HomeReportsBureau of Economic and Business Affairs2021 Investment Climate Statements...Madagascar

# 					2021 Investment Climate Statements: Madagascar			

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													EXECUTIVE SUMMARY											

                -  EXECUTIVE SUMMARY 
                -  1. Openness To, and Restrictions Upon, Foreign Investment   
                -  2. Bilateral Investment and Taxation Treaties   
                -  3. Legal Regime                    -  Competition and Antitrust Laws 
                -  4. Industrial Policies                    -  Performance and Data Localization Requirements 
                -  5. Protection of Property Rights   
                -  6. Financial Sector   
                -  7. State-Owned Enterprises   
                -  8. Responsible Business Conduct   
                -  9. Corruption   
                -  11. Labor Policies and Practices   
                -  12. U.S. International Development Finance Corporation (DFC), and Other Investment Insurance or Development Finance Programs   
                -  13. Foreign Direct Investment and Foreign Portfolio Investment Statistics   
                -  14. Contact for More Information   

## EXECUTIVE SUMMARY

Much anticipated momentum on planned policy and institutional reforms and significant infrastructure projects in support of Madagascar’s investment climate did not materialize as investors had hoped in the last year. The Government of Madagascar’s 2019 Plan Emergence de Madagascar (PEM) is the Government of Madagascar’s blueprint for the country’s economic revival. However, it remains without an implementation plan that will translate aspirations into policy and then into action. Combined with the economic shocks inflicted by COVID-19, including several months of nation-wide confinement, growing concerns about transparency in decision-making, uneven anti-corruption measures, and variable respect for sanctity of contract and rule of law, Madagascar presents a more mixed investment landscape than a year ago.

After four years of steady growth, the World Bank had projected that the GDP would grow 5.2 percent in 2020 but instead it shrank 4.2 percent for the year. Sharp declines in exports, increased layoffs and factory closures, disruption of inputs and order cancelations for Malagasy products caused major economic disruptions in the short to medium term. Economic activity picked up in the last quarter of 2020 once the government lifted confinement orders. At the time of writing, COVID-19 case numbers are on the rise again, and the government may be compelled to implement new confinement measures.

A GOM Multi-Sectoral Plan (PMDU) to boost economy activity during the pandemic was not implemented. Instead, GOM financial reporting shows that, as of March 18, 2020, 80 percent of the funding disbursed for COVID-19 response went to subsidize public utility JIRAMA; the remaining 20 percent was split amongst multiple categories including medical outlays, special teacher allowances, social assistance, and assistance to businesses. Many in the private sector viewed this as a missed opportunity to utilize the USD 840 million in donor assistance that Madagascar received during 2020.

2020 saw delays on many fronts: opening of the new international airport terminal; finalizing the terms of the hydroelectric projects Sahofika and Volobé; resolving the concerns surrounding the opening of the Base Tulear mine in the south-west; and finalizing the investment law and the revisions to the mining code. Without new progress on pending high-profile investments which are foundational to Madagascar’s future growth prospects, it is unclear how the GOM will meet its aspirational development and investment goals. Whereas, momentum shifting toward a more business-friendly approach, it would present opportunities for investments and partnerships in infrastructure, textiles, energy, tourism, agri-business, mining, and health.

							1. Openness To, and Restrictions Upon, Foreign Investment					

**Policies Towards Foreign Direct Investment**

The Rajoelina government’s PEM strategy has stressed the importance of attracting foreign direct investment (FDI) to achieve its ambitious economic growth goals. Since the Rajoelina administration took office in January 2019, the GOM has promoted Madagascar as an attractive investment destination by sending delegations across Africa, Europe, and Asia to make the case while also organizing trade shows in Madagascar.

The marketing push has not yet translated into actual policy and certain developments have called the GOM’s commitment to new FDI into question. Some cases in point include the following: the GOM’s failure to sign the Power Purchase Agreement its officials negotiated for Sahofika, a large hydroelectric project developed by Themis and backed by U.S. private equity firm Denham Capital and AfDB amongst others. The 200 MW USD 1 billion hydroelectric project is slated to bring electricity to 8 million new customers. The World Bank backed Volobé project appears stalled as well. Over 15 months ago, the GOM suspended work at Base Tulear, the Australian company Base Resources’ USD 560 million investment into ilmenite mining, leaving the entire project’s future uncertain. In 2021, the GOM overturned a decision by troubled national utility JIRAMA to implement the World Bank-recommended OPTIMA electricity tariff program to adjust pricing and stanch losses at JIRAMA. The World Bank continued to negotiate with the GOM but has warned that the GOM’s actions could jeopardize new funding of USD 75 million and a multi-annual program worth USD 400 million.

The GOM says it is actively seeking FDI and increased participation from the Malagasy private sector. However, the business community continues to express frustration about poor transportation infrastructure, expensive yet unreliable supply of electricity and water, endemic corruption and the uneven nature of the anti-corruption initiatives, and weak enforcement of rules and regulations as impediments to investment, foreign or domestic. In addition, the business community is concerned about the lack of transparency in awarding contracts, uncertainty about agreed terms for contracts and tenders, and centralized decision-making which has caused confusion and backtracking. The GOM drafted amendments to the mining code in late 2019 which included several provisions on ownership and taxes that worried investors and interest groups and forced a return to the drafting table. Mine operators, though, left the review committee for the legislation in late 2020, arguing that the decision-making process was unfair and some GOM proposals were not economically viable.

The existing investment law allows foreign ownership of businesses and does not discriminate against foreign-owned enterprises. There is no legal requirement that citizens own shares of foreign investment, nor any restriction on the mobility of foreign investors. The regime for visas, residence, and work permits is neither discriminatory nor excessively onerous. A new version of the law is pending clearances by senior decision makers and is expected to clarify access to land and address issues of corporate social responsibility and sustainability.

The Economic Development Board of Madagascar (EDBM), an investment promotion agency, has several objectives – to strengthen the competitiveness of the Malagasy private sector, to increase FDI, to develop and recommend business incentives for private investments in Madagascar, and to provide a one-stop shop to help investors set up or expand their business through tailored services by specialized advisors. EDBM’s move toward digitalization and paperless procedures, to enable the online creation of companies and the provision of online tools for startups & SMEs in search of investors’ support, are expected to simplify the business set up process further.

****Limits on Foreign Control and Right to Private Ownership and Establishment****

Broadly speaking, there are no general, economy-wide limits on foreign ownership or control. Any individual or legal entity, domestic or foreign, is free to invest and operate, in accordance with the laws and regulations.

Foreign and domestic private entities are free to establish and own their business enterprises and engage in all forms of remunerative activities. Except for the telecommunication sector, where foreign ownership is restricted to 66 percent, foreign investors can retain full ownership of their company and repatriate their earnings without restriction. Certain strategic sectors such as banking, insurance, mining, oil, and gas, medical, and pharmaceuticals have extra regulatory provisions which apply to all investors, foreign and domestic.

There is no official discrimination against foreign investors, who are treated on par with local investors, although foreign investors have reported delays in getting permits and problems finding their way through Madagascar’s convoluted bureaucracy.

Madagascar has no formalized investment screening mechanism for inbound foreign investment. Economic Development Board of Madagascar (EDBM) does conduct a review which is submitted to the licensing authority and final ratification of foreign investment must be completed by the President’s Office.

****Other Investment Policy Reviews****

In the past three years, the government has not undergone any third-party investment policy reviews (IPRs) through a multilateral organization such as the OECD, WTO, or UNCTAD.

**Business Facilitation**

In 2006, Madagascar set up the Economic Development Board of Madagascar (EDBM), a one-stop shop for receiving, processing, and delivering the required administrative documents to speed up the approval of all investment projects. Its primary recommendation for a foreign company seeking to start a business in Madagascar is to consider collaborating with a local business. Many foreign companies seek local partners to ease their introduction to the market and make new contacts. Post recommends the retention of competent local counsel and/or a local representative.

