Benin collection profile

Benin is a signatory to the Organization for the Harmonization of Business Law in Africa (OHADA) Treaty, a uniform act relating to commercial companies and economic interest groups.  
Companies in Benin are not obliged to submit their balance sheets, but they are required to file their tax returns.
Limited Liability Companies (SARL) are required to submit their financial statements to the tax authorities, while Public Limited Companies (SA) must also have them published in the newspaper, The Nation. However, most SA companies do not adhere to this requirement and it is generally only the companies listed on the stock exchange – Bourse Régionale des Valeurs Mobilière (BRVM) – who publish their financial statements on the BRVM website.
A copy of the balance sheet is also submitted to the Central Bank of West African States (Banque Centrale des États de l’Afrique de l’Ouest, BCEAO), which gives it a central overview of payment incidents.
However, as financial information cannot always be relied upon, trading history is often a better indicator of a company’s viability.

There are several types of companies in Benin, but the most widely used are the SARL and the SA entities:

• Limited Liability Companies (Sociétés à Responsabilité Limitée, SARL) have seen a lot of improvements in order to facilitate the creation of such company type. The minimum capital required for a SARL is CFA 100,000 (approx. EUR 150) and the company can consist of single partner (owning 100% of the shares) or several partners. SARL companies are the most common type of entity due to the flexibility they offer.
• Public Limited Companies (Société Anonyme, SA) can consist of either a General Director or a Board of Directors. SA entities are often used by larger companies due to the rules and protection that they offer to the shareholders. The minimum capital required for a SA is CFA 10,000,000 (approx. EUR 15,200).
• Another type of company, known as the Sole Proprietorship or Individual Company, is the registration of a natural person to do business. Normally there are limitations to the type of operations a Sole Proprietorship business can conduct, but these are generally not respected.  For example, Sole Proprietors are not eligible for an importer card, though they often find ways to obtain one regardless.
• Additionally, Economic Interest Groups (GIE) are not defined as companies, but rather as legal entities whose exclusive purpose is to facilitate or develop the economic activities of its members. A GIE can be constituted without capital and does not in itself give rise to the generation and distribution of profits. However, this type of organization is very rare in Benin.

The Civil Law in Benin is inherited from the French Civil Law, which means that the Civil Code is still the French Code. However, features arising from case law and customary law (rules derived from local customs) have led to some adaptation of the original law. Otherwise, the text remains largely inspired by the French Civil Law.
The legislation in Benin, based on the original colonial legislation of the French Law, has evolved since the country became independent in 1960.

The judicial structure of Benin consists of the following:

• The Courts of First Instance (Tribunaux de Première Instance) are responsible for common law matters including criminal, civil, commercial, social and administrative law. They act in the first instance on cases which can then be brought before the Court of Appeal if the decision is contested.
  There are two types: the first class of Tribunal de Première Instance (Cotonou, Porto Novo and Parakou) and the second class of the Tribunal de Second Instance. The law foresees the creation of 28 courts, although only 14 are effectively functional at present.
• The Courts of Appeal (Cours d’Appel) can be considered as the court of second instance, ruling on disputes heard in a Court of First Instance where the outcome is appealed.
  There are three Courts of Appeals in Benin: Abomey, Cotonou and Parakou.
  The Court of Appeal also includes two courts which have no similar jurisdiction at the level of the courts: The Joint Appeals Chamber and the Assize Court.
• The Supreme Court (Cour Suprême) is the highest court with appellate jurisdiction in administrative, civil and criminal matters. There is only one Supreme Court in Benin and it is located in Porto Novo.
• The Constitutional Court (Cour Constitutionnelle) is the highest court of the state in matters relating to the constitution and the judging of the constitutionality of laws and regulatory acts.
• The High Court of Justice (Haute Cour de Justice) presides over charges of crime against the nation by the president or government officials.

