2012 Investment Climate Statement - Mali
Openness to, and Restrictions Upon, Foreign Investment:
Mali generally encourages foreign investment. Foreign and domestic investments receive equal treatment. The structural adjustment facility agreements signed by the IMF/World Bank and Mali since 1992 encourage foreign investment. The government's national strategy to fight poverty presented to the IMF, World Bank, and other donors emphasizes the role of the private sector in developing the economy. Mali is a member of the Economic Community of West African States (ECOWAS) and the West African Economic and Monetary Union (WAEMU), which aim to reduce trade barriers, harmonize monetary policy, and create a common market.
The investment, mining, commerce, and labor codes have the stated intention to encourage investment and attract foreign investors. Mali has privatized a number of state-owned enterprises, and foreign companies have responded successfully to calls for bids in several cases.
The Malian government has instituted policies promoting direct investment and export-oriented businesses. Foreign investors go through the same screening process as domestic investors. Criteria for granting authorization under the 2005 investment code include the size of the proposed capital investment, the use of locally produced raw materials, and the level of job creation. Mali maintains a one-stop shop for prospective investors, the Agence pour la Promotion de l'Investissement (API-Mali). Mali continues to improve its ranking in the World Bank's Doing Business Report 2012 to 146 of 183 economies from 148 of 183 economies in 2011. On the regional level, Mali ranks 22 of 46 sub-Saharan economies. Mali has also created, with World Bank support, a Presidential Investment Council. The council is comprised of foreign and national businesspeople and is aimed at improving the business climate in Mali and identifying best prospects for investment.
The investment code gives the same incentives to both domestic and foreign companies for licensing, procurement, tax and customs duty deferrals, export and import policies, and export zone status if all production is to be exported. Export taxes and import duties have been reduced or eliminated as part of ongoing economic reforms. Price controls are applied to petroleum products and cotton, and occasionally to other commodities, such as rice, on a case by case basis. Incentives include exemptions from duties on imported equipment and machinery. Investors may also receive tax exemptions on the use of local raw materials. In addition, specific incentives may be negotiated on a case-by-case basis.
Foreign investors can own 100 percent of any businesses they create. They can also purchase shares in parastatal companies being privatized or in other local companies. Foreign companies may also start joint-venture operations with Malian enterprises. The repatriation of capital and profit is guaranteed. Despite a generally favorable investment regime, foreign investors face challenges. Investors sometimes report that tax collectors interpret tax laws to discriminate against foreign companies or companies with foreign capital. The tax system remains complicated in spite of ongoing efforts to improve it. Foreign companies have also reported delays with clearing customs when importing machinery. A foreign mining company has complained of having to make under-the-table payments clear customs for machinery and petroleum product imports. Enforcement of contracts in Mali can be problematic. Corruption in the judiciary is pervasive, and companies can often find themselves at a disadvantage vis-à-vis Malian or third country investors.
Some key economic indicators:
--Transparency International Corruption Index: 2.8 out of 10
--Heritage Economic Freedom: 56.3 out of 100
--World Bank Doing Business: 146 of 183
--MCC Government Effectiveness: 49 percent
--MCC Rule of Law: 83 percent
--MCC Control of Corruption: 68 percent
--MCC Fiscal Policy: 61 percent
--MCC Regulatory Quality: 73 percent
--MCC Business Start Up: 39 percent
--MCC Land Rights Access: 20 percent
--MCC Natural Resource Management: 3 percent
Conversion and Transfer Policies:
The investment code allows the transfer of funds associated with investments, including profits. As a WAEMU member, Mali uses the Francophone Africa Common Franc (FCFA) currency. Linked to the Euro, the FCFA is fully convertible at a rate of Euro 1 = FCFA 655.957. No parallel conversion market exists because the FCFA is a fully convertible currency supported by the French treasury, which ensures a fixed rate of exchange.
As of January 2012 the U.S. Embassy purchased local currency at a rate of approximately FCFA 509 per U.S. dollar. The U.S. Embassy obtains currency through the Department of State’s Financial Service Center and through a local bank.