EDBM is fine-tuning an online registration service to launch in the second quarter of 2021 which should shorten the registration timeline and provide more clarity on the rules for investment. Working in conjunction with the concerned public institutions and technical and financial partners, EDBM’s reforms will establish a paperless process for business creation (companies and sole proprietorships) while putting in place a unique identifier for each company. Through close collaboration with municipalities, the Ministry of Territory Development-Habitat-Public Works, and the national utility company JIRAMA, EDBM aims to modernize the issuance of building permits at the municipal level, starting in the capital city.

While Madagascar placed 161 out of 190 in the 2020 World Bank’s overall Doing Business rankings, it ranks 80 out of 190 (Scoring 88.5) for ease of starting a business in the same report. EDBM handles business registrations, which takes on average of eight days after receipt of complete documentation and is amongst the shortest in Sub-Saharan Africa (21.5 days for the SSA region). Companies will need to secure a physical local address with a signed lease before attempting to register. EDBM assists both local and foreign investors in registering and operating their businesses. At the EDBM one-stop shop, companies can obtain their business identification cards, tax registration confirmations, commercial registration numbers, and apply for visas, work permits or professional cards. They must also register for social security and health insurance. Companies in Madagascar are free to open and maintain bank accounts in foreign currency. ****

****Outward Investment****

The GOM does not offer incentives to promote outward investment. However, many wealthy entrepreneurs have diversified their investment base by investing in Europe, the United States, Mauritius, and the Middle East.

There are no restrictions on capital outflows from Madagascar to the rest of the world, but companies and individuals must fill out a form showing the reasons for the transfers. Domestic investors who invest abroad must comply with the foreign currency control mechanism enforced at the state and commercial bank level with close monitoring by the Finance Ministry.

							2. Bilateral Investment and Taxation Treaties					

Madagascar does not have a separate free trade agreement or a bilateral investment treaty (BIT) with the United States but benefits tremendously from customs duty exemptions under the Generalized System of Preferences (GSP) and AGOA, to the point that the United States has been its biggest individual export market since 2018. The Malagasy government has expressed interest in negotiating a bilateral investment treaty with the United States. Initial BIT discussions began in late 2008, but stalled due to 2009 coup, which also cost Madagascar its AGOA eligibility for a five-year period which ended in 2014.

Madagascar is a member of the Common Market for Eastern and Southern Africa (COMESA), with which the United States has an agreement to develop trade and investment relations. In 2017, Madagascar signed the Tripartite Free Trade Agreement (TFFA) associating the East African Community (EAC), COMESA, and Southern African Development Community (SADC). Madagascar is one of the signatories to the African Continental Free Trade Area (AfCFTA) but has yet to ratify it. The AfCFTA came into force on January 1, 2021 with ratification from 36 countries.

According to the U.N. Conference on Trade and Development (UNCTAD), Madagascar has concluded nine BITs (Belgium-Luxemburg-Economic Union, China, France, Germany, Mauritius, Norway, South Africa, Sweden, and Switzerland), and five treaties with investment provisions (COMESA EU EPA, COMESA Investment Agreement, COMESA US TIFA, Cotonou Agreement, COMESA Treaty).

Madagascar does not have a bilateral taxation treaty with the United States but has concluded agreements/treaties with France, Mauritius, Canada, and Morocco. As a member of the African, Caribbean, and Pacific group (ACP), Madagascar signed the APEi (interim Economic Partnership Agreement) with the EU in January 2013 to have easy access to the EU market and obtain progressive tariff reductions. The United Nations Conference on Trade and Development (UNCTAD) cites four known treaty-based Investor-State Dispute Settlement (ISDS) cases concerning Madagascar against De Sutter and others-Belgium (2); Courts-Mauritius; LTME & Madamobil-Mauritius.

							3. Legal Regime					

****Transparency of the Regulatory System****

Bureaucratic delays and inefficiencies plague Madagascar’s legal and regulatory system. Non-transparent regulatory decisions have affected global investors, some of whom have alleged unfair competition or lack of transparency. High-level corruption and alleged collusion between business and political elites have been a recurring issue in Madagascar for decades. That said, auditing and financial information reporting systems are transparent and consistent with international norms, IAS and IFRS respectively. Although the regulations strive to establish clear rules, a lack of enforcement combined with shortage of resources and capacity hinder their efficacy. In addition, certain investment policies are not harmonized and, in some areas, can be contradictory. A policy harmonization process for Special Economic Zones is underway.

Madagascar has municipal, regional, national, and international laws; the most relevant for foreign businesses would be national and international laws.

Depending on the circumstances, regulations can be suggested, drafted, or amended by various actors such as the government or its institutions, business associations, academics, civil society organizations, and/or individual experts. Non-governmental organizations, industry associations and private organizations such as the American Chamber of Commerce, can also be influential voices in raising concerns about new legislation or regulations. For instance, the Chamber of Mines has had an important role in pushing back against the government’s proposed amendments to the mining code which would have discouraged further investment in the sector.

If the GOM decides to move ahead with a bill, it is transmitted to the National Assembly and then the Senate for study and voting. Once the bill passes in both Chambers, it goes to the High Constitutional Court (HCC) for constitutional verification. Finally, the President has the ultimate right to approve or veto a proposed law. The President also has the right to enact a proposed law by decree if Parliament does not pass the legislation, though it is still subject to constitutionality checks by the HCC. Laws are published by their insertion in the Official Gazette of the Republic or its broadcast on national radio or TV in case of emergency.

Scientific, data-driven assessments, and quantitative analysis are not yet common practice. Regulatory reviews usually take place when a non-governmental organization or interest group protests against a new or amended regulation. Though public comments are welcomed and recorded in a registry before consideration and processing, there is no set mechanism which makes them available to the public. There is also no formal mechanism in place to make draft bills or regulations available for public comment or consultation prior to their adoption. This applies to investment law and regulations. Informally, draft legislation and regulations do circulate, and institutional pushback can lead to changes as was the case with the revision of the mining code, where the circulation of draft bills led to protests from interest groups. As a result, the government withdrew the drafts for further consultation and review.

There is no centralized location for publication of draft regulatory actions. Once enacted, the full text of key regulatory actions is published on the Justice Ministry’s website through the link to the National Center of Legal and Legislative Information and Documentation (CNLEGIS). http://www.cnlegis.gov.mg/%20page_find_direct_mots/.

Regulatory enforcement mechanisms are usually defined along with the enactment decree of each regulation. The enforcement process may be legally reviewed. Anyone can lodge a complaint with the administrative courts, which are responsible for judging failure to comply with administrative regulations. The Council of State is ultimately responsible for ensuring the legality of the GOM’s actions and oversight of lower courts. It also handles appeals for annulment of actions by local and regional authorities. The HCC verifies the conformity of laws with the Constitution of the Republic of Madagascar.

Since the last ICS report, while several regulatory changes including enforcement reforms have been announced, there have been no reforms relating to foreign investors. One of the changes is the appointment of the Integrity Safeguarding Committee (CSI), which has been tasked with the development of the national integrity system (NIS) to ensure the coordination, monitoring, and evaluation of the anti-corruption system; and elaborating and implementing the national good governance policy. In general, the reforms are intended to improve the economy, governance, land tenure, and the rule of law, although sometimes they make the administration more cumbersome and complex.

Accounting regulations appear transparent. The country has no stock market, and therefore, no publicly listed companies.

Budget proposals, enacted budgets, and audited end-of-year reports are publicly available. The timing of their release often hampers public debate; for instance, budget proposals are usually published just two weeks before they are voted on. The enacted budget is often not available until many weeks into the start of the fiscal year.

Income and expenditure are not truly representative of the governments revenues and expenses. Income calculations exclude fees and royalties from the mining sector, while expenditure does not break out the transfers and subsidies to state-owned enterprises such as national utility JIRAMA whose financial statements have not been disclosed since 2018.