It is necessary to add certain specific points that have profoundly affected judicial life as a result of the reforms undertaken in this legal domain.
Law No. 2020-08 of 23 April 2020 on the modernization of justice in its sections on the former Assize Courts, the trade courts with their small and medium claims chambers and the progressive dematerialization of some judicial procedures-electronic directory of securities

• In terms of reforms, the Assize Courts have been abolished and Criminal Chambers have been instituted in all first instance jurisdictions. It is to judge the most serious offenses that we call crimes within these jurisdictions that do not necessarily require the accused to move away from the locality where the offense was committed. Today, the offenses will be judged in a short period of time, a period close to the commission of the offense in the place where it was committed and then by the locally established jurisdiction. This institution of the Criminal Chambers at the level of the Courts of First Instance has also allowed the establishment of the double degree of jurisdiction in criminal matters.
• As for the Commercial Courts in the cities with special status, namely Cotonou, Porto-Novo and Parakou.
  The Commercial Court of Cotonou has already been installed and is in operation. It is today a pilot jurisdiction for accessibility of litigants and dematerialization. The Commercial Court is a special jurisdiction dedicated to the business world and is characterized by the flexibility, the serenity of its decisions, and is manifested by a better accessibility. It has, above it, the Court of Appeal of Porto-Novo and, the infrastructure which will soon welcome its first staff.

It is a question of ensuring that the business world has access to a whole range of services and, thanks to the passing of the last law on the modernization of the justice sector, it is planned to dematerialize the procedures of this jurisdiction which, like the courts of first instance, has a small and medium claims chamber. When the decision is rendered, it is deprived of the double degree of jurisdiction and finally, it is exempted from the registration fee. This allows to have the decision quickly and to be able to enforce it.

The objective is two-fold: to improve accessibility and also to facilitate, through the assistance it provides to the business world, the relations between traders.

• Finally, the last but not least innovation is the electronic directory of securities

This is the latest innovation that has been put into service. The Ministry of Justice, the Ministry of Finance and the technical and financial partners have set up a register for the registration of securities. It is an electronic register so that the creditor does not need to go to the Court to register his security on the collateral provided by his debtor. He can now do it at home by filing a request. The formalities are done online as well as the payments. In terms of formalities, it is the registration, the possible modifications as well as the cancellation of the guarantee to allow to save time and then, it is a completely secured system which allows to provide all the information as well as all the services in this field. It is a small revolution that has been carried out and that foresees all that is envisaged to be done with regard to the dematerialization of the services of the Judiciary.

• Another major fact in the judicial landscape of Benin is the effective start of the hearings of the CRIET

The Court for the Repression of Economic Crimes and Terrorism (CRIET), a special court, was created.
The CRIET is an instrument designed to address the issue of impunity, which for a long time was considered a well-worn subject but also an impregnable citadel. The Court of Repression of Economic Offenses and Terrorism (CRIET) is a special court that has the legal means to fight impunity, corruption, drug trafficking, terrorism and cybercrime.

Benin has adhered to an international convention under the aegis of the United Nations called the Merida Convention by which the States have committed themselves to eradicating corruption. Benin has adhered to this convention and has legislated by the 2011 law on corruption and related offences but the political will and the body in charge of implementing this political will to fight against corruption and especially impunity was missing. The CRIET was created for this purpose to overcome the fear of engaging in the fight against corruption. It was the time to do it and it is the mission entrusted to the CRIET, which is accomplishing it well with commendable results.
The review of the CRIET's operations after one year of operation led to its strengthening by giving it a double level of jurisdiction. Its staff was strengthened and a law was passed on public governance, the law on the legal and judicial reinforcement of public governance, which clarified the notion of economic offence and established the responsibility of public officials.

The Common Court of Justice and Arbitration (Cour Commune de Justice et d’Arbitrage, CCJA) is the last resort in terms of all commercial area countries who are signed up to the OHADA Treaty.
This court is located in Abidjan, Ivory Coast. It shall be composed of nine judges elected for a renewable term of seven years from among the nationals of the states’ members.

Powers of the CCJA
The CCJA gives notice prior to the adoption of the Uniform Acts and settles disputes between states as to the construction or application of the Treaty.
In addition, the CCJA is responsible for all matters relating to the application of the Uniform Acts, with the exception of decisions applying criminal sanctions.
The CCJA enjoys a transfer of jurisdictions formerly devolved to the national Courts of Cassation and undeniably contributes to ensuring a common construction by the judges on the ground of the same substantive Community Law of the OHADA area.
The Court of Justice and Arbitration is a Court of Cassation, ruling on decisions handed down by the Appeals Courts of states or on decisions not subject to appeal, with the particularity of ruling on the merits without referral to another jurisdiction.

