E/3665, 28 June 1962.
page 216 note 2 /With the expeption of a few States who belong to the West African Customs Union and Equatorial Customs Union.
page 216 note 3 /ECLA, Studies on Central America, (CCE/GIF/l/D.T.I and E/CN.12/CCE/110).
page 217 note l /Later followed by various treaties on compulsory arbitration, e.g.,' LOCOMO Treaty 1928, The General Treaty of Interr-Amerioan Arbitration 1929.
page 217 note 2 /ECE Final Act and European Convention on International Commercial Arbitration, 21 April 1961, Geneva.