Investment Laws Of ASEAN Countries: A Comparative Review

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Investment Lawsof ASEAN Countries:A comparative reviewIISD REPORTJonathan BonnitchaDecember 2017 2014 The International Institute for Sustainable Development 2017 International Institute for Sustainable Development IISD.org

Investment Laws of ASEAN Countries: A comparative review 2017 The International Institute for Sustainable DevelopmentPublished by the International Institute for Sustainable Development.International Institute for Sustainable DevelopmentThe International Institute for Sustainable Development (IISD) is one ofthe world’s leading centres of research and innovation. The Institute providespractical solutions to the growing challenges and opportunities of integratingenvironmental and social priorities with economic development. We report oninternational negotiations and share knowledge gained through collaborativeprojects, resulting in more rigorous research, stronger global networks, andbetter engagement among researchers, citizens, businesses and policy-makers.IISD is registered as a charitable organization in Canada and has 501(c)(3)status in the United States. IISD receives core operating support from theGovernment of Canada, provided through the International DevelopmentResearch Centre (IDRC) and from the Province of Manitoba. The Institutereceives project funding from numerous governments inside and outsideCanada, United Nations agencies, foundations, the private sector andindividuals.Head Office111 Lombard Avenue, Suite 325Winnipeg, ManitobaCanada R3B 0T4Tel: 1 (204) 958-7700Fax: 1 (204) 958-7710Website: www.iisd.orgTwitter: @IISD newsInvestment Laws of ASEAN Countries: A comparative reviewWritten by Jonathan BonnitchaDecember 2017IISD and the author are grateful to officials from the governments ofCambodia, Indonesia, Laos, Myanmar, Thailand and Vietnam forcomments on an earlier draft. However, any responsibility for remainingerrors is our own. 2014 The International Institute for Sustainable DevelopmentIISD.orgii

Investment Laws of ASEAN Countries: A comparative reviewExecutive SummaryThis paper compares the investment laws of the 10 ASEAN countries, focusing on basic questions relating tothe function of investment laws in each country.The main findings of the paper are as follows:1. Not every ASEAN country has an investment law. For example, Singapore, which is the most successfulASEAN country in attracting foreign investment, does not have an investment law.2. Among ASEAN countries that do have investment laws, different countries’ laws have differentfunctions. For example, the Malaysian Promotion of Investment Act deals exclusively with investmentincentives, while the Thai Foreign Business Act deals exclusively with restrictions and conditions onforeign investment. Some ASEAN countries have multiple investment laws, each with a differentfunction.3. Among ASEAN countries that do have investment laws, these laws form only a small part of the legaland regulatory regime governing investment. It is impossible to evaluate a country’s investment lawwithout considering how it fits into the wider legal and regulatory framework governing investment.This paper also highlights fundamental differences between investment laws and investment treaties:4. Among ASEAN countries, no country’s investment law includes the combination of vague investor rightscommonly found in investment treaties. For example, aside from the Myanmar Investment Law (2016),no ASEAN investment law guarantees investors “fair and equitable treatment” (FET). FET is among themost far-reaching, and widely criticized, investor rights that investment treaties grant to foreign investors.Moreover, the Myanmar Investment Law defines FET very differently from the way that investmenttreaty tribunals have understood that concept.5. No ASEAN country grants general consent to investor–state arbitration in its investment law. However,many ASEAN countries do allow investor–state arbitration in cases where there is a specific agreementbetween an individual investor and the host government—in for example, an investor–state contract—toresolve a dispute through arbitration. 2014 The International Institute for Sustainable DevelopmentIISD.orgiii

Investment Laws of ASEAN Countries: A comparative reviewTable of ContentsIntroduction .1Focus.1Research Methodology.2Key Findings.3Brunei.5Cambodia. 6Indonesia. 8Laos.10Malaysia. 12Myanmar.14The Philippines.17Singapore. 19Thailand. 20Vietnam. 23Conclusion.25References.26 2014 The International Institute for Sustainable DevelopmentIISD.orgiv