The FCFA has not been devalued since January 1994. There are no limits on the inflow or outflow of funds for repatriation of profits, debt service, capital, or capital gains. In the FCFA zone there is no restriction on the export of capital provided that adequate documentation to support a transaction is presented. Most commercial banks have direct investments in western capital markets. No physical transfer of funds is authorized outside the borders of the FCFA zone. It takes less than one week to transfer funds abroad.
Expropriation and Compensation:
Expropriation of private property for public purposes is rare: the only known expropriation against a foreign company occurred in the early 1960s. By law, the expropriation process should be public and transparent, and in accordance with the principles of international law. Compensation based on market value is awarded by court decision.
The government may exercise eminent domain to undertake large-scale public projects, in cases of bankrupt companies that have had a government guarantee for their financing, or in certain cases when a company has not complied with the requirements of an investment agreement with the government. In 2000, the government expropriated land in the vicinity of the Bamako city airport for air safety reasons. Notifications of the expropriation were sent via direct mail and published in public and private media. In 2010 / 2011, the government expropriated private land on the outskirts of Bamako for the construction of low and medium income housing. The prior owners have initiated a legal case against the government, arguing that housing projects should not be considered large-scale public works projects.
Disputes occasionally arise between the government or state-owned enterprises and foreign companies. Some cases involve wrongdoing on the part of companies and/or corrupt government officials.
In November 1991, an independent commercial court was established with the encouragement of the U.S. Government to expedite the handling of business litigation. Commercial courts are located in Bamako, Kayes, and Mopti. In areas where there is no commercial court, disputes are first heard at local courts of first instance. Since its inception, the commercial court has handled cases involving foreign companies. The court is staffed by magistrates assisted by elected Malian Chamber of Commerce and Industry representatives. Teams composed of one magistrate and two Chamber of Commerce and Industry representatives conduct hearings. The magistrate's role is to ensure that decisions are rendered in accordance with applicable commercial laws, including internationally recognized bankruptcy laws, and that court decisions are enforceable under the law.
Despite efforts to improve, the judicial system is slow and inefficient, and is widely reputed to be corrupt. In 2006 an appeals court ordered an American company to pay damages to a Chinese company after the American company filed apparently legitimate charges alleging trademark infringement. In January 2009 the Malian Supreme Court overruled the appeals court, and sent the case back to the appeals court for a new hearing. Litigation in this case is still pending. U.S. companies, bound by the Foreign Corrupt Practices Act (FCPA), have expressed the view that they are at a disadvantage when it comes to legal proceedings vis-à-vis other foreign companies that are not bound by similar legislation. For the past three years, German investors have been involved in a dispute with the state-owned Malian Housing Bank (BHM) over expropriation of property, though the case is still pending.
The investment code allows a foreign company that has a signed agreement with the government to refer to international arbitration any case that the local courts are unable to resolve. Mali is a member of the African Organization for the Harmonization of Business Law (OHADA) and has ratified the 1993 Treaty creating the Joint Arbitration Court. OHADA has a provision for allowing litigation between foreign companies and domestic companies or the government to be tried in an appellate court outside of Mali. Mali is a member of the International Center for the Settlement of Investment Disputes (ICSID - also known as the Washington Convention). Mali is a member of the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitrage Awards. Mali has been a member of the World Bank Multilateral Investment Guarantee Agency (MIGA) since 1990.
The investment code offers incentives to companies that reinvest profits to expand existing businesses or diversify into another relevant sector. The code also encourages the use of locally sourced inputs, which can offer tax exemptions. Companies that use at least 65 percent of locally produced raw materials are eligible for certain tax exonerations. Companies that invest at least five percent of their turnover in supporting local research and development are eligible for a reduction of payroll taxes for Malian employees.
There is no requirement that Malian nationals own shares in a foreign investment or that foreign equity be reduced over time. In the case of joint ventures with the government, the government share may not exceed 20 percent ownership. OHADA regulations specify that a company with less than 35 percent government equity is legally considered a private company.
Most businesses are located in the capital, and the investment code encourages the establishment of new businesses in other areas. Incentives include income tax exemptions for five to eight year periods, reduced-energy prices, and the installation of water supply, electric power, and telecommunication lines to areas lacking public utility services.
