TREATMENT & PROTECTION OF FOREIGN INVESTMENTS

 

INTERNATIONAL CONTEXT


Bilateral Relations

Sierra Leone has concluded three BITs: with Germany (1965); the UK (1981, revised in 2000); and China in (2001, not yet in force). These BITs contain standard investment protections such as national treatment, fair and equitable treatment and protection against unlawful expropriation. The BIT between Sierra Leone and the UK will not be affected by “Brexit” and whilst the BIT between Sierra Leone and China is not yet in force, there is a deepening relationship between the two countries as evidenced by President Ernest Bai Koroma’s visit to Beijing in December 2016.

The Sierra Leone Ministry of Finance and Economic Development and NRA are undertaking a review of these existing treaties. Kenya and Qatar have formally requested BITs with Sierra Leone, however these are on hold pending the outcome of the review.

Sierra Leone has double taxation treaties with South Africa, Norway, and a long-standing arrangement with the UK which was extended pre-independence to include other countries, such as The Gambia, Ghana, Nigeria, Canada, New Zealand and Denmark, though despite these treaties in many aspects the domestic rate of withholding tax will still apply to non-residents. Investors based in jurisdictions other than those with a double taxation treaty will need to consider the potential for double taxation and may need to rely on the tax rules of their own jurisdiction. Such investors should seek specialist tax advice as to whether unilateral relief is available to them.

Multi-Lateral Agreements

Sierra Leone is not a party to the New York Convention (although the GoSL is conducting a review of this). This means that currently enforcing foreign arbitral awards in Sierra Leone is neither straightforward nor certain. Acceding to the New York Convention has been identified as a priority under the JSRSIP III. Those countries that are party to the New York Convention are required to recognise and enforce arbitral awards made in other New York Convention contracting states with very limited and strictly construed exceptions. For an international investor this would mean that arbitral awards rendered outside of Sierra Leone could be more easily enforced within the country, and vice versa.

Sierra Leone is, however, party to the ICSID Convention. Sierra Leone is therefore able to use the processes established under the ICSID Convention for arbitrating investment disputes and is also bound by the provisions relating to enforcement of ICSID awards. Until Sierra Leone accedes to the New York Convention, this offers a distinct advantage of ICSID arbitration (where available) over arbitrations seated outside Sierra Leone under the rules of an institution such as the LCIA or the ICC.

 

REGIONAL CONTEXT


 

“National treatment” of ECOWAS member states is based on reciprocity. This covers the entry and establishment of investments and also how they are treated once established.

Sierra Leone is a member of the OIC which was established in 1969 and aims (among other things) to enhance and consolidate economic and trade links between Islamic states. The agreement for the protection, promotion and guarantee of investments among OIC member states contains standard provisions on the treatment of foreign investments and provides for disputes to be resolved through conciliation or arbitration.

 

DOMESTIC CONTEXT


 

Following the enactment of the IPA, the GoSL implemented the Investment Code in 2005 to protect companies investing in Sierra Leone. Under the Code, the GoSL is mandated to promote joint ventures and protect full foreign ownership. The Code safeguards foreign investors against discriminatory economic policies and ensures that foreign ownership and control is not limited.

Sierra Leone’s Constitution protects every person from “deprivation of property without compensation”. This includes foreign and domestic private investors. The Constitution sets out the limited circumstances in which expropriation can take place, including circumstances where it is in the interests of defence, public safety and health or town and country planning; or to promote the public welfare of the citizens of Sierra Leone. The Constitution provides for the prompt payment of adequate compensation in the event of compulsory possession or acquisition of land. Further protections are included under the IPA and Investment Code. There are no records of expropriation having occurred in Sierra Leone, and the NLP envisages the enactment of new legislation to ensure the compulsory purchase process is transparent and enshrine the constitutional right to compensation in a specific statutory regime.