As per guidelines provided by the OHADA Treaty, collection costs are borne by the debtor unless it is clear that they were not necessary at the time they were incurred. Furthermore, unless the costs concern an act that is covered by National Law or the aforementioned Treaty and are authorized by the competent court, collection costs undertaken without enforcement are the responsibility of the creditor.
Where the court awards collection costs to the creditor, there is no fixed rate. Instead, the court will assess the costs incurred by the lawyer and/or the creditor and award costs accordingly.

Bank transfers are among the most commonly used payment methods in Benin as they are fast, secured, and supported by an increasingly developed banking network domestically and internationally. Verifying whether the bank is safe is sometimes necessary before transferring money, as the debtor requires an updated invoice to collect a change authorization from the Ministry of Finance. This regulation has been issued by the Central Bank to prevent money laundering.
Checks can be used as a debt recognition title as per the OHADA Law, as they demonstrate that a debt is certain and undisputed and can be used for fast-track proceedings or to lead to a criminal case, as the court can appose an execution title on the check.
Letters of Credit are used, but mostly as Standby Letters of Credit. Standby Letters of Credit are bank guarantees payable on first demand upon submission of designated documents: the minimum requirement is the declaration of the beneficiary stating the default of the principal or the contractor. As with conventional bank guarantees, the Standby Letter of Credit covers many cases such as guarantee of submission, discount guarantee, good performance guarantee, etc.

There is no obligation to partake in negotiation prior to commencing formal legal action in Benin. However, before entering proceedings, the creditor must prove that a formal notice to pay has been served to the debtor.
In practice, parties refer to the Chamber of Commerce, which is led by CAMEC (Centre Arbitrage, de Mediation et de Conciliation du Benin), on occasion. The CAMEC is capable of facilitating amicable settlements of disputes arising from commercial relations through the implementation of mediation or conciliation proceedings, or by providing an arbitral solution for disputes that cannot be solved by the aforementioned methods.
In mediation and conciliation, the parties aim to work together to establish the basis of an agreement with the assistance of an ombudsman or conciliator. A mediation or conciliation report is then drafted, which may also be approved by the competent court. During arbitration, the dispute is settled by one or three arbitrators chosen by the parties within a fixed timeframe. The settlement is sanctioned by an arbitral award.

There are three levels of courts in commercial matters. The Trade Tribunal is the court of first instance, followed by the Trade Court of Appeal (second instance court). The Supreme Court OHADA (OHADA Common Court of Justice and Arbitration, ‘Court commune de Justice et d’Arbitrage de l’OHADA’) is considered competent when the law applicable to the dispute is within the OHADA Treaty, otherwise the Supreme Court of Benin would take the reins in all other cases.
All proceedings start by presenting the case before the Trade Tribunal. There are two options available in order to recovery debts: (i) an ordinary or emergency writ of summons, requesting the debtor to appear before the Trade Tribunal for trial and ruling, and (ii) an injunction to pay, simplified recovery procedure initiated in the case of unquestioned liquid debt due for immediate payment. In the second option, the creditor must file a petition to the president of the competent court, who will then issue a mandatory injunction to pay, which the creditor will serve to the debtor. The debtor may file an opposition within 15 days by refuting the creditor before the Trade Tribunal. Once seized, the Trade Tribunal must rule without delay.
Decisions rendered by the Trade Tribunal may be challenged before the Trade Court of Appeal.

The documents to be submitted are:  

• Proof of the creditor’s and debtor’s companies
• Contracts between the creditor and debtor Proof of shipment and receipt of goods
• Bill of exchange
• Unpaid checks
• Commercial invoices
• Written and electronic correspondence
• Sales contract signed by the two parties
  
• Discharges and receipts of payment
• Promissory note or any document attesting to the contractual and liquid nature of the claim
• Foreign creditors must also deposit a caution judicatum solvi (security for costs) when assigning nationals to the Tribunal, but are exempted if the nationals do not request it
  

All documents must be certified and translated into French.