Investment Laws of ASEAN Countries: A comparative reviewIntroductionSeveral countries in the Association of Southeast Asian Nations (ASEAN) are currently revising theirinvestment laws. As with any process of law reform, one important step in this process is reviewing thepractice of other countries. A comparative review of this sort can draw attention to issues that might otherwisebe overlooked, and highlight different ways of addressing common issues. Careful comparative analysis isparticularly important in developing countries, where government officials may lack the time and resources tocarry out a systematic review of various alternatives themselves.This paper is primarily descriptive. It does not propose a model investment law or recommend provisions thatshould be included in investment laws.1 On the contrary, one of the key findings of the paper is that a country’sinvestment law cannot be evaluated in the abstract, without considering how it relates to other elements of thelegal and regulatory framework governing investment in that country. Nevertheless, understanding how existinginvestment laws operate in different countries does help to clarify questions that should be considered whenrevising or adopting a new investment law.FocusThe focus of this paper is on the function of investment laws in each of the 10 ASEAN countries. In other words,this paper examines what investment laws are for. One of the central conclusions of this paper is that investmentlaws have different functions in different countries. In some countries, the function of an investment law isto establish a process for the review and approval of new investment. In others, it is to establish a regime forthe granting of investment incentives. The variety of possible functions of an investment law is reflected in thefact that some countries have multiple investment laws, while others have no investment laws as such. Thesebasic questions of function are important. It is impossible for a law reform process to progress without firstclarifying the function that the new investment law is intended to perform and considering how this relates tothe operation of other laws that apply to investment.The focus on the function of investment laws means that this paper does not delve deep into the detail of eachcountry’s law on specific issues. For example, while this paper examines whether ASEAN countries’ investmentlaws offer tax incentives to investors, it does not compare the rate and duration of such tax incentives forinvestment in different sectors in each country. Nor does it provide a detailed comparison of the sectors thatare closed, open subject to conditions or entirely open to foreign investment in each country. To be sure, suchquestions are an important component of any law reform exercise, but they only arise after basic questionsrelating to the function of a country’s investment law have been resolved.1This contrasts with the approach of the International Finance Corporation’s (IFC’s) Investment Law Reform: A Handbook for Development Practitioners (WorldBank Group, 2010). The IFC Handbook includes a Law Assessment Tool, which promotes a range of “good practice” features for investment laws. Many ofthese “good practice” features are strong investor rights provisions that were traditionally found in investment treaties. To our knowledge, there is currentlyno published evidence that supports the IFC’s recommendation to include these features in investment laws. Many of the recommendations made in the IFCHandbook are justified by reference to the IFC’s own data and research (e.g., pp. 2, 9, 19 and 20). We encourage the IFC to make publicly available any inhouse data or research relating to its “good practice” recommendations. 2014 The International Institute for Sustainable DevelopmentIISD.org1

Investment Laws of ASEAN Countries: A comparative reviewResearch MethodologyAt the beginning of the research, the author prepared a set of questions to guide the analysis of each country’sinvestment law. These questions fell into nine categories, as follows:1. Scope of applicationWhich investors does the investment law apply to? Domestic investors, foreign investors or both? Howare they distinguished?Which investments does the law apply to? Is there a distinction between investment projects andinvestment capital? Does the law cover portfolio investment and, if so, how?2. Investment institutionDoes the investment law create or refer to an investment institution? If so, what are the functions of thatinstitution?3. Entry and approval of new investmentDoes the investment law deal with the admission and approval of new investment? If so, how? Doesthe law establish a negative or positive list of sectors closed or open to investment? Is approval requiredto invest in listed/unlisted sectors? If so, which agency is responsible for issuing investment approvaland how do these approval processes relate to other permitting processes, such as environmental andconstruction permits?4. Relationship to other lawsHow does the investment law relate to other laws? Are interactions dealt with explicitly? If so, does theinvestment law defer to, or override, other laws such as those dealing with immigration, transparency,land acquisition and taxation? How does the investment law relate to laws governing investment inspecial economic zones?5. Investment incentivesDoes the investment law deal with investment incentives? If so, how does the process for the granting ofinvestment incentives relate to processes of investment approval? Are incentives granted on an automaticor discretionary basis?6. Investor rightsDoes the investment law confer certain rights on investors—such as rights to compensation in the eventof expropriation of their investment and rights to transfer capital and earnings from the investment outof the host country? If so, how do these rights compare to those commonly found in investment treaties?7. Dispute settlementDoes the investment law establish special arrangements for the settlement of disputes relating toinvestments—for example, by establishing a special institution for the settlement of investment disputes,or by providing consent to international arbitration for disputes arising out of investments?8. Status of investment treatiesDoes the investment law address the status of a country’s investment treaties—for example, by allowingforeign investors to invoke treaty rights as a matter of national law?9. Other unusual featuresDoes the investment law contain any other features not found in other ASEAN countries’ investmentlaws, such as provisions governing outbound foreign investment, or provisions regulating the trading ofshares on the local stock exchange? 2014 The International Institute for Sustainable DevelopmentIISD.org2