The interim audit for the 2018-19 budget noted issues with fiscal transparency where the government changed beneficiaries and/or amounts allocated by the initial appropriation without further parliamentary approval. Government contracts are not fully transparent as to their funding arrangements. The 2019-20 budget had a set-aside under Sovereign Funds, amounting to 1.9 percent of the budget earmarked for discretionary use under special presidential projects. In 2020, the Government received around USD 840 million from various donors, including USD 337 million from the IMF as a Rapid Credit Facility, which was provided without preconditions. The GOM’s expenditure reports show 80 percent of the money disbursed thus far for COVID-19 went toward subsidies for JIRAMA, with only twenty percent going toward social assistance for the poor, public health investment, and mitigating economic fallout. In 2021, donors and the International Community have asked for more transparency regarding the use of all COVID-19 assistance due to the slow pace of government expenditure during the pandemic and delays in reporting how funds were actually spent.

Debt obligations are not fully transparent. For example, the rate of return and the subscribers of non-market treasury bills (called “special TB”) are not readily available to the public.

****International Regulatory Considerations****

Madagascar is a member country of the following economic blocks: Indian Ocean Commission (IOC), Southern African Development Community (SADC), Common Market for Eastern and Southern Africa (COMESA), and the Continental African Free Trade Area (AfCFTA). The regional regulatory systems prevail over the national system in case of trade disputes amongst members.

As a former French colony, most of the norms and standards in force are of French origin, although other international norms are increasingly in use as the country’s trade relationships become more diversified.

Madagascar is a member of WTO and the GOM has committed to notify all draft technical regulations to the WTO Committee on Technical Barriers to Trade (TBT).

****Legal System and Judicial Independence****

French civil law largely inspires Madagascar’s legal code, which contains protections of private property and rights.

The civil court system has its own independent jurisdiction, where civil and commercial cases are heard. The country’s written commercial law consists mainly of the code of commerce and annexed laws. Recent reforms of commercial regulations and procedures have halved processing times for commercial cases at the Trade Court. Major cities and regions do have their own competent courts, although some trials fall under the jurisdiction of the central courts.

Madagascar’s constitution provides for an independent judiciary. However, the executive branch has a history of interfering in judicial matters through the appointment of compliant judges. Bribery and corruption are also factors affecting the fairness of the judicial process.

Regulations or enforcement actions are appealable within the prescribed time and are adjudicated in the national court system established in the capital city Antananarivo.

****Laws and Regulations on Foreign Direct Investment****

The country’s investment law was promulgated in January 2008 and governs foreign direct investment as well. In addition to the freedom of investment and equality of treatment for foreign and national investors, Madagascar’s investment law includes articles on the protection of patent rights and protections against expropriation, freedom to transfer funds abroad without prior authorization, and a stability clause guaranteeing investor privileges from future legal or regulatory measures.

Major laws, regulations, and judicial decisions which have come out in the past years are:

- Law 2020-003 on organic farming
- Law 2020-003 on organic farming
- Law n ̊2018-043 dated February 13, 2019 against money laundering and financing of terrorism acts
- Law n ̊2018-043 dated February 13, 2019 against money laundering and financing of terrorism acts
- Law n ̊2018-042 dated January 17, 2019 authorizing the ratification of the loan agreement to finance the integrated growth corridor project (PIC 2.2) between the government and the International Development Association (IDA)
- Law n ̊2018-042 dated January 17, 2019 authorizing the ratification of the loan agreement to finance the integrated growth corridor project (PIC 2.2) between the government and the International Development Association (IDA) · Law n ̊2018-039 dated January 7, 2019 authorizing the ratification of the statutes of the “Eastern and Western Africa Bank for Commerce and Development or Trade and Development Bank (TDB)”
- Law n ̊2018-039 dated January 7, 2019 authorizing the ratification of the statutes of the “Eastern and Western Africa Bank for Commerce and Development or Trade and Development Bank (TDB)”

EDBM is Madagascar’s one-stop-shop for investment and its website www.edbm.mg provides summaries of relevant laws, rules, procedures, and reporting requirements for investors as well as links to the relevant laws. Comprehensive details are found on the Ministry of Justice website at cnlegis.gov.mg

EDBM has links to relevant laws and reporting requirements for investors.

- Law n ̊2007-036 on investment
- Law n ̊2007-036 on investment
- Law n ̊2007-037 on export processing zone
- Law n ̊2007-037 on export processing zone
- Laws n ̊2001-031 and n ̊2005-022 on large mining investment
- Laws n ̊2001-031 and n ̊2005-022 on large mining investment
- Law n ̊1996-108 on petroleum code
- Law n ̊1996-108 on petroleum code
- Law n ̊2003-036 on commercial company
- Law n ̊2003-036 on commercial company

The following laws enacted in the last five years, also relate to foreign investment.

- Law n ̊2015-039 on Public and Private Partnership (PPP)
- Law n ̊2015-039 on Public and Private Partnership (PPP)
- Law n ̊2017-047 on Madagascar’s Industrial Development which is reflecting the Industrial Policy (LDI)
- Law n ̊2017-047 on Madagascar’s Industrial Development which is reflecting the Industrial Policy (LDI)
- Law n ̊2017-023 on Madagascar’s Special Economic Zone (SEZ)
- Law n ̊2017-023 on Madagascar’s Special Economic Zone (SEZ)
- Law n ̊2017-020 on Madagascar’s Electricity Law
- Law n ̊2017-020 on Madagascar’s Electricity Law

The e-commerce and digital activity law have been adopted but is still awaiting its enforcement decree

### Competition and Antitrust Laws

The Ministry of Commerce and Industry has the overall responsibility to ensure fair competition between businesses. The 2018 law on competition and anti-trust issues attempts to empower the independent Competition Council (CC) which rules on unfair competition cases; the CC has the power to assess proportionate penalties for abuses of dominant market position. However, the CC is largely unfunded.

****Expropriation and Compensation****

The investment law provides protection to foreign and local investors against nationalization, expropriation, and requisition, except for public interest cases as established by regulations. For infrastructure projects which require expropriation of private property, the GOM must issue an official proclamation that defines the public interest of the project and the owner of the private property must be paid the fair market value of the concerned property prior to its expropriation. The government may also legally expropriate property when a judicial ruling permits it in cases where there is proven money laundering, profiting from trafficking, acts of terrorism, or a failure to make tax or debt payments.

Recent expropriations have taken place as described above. For instance, a well-known businesswoman whose new four-star hotel located near Antananarivo international airport was expropriated after a court ruling against her for tax evasion was later convicted twice and sentenced to a total term of 17 years of hard labor and a fine of MGA 100 million (USD 28,571). Court procedures included evidence presented by the Directorate General of Taxes and the Directorate General of Customs.

There were cases where asset owners alleged a lack of due process. In the case noted above, the businesswoman claimed she was victimized due to political bias.

In recent road construction projects funded by international donors, the GOM has been asked to contribute toward compensation payments to landowners whose property was appropriated for the project. ****

****Dispute Settlement****

***ICSID Convention and New York Convention***

Madagascar is a member state to the International Centre for the Settlement of Investment Disputes (ICSID) and under the Investment Law, disputes between foreign investors and the administration can be resolved through arbitration proceedings administered by the ICSID.

In case a foreign investor initiates the proceeding, he/she can decide to file the dispute at the Madagascar Trade Court, which is the country’s competent jurisdiction in such matters. However, no specific domestic legislation provides for enforcement of awards under the New York Convention and/or under the ICSID Convention.

***Investor-State Dispute Settlement***

As a signatory to the convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958 New York Convention), Madagascar also accepts international arbitration as means of resolving investment disputes. Based on the obligation of the New York convention, domestic courts should recognize and be willing to enforce foreign arbitral awards. International arbitration is accepted as a way of settling commercial disputes between private parties. Madagascar has also been a member of the Multilateral Investment Guarantee Agency (MIGA) since 1989.