The limitation period, which is a component of the regime of acts of commerce, is provided by Article 18 of the Uniform Act on General Commercial Law. Five years are allowed, except where a shorter time limit is prescribed for a specific act in question. The time limitation for matters relating to commercial sales is two years.

In relation to the establishment of evidence, the law provides for a summary proceeding to obtain urgent expertise, rehabilitation and more.
In Benin, the creditor may seize the assets of the debtor if they prove that the claim is grounded in principle and that there is a significant threat to the recovery of the debt. In order to do so, the creditor must submit a request to the president of the court in the place of residence of the debtor, for the president to issue an order. This procedure is not adversarial. Based on the order, the creditor proceeds to seizure and informs the debtor. The latter can then file a counterclaim with the court in opposition to the seizure by a writ of summons against the creditor.
Sequestration may be initiated by any creditor whose claim appears legitimate in principle. The creditor may request the competent court (in the place of residence of the debtor) for authorization to take preventive measures on all of the debtor's tangible and intangible property – without prior summons to pay – where they can show justifiable circumstances which are likely to jeopardize the collection (Article 54). Such authorization is not necessary when the creditor avails themselves of a writ of execution, or in the case of default in payment, duly ascertained by an accepted bill of exchange, promissory note, check or unpaid rent (Articles 55 and 56). 

The right to lodge an appeal against a decision rendered in commercial matters is permitted in Benin, and there is no leave for appeal necessary by law. Appeals against judgments of the Courts of Appeal are admissible only when relating to a question of law. The Supreme Court does not hear disputes arising from a question on the facts of a case, rather reviews the application or interpretation of the law (namely, the uniform acts of OHADA).

In Benin, enforcement of a final decision is not subject to any authorization in commercial matters. It is sufficient to obtain the enforceable copy of the decision to carry out enforcement measures. To obtain this copy, a registration fee of 4% is charged. The creditor then serves the decision to the debtor with a demand to pay the sum, fixed by the judge, within eight days.
In case of default of voluntary execution of the decision by the debtor, the creditor may carry out protective seizures on: movable property, receivables owed by third parties, funds in banks, shares or securities, fixed assets, salaries or standing crops.
The debtor may challenge such seizures by filing a complaint with the Trade Tribunal, however, if the complaint is dismissed, the creditor may proceed with the sale of the seized property or the collection of the seized funds.

The creditor has three months to notify the debtor for the injunction to pay, while the debtor has 15 days to make their opposition. If no opposition is filed, the creditor may receive the order to pay as a court decision within three to five months. In case of opposition, there are no specified time limitations for conciliation – it may take months, if not years, to complete due to the high volume of cases, along with other considerations.
The debtor also has the right to ordinary appeals before CCJA, meaning that an order to pay can take more than three months or even a year, depending on circumstances.
In general, the duration of legal proceedings is between six months to two years in the first instance, and one to four years for appeal proceedings. Action before the Supreme Court is difficult to estimate, as it varies greatly.

In general, the cost of the proceedings includes the bailiff’s fees, the administrative costs, and the lawyer’s fees. The cost depends on each case and its duration, but for indicative purposes, legal costs are as follows: (i) to open a file with a law firm CFA 50,000 (approx. EUR 75), (ii) summation to pay CFA 50,000, (iii) subpoena CFA 50,000, (iv) court registration of attachment order CFA 10,000 (approx. EUR 15), (v) notification of judgment CFA 50,000, (vi) report of attachment CFA 75,000 (approx. EUR 110), and (vii) commission for lawyers, which depends on the amount recovered, with a minimum of CFA 500,000 (approx. EUR 750).