Investment Laws of ASEAN Countries: A comparative reviewOriginally, the intention was to present the findings on each country’s law in a standard format, using these nineheadings. As the research progressed, it became clear that there were vast differences between the basic structureand format of each country’s investment law(s). In light of these differences, it made more sense to organize thediscussion of each country’s law on its own terms, rather than confining that discussion within predeterminedcategories. Nevertheless, these nine sets of questions continued to guide the analysis, and are reflected in theway the discussion of each country is organized.2Key FindingsFour key findings emerge from the analysis that follows:1. There is no single “good practice” approach to an investment law.The research shows a wide variety of approaches to investment laws within ASEAN. Not every ASEANcountry has an investment law. For example, Singapore, which is the most successful ASEAN country inattracting foreign investment, does not have an investment law. Singapore’s approach is consistent withthe fact that most developed countries do not have investment laws.3 In countries without investmentlaws, foreign investment is governed by laws of general application (e.g., company laws, contract laws,environmental protection laws, land-use laws, laws guaranteeing compensation for expropriation ofproperty, etc.), along with sector-specific laws, which govern the admission of new investment in sectorsin which entry is regulated (e.g., laws governing the issuing of banking licences).The variety of approaches within ASEAN raises questions about what should be counted as aninvestment law. For example, many ASEAN countries have specific laws addressing investment in specialeconomic zones (SEZs), such as Myanmar’s Special Economic Zone Law (2014). The title of such lawsdoes not include the word “investment” and, for this rather arbitrary reason, these laws are not examinedin this paper. However, in some ASEAN countries investment in SEZs is covered by the investmentlaw—notably, Laos’ Law on Investment Promotion.In the absence of clear evidence to the contrary, there is no reason to think that certain issues arebest dealt with through a law that is called an “investment” law, rather than a law that is not called an“investment” law.2. Investment laws have different functions in different ASEAN countries.Malaysia’s Promotion of Investment Act deals exclusively with investment incentives. Thailand has twoinvestment laws, the Thai Foreign Business Act, which deals exclusively with restrictions and conditionson foreign investment, and the Thai Investment Promotion Act, which deals primarily with investmentincentives. Vietnam’s Law on Investment deals with restrictions and conditions on new investment,investment incentives and outbound investment. The differences between these three countries highlightthe importance of clarifying the intended function of an investment law.3. Investment laws do not operate in isolationEven in countries that have investment laws, those laws are only a small part of the national legal andregulatory regime governing foreign investment. As such, a central question in drafting investmentlaws is how the law relates to other parts of the legal and regulatory regime governing investment. Theinteraction between approval processes for new investment established by investment laws and otherprocesses of approval is one particularly important issue. Does approval under the processes establishedby an investment law remove the need for regulatory approvals that would otherwise be necessary—e.g.,construction permits necessary for new buildings? The interaction between laws is also important inunderstanding the operation of “investor rights” provisions. For example, does a guarantee of freeThese nine categories are similar to the features of investment laws which UNCTAD uses as the basis for coding of its investment law database (UNCTAD,n.d.). UNCTAD’s investment law database was made public in October 2017, after the research for this paper had been completed. It provides anotherimportant source of information for the comparative study of national investment laws.3For example, Australia, France, Germany, the United Kingdom and the United State of America do not have investment laws as such. For more detaileddiscussion, see Shan (2012).2 2014 The International Institute for Sustainable DevelopmentIISD.org3