Any company, domestic or foreign, that plans to export at least 80 percent of its production is free of all taxes for a period of 30 years. The law allows up to 20 percent of total production to be sold domestically, subject to the same taxation as other similar imported products. Mali currently has no dedicated free trade zones.
The National Assembly approved a new petroleum code in June 2004. The new law allows an initial period of four years for prospecting, renewable for two successive periods of three years each. Prospecting and exploitation permits, as well as their renewal, are subject to the payment of fixed taxes ranging from one million to ten million CFA (approximately USD 2,000 to 20,000). In addition, permit holders are liable for the payment of taxes while prospecting ranging from CFA 500 – 2,500 (USD 1-5) per square kilometer and taxes of CFA 1,000,000 (USD 2,000) per square kilometer during exploitation. Permit holders and the companies associated with those permit holders are subject to a 35 percent tax on net profits. In 2004, the government created a marketing office for petroleum exploration, l'Autorité pour la Promotion de la Recherche Pétrolière, or AUREP. This agency drafts, plans and implements oil research programs, and collects data on oil reserves. AUREP is also the interface with the government for private sector petroleum investors.
The government has identified priority sectors for furthering economic development. Special incentives are offered for investment in the following areas:
--Fishing and fish processing
--Livestock and forestry
--Mining and metallurgical industries
--Water and energy production industries
--Tourism and hotel industries
--Human and animal health promotion enterprises
--Vocational and technical training enterprises
--Cultural promotion enterprises
Right to Private Ownership and Establishment:
The government has price controls on petroleum products and locally produced cotton, and occasionally controls the price of basic commodities, such as rice. The free market determines prices of other goods. Domestic and foreign companies compete on an equal basis with public enterprises and they share equal rights to private ownership and establishment. The government's privatization program for state enterprises holds investment opportunities through a process of open international bidding. In the past several years, the government has privatized parastatal enterprises including the cotton processing company, Huilerie cotonnière du Mali (HUICOMA); the International Bank of Mali (BIM); and the telecommunications company, Societé des Telecommunications du Mali (SOTELMA).
The government is in the process of privatizing the cotton marketing parastatal, Compagnie malienne pour le développement des textiles (CMDT). The process has reached its final stage where out of the three companies (including two foreign) that have submitted technical and financial offers, only one of the foreign companies has remained in the process (the two others withdrew their offers with no public explanation). The remaining company is awaiting the government final award decision. Local media has questioned the transparency of the bidding and contracts award process, though no concrete evidence of corruption has been presented.
Protection of Property Rights:
Property rights are nominally protected in Mali. The government established the Malian Center for the Promotion of Industrial Property and charged it with implementing the legal regime of property rights protection, including the World Trade Organization (WTO) TRIPS agreements. This agency is a member of the African Property Rights Organization (IAPO) and works with international agencies recognized by the United Nations Industrial Development Organization (UNIDO). Patents, copyrights, and trademarks are covered.
These structures notwithstanding, property rights are not always adequately protected in practice. As already noted in the dispute settlement section, a U.S. herbicide manufacturer has been mired in a three-year long legal battle with a Chinese company that is claimed to be infringing on the U.S. companies’ trademark rights. In spite of a favorable ruling by the Supreme Court, the case was remanded to a lower court in 2010 and the outcome of the case remains unclear.
Transparency of the Regulatory System:
As reflected in agreements with the International Monetary Fund (IMF) and World Bank, the government of Mali has adopted a transparent regulatory policy and laws to foster competition. The commerce and labor codes adopted in 1992 are designed to meet the requirements of fair competition, to ease bureaucratic procedures, and to facilitate the hiring and firing of employees. The investment code simplifies the application process to establish a business, and favors investments that promote handicrafts, exports, and labor-intensive businesses. The 2012 Doing Business Report notes that it takes an average of four procedures and eight days in order to establish a business in Mali, an improvement over the previous report. The Mining Code encourages investments in small and medium mining enterprises, awards two-year exploration permits free of charge, and does not require a commitment from the exploring firm to lease the area explored thereafter. Mali is a member of OHADA and implements the Accounting System of West African States (SYSCOA), which harmonizes business practices among several African countries consistent with international norms.