The parties to a dispute may have recourse to Alternative Dispute Resolution (ADR) methods such as conciliation or arbitration.
Conciliation proceedings take place through Conciliation Courts which are instituted by districts and in municipalities with special status (Cotonou, Parakou, Porto Novo) and a conciliation tribunal in other districts. They are competent in all matters, with some exceptions provided by the law, in particular in modern civil matters, criminal cases, individual labour disputes and the state of persons. They are responsible for reconciling the parties and finding common ground between them by mutual consent. They do not judge, rather they draw up minutes of conciliation which must be homologated by the court of first instance in order to enforce a decision. However, referral to the conciliation court is optional.
Arbitration is a more straightforward means of settling a dispute insofar as the parties agree to rely on an independent and impartial third-party arbitrator, who is given authority to settle their dispute on their behalf. As an out-of-court settlement method, arbitration is very effective: it is cost-effective, generally reduces delays, allows preserving confidentiality and offers a binding decision which may then be enforced before the courts if necessary. The CCJA gives notice prior to the adoption of the Uniform Acts and settles disputes between states as to the construction or application of the Treaty.  It organizes arbitration but does not arbitrate itself. It appoints or confirms the arbitrators, is informed of the progress of the arbitration and examines the draft of awards to be granted or sentenced. It may decide on an exequatur for the specific enforcement of an arbitral award rendered in a state.

It is possible to choose a foreign jurisdiction to hear the case, provided that an element of the dispute connects the contract with the concerned country. The connecting element may be the place of conclusion of the contract, the place of delivery of goods, the place where the dispute arose, the place of residence of one of the parties, or the nationality of one of the parties.
In the event of disputes, the court chosen has the power to assess the relevance of the connecting element.
In general, however, it is dependent on the judicial convention with the chosen country.
For example, Benin has a judicial cooperation agreement with France.

Foreign judgments can be recognized and enforced in Benin through exequatur procedures. The exequatur is often second to the existence of a valid judicial cooperation agreement, providing reciprocity between the states.

In Benin, a company is eligible for collection proceedings for the winding up of debts when its available assets do not cover its current liabilities.
The basic criterion for determining whether preventive settlement or administrative proceedings are appropriate is whether the company concerned is insolvent. Insolvency must be defined for the purpose of the Uniform Act, described below, as a situation where it is impossible for a debtor to meet all their due liabilities with its available assets.

The law in Benin does not provide for such a mechanism.

The restructuring process is decided by the court in charge of the follow-up of the procedure, based on an expert report which assesses the viability of the company. The creditors make comments and a provisional administrator is appointed by the judge.
The Uniform Act provides two different types of restructuring of the debt. The first is the preventative settlement, which is available to any individual pursuing commercial activities and any corporate body pursuing commercial or non-commercial activities, including publicly owned companies. The purpose of this process is to allow the debtor to improve their financial situation and become a viable business. Only the debtor may commence this type of proceeding and must not be insolvent at the beginning of proceedings. The debtor may file an application, addressed to the president of the court, listing any debts for which they wish to obtain a suspension of enforcement. The application must be accompanied by several documents and liabilities, including the description of cash flow, details of the workforce and associated costs.
Within 30 days, the debtor must also file an offer of composition, in which they must specify how the financial situation of their company will be remedied. Once the president of the court received the composition order, an order to suspend individual proceedings – including provisional and enforcement measures – will be granted, along with a prohibition of any new proceedings. The only exception is granted to the debtor’s employees, while all other creditors’ claims are suspended.
The president of the court also appoints an expert to prepare a report on the economic and financial situation of the debtor, including prospects for recovery and measures within the composition offer. The expert proposes measures to the debtor and creditor in an attempt to reach an agreement. Within three months, the expert files a report outlining the composition agreement as proposed by the debtor or agreed by both the debtor and creditor(s). The debtor then appears before the court, together with the expert and creditor, to hear the court’s decision. If it is found insolvent, the court orders the debtor to be put in administration of liquidation. The court can also reject the composition and cancel the preventative settlement if it finds that the debtor’s financial situation does not warrant such measures. If the court considers preventive measures appropriate, a judgment will be issued and the composition agreement ratified. Appeals are not admissible regarding the suspension of individual proceedings, but may be filed regarding the judgment ratifying the composition agreement within 15 days.
Administration, or legal redress, is the second way to restructure debt under the Uniform Act. In this stream, the debtor must file a declaration of cessation of payments to the court, in order to open proceedings for legal redress or liquidation of property, regardless of the nature of the debts. The declaration must be made within 30 days of the cessation of payments and must include the following documents, drawn up on the same date as the declaration: (i) an extract of registration in the Trade and Personal Property Credit Register, (ii) summary financial statements, (iii) a cash position, (iv) a statistical statement of claims and debts, including the name and residence of creditors and debtors, etc. The debtor must lodge a composition proposal specifying the measures and conditions envisaged to redress the company within 15 days of the declaration. Collection proceedings may also be initiated at the request of the creditor regardless of the nature of their claim, as long as it is unquestionable, liquid and due. The creditor’s writ of summons specifies the nature and amount of the claim, including proof of debt. The debtor has the possibility of making the declaration and the composition proposal within one month of the writ of summons.

