Law n ° 2017-06 of 06 January 2017 on special economic zones (SEZs)

EXPOSE REASONS

The creation and effective implementation of special economic zones (SEZs) is a priority in the implementation of the strategic orientations of the Senegal Emergent Plan (PSE). The Government has committed itself to the establishment of a regional logistics and industrial hub, enabling it to initiate a process of industrialization in order to increase the potential of exports, to rebalance the trade balance of To create a large number of jobs.

The objective is to demonstrate Senegal's ability to offer high value-added products and services to attract foreign investors and retain national human resources.

Already in 2007, the State of Senegal adopted a law enshrining the creation of an Integrated Special Economic Zone (ZESI). While the context of the adoption of Law No. 2007-16 of 19 February 2007 has evolved, the objectives that guided the creation of the privileged zone have retained all their relevance and relevance. The establishment of the ZESI was an opportunity for Senegal to become a world-class competitive player in attracting investment and benefiting fully from the dynamics and evolution of trade International.

However, eight (08) years after its creation, the ZESI is struggling to find an effective deployment. Apart from socio-economic contingencies, the legal obstacles to this deployment are mainly the result of the lack of clarity in the governance framework of the area initially laid down by Act No. 2007-16 establishing and laying down the rules Organisation and operation of the ZESI. The legal framework resulting from this mechanism raises problems of articulation between regulatory bodies and operational structures, which is a source of insecurity for potential investors, with regard to the Rationality of economic law and international standards in the governance of these special economic zones.

The other weakness of the current legal and institutional framework is its limited nature to the only integrated special economic zone, excluding any other special economic zone (SEZ) that would be created in Senegal.

The aim of this draft guidance law, which repeals Act No. 2007-16, with the exception of those relating to the creation and delimitation of the Dakar Integrated Special Economic Zone, is to define a new governance framework Applicable to all special economic zones in Senegal and to establish the legal and institutional bases for their effective deployment and optimal development. In addition, the bill reaffirms the role of the limited company " APIX-SA " As administrator of the ZES in Senegal, in accordance with the provisions of Act No. 2007-13 of 06 February 2007 authorising the creation of an anonymous company with a majority public interest known as " APIX-SA."

As a result, the following major innovations are being introduced in this Bill:
Extension of the scope of the law to all special economic zones, in particular those directed towards the development of agribusiness, information and communication technologies, tourism, the provision of services Medical, manufacturing and service industries;
The redevelopment of the SEZ governance framework based on international best practices, including a clear and precise definition of the tasks and prerogatives of the SEZ administrator. These are clearly distinguished from the strategic direction and implementation of the development policies of the SEZs devolved to the Ministry responsible for the promotion of investments. The tasks of regulation, mediation and conciliation will be entrusted to a public-private joint committee established by decree;
The designation of promoters/developers of the area which may be public or private.
The provisions on tax, customs and social incentives are provided for in a law provided for in this policy.
This bill includes six (6) chapters:
Chapter I deals with general provisions;
Chapter II deals with the establishment and delimitation of the perimeter of special economic zones;
Chapter III is related to the governance framework of the Special Economic Zones;
Chapter IV deals with businesses in the Area and authorized economic activities;
Chapter V deals with remedies and dispute resolution;
Chapter VI deals with the various and final provisions.

This is the economy of this draft policy bill.

The National Assembly adopted, at its meeting on Friday 30 December 2016,

The President of the Republic enacts the following legislation:

Chapter I. - General provisions

Article 1. -Object

The purpose of this Act is to define the general framework for the governance of special economic zones in Senegal, in short " ZES."

Article 2. - Definitions

For the purposes of this Law:

1. Administrator: the entity responsible for the administration and management of special economic zones, by providing services to investors in a space provided for this purpose. This is APIX-SA under the authority of Act No. 2007-13 of 06 February 2007 authorising the creation of an anonymous company with a majority public interest known as " APIX-SA ";

2. ICSID: the International Centre for the Settlement of Investment Disputes (ICSID), an international institution affiliated with the World Bank and created in accordance with the ICSID Convention;

3. Public-Private Joint Committee or " Joint Committee " : the committee established by decree and responsible for the regulation, mediation and conciliation between the actors operating in the SEZs;

4. ICSID Convention: the Washington Convention of 18 March 1965 for the settlement of investment disputes between States and nationals of other States;

5. Developer/developer agreement: the concession agreement signed by the competent authority and a promoter/developer of the SEZ in accordance with the
This Act and the regulations establishing the terms and conditions under which a promoter/developer of the SEZ is authorized to develop and empower ZES lands, to create infrastructures in the SEZ and to promote, Operating, managing the SEZ, and providing complementary services;

6. Economic entity: the entity incorporated or organized legally for profit, private or public purpose, including any company, company, partnership or partnership, individual enterprise, joint venture or other association;