Efficient Capital Markets and Portfolio Investment:
WAEMU statutes and the BCEAO determine the banking system and monetary policy in Mali. BCEAO headquarters are located in Dakar, Senegal. Commercial banks enjoy considerable liquidity. Banks' deposit funds are split 75/25 between demand deposits and time deposits, respectively. The majority of banks' loanable funds, however, do not come from deposits, but rather from other liabilities, e.g. lines of credit from the BCEAO and North African and European banks. In spite of having sufficient loanable funds, commercial banks in Mali tend to have highly conservative lending practices. Bank loans generally support short-term activities, such as letters of credit to support export-import activities and short-term lines of credit and bridge loans for established businesses. Small- and medium-sized businesses have difficulty obtaining access to credit. In order to strengthen the banking sector, WAEMU raised the minimum stockholders equity capital required of banks and financial institutions by end-2010 to CFA 5 billion (USD 10 million) and CFA 1 billion (USD 2 million), respectively. Following this first phase, WAEMU will establish a timetable to raise the minimum stockholders equity capital requirement to CFA 10 billion (USD 20 million) for banks and CFA 3 billion (USD 6 million) for financial institutions. This projected requirement applies immediately to new banks and financial institutions.
Portfolio investment is not a current practice, although the legal and accounting systems are now transparent enough and are similar to the French system. In 1994 the government instituted a system of treasury bonds available for purchase by individuals or companies. The payment of dividends or the repurchase of the bonds may be done through a compensation procedure offsetting corporate income taxes or other sums due to the government.
The WAEMU stock exchange program based in Abidjan has a branch in each WAEMU country, including Mali. To date, no Malian company is listed on the stock exchange. The privatization programs of the electric company, EDM, the telecommunications entity, SOTELMA, and cotton ginning company, CMDT, and the forthcoming privatization of Bamako-Senou Airport offer prospects for some companies to be listed on the WAEMU stock exchange.
The government of Mali has participated in the Sovereign Credit Rating Program sponsored by the State Department in 2002. Fitch Ratings won a competitive contract to conduct the ratings. The U.S. Treasury Department provided technical assistance to the Malian Ministry of Economy in this endeavor with the support of the U.S. State Department. Fitch completed its evaluation in 2004 and awarded a B- to Mali. Parallel to this effort, Standard and Poor's awarded Mali a BBB- rating in 2005 through a UNDP-funded program. Standard and Poor's has not rated Mali since 2005. In December 2009, Fitch Ratings affirmed Mali's long-term foreign and local currency Issuer Default Ratings (IDRs) at B- with Stable Outlooks respectively, Country Ceiling at BBB- and short-term foreign currency IDR at B. After completion of the State Department-sponsored rating program, Fitch announced in December 2009 it would no longer provide rating or analytical coverage of Mali, and all ratings have been withdrawn. There has been no rating of Mali since.
Mali's IDR of B- reflects the country's high level of poverty, vulnerability to external shocks and slow economic growth. Mali consistently runs a current account deficit, due to its high dependence on energy imports and low export base. Fitch does not expect any improvement in Mali's creditworthiness in the medium to long term. However, the country's external situation is not a constraint, as Mali is part of the West African Economic and Monetary Union: the CFA is pegged to the Euro and the French Treasury guarantees its convertibility
Competition from State-Owned Enterprises:
Private and public enterprises compete under the same terms and conditions. No preferential treatment is awarded to State-Owned Enterprises (SOEs), although they can be at a competitive disadvantage due to the limited flexibility they have in their management decision-making process.