Investment disputes involving foreign investors over the last 10 years include:

1) A Cypriot holding company affiliated with a U.S. energy company is the claimant in a business dispute with its partners, including a Malagasy business. The claimant has filed for arbitration in New York. The partnership sells electricity to state-owned energy company JIRAMA and in 2019 was in discussions with the GOM about the terms of its Power Purchase Agreement. The Claimant raised objections to the reopening of its contract, which had been signed by a previous government for a term of 20 years. JIRAMA made some payments on dues owed to the Claimant but the Claimant is now involved in an internal dispute with their local partner, which is subject to international arbitration.

2) In 2019, the Paris Commercial Court ordered Madagascar’s state-owned airline company Air Madagascar to pay USD 20 million to Air France in connection with the leasing of two A340s in 2011. The case is still pending in French courts.

3) In 2016, an international power producer (IPPs) supplying electricity to Antananarivo, complained of non-payment by the national utility JIRAMA, a state-owned enterprise. After weeks of negotiations combined with threats to withdraw by the IPP, the government agreed to pay the IPP using a different payment mechanism. The details of the agreement have not been made public.

4) In 2012, the government shut down the telecommunication operator “Life,” a Mauritius controlled company, without providing evidence of substantial wrongdoing. The company sought compensation and sued the Malagasy government at ICSID in August 2017 but there has been no resolution.

Madagascar does not have a history of extrajudicial action against foreign investors since the 1970s. However, enforcement by local courts of foreign arbitral awards against the government is uncommon. In the case of Air France, the GOM has not yet paid the fines ordered by the Paris Commercial Court. As far as Post is aware, none of Madagascar’s commercial courts have taken up this verdict.

***International Commercial Arbitration and Foreign Courts***

Two types of alternative dispute resolution (ADR) mechanisms are available in Madagascar, namely “arbitration” and “mediation.” Arbitration is a contractual jurisdictional mode of settlement of commercial disputes. The procedure involves submitting a dispute between two or more parties to the jurisdiction of an arbitral tribunal consisting of a sole arbitrator or three arbitrators.

Mediation is a structured process in which two or more parties to a dispute voluntarily attempt to reach an agreement on the resolution of their dispute with the assistance of a mediator, who is a neutral, impartial, and independent third party.

Both procedures are recognized by law. Arbitration results in an enforceable title in the form of an arbitral award, whereas mediation results in an agreement between the parties that does not constitute an enforceable title.

A privately managed entity named Center for Arbitration and Mediation of Madagascar (CAMM), created in 2001 and then restructured in 2012, promotes and oversees ADR mechanisms to resolve international and domestic commercial disputes and lessen reliance on an overburdened court system. The CAMM helps companies manage their conflicts, determine the best way to settle them quickly and durably, and helps ensure the security of their investments and the maintenance of business continuity. As a result, many private contracts now include arbitration provisions that allow the CAMM to mediate eventual disputes.

Since the 8th Economic Forum of the Indian Ocean Islands in 2012, CAMM has initiated a process with its counterparts in Reunion, Mauritius, and Comoros for the setting up of a cross-border dispute resolution platform in which co-mediation will play an important role. CAMM recognizes and enforces arbitral awards in that sub-region. However, only the commercial judgements of these foreign courts are recognized and enforceable under the CAMM.

CAMM only applies in disputes amongst private parties and so has no jurisdiction in disputes involving SOEs. In the latter case, it is tried in civil court. While the SOE does not always win, the judgement is not always enforced.

****Bankruptcy Regulations****

In 2020, Madagascar had an overall 161 out of 190 ranking in the World Bank’s Ease of Doing Business survey; it ranked 135 in the same survey for the “resolving insolvency” criteria. The bankruptcy law, which was last updated in 2014, lays out collective debt settlement procedures, which treat all parties equally in bankruptcy proceedings. Creditors have the right to initiate insolvency proceedings only when seeking liquidation of the debtor, but not when seeking reorganization. Bankruptcy is no longer a criminal offense but is punishable by fines and imprisonment depending on whether it is deemed simple, negligent, or fraudulent bankruptcy. The court system has reduced the associated prison sentences from those stipulated in the previous insolvency framework.

There are three procedures that apply when assessing the fate of a company in difficulty. The first – preventive settlement – is a reconciliation procedure designed to avoid the suspension of payments or the cessation of activity of a firm in difficulty which has not yet defaulted on payments. This procedure, which is non-contentious, requires the agreement of all parties and aims to reach an agreement on the settlement of debts and avoid individual lawsuits.

The two other procedures – receivership and liquidation of assets – are intended to remedy payment defaults and correspond to the current judicial settlement and bankruptcy procedures. Some of the provisions include the appointment of a receiver, who is a representative of the creditors, by the Commercial Court to supervise the debtor who continues to manage the business. While a compensation agreement is being negotiated, all claims are frozen; the compensation to creditors may be on unequal terms and sale of the business is subject to a transfer plan.

							4. Industrial Policies					

****Investment Incentives****

Madagascar extends certain incentives for investment, outlined in domestic legislation, particularly in the Export Processing Zones (EPZ), in large mining investment (LGIM), and recently in the law on Special Economic Zones (SEZ), and the law on Industrial Investment Zones (ZII).

Madagascar’s investment law, which encourages private investment, is based on the principle of freedom – freedom of investment for all nationalities and all sectors; freedom to transfer profits, dividends, salaries and savings; and freedom to recruit and dismiss foreign employees. Foreign investors may freely hold up to 100% of the shares (except for telecommunications where foreign shares are limited to 66%) in the company. Free zones and companies exporting at least 95 percent of production are exempt from customs duties and VAT for a 2 to 15-year period depending on the sector and then pay a 10 percent rate on inputs. An amendment to the investment law is expected to address questions about access to land for foreigners, environmental protections, sustainability, and corporate social responsibility, while strengthening sanctions against those who break the rules.

Other regulations provide more indirect incentives for FDI, such as the one governing self-generation of electricity. All companies which carry out self-generation of electricity and use at least 70% of the electricity produced for their own purposes, can sell the remainder subject to conditions determined by the regulator. The General Tax Code (CGI) provides exemptions from taxes for the import and sale of inputs for exclusively agricultural use, agricultural materials and equipment and materials and equipment for the production of renewable energy. The law on Large Mining Investments (LGIM) governs investments exceeding USD 25 million and complements the mining code.

As part of the PEM, the Rajoelina government has committed to infrastructure projects, with the aid of public-private partnerships (PPPs). It includes several ambitious infrastructure projects in the telecommunications sector, with the installation of more than 12,000 km of fiber optic network and more than 14,000 km of Hertzian networks. In the energy sector, the PEM includes four projects for the construction of hydroelectric power plants, which should generate more than 700 MW in total over the next five years. The PEM also envisions the creation of special economic zones, including a zone specializing in the textile industry (an integrated industrial zone of + 1600 acres); other multi-sector industrial and service zones; and exclusive agricultural promotion zones. The special economic zones provide a secure mechanism for access to land.

The GOM does not normally issue guarantees or jointly finance foreign direct investment projects. Usually, for infrastructure projects, the government offers incentives in the form of provision of land, establishment of leases and concessions, tax incentives, transfer of benefits and revenues, and social integration of the project. To fill the gap in public infrastructure, due in part to the inadequacy of the public investment budget and limited assistance from traditional donors, the government is looking at fixed-term Build-Own-Operate-Transfer (BOOT) concessions to attract foreign direct investment in exchange for preferential benefits.

The Government intends to transform this presidential campaign promise – PEM – into a Government multi-annual policy that will be effective June 2021. Once the PEM’s implementation plan is in place, stakeholders will have a chance to align projects and contributions to the PEM’s priorities.

****Foreign Trade Zones/Free Ports/Trade Facilitation****

The 2008 Law on Free Zone Companies established an Export Processing Zone regime to incentivize investment in three categories: (1) investment in export-oriented manufacturing industries; (2) development or management of industrial free zones; and (3) provision of services to EPZ companies. The EPZ regime provides certain tax advantages and incentives to EPZ companies, to include temporary tax exemptions of two to fifteen years (depending on the category of enterprise); no VAT or customs duties on imports of raw materials; no registration taxes; no customs tax on exported goods; income tax on repatriation not exceeding 30 percent of the taxable basis; and free access to foreign currency deposited in the company’s foreign currency bank account. Free zone companies are exempted from income tax in the first five years of operation. From the sixth year of operation, the income tax rate is 10 percent. These incentives are conditioned upon a performance guarantee and require 95 percent of an EPZ company’s output be exported. More than 225 companies currently benefit from this incentive regime, 46 percent of which are in the textile sector.