In Benin, the court, which has jurisdiction over commercial matters in the principal place of business, or registered office, of the debtor, also has jurisdiction in matters of liquidation. The proceedings with administration are the same to commence liquidation. A judge will order liquidation when it seems the debtor has not made a serious proposal for composition, or if it becomes apparent that the debtor is no longer in the position to make a composition proposal during the course of administration.
The judgment ordering the date of liquidation determines the date of insolvency, which then delays the suspect period. The first stages are the same as within administration proceedings. The judgment also automatically entails the winding up of the debtor’s company and the removal of the debtor from any involvement in administration or disposal of their assets.
The debtor is represented by a liquidator, who manages all correspondence regarding the debtor and acts in the creditors’ collective interest as they declare their claims for verification. In liquidation, all of the debtor’s debts that are not yet due become immediately due. Within one month of their appointment, the liquidator must provide the supervising judge with an estimate of the available or realizable assets, the secured and unsecured debts, and any possible financial liability of the debtor’s management.
The liquidator sells the debtor’s stocks and movable property, pays the debts and pursues the claims against third parties. If they do not have a final decision as to whether a claim is accepted, the corresponding amount is put in reserve.
Payment is made in full in each category until there are insufficient proceeds to pay in full all debts in a particular category. In this case (if the creditor concerned does not have a security over a particular asset), the amount is distributed to the creditors of that category in proportion to their respective claims and the creditor in the subsequent categories will receive no payment. 

In the case of immovable property, the law establishes the order of distribution of the proceeds arising from the sale of a fixed asset. The creditors’ legal costs, which were incurred in order to sell property, and the distribution of the price, are paid first. Preferential wage creditors are paid next, followed by creditors holding a conventional or forced mortgage and separatists registered within the legal deadline, each according to their registration rank in the register for real estate publication.
Following the above, mass creditors – creditors holding a general lien subject to publicity – receive payment according to their rank entering the register of the trade. Creditors with such a security, but not subject to publicity, are considered next, followed by unsecured creditors holding an enforceable title – provided they have intervened by means of seizure of by objection to the proceedings.
Should the proceeds be insufficient to settle all creditors, some may take part in the distribution of the proportion of their total debts (proportionate shares).
As for movable property, the creditors’ legal costs incurred in order to sell property and the actual distribution of the value, the creditors’ costs incurred for preservation of the debtor’s property, and the preferential wage creditors are allocated proceeds in this order.
After which, creditors secured by a general lien subject to publicity, creditors with a special lien, mass creditors, creditors with a general lien not subject to publicity, and unsecured creditors with an enforceable title will be covered. If there is not enough to settle the creditors, some will become part of the distribution in the proportion of their total debts.

In Benin, the suspect period runs from the date suspension of payments is ascertained, to the date of the decision to open the receivership or liquidation of assets.
From the time the decision to initiate collection proceedings against a debtor is made, the debtor may only transfer company shares, stocks or other company rights with the authorization of the administrator and under the conditions determined by them.
The competent court shall declare the rights of the company non-transferable to any person who has interfered in the management of the debtor company whenever such interference is established.
Documents establishing company rights must be deposited to the administrator or liquidator. Where they are not deposited voluntarily, the receiver will summon the debtor to submit them personally. Failure to hand over the documents will constitute the offence provided for in Article 231, 7°.
The receiver may have the inalienability of the company rights to the directors entered into the registers of the debtor company and in the Trade and Personal Property Credit Register.
The receiver will draw up a statement of company rights and issue the managers with a certificate of deposit or registration of inalienability in order to enable them to take part in the meetings of the corporate body.

The insolvency proceedings can take 6 months to 3 years, and more time is required for the administration and the liquidation.

Any documents to justify the claim, including the debtor’s insolvency documents and securities.