Mali is in the process of privatizing its SOEs, but a number of SOEs still exist. The government is active in the agricultural sector: the Niger River Authority (Office du Niger) controls much of the irrigated rice fields and vegetable production in the Niger River inland delta, although more private operators were granted plots of land to develop. Mali will also grant titles to small private farmers, including women, through an MCC-funded irrigation project; an adjacent tranche developed with MCC will be open to large scale private investment through a public tender process. The national cotton production company, CMDT, which is at the final stage of privatization, provides financing for fertilizers and inputs to cotton farmers, sets cotton prices, purchases cotton from producers and exports cotton fiber via ports in neighboring countries. The government is still active in the banking sector. While it no longer has a majority stake in the Malian Development Bank (BDM), it has significant influence over operations, as the Minister of Finance serves as head of the Board of Directors. The Malian government also owns the Agricultural Development Bank (BNDA), the Malian Solidarity Bank (BMS), and the Housing Bank (BHM). In addition, the electricity and water company, Energie du Mali, or EDM, is owned by the government after a failed privatization attempt. Senior government officials from different ministries make up the board of SOEs. Major procurement decisions or equity raising decisions are referred to the Council of Ministers. Government powers remain in the hands of Ministries or government agencies reporting to the Ministries. No SOE has delegated powers from the Government.
SOEs are required by law to publish an annual report. They hold a mandatory annual Board of Directors meeting to discuss the financial statements prepared by a certified public accountant and certified by an outside auditor in accordance with domestic standards (which are comparable to international financial reporting standards). Mali's independent auditor general conducts an annual review of public spending, which may result in the prosecution of specific cases of corruption. Mali has no sovereign wealth fund.
Corporate Social Responsibility:
There is no general awareness of corporate social responsibility in Mali among producers or consumers. Foreign mining and oil exploration companies sometimes provide schools and health clinics to communities in proximity of their activities. This is not always done with strict adherence to generally accepted principles such as the OECD Guidelines for Multinational Enterprises, but is rather the result of individual negotiations between the company and the leaders of neighboring communities.
Mali's multi-party democracy, now two decades old, has consistently encouraged private enterprise and investment. Occasional student and labor strikes and small-scale political demonstrations have sometimes resulted in political vandalism and violence, but not enough to impact the investment climate. President Amadou Toumani Toure was first elected in 2002, and was reelected to his second and final term in 2007. Municipal elections were held in April 2009 and observers deemed them generally free and fair. Presidential (coupled with constitutional amendment referendum) and legislative elections are planned respectively for April and July 2012. The President has repeatedly stated publicly his intention to step down after his constitutionally mandated term.
Northern Mali suffers from periodic episodes of violence related to inter-tribal politics, smuggling and other criminal activities, and friction between local tribes and the central government. The most serious violence in recent history occurred from 2006-2009, when certain Tuareg tribes of the Kidal Region rebelled against central government control. Although the Government of Mali and Tuareg rebels signed a peace agreement, the Algiers Accord, in 2007, violence continued until early 2009. Over the past 12 months, the return to Mali of armed Tuareg combatants from Libya, renewed demands for independence or autonomy from some northern communities, and continued weak state presence in the north, increased instability in an already unstable north. On January 17, National Movement for Liberation of the Azawad (MNLA) forces attacked a National Guard installation in Menaka, near the Niger border in the eastern Gao Region. On January 18, MNLA forces also attacked military installations in the towns of Tessalit and Aguelhok, which are located in Kidal Region near the Algerian border. The MNLA also has indicated via its websites that it intends to attack Timbuktu and other cities in northern Mali.
The Algeria-based terrorist group, Al Q'aida in the Islamic Maghreb (AQIM), also continues to use regions of northern Mali as a rear base, to hold kidnap-for-ransom hostages, and to launch operations against neighboring Algeria, Mauritania, and Niger. AQIM executed a French citizen in July 2010 and was responsible for the deaths of one British and three French citizens in failed kidnap for ransom attempts over the past three years. In November 2011, two additional French citizens were kidnapped in the northern village of Hombori followed few days later by the kidnapping of three westerners and the killing of a fourth one in the city of Timbuktu. AQIM has claimed responsibility for the kidnappings and killing. A total of 13 hostages currently may be held in northern Mali.
In spite of the evident problems with AQIM, the vast majority of Malians practice an open and tolerant form of Islam. Mali maintains good relations with its seven neighbors.