Madagascar ratified the trade facilitation agreement (TFA) in June 2016. It has established its trade facilitation roadmap, a short but comprehensive document laying down a strategic vision for implementing trade facilitation reforms within a defined period (3 to 5 years). Donors have funded several capacity building and technical assistance workshops for Malagasy government officials to enable the effective implementation and enforcement of the TFA. Implementation is in its early stages at this point.

### Performance and Data Localization Requirements

The government encourages local employment and capacity building but does not mandate it. EDBM has enhanced the mobility of foreign investors and their employees by streamlining processes for business visas, residency, and work permits.

Some regulations, including the LGIM, prioritize the hiring of local staff over foreigners at the senior management level so long as they have equivalent skills.

Obtaining an official approval (“agrément”) is mandatory for any FDI. EDBM assists the investor with the application process and Madagascar’s Council of Ministers decides on the grant of “agrément” based on EDBM’s written guidance. The Council’s assent must then be signed off by the President.

Madagascar has no “forced localization” policy which would force foreign investors to use domestic content or technology. However, the government recommends transfer of technology and continuous capacity building to enhance business competitiveness. There are no measures in place that prevent or unduly impede companies from freely transmitting customer or business-related data outside Madagascar’s territory. There is no requirement for foreign IT providers to turn over source code and/or provide access to encryption. Post is not aware of any mechanism to enforce rules on local data storage within the country.

Madagascar does not enforce performance requirements but there are investment incentives (described earlier) that apply uniformly and systematically to both domestic and foreign investors.

							5. Protection of Property Rights					

****Real Property****

While Madagascar placed 161 out of 190 in the 2020 World Bank’s overall Doing Business rankings, it ranked 165 on the same survey’s Ease of Registering Property section, with a score of 44.4 versus the SSA region average of 53.6. Property rights and interests are poorly respected because of widespread corruption in the Domain and Topography Department and a lack of material and technological resources. Mortgages and liens are used in commerce and business to guarantee commercial loans. However, the registration system is cumbersome, complicated and unreliable.

Upon independence, Madagascar continued the land tenure policies of the French colonial administration with the presumption of state ownership of all land and the central government being the sole provider of legitimate land titles. However, due to the length and cost of the procedures for registering land, together with the remoteness of the authorities, customary practices for recognition of property rights prevailed at the local level. Recognition of property rights at this local level entailed the use of non-uniform, handwritten titles. The Land Title Office in Antananarivo is the only place to obtain an official title whenever a locally registered business wants to acquire a large parcel of government land. Registering a land title or transfer remains difficult, costly, and time-consuming for those outside the capital. A World Bank funded project implemented by the Ministry of Agriculture, Livestock and Fisheries in partnership with the Ministry in charge of Land Management and Public Works is gearing up to issue two million land certificates, and to operate 438 land offices.

When the Land Ownership Act was amended in 2005, more than 90% of the occupants did not have a land title. The situation has not improved significantly despite several efforts financed by traditional donors. In 2005, with the support of a Millennium Challenge Corporation Compact, the government embarked on a land reform project to simplify the registration process and to reconcile the existing formal and informal land titles. The reform reversed the presumption of state ownership of land and introduced private ownership, while at the same time decentralizing land registration and recognizing/formalizing the existing local customs for social recognition of property rights. The 2009 political crisis disrupted this reform process, leaving the country with approximately 10 percent of its existing land plots formally titled. The National Land Program (2016-2020) focused on improving land certification for women through education of local authorities and extensive communications on the importance and benefits of land registration.

The majority of land ownership disputes are resolved at the local level without recourse to judicial proceedings. The small percentage of disputes that go through the court system remain bogged down due to the complexity of the cases and the lack of clear evidence of ownership, and even when determinations are made, they are often not adequately enforced.

The investment law authorizes foreign investors to possess real estate through renewable 99-year leases, so long as the concerned property is used exclusively and continuously to carry out commercial activity. The regulation specifically prohibits the acquisition of land by investors for resale in its original state, or for sale after its development. The amendment to the investment law slated for later in 2020 is expected to further clarify access to land for foreigners.

In principle, if a property is legally purchased but unoccupied, property ownership stays with the legal owner even if squatters take over the land. In practice, due to corruption and lack of oversight, there have reportedly been instances of fraudulent transfer of property rights. The national land policy (PNF) that the GOM developed in 2016 has done little to correct the situation due to slow enforcement.

****Intellectual Property Rights****

The “Office Malgache des Propriétés Industrielles (OMAPI),” Madagascar’s intellectual property rights authority was created in December 1992. OMAPI publishes the titles it grants in the Official Gazette of Industrial Property (GOPI) and provides the public with industrial property documentation such as patent documents, industrial property legislation in various countries, and multilateral treaties on industrial property. The “Office Malgache des Droits d’Auteurs (OMDA),” is Madagascar’s agency to protectcopyrights. OMDA’s mission is to ensure the exclusive protection, defense, and management of the economic interests of Malagasy and foreign authors, performers, and their successors concerning the use of scientific, literary and artistic works.

Officially, these authorities protect against IP infringement, but enforcement capacity is quite limited due to resource constraints including poor digitalization (though online registration and search of trademarks were made available recently), weakness of the judicial system, and lack of awareness of intellectual property rights among businesses and consumers. Due to these constraints, international investors have faced difficulties defending their interests.

Madagascar neither tracks nor reports seizures of counterfeit goods, which are easily available in local markets as are unauthorized copies of famous brands, songs, and videos.

New IP laws have stalled for years due to inaction by Parliament and the Office of the Prime Minister. The proposed legislation incorporates The Hague (international registration of industrial designs), and Lisbon (protection of origin appellation and international registration) agreements, and other international treaty classifications. The adoption of these bills would substantially improve the IP rights in Madagascar, provided OMAPI has sufficient funding for enforcement.

Despite Madagascar’s challenges with IP rights enforcement, it is not listed in USTR’s Special 301 report, which highlights online and physical markets that engage in and facilitate substantial copyright piracy and trademark counterfeiting. Madagascar is also not listed on USTR’s notorious market report which targets countries where large-scale intellectual property rights infringement takes place.

For additional information about national laws and points of contact at local IP offices, please see WIPO’s country profiles at http://www.wipo.int/directory/en/.

							6. Financial Sector					

****Capital Markets and Portfolio Investment****

Madagascar has neither a stock market nor a competitive and transparent bond market. Foreigners living overseas and companies with headquarters outside Madagascar cannot participate in its bond markets. In addition to market–based bonds with less than 52-week maturity, in the last few years, the Government has introduced longer-term bonds (maximum three-year maturity) with a more attractive return. Portfolio investment opportunities are extremely limited. Foreign investment in government debt is still limited to Malagasy nationals and legal residents.

There are no restrictions on payments and transfers for international currency transactions per IMF Article VIII. The Central Bank and the Ministry of Finance require documents prior to any transfer of currency to foreign countries. There is no ceiling imposed on international transactions, but justification remains mandatory.

The private sector has access to a variety of credit instruments. Credit is provided at market terms and can be offered either in local or foreign currency. Credit obtained in local currency is often more expensive than foreign currency due to inflation and lack of competition.

The Central Bank does not impose direct caps on loans but instead uses indirect tools to limit credit, such as imposing reserve requirements on banks (11 percent of deposits in local currency and 24 percent on deposits in foreign currency). The Central Bank adopted this new policy of differentiation in 2020 to encourage conversion of foreign currency deposits into Ariary. Foreign investors can get credit on the local market if they have an officially registered company/subsidiary located in the country. In December 2020, the average interest rates on loans to customers was as high as 13. percent, between 9.14 percent for long term loans and 15.5 percent for short term loans. For deposits, the average return was 2.64%.