7. Economic entity of foreign nationality: (i) the economic entity (excluding a branch) whose domicile or residence, the head office, the place of incorporation is situated in a foreign country or territory, or (ii) the branch of a Economic entity of foreign nationality operating in the Republic of Senegal;

8. Economic entity of Senegalese nationality: the economic entity incorporated or organized legally in accordance with the legal and regulatory provisions in force in Senegal, in particular with regard to registration in the Register of Commerce And the real estate credit and the National Business and Association Identification Number (NINEA);

9. SEZ undertaking: the economic entity which has received an authorisation issued by the administrator of the SEZs to carry on a trade or any other economic activity, in order to carry out, in particular, any industrial, commercial, service, Logistics, tourism and real estate or to create an industrial unit in the SEZ, including a promoter/developer of the SEZ;

10. An exempt business: the economic entity that has obtained the legal status of a SEZ business, who is authorized to carry on economic activities in the SEZ and who benefits from the customs and tax benefits provided for in the Act Relating to the incentive arrangements applicable in special economic zones.
The developer/developer, defined below, is also considered an exempt business;

11. Land use plan for SEZs: the plan governing all land use conditions in the SEZ;

12. Delineation plan: the plan that regulates the boundaries, offsets, heights and densities applicable to SEZ lands;

13. Promoter/developer of SEZ: the economic entity that has signed a developer/developer agreement with the competent authority in accordance with this Act;

14. ZES grounds: all public and private land originally or subsequently designated for use in the SEZ pursuant to Articles 4 to 7 of this Law;

15. National customs territory: the part of the national territory outside Area A, in which national customs legislation applies;

16. ICSID arbitration tribunal: court
ICSID arbitration in accordance with the ICSID Convention;

L7. Special economic zone, in short " ZES " : the geographical area within the territory of the
The Republic of Senegal designated as the location of the SEZ in accordance with Articles 3 to 7 of this Law. This space is intended to be an investment pole par excellence by providing a competitive environment for business and investment;

18. Integrated Special Economic Zone, in abridged " ZESI " : the special economic zone referred to in Article 1 of Law No. 2007-16 of 19 February 2007 establishing and laying down the rules for the organisation and operation of the integrated special economic zone.

Chapter II. - Establishment and delimitation of the perimeter of special economic zones

Article 3. - Establishment of special economic zones

The special economic zones are created by decree after the completion of an opportunity study initiated by the Minister responsible for the Promotion of Investments.

Article 4. - Special Economic Zone boundaries
And ownership transfers

The delimitations of special economic zones and their cadastral references are specified in the decree establishing each SEZ.
The perimeter of an existing SEZ may be extended by decree on areas contiguous to the said SEZ.

On the entry into force of this Law, the management of land belonging to the private domain of the State included in the base of the integrated special economic zone, with the exception of those located in existing urban centres, shall be transferred to The administrator.

As regards the fields under the Public Domain and the National Domain, the transfer of management is done after their incorporation into the State Private Domain following the legal procedures and formalities required for this purpose.

The management of additional land included in a SEZ pursuant to paragraph 2 of this Article shall be transferred to the Administrator for the purposes of the administration and management of the zone.

The allocation of land to enterprises operating in a SEZ is carried out in the form of emphyteutic leases issued by the administrator.

Article 5. - Designation of SEZ lands
The SEZ initially includes land intended for use only as ZES grounds.

The lands of the SEZ are divided into Area A and Area B.

Land allocated to State structures prior to the adoption of this Law may be eligible under the SEZ regime by decree on the proposal of the Minister responsible for the Promotion of Investments or the Minister responsible for the Economy. The land is included in the ZES property base and is land title issued by the competent authorities. The administrative structure, holder of the right, shall require the administrator to be the promoter in accordance with the provisions of Articles 14 to 18 of this Law.

Article 6. - Designation of lands in Area A

Area A shall be determined by the administrator of the SEZ in relation to the competent services of the State.

Area A of SEZs shall be deemed to be outside the national customs territory for exempt undertakings and shall be secured in accordance with applicable laws and regulations.

The administrator may extend at any time, if necessary, the perimeter of Area A in accordance with the provisions of paragraph 2 of Article 7 of this Law and according to procedures defined by way of agreement with the public authorities Competent.

Article 7. -Designation of grounds in Area B

The land of the Special Economic Zone not forming part of Zone A is Area B.

The administrator may extend at any time, if necessary, the perimeter of Area A by designating additional land from Area B for use in Area A, in order to meet the objectives and purpose of this Act.
Area B is part of the national customs territory. It is governed exclusively by national customs law.