Corruption is considered a crime punishable under the penal code. This notwithstanding, there are widely circulated reports of bribery in many large contracts and investment projects. Corruption poses an obstacle to foreign direct investment. Government officials often solicit bribes in order to complete otherwise routine procedures. Using assessments by the African Development Bank, the World Bank, and the World Economic Forum, in 2011 Transparency International assigned Mali a score of 2.8 on a 0 to 10 scale of perceived public sector corruption, zero representing the worst score. Mali ranked 118 of 182 countries surveyed.
Corruption seems most pervasive in government procurement and dispute settlement. The government has addressed this by requiring procurement contracts to be inspected by the Directorate General for Public Procurement, which determines whether the procedure meets fairness, price competitiveness, and quality standards. Mali's international donor community has been working with the government to reduce corruption, but progress has been slow.
The President created an Office of the Auditor General (OAG) in 2004, an independent agency tasked to audit public spending. Since inception, the OAG has uncovered several large cases of corruption. The anti-corruption prosecutor announced in early 2011 that approximately USD 15 million of embezzled public funds have been recovered in certain cases, however, none of these cases have resulted in prosecutions. Similarly, inspectors from the Global Fund for AIDS, Tuberculosis and Malaria have uncovered cases of embezzlement of public and donor funds at the Ministry of Health. Several high-ranking Ministry of Health officials are being prosecuted, and the Minister of Health resigned and was subsequently indicted. All involved parties are awaiting trial.
Questionable judgments in commercial cases have occasionally been successfully overturned at the court of appeals or the Supreme Court. In 2007, the Auditor General organized a discussion with magistrates to find ways by which the Office of the Auditor General and the judiciary could work to bring economic crimes to trial. There is a general perception among the populace that while prosecution of minor economic crimes is routine, official corruption, particularly at the higher levels, goes largely unpunished.
Bilateral Investment Agreements:
Mali has signed the International Center for Settlement of Investment Disputes (ICSID) treaty sponsored by the World Bank group. During the past six years, Mali has signed investment protection agreements with South Africa, Algeria, Senegal, and Libya.
OPIC and Other Investment Insurance Programs:
Since October 1997, Mali has been eligible for U.S. Exim Bank programs for short and medium term insurance and guarantees for the private sector, and long term insurance or guarantees for the Government in target sectors. Mali is also eligible for certain OPIC programs. Mali has been a member of the World Bank's Multilateral Investment Guarantee Agency (MIGA) since 1990.
Labor is widely available, though skilled labor is in short supply. Workers have the right to unionize. Relations between labor and management are often contentious. Although a warning notice for strikes is not required in the private sector, mediation procedures are generally followed before resorting to a strike. The government has signed the International Labor Organization agreement protecting the rights of workers. Although the labor code adopted in 1992 (and amended in December 2011) improved hiring and firing procedures, it still requires simplification. Powerful labor unions play an important role in national affairs. Compensation plan negotiations and firing procedures are very long and closely scrutinized by the Ministry of Labor and the judiciary. Labor disputes have constituted one of the major difficulties both Malian and foreign employers historically have encountered. Although not a requirement, it is advisable to have regular contacts with labor inspectors, especially when concluding new hiring contracts or considering terminations or reductions in force.
Foreign Trade Zones/Free Ports:
By law, there is no discrimination between foreign-owned firms and host country entities in terms of investment opportunities. Companies (domestic or foreign) that export at least 80 percent of their production are entitled to the status of tax-free status. As such, they benefit from duty free-status on all equipment and other inputs they need for their operations. To date, there are no dedicated free trade zones in Mali.
Foreign Direct Investment Statistics:
Companies from Australia, Canada, Great Britain, India, Japan, and South Africa have made significant investments in the mining sector. France, Germany, and China have made significant investments in the manufacturing and food processing sectors. In its 2011 World Investment Report, the United Nations Conference on Trade and Development (UNCTAD) reported that Mali received foreign direct investment (FDI) of USD 148 million in 2010, while total FDI stock for 2010 was USD 1.2 billion. FDI inflows to West Africa decreased in 2010 to USD 11.3 million from USD 12.6 million in 2009.