****Money and Banking System****

Madagascar’s banking penetration rate is very low. Only 12 percent of the population has a bank account, which includes accounts with microfinance institutions. Less than three percent of the population has access to commercial bank loans, and there are just 97.3 deposit accounts per 1000 adults.

There are only eleven commercial banks in Madagascar. As rates are high and competition low, banking activities are very profitable. Loans and credit to the private sector represent 53% of bank assets whereas loans (including TB) to the government represent 17%. Non-performing loans accounted for 5% of overall loans and credit in 2019.

Overall assets of all commercial banks were USD 3.69 billion or 25.4% of GDP as of December 2019.

Madagascar has a central bank system. Its main objectives are to ensure the stability of the local currency internally (acceptable inflation rate) and externally (acceptable fluctuation of the exchange rate). The Central Bank has no clear mandate to promote economic growth. There is no inter-bank lending system in place. As part of ongoing ECF negotiations with the IMF, the Central Bank is currently weighing a strategy that would target interest rates instead of the money supply in order to ensure tighter control of monetary policy.

As of November 2019, the Central Bank is no longer using a benchmark rate as a reference to its monetary policy tools. Instead, it has implemented two different rates. The first is the deposit rate of 0.9% that commercial banks may use while depositing their excess of liquidity; the second rate is the lending rate set at 5.30%. Banks will use this latter rate while borrowing money from the Central Bank for their normal operations or to honor their reserve requirements. By adopting this policy, the Central Bank is adopting a clear expansionary policy as the lending rate has come down from 9.50% to 5.30%. This policy is consistent with a lower inflation rate of 4.5% in 2020.

Only one of eleven operating commercial banks is local. The other ten are subsidiaries of French, Moroccan, Gabonese, and Mauritian banks and are subject to prudential measures imposed by the CSBF or Banking and Financial Supervision Committee. Madagascar has not lost any correspondent banking relationships in the past three years nor are any currently in jeopardy.

Foreigners having legal residency status in the country can establish a bank account in either local or major foreign currencies (USD and Euro).

****Foreign Exchange and Remittances****

***Foreign Exchange***

Foreign investors do not face restrictions or limitations in converting, transferring, or repatriating funds associated with an investment. However, the monetary authorities and the Ministry of Economy and Finance require traceability of capital inflows and outflows. Funds can be freely converted into major foreign currencies.

Madagascar adopted a managed floating exchange rate system in 1994. The exchange rate fluctuates but the Central Bank intervenes to prevent abrupt depreciation or appreciation of the Ariary. In general, the Central Bank of Madagascar keeps the value of the Ariary fluctuating in a two percent range. The Central Bank’s regular interventions to stabilize the currency during the COVID-19 pandemic and resulting decline in Malagasy exports has limited depreciation to 4.7% during 2020.

In 2020, Madagascar set up a national gold reserve because of the implementation of the MOU between the Ministry of Mines and Strategic Resources (MMRS) and the Central Bank of Madagascar (BFM). The GOM not only wants to use gold as a reserve asset of the Central Bank but to use repatriation of profits from gold exports to strengthen the national currency. However, in September 2020, the GOM suspended gold exports after exporters failed to repatriate their profits and has since decided gold should stay in country to increase the Central Bank’s reserves.

***Remittance Policies***

There are no recent changes or plans to change investment remittance policies. There are no restrictions on converting or transferring funds associated with foreign investment, including remittances of investment capital, earnings, loan repayments, and lease payments. Exporters have to repatriate their assets within 90 days for manufacturers of goods and 30 days for service providers. They are required to repatriate all of their turnover, with at least 70 percent of it going into the forex market within 30 days. However, when foreign currency reserves are dwindling, the Ministry of Economy and Finance can decide to sanction exporters who fail to repatriate their assets in a timely fashion. Among the sanctions that the Ministry can impose is the suspension of their access to the digital forex market platform.

****Sovereign Wealth Funds****

Madagascar does not have a Sovereign Wealth Fund that manages national savings for investment purposes. However, Madagascar’s Prime Minister said during his address at the National Assembly in December 2020 that the government was committed to the establishment of a sovereign wealth fund.

							7. State-Owned Enterprises					

The government has shares in 55 public establishments of an industrial and commercial nature, with a majority stake in 27 enterprises; in 11 cases, the government owns over 95 percent of the entity. A list of operating state-owned enterprises can be found here . Detailed information about state-owned companies (SOEs) is not easy to come by but they operate in many key sectors such as aviation, public utility (running water and electricity), ports, hotels, insurance, finance, woodworking, mining, maintenance and construction of ships, and real estate. The government has minority shares in three major banks, the beverage industry, oil distribution, and mining activities. The two most well-known SOEs are JIRAMA (100 percent state-owned), the water and electricity utility, and Air Madagascar whose equity tie-up with France’s Air Austral has now ended. The GOM has spent substantial amounts subsidizing the operations of both of these entities. Improvement in the governance and a return to profitability of SOEs is a long-standing condition for assistance by multilateral donor institutions such as the World Bank and the IMF.

In theory, private enterprises are, on the whole, allowed to compete with SOEs under the same terms and conditions for market access, credit, and other business operations. The reality is somewhat different. State-owned enterprises dominate the sectors in which they operate. Any investor seeking to compete with an SOE in Madagascar should consider not only market-entry difficulties, but also its ability to compete for scarce resources and permits.

****Privatization Program****

The 2004 law on privatization prohibits the Government from owning more than 50 percent of a privatized company. The fledgling privatization program initiated before 2009 has given way to more government control as reflected by the GOM’s recent moves to increase what it calls “the production share of the government” in the mining sector.

In the past, foreign investors participated actively in these privatization programs. Almost all state-owned banks were purchased by foreign investors including foreign state-owned banks.

Currently, the GOM does not have a privatization program on its agenda.

							8. Responsible Business Conduct					

Overall, Responsible Business Conduct (RBC) has not been a priority for the business community or for the GOM. The GOM does not have a dedicated policy on RBC at present. But this may change as the new investment law currently being drafted is expected to incorporate RBC standards. Large corporations including multinationals in the mining sector, local conglomerates, commercial banks, and sizable international service firms proactively comply with universal RBC standards on governance, environmental concerns, and corporate social responsibility. The National Environment Office (ONE) does require environmental impact assessments to be conducted.

The government enforces labor, employment rights, and consumer and environmental protections in part through periodic inspections, though a lack of resources and capacity, as well as continued corruption at all levels, impedes the effectiveness of this enforcement. The government does not waive these requirements to attract foreign investment, except for some particular exemptions to its labor code provided to EPZ companies. Many companies with foreign investors, particularly from western countries, are moving gradually to international standards through their participation in voluntary certification schemes, such as the Worldwide Responsible Accredited Production (WRAP) principles in the apparel sector. There is also a vibrant NGO and civil society community, particularly regarding environmental issues, but they also suffer from lack of resources and capacity.

In 2018, after accusations by an international NGO, the Rio Tinto subsidiary QIT Minerals Madagascar (QMM) confirmed they had breached a buffer zone between their ilmenite mining operation in the south of Madagascar and a sensitive wetland. The breach, which took place in late 2014, is in violation of Malagasy law and conservationists fear risks of uranium-enriched tailings entering a lake that local people use for drinking water. The Office of Environmental Compliance (ONE) inspected the breach in 2018 and declined to act. In August 2019, following further complaints by NGOs on the lack of transparency in ONE’s actions, the Minister of Environment promised to investigate further.