Investment Laws of ASEAN Countries: A comparative reviewtransfer of funds override restrictions on the movement of funds imposed by banking or anti-moneylaundering legislation?4. ASEAN countries’ investment laws differ from investment treaties.Investment treaties have historically been focused solely on the protection of foreign investment fromadverse government action.4 In contrast, as previously noted, ASEAN countries’ investment laws performseveral different functions. Investment protection is sometimes among these functions. But investmentprotection is not the sole or dominant function of any ASEAN countries’ investment law.Insofar as ASEAN countries’ investment laws have investment protection as one of their functions,they do not include the combination of vaguely drafted, and widely criticized (Bernasconi et al., 2011),investor rights commonly found in investment treaties. For example, no ASEAN country’s investmentlaw contains a vaguely drafted guarantee of fair and equitable treatment (FET) of the sort often foundin investment treaties,5 and no ASEAN country’s investment law contains an “umbrella clause” of thesort found in some investment treaties. Moreover, in contrast to investment treaties, no ASEAN countrygrants advance consent to investor–state arbitration in its investment law. (Many ASEAN countries dorecognize the possibility of investor–state arbitration in cases in which an individual investor and the hostgovernment have specifically agreed to resolve disputes through arbitration—for example, when consentto arbitration is contained in an investment contract between the investor and the host government.)That said, some ASEAN investment laws do contain a selection of the investor rights provisionscommonly found in investment treaties. For example, many ASEAN countries’ investment laws containguarantees of compensation for expropriation and of the right to repatriate profits that are similar tostandard investment treaty provisions. A minority of ASEAN countries also grant national treatment toforeign investors in their investment laws, but this is always subject to exceptions and qualifications.This paper does not seek to explain why investment laws differ from investment treaties, but it does suggest twopossible explanations. The first stems from the fact that many investment laws have the objective of promotingand facilitating investment. This might lead them to focus on practical issues that are directly relevant toinvestors that are considering making an investment, such as the process for issuing investment permits. Asecond possible explanation stems from the fact that investment laws are only one element of the nationallegal and regulatory regime governing investment. For this reason, other laws of general application may beable to address aspects of the relationship between private actors and government decision makers with muchgreater precision than possible in an investment law. For example, a government can codify standards of fairadministrative treatment that apply to all individuals and companies in its territory through laws of generalapplication—for example, Indonesia’s Law on Government Administration (2014)—rather than make ill-definedpromises of “fair and equitable treatment” in a law that applies only to investors.The finding that investment laws have different functions to investment treaties has important implicationsfor the way in which research about national investment laws is framed. There is surprisingly little publishedresearch on national investment laws. But, insofar as research has been conducted, it is based on the implicitpremise that investment laws have the same function as investment treaties. For example, much of the publishedwork on investment laws involves review of whether countries’ investment laws include provisions commonlyfound in investment treaties.6 The findings of this paper suggest that this premise is unduly narrow, in that it failsto recognize that investment laws have many important functions aside from investment protection.In other publications IISD has raised questions about whether investment treaties should continue to be focused solely on investment protection. See Bernasconiet al. (2011).5But note the discussion of the FET provision in the Myanmar Investment Law below.6e.g. Shan (2012). A partial exception to this tendency is UNCTAD’s recent publication Investment Laws: A Widespread Tool for the Promotion and Regulation ofForeign Investment (UNCTAD, 2016), which recognizes that investment laws do have functions other than investment protection.4 2014 The International Institute for Sustainable DevelopmentIISD.org4

Investment Laws of ASEAN Countries: A comparative reviewBruneiAbsence of an Investment LawBrunei does not have a law on foreign investment or an economy-wide investment law governing both domesticand foreign investment. In the absence of an investment law, foreign investment is governed by other laws, andby policies and administrative practices under those laws.Investment AgencyThe Brunei Economic Development Board (BEDB) was established by the Brunei Economic DevelopmentBoard Act in 1975 (the EDB Act). The EDB Act sets out the functions and the powers of the BEDB. Notably,Section 8 of the EDB Act makes it clear that its function is to attract and facilitate both local and foreigninvestment.Restrictions on Foreign InvestmentThe BEDB website states that:100% foreign ownership of a company/business is allowed, except for activities that directly utiliseBrunei Darussalam’s natural resources such as oil & gas and fisheries.7It is not clear what the legal basis of these restrictions is. The U.S. Government’s 2015 Investment ClimateStatement on Brunei states that BEDB has “confidential” processes to screen foreign investment.8 It was notpossible to verify this claim or to determine whether these screening processes, insofar as they exist, apply onlyto foreign investment in natural resources.Brunei also prevents foreign ownership of land. These restrictions do not appear to be codified in legislation.Rather, they appear to be implemented through a system that requires registration and approval of propertytransfers under Section 23 of the Land Code.IncentivesBrunei offers a range of tax incentives to encourage investment through the Investment Incentives Order of2001. For the most part, these incentives are available to all investors, not only foreign investors.78See ipUS Department of State (2015a), p. 7. 2014 The International Institute for Sustainable DevelopmentIISD.org5