Governance Framework for Special Economic Zones

Article 8. -Institutional appliance

The governance framework for special economic zones is composed of the following entities:

1) the Ministry responsible for the Promotion of Investments, responsible for the strategic direction and coordination of the development policy of SEZs;

(2) the Joint Committee responsible for the regulation, mediation and conciliation between the actors in the SEZs;

(3) the administrator of special economic zones, responsible for the administration and management of the special economic zones of Senegal;

4) Promoters/Developers responsible for the promotion, development, development and operation in SEZs.

Article 9. - Ministry of Investment Promotion: missions
Within the framework of this Law, the Ministry responsible for the Promotion of Investments shall provide the strategic guidelines for the implementation of the development policy of the various special economic zones and shall ensure the improvement Continuing the normative framework.

The Ministry ensures the proper coordination between the administrator and the services of the State, in particular in the fields of taxation and customs, trade, security, police, gendarmerie and immigration, in accordance with the protocols of agreements Respective.

Article 10. - The Joint Public-Private Committee:

The Joint Committee is responsible for:

Issue opinions, proposals or recommendations within the framework of the definition of public policies related to the development of SEZs;
To make an amicable decision on the actions brought to its knowledge in the management of SEZs and relating to disputes between the different actors, concerning approvals, permits, authorisations, land allocations, etc., in accordance with the terms and conditions Defined by decree.

Article 11. - The Public-Private Joint Committee: organization and operation
The composition of the Joint Public-Private Committee and its organisational and operating rules shall be fixed by decree.

Article 12. - The administrator of special economic zones: missions

In particular, the administrator provides the following tasks:

1) attract investment to stimulate the production of goods and services and the creation of jobs in the various economic sectors, in particular in the industrial, commercial, logistics, services, tourism and development sectors Residential;

2) to develop and promote a business environment and a quality of life in accordance with international best practices in special economic zones;

(3) conclude memoranda of agreement, whenever necessary, with other ministries and authorities to create an environment conducive to investment and business in the SEZ;

4) ensure that the delineation and development of SEZs is in accordance with existing laws and regulations;

5) administer the SEZ through a single window and a service centre in accordance with the regulations;

6) to provide the interface between SEZ companies and headquarters and public services;

7) issue all approvals, permits and authorizations to SEZ companies;

8) monitor the SEZ companies and their activities within the SEZ, including those of the collective services;

9) provide, directly or through third parties, collective services in the SEZ;

10) to collect, on behalf of the State, royalties or fees for all approvals, permits and authorizations granted and for any other service provided;

(11) manage the lands of the SEZ allocated to it by any means it considers necessary in order to achieve the objectives, in accordance with this Law;

(12) to develop implementing regulations in accordance with administrative procedures for the application of this Act within the scope of SEZs;

(13) amend, suspend, withdraw, revoke or cancel licences, permits, authorizations in accordance with the regulations;

14) enter into agreements with one or more promoters/developers for the implementation of the development plan, including the development and sustainability of the area concerned, the provision of collective services and the management of the SEZ;

(15) issuing permits in connection with the competent services of the State, for the construction of buildings and other equipment in the SEZ;

(16) establish and implement a plan of occupation of the lands of the SEZ and a delimitation plan in accordance with the layout-design and in relation to the competent authorities of town planning;

17) issuing or issuing certificates of origin;

18) ensure that all operations of SEZ companies are in accordance with this Act;

19) to put in place, either directly or through third parties, a risk and disaster management strategy in the SEZ;

20) to perform any other duties assigned to it by laws or regulations in order to ensure effective administration of the SEZ and to achieve the objectives of this Act.

Article 13. -Designation of promoters/developers of the special economic zone

The Special Economic Zone Administrator may select one or more developers who are public or private developers of the SEZ in accordance with the terms and conditions laid down by decree.

Article 14. - Activities of promoters/developers of SEZs
Proponents/developers are designated to undertake the following activities:
Develop and viabilise all areas of the SEZ, in accordance with the convention developers/developers, by all means;
Operate the SEZ by undertaking the following activities:

(a) the construction of buildings or other property and the development of infrastructure in the SEZ;

(b) lease, sublet or dispose of all assets under its control, including all lands of the SEZ, buildings and infrastructure, freely and in accordance with the Developer/Developer Agreement;

(c) provide services in the SEZ, in accordance with the needs of SEZ companies and on the basis of negotiated prices;

(d) promote SEZ, using all necessary means, with local and foreign investors;

E) ensure the proper management of the spaces allocated to them, in particular their maintenance and maintenance.

-enter into contracts with third parties for the development, sustainability and management of the space entrusted to them, as well as for the provision of services;

-to exercise any other right, to undertake any other activity authorized by this Law, the implementing regulations and the Developer/Developer Agreement.

Article 15. -Status of promoters/developers of the SEZ

In order to have the status of promoter/developer of the ZES, an economic entity governed by Senegalese law must have concluded a developer/developer agreement with the administrator, subject to the approval of the Minister responsible for Promotion of the Investments. To this end, the administrator grants lease agreements with promoters/developers of the SEZ.