Poor and slow enforcement of domestic laws relating to human rights, labor rights, consumer protection, environmental protections, and other laws/regulations fail to protect individuals from adverse business impacts. NGOs, unions, business associations, and other entities have been very active in raising awareness of RBC particularly in relation to environmental protection, child labor, and human rights but are not always effective. There have been some notable advances in the campaign against sexual harassment and discrimination based on gender and religion. Child labor is an ongoing issue in several sectors. The U.S. Department of Labor report on the worst forms of child labor includes the exploitation of child labor in Madagascar’s production of vanilla, sapphires, precious stones, and mica. The government has made moderate advancement in efforts to eliminate the worst forms of child labor, with assistance from international donors. However, due to the pandemic, the Ministry of Mines’ draft plan to fight child labor in mica mining is still in draft stage and has not yet been submitted to donors. It includes the improvement of livelihood in the concerned regions but does not specify corrective measures against the companies or individuals involved.

The GOM encourages adherence to the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals, but has no similar domestic measures requiring supply chain due diligence.

Madagascar is a member of the Extractive Industries Transparency Initiative (EITI), under the Mining Ministry. In 2019, EITI’s international office suspended Madagascar for the second time in 10 years following significant delays in the publication of the 2017 and 2018 reconciliation reports. They required the GOM to implement 15 corrective measures and undergo a double validation process before readmission. Disagreements on policy direction and funding led to the resignation of the Executive Secretary of EITI Madagascar in 2019, following which the GOM published the two long delayed reports. EITI International announced in December 2019 that Madagascar had provided documentation of implementation of the fifteen corrective measures required by EITI and its impact. Later on, EITI international recognized that Madagascar made significant progress with many improvements. Madagascar received the first validation when seven out of 15 recommendations were fulfilled; the second is expected in December 2021. However, the Government did not release the funds necessary to run the local EITI office, despite provisions for its funding in the enacted Finance Law.

There are no laws or domestic transparency measures mandating the disclosure of payments for projects related to the commercial development of mines and hydrocarbon resources.

Madagascar has a booming private security industry and is a signatory of The Montreux Document on Private Military and Security Companies. There were no major armed conflicts in Madagascar in 2020.

***Additional Resources***

Department of State

- Country Reports on Human Rights Practices ( https://www.state.gov/reports-bureau-of-democracy-human-rights-and-labor/country-reports-on-human-rights-practices/ ).
- Trafficking in Persons Report ( https://www.state.gov/trafficking-in-persons-report/ ).
- Guidance on Implementing the “UN Guiding Principles” for Transactions Linked to Foreign Government End-Users for Products or Services with Surveillance Capabilities ( https://www.state.gov/key-topics-bureau-of-democracy-human-rights-and-labor/due-diligence-guidance/ ) and;
- North Korea Sanctions & Enforcement Actions Advisory ( https://home.treasury.gov/system/files/126/dprk_supplychain_advisory_07232018.pdf ).

Department of Labor

- Findings on the Worst forms of Child Labor Report ( https://www.dol.gov/agencies/ilab/resources/reports/child-labor/findings  ).
- List of Goods Produced by Child Labor or Forced Labor ( https://www.dol.gov/agencies/ilab/reports/child-labor/list-of-goods ).
- Sweat & Toil: Child Labor, Forced Labor, and Human Trafficking Around the World ( https://www.dol.gov/general/apps/ilab ) and
- Comply Chain ( https://www.dol.gov/ilab/complychain/ ).

							9. Corruption					

While giving or accepting a bribe is a criminal act and is subject to trial by court, corruption is an ongoing issue at all levels in Madagascar.  No sector is immune, but it is most pervasive when dealing with the judiciary, police, tax, customs, land, and the mining industry.

Madagascar’s anti-corruption legislation, updated in 2016, mandated the establishment of the Independent Anticorruption Office (BIANCO) and the Committee for Safeguarding Integrity (CSI).  BIANCO enforces the anti-corruption law while CSI monitors the implementation of the national anticorruption strategy.  The anti-corruption courts (PAC) were established in 2018 to hear all corruption-related cases – including economic and financial crimes – after an investigation by BIANCO or the gendarmerie.  There are supposed to be PACs throughout the country; the first PAC was set up in the capital and the second became operational in Mahajanga in October 2020; the set-up of the third PAC in Fianarantsoa is underway.  Madagascar also has a Financial Intelligence Unit (SAMIFIN) to carry out research and financial analysis related to money laundering.  Transparency International Initiative Madagascar (TI-IM) has an office in the country working here since 2002.  TI-IM, BIANCO, SAMIFIN, Police and Gendarmerie collaborate closely to bring cases to the courts.

The Rajoelina administration has prosecuted some major corruption cases. In 2019, 5461 cases were charged, 1441 individuals investigated, 639 arrested, and 155 jailed for pre-trial detention.

The long-awaited Illicit Asset Recovery law was passed by ordinance in 2019.  Subsequently, the CSI, BIANCO, and SAMIFIN initiated the development of the draft implementing decree, specifically on the establishment of the Agency for the Recovery of Illicit Assets.  This ordinance will allow the country to properly manage confiscated assets at both the national and international level.  However, in 2020 members of parliament introduced legislation that would weaken the anti-corruption system by limiting the mandates of PAC judges, reducing areas of jurisdiction for the PAC, and repealing the illicit asset seizure decree. The legislation remains pending before the Senate.

There is no requirement for companies to establish internal codes of conduct that prohibit bribery of public officials.  Both the anti-corruption law and the penal code prohibit any individual/enterprise from giving money, presents, or other gifts to public officials to obtain advantages they are not entitled to.  The law also provides that any private enterprise that commits corrupt practices to obtain a permit, license or authorization is excluded from government procurement.  Furthermore, according to the law, any license, authorization, or permit issued illegally through corruption is void.

Both Article 31 of the 2016 anti-corruption law and Article 182 of the penal code require that any conflicts of interest concerning a public official should be declared to the supervising authority.  Failure to do so can lead to between six months to two years of imprisonment, a fine varying from MGA 1,000,000 (eq. USD 270) to MGA 50,000,000 (eq. USD 13,500) or both.  There is limited information on companies using internal controls, ethics, and compliance programs to detect and prevent bribery of government officials.  However, some foreign companies have begun to orient their internal control, ethics, and compliance programs to prevent bribery, and the Foreign Corrupt Practices Act prohibits U.S. firms from engaging in such behavior.

Madagascar ratified the United Nations Convention against Corruption, as well as the African Union Convention on Preventing and Combating Corruption, in 2004.  Madagascar also joined the Southern African Development Community (SADC) Protocol against corruption in 2007 but has not yet signed the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transaction.

NGOs and associations are involved in governance and anti-corruption projects.  The law does not have any explicit provisions protecting NGOs and associations.  A Transparency International report states that although many associations and NGOs exist on paper, their actions are limited in terms of impact, especially in terms of playing a watchdog or advocacy role concerning government institutions.  Environmental activists have been harassed and threatened by various means.  The government, however, does not target them directly.

In general, the private sector identifies corruption as an obstacle to investment.  The IMF country report on Madagascar published in 2017 indicates that corruption affects the business climate in Madagascar.  Forty percent of those surveyed expected to give gifts “to get things done”, or to get an operating license, or to secure a government contract.  Moreover, 30 percent of the surveyed firms expected to give gifts in meeting tax officials and were required to make an informal payment or experienced a bribe payment request.  Similarly, more than 75% of Malagasy stated that corruption had increased in Madagascar over the past year, according to the 2019 Afro barometer Survey, with 44% of Malagasy believing that police and gendarmes are involved in corruption and 39% believing the same of judges and magistrates.  BIANCO fared better with respect to the public’s trust, with 87% believing it is somewhat or very probable that BIANCO will take action if they report an act of corruption.  Nevertheless, of these respondents, 70% believe that regular citizens are at risk of retaliation if they report this. For exporters, many products require documentation linked to regulatory controls and this process can require a significant amount of time, costs, and possibly bribes.  Aside from the routine demands for a quid pro quo, close ties between business and political elites also present barriers to entry for newcomers to the field.

BIANCO has set up a secure platform to allow whistleblowers to remain anonymous and to submit sensitive information securely, using encryption and respecting data transmission and processing.  The government plans to roll out a communication campaign to introduce this online tool which allows citizens to provide authorities with information about corruption.

