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    Project Overview Project Overview Document Transcript

    • INVESTING ACROSS BORDERS PROJECT DRAFT QUESTIONNAIRE October 15, 2008 TABLE OF CONTENTS PROJECT OVERVIEW ........................................................................................................................................................I QUESTIONNAIRE INSTRUCTIONS.........................................................................................................................................II SECTION 1: INVESTING ACROSS SECTORS...........................................................................................................................1 CASE STUDY..................................................................................................................................................................6 SECTION 2: STARTING A FOREIGN BUSINESS.......................................................................................................................7 SECTION 3: ACCESSING LAND........................................................................................................................................12 SECTION 4: ARBITRATING DISPUTES................................................................................................................................20 INVESTMENT CLIMATE CONSTRAINTS...............................................................................................................................26 QUESTIONNAIRE FEEDBACK............................................................................................................................................27 CONTACT: For questions, or to submit a completed questionnaire, please contact: Ms. Tanya Primiani, Investment Policy and Promotion Specialist, FIAS, e-mail: tprimiani@ifc.org, tel.: +1 202 458 5848.
    • Project Overview The Investing Across Borders project is a new global initiative measuring the openness of economies to foreign direct investment (FDI).1 These practical and actionable indicators will: • Benchmark the ease of establishing and operating a foreign-owned business in a country outside of export processing zones or other special economic zones. • Focus on FDI laws, regulations, and policies, and their implementation in practice. • Aim to improve business conditions by stimulating government reforms through the identification of specific legal, regulatory, and administrative impediments affecting countries’ investment competitiveness. The project will also identify good global practices in investment policy design and implementation, and establish a global database of laws and regulations for investment lawyers and advisors. • Complement the Doing Business2 indicators of the World Bank Group in order to provide a more comprehensive measure of the quality of investment climate regulations worldwide. • Cover four critical policy dimensions of investment climates3: 1. Foreign ownership restrictions 3. Accessing and securing land 2. Establishment procedures 4. International arbitration • Collect primary data through a survey of private sector intermediaries (lawyers, accountants, bankers, and so forth) advising foreign investors. Complementary data will also be collected through a survey of Investment Promotion Agencies, and through desktop legal research. • More information about the project is available at http://www.fias.net/ifcext/fias.nsf/Content/iabindicators . The Investing Across Borders project is being undertaken independently by the World Bank Group. All information provided will be kept confidential, and your responses will not be attributed directly to you or your organization. Please identify the individual responsible for your organization’s participation in this project: Respondent information Title (Mr., Ms., and so forth) [     ] Name [     ] (first/given) [     ] (last/family) Position [     ] Firm/Organization [     ] Mailing address [     ] (street and number) [     ] (zip/postal code) [     ] (city) [     ] (country) Phone [     ] [     ] (alternate phone) Fax [     ] E-mail [     ] [     ] (alternate e-mail) Preferred mode of communication (Check all that apply.) Phone Fax E-mail Web site [     ] How many foreign investors, new or already operating in your country, has your # of foreign clients firm/organization advised over the past 12 months? (Please provide an approximate       number.) 1 The Investing Across Borders project focuses strictly on foreign direct investment, and does not consider portfolio investment. As per the definition of the International Monetary Fund, two key features distinguish FDI from portfolio investment: (1) a foreign investor must acquire at least 10 percent of the voting shares of the company, and (2) a foreign investor must demonstrate a long-term commitment in the investment by exercising management control in the company. In contrast, portfolio investment represents passive holdings of securities such as foreign stocks, bonds, or other financial assets, and does not convey significant control over the management or operations of the foreign firm. 2 Doing Business is an initiative of the World Bank Group providing measures of business regulation and their enforcement in 181countries worldwide. More information is available at www.doingbusiness.org. 3 The project does not cover topics already measured by the existing Doing Business indicators, such as tax administration, efficiency of the judicial system, or quality of labor regulations. Furthermore, there are many other aspects of investment climates that are excluded from the scope of the project, namely, quality of infrastructure, human resources, transparency, corruption, trade policy, and others. The Investing Across Borders project is focused on a limited set of key investment policy variables, and does not intend to provide a comprehensive and exhaustive measure of the quality of business conditions for foreign investors. Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group i
    • Questionnaire Instructions • The questionnaire is divided into four sections covering the four indicator topics. Note that we use only one standardized questionnaire in all countries to allow us to compare all responses and construct the indicators. • You can fill out the entire questionnaire yourself or share it with your colleagues depending on their areas of expertise. The document only allows you to type your answers in the designated yellow fields, and does not let you copy and paste any of the original text of the questionnaire. If you choose to have several of your colleagues simultaneously work on different sections of the questionnaire, be aware you will not be able to assemble a single completed questionnaire afterward by copying and pasting their responses. In that case, please feel free to e-mail us multiple questionnaires with various completed sections. • Complete as many sections as you and your organization feel qualified to fill out. • Sections 2 through 4 are based on a case study of the company GlobiDrink, presented on page 6. Please be sure to read this short case study in detail, and follow specific instructions at the beginning of each section, as these will affect your answers. • Answer the questions in English, to the extent possible. When the name of a specific law, regulation, or administrative procedure is unknown to you in English, please write it in your own language.4 • Write or click your answers in the yellow answer boxes provided for each question. The answer box spaces will expand as you write into them to allow you to provide as much information as