Article 16. -Rights of promoters/developers of SEZs

Any promoter/developer of the SEZ shall be entitled to the legal status of an exempt undertaking and shall be eligible for all the customs and tax advantages granted by the law providing incentives for special economic zones and Regulations, as well as all incentives, benefits, privileges and exemptions granted in the Developer/Developer Agreement in accordance with the terms and conditions set out in a law.

Chapter IV. -SEZ Enterprises and Authorized Economic Activities

Article 17. -Authorized companies

To benefit from the company status of the ZES, an economic entity of Senegalese nationality must satisfy the following conditions:

(i) have a valid licence issued by the Administrator;

(ii) have a lease agreement with a ZES developer/developer.

The rules for the application and issuance of licences are laid down in the implementing regulations.

Any person of Senegalese or foreign nationality may hold up to one hundred per cent of the interests or shares of a company of the SEZ. Except as provided in this Law, ZES enterprises held by a person of foreign nationality or of Senegalese nationality shall enjoy equal legal status and equal treatment within the SEZ.

Article 18. - Permitted Activities

Regardless of their status, SEZ companies may undertake any economic activity in Area A and Area B, provided that the activity is not prohibited or restricted by this Act, the Regulations and any other Act Applicable.

The administrator may prohibit any activity in the SEZ for reasons of public morality, public order, public security, protection of health and life of persons and animals, protection of the environment and protection Of intellectual property, in particular patents, copyrights and trademarks, without prejudice to the powers conferred on labour inspectors with regard to risks of professional origin.
Any activity related to terrorism, money laundering, drug trafficking, arms sales and smuggling is prohibited.

Chapter V. -Remedies and settlement of disputes

Article 19. -Appeal against the decisions of the administrator

Any investor of the SEZ may make an appeal to the Joint Committee against any decision of the Administrator. The terms of this appeal and the applicable procedures shall be laid down by decree.

Article 20. -Consultation, negotiation and mediation

If the Joint Committee confirms the decision of the Administrator within the time limit fixed by decree, the applicant may initiate consultations and negotiations with the Government of Senegal. In this case, the Prime Minister shall appoint, within fifteen (15) days, a representative of the Government to coordinate the process of consultation and negotiation which may involve third parties.

Article 21. - Use of National Justice

In the event that the applicant and the State of Senegal have not reached an amicable settlement of their dispute in accordance with the rules laid down in Articles 19 and 20 of this Law, the applicant may continue the proceedings before the courts Relevant Senegalese. The parties shall retain the right to conclude an amicable agreement, which terminates their dispute at any stage of judicial proceedings.

Article 22. - International Arbitration

In the event that the applicant and the State of Senegal have not reached an amicable settlement of their dispute in accordance with the procedure laid down in Article 19 or Article 20 of this Law, and if the dispute has not been previously submitted by the said In the relevant Senegalese courts, this applicant may refer the dispute to arbitration in accordance with one of the following terms:

1) to an ICSID arbitration tribunal constituted in accordance with the ICSID arbitration and conciliation procedure provided for in the ICSID Convention. In this case, the State of Senegal accepts as full the nationality requirement prescribed by Article 25 of the ICSID Convention;

(2) to any competent arbitral tribunal established in accordance with bilateral or multilateral agreements or treaties relating to the promotion of investments ratified by the Republic of Senegal and the State of domicile or country of nationality of the applicant;

(3) any arbitral tribunal constituted in accordance with any other dispute settlement mechanism adopted by mutual agreement between the parties.

The parties shall retain the right to conclude an amicable agreement which terminates their dispute at any stage of the arbitration proceedings.

Chapter VI. -Miscellaneous and final provisions

Article 23. -Sanctions

The administrator has the authority to impose administrative and monetary penalties in the event of a violation or non-compliance with this Act and its regulations. The definition and procedures for applying sanctions within the SEZ are laid down by regulation.

Article 24. -Relation to other standards

Unless otherwise provided in this Law, any standard in force in Senegal shall be applicable in SEZs.

In the event of a conflict, this Law and the implementing regulations shall prevail over any other provisions of the same nature.

Article 25. -Transitional and final provisions

This Act repeals all the provisions of Act No. 2007-16 of 19 February 2007 establishing and laying down the rules for the organisation and operation of the integrated special economic zone.

The integrated special economic zone of Dakar shall retain its status as a special economic zone until an order is made, in accordance with Article 3 of this Law, without the need for an opportunity study.

This Law shall be enforced as the law of the State.

Done at Dakar, January 06, 2017.

Macky SALL

By the President of the Republic:

The Prime Minister,
Mahammed Boun Abdallah DIONNE