Despite the measures introduced to combat corruption and smuggling, Madagascar’s vulnerabilities in this regard were exposed in early January 2021 when South African authorities arrested three Madagascar nationals with 73.5 kg of gold at Johannesburg airport.  The men were enroute from Antananarivo to Dubai; so far, the GOM has had no success in persuading the South African government to extradite either the gold or the detainees to Madagascar.

**Resources to Report Corruption**

Bureau Indépendant Anti-Corruption (Bianco)Name: Mr. Laza Eric Donat AndrianirinaTitle: General ManagerOrganisation: Independent Bureau Anti-Corruption (Bianco)Address: Villa “La Piscine”, Ambohibao, Antananarivo, Madagascar, Po Box 399Telephone Number: +261 20 22 489 79 / +261 20 22 489 93 / +261 33 02 002 99Email Address: Bianco.Dg@Moov.Mg; Contact@Bianco-Mg.Mg;Www.Bianco-Mg.Org

Transparency International-Initiative Madagascar (Ti-Im)Name: Mr. Solofo RakotosehenoTitle: Chairperson Of Ti-ImOrganisation: Transparency International Initiative, Madagascar (Ti-Im)Address: Villa Huguette (Rdc), Lot Ii U86 Cite Planton, Ampahibe, Antananarivo, MadagascarTelephone Number: +261 20 22 288 73; +261 34 96 418 79Email Address: Contact@Transparency.Mg; Communication@Transparency.MgWww.Bianco-Mg.Org

Sehatra Fanaraha-Maso Ny Fiainam-Pirenena (Sefafi) – Observatory Of Public LifeName: Mrs. Sahondra RabenarivoTitle: ChairpersonOrganization: Sehatra Fanaraha-Maso Ny Fiainam-Pirenena (Sefafi)Address: Lot Iiim33k, Andrefan’ambohijanahary, Antananarivo, MadagascarTelephone Number: +261 32 59 761 62Email Address: Sefafi@Gmail.Com;

AfrobarometerName: Desire RazafindrazakaTitle: Team LeaderOrganization: Afrobarometer, Madagascar Office C/O Coef ResourcesAddress: Po Box 4075, Antananarivo, MadagascarTelephone Number: +261 20 22 283 82Email Address: Coef-Re@Moov.Mg;Http://Afrobarometer.Org/Countries/Madagascar-0

							11. Labor Policies and Practices					

Over 75 percent of the labor pool works in the informal sector, primarily agriculture. There are few reliable statistics available on unemployment, underemployment, and the split between skilled and unskilled labor. Madagascar has a significant pool of available labor, much of it young given the demographics of this country of 27 million people. One recent report puts the underemployment rate for the 15 to 29 age group at over 75 percent.

The quality of Madagascar’s labor is high and is frequently cited by private investors as a key attraction for the country; this is particularly so in the textile sector where Madagascar has a growing reputation in the production of high-end apparel at costs comparable or lower to major exporters in Asia. The World Bank notes high skill levels in technology and call center services offer areas for growth. Another factor to note is the brain drain of educated Malagasy seeking better economic opportunities in Mauritius, other parts of Africa, and in Europe.

The National Office for Employment and Vocational Training, within the Ministry of Labor, is tasked with increasing the availability of skilled labor. Officially launched in March 2019, the Malagasy Vocational Training Fund (FMFP) finances training for contributing companies’ employees as well as youth and adults from the informal sector in Madagascar. The FMFP’s mission is to finance continuing vocational, pre-employment and soft skills training for workers. With the assistance of its technical and financial partners, the FMFP launched tailored training sessions for several sectors including building and construction; public works and infrastructure; rural development; information and communication technology; textiles – clothing and accessories; hotel-restaurant-travel; and equity (start-up, associations, cooperatives, and NGO).

In general, labor laws do not include requirements for investors to hire nationals. The mining sector is the exception where the LGIM gives preference to nationals, so long as they have the required skills and experience. FMFP’s capacity building activities are funded with 1% of total wages paid by member companies plus the grants from various international donors.

The labor code includes specific provisions protecting workers against abrupt dismissals, but it also allows the employer to lay off workers for economic reasons. In such a situation, the employer has the right to furlough employees for a maximum period of six-month period during which all salary and allowances are suspended. After the six months, if the activities do not resume, the employer is required to pay severance, including the unpaid salary. There is no unemployment insurance or other safety net for those who are laid-off or fired. Several provisions of the labor code were deliberately circumvented during the pandemic to the detriment of workers, without leading to serious repercussions or sanctions by the government. Examples include non-payment of dues, deducting lockdown days from annual leave, withdrawal of health insurance coverage even after salary deductions, and failure to provide adequate protective measures against COVID-19 infection.

Madagascar does not have a history of waiving labor laws to attract or retain investment. The labor code covers private sector workers while civil servants and maritime workers have separate labor codes, and a specific law ruling EPZ companies includes provisions related to their workers’ rights. EPZ labor contracts may differ in duration, restrictions on the employment of women during night shifts and the amount of overtime permitted.

The law provides that public and private sector workers may establish and join labor unions of their choice without prior authorization or excessive requirements. Essential workers, including seafarers, police, military, and firefighters, may not form unions. Unions generally operate independently from government and political parties. According to union representatives, about 20 percent of the formal sector has collective bargaining agreements, and collective bargaining rights are more readily exercised and respected in larger international firms, such as those in the telecommunications, mining, and banking sectors. In EPZs and smaller local companies, employees tend to be more reluctant to make demands for fear of reprisals.

The labor law establishes labor dispute mechanisms, which proceed progressively from internal negotiation to outside mediation from the Ministry of Labor to arbitration or legal settlement through the competent courts. The labor inspectorate under the leadership of the Ministry of Labor oversees resolving disputes by negotiation between workers and employers. The labor court is viewed as a last-resort option when previous attempts to settle the dispute through alternative means have failed.

In November 2019, the GOM suspended the activities of an Australian mining company Base Toliara, exploiting ilmenite in southern Madagascar. The GOM acted on the basis of protests initiated by a group of local inhabitants who had opposed the project since 2014 on environmental, health, and livelihood impact on the local population.

In the Country Program for Decent Work for 2015 to 2019 (a joint ILO-GOM project), ILO notes weak respect for fundamental labor rights. These include infringement of social and labor-related laws, informal recruiting practices, and poor hygiene, security, and health standards. Due to extreme poverty and lack of opportunity, workers tend to accept poor working conditions. The use of child labor in the vanilla and mica industries is an ongoing issue that international organizations and NGOs are working with the GOM to address.

In 2019, Madagascar ratified six ILO conventions. The local office of ILO supported the government in identifying the necessary amendments to align the local legislation with the newly ratified conventions. A finalized summary of the suggested amendments was submitted to the National Labor Council.

							12. U.S. International Development Finance Corporation (DFC), and Other Investment Insurance or Development Finance Programs					

As one of the poorest countries in the world, Madagascar is a strong candidate for DFC programs and assistance. With the GOM prioritizing infrastructure investments and private sector-led economic growth, DFC’s ability to offer reasonable rates on loans and/or political risk insurance will be invaluable. Madagascar’s biodiversity is well-known and celebrated, but it is also under threat from illegal logging, smugglers, wildlife traffickers, and slash and burn agriculture. Projects that target sustainability and environmental protection will be even more important with COVID-19 displacement already creating numerous instances of increased incursions into protected areas and destruction of habitat.

On March 31, 1998, the Overseas Private Investment Cooperation (OPIC) and Madagascar signed a bilateral Investment Incentive Agreement, which updated the previous agreement signed in 1963. Additionally, OPIC and Madagascar concluded two memoranda of understanding in 2004 pledging cooperation in attracting U.S. investment in several sectors, including telecommunications and information technology, agribusiness, mining, energy, and tourism. However, there are currently no active OPIC projects in Madagascar. Madagascar has been a member of the Multilateral Investment Guarantee Agency (MIGA) since 1989. 13. Foreign Direct Investment and Foreign Portfolio Investment Statistics

							13. Foreign Direct Investment and Foreign Portfolio Investment Statistics