Investment Laws of ASEAN Countries: A comparative reviewCambodiaThe Cambodian Law on Investment (1994, amended in 2003) establishes a “negative list” approach to theadmission and establishment of investment. It also establishes the framework for the granting of investmentincentives through the award of Qualified Investment Project (QIP) status to investment projects. The Law onInvestment is short. It does not define many of the key terms that are used in the law. Instead, these definitionsare fleshed out through sub-decrees.9 More detail of the way the regime governing investment in Cambodiaoperates in practice is contained in statements of policy published on government websites.10Scope of ApplicationThe Law on Investment applies to both Cambodian and foreign investors and investments. The law defines a“Cambodian entity” as a company registered in Cambodia that is at least 51 per cent Cambodian owned.Investment AgencyArticle 3 of the Law on Investment designates the Council for the Development of Cambodia (CDC) asthe “organization responsible for the rehabilitation, development and the oversight of investment activities.”Provincial-Municipal Investment Sub-Committees can exercise the responsibilities of the CDC for projects withcapital values below USD 2 million.11Foreign Investment in Cambodia and the Negative ListThe Law on Investment articulates the basic principle that Cambodian and foreign investment in any sectoris permitted in any activities not contained in the “Negative List.”12 The most recent version of the NegativeList is contained in Annex 1 to Sub-Decree No 111 ANK/BK. In general, there is no requirement to seekapproval from the CDC for investment in activities that are not contained in the negative list. However, ourunderstanding is that, in many sectors, new investment requires line ministry approval.Approval of Incentives Through the Granting of QIP StatusThe main functions of the Law on Investment are to establish a framework for the grant of investmentincentives through the award of QIP status, and to specify the benefits that QIPs are entitled to.13 To apply forQIP status, an investor must submit an investment proposal to the CDC.14 Assuming that the investment is notproscribed by the Negative List, the CDC then takes responsibility for assisting the investor in obtaining all thelicences and permits required for the project.15 At the end of this process, the CDC grants a Final RegistrationCertificate, which confers QIP status on the investment project.If an investment qualifies as a QIP, it is automatically entitled to investment incentives under the Law onInvestment.16 Investment incentives include income tax holidays, waivers of import duties and access to visas forskilled foreign workers, subject to Cambodian Law.17e.g. Sub-Decree No 111 ANK/BK on the Implementation of the Law of InvestmentFor example, the CDC’s website acknowledges that there is a tension between the provisions of the Law on Investment and the provisions of Sub-Decree No111 insofar as they relate to application process for QIP status. The website clarifies that, in practice, the relevant provisions of Sub-Decree No 111 are applied,and outlines the application process in detail: Decree No 111 ANK/BK on the Implementation of the Law of Investment, Article 4.12Cambodian Law on Investment (1994, as amended), Article 7.13Cambodian Law on Investment (1994, as amended), Article 1.14Cambodian Law on Investment (1994, as amended), Article 6.15Cambodian Law on Investment (1994, as amended), Article 7.16Cambodian Law on Investment (1994, as amended), Article 14.17Cambodian Law on Investment (1994, as amended), Article 14.910 2014 The International Institute for Sustainable DevelopmentIISD.org6

Investment Laws of ASEAN Countries: A comparative reviewInvestor RightsThe Law on Investment contains a chapter titled “Investment Guarantees,” which deals with investor rights.Article 8 guarantees foreign investors non-discriminatory treatment, with the exception of matters relating tothe ownership of land. Article 16 clarifies that, under the Land Law, only Cambodian citizens and Cambodianincorporated companies that are also majority Cambodian-owned are entitled to own land in Cambodia.(However, foreign investors can acquire land-use rights by way of long-term leases of privately owned landor the grant of economic land concessions over state-owned land.) Article 9 guarantees that the CambodianGovernment will not nationalize the property of investor

laws, foreign investment is governed by laws of general application (e.g., company laws, contract laws, environmental protection laws, land-use laws, laws guaranteeing compensation for expropriation of property, etc.), along with sector-specific laws, which govern the admission of new investment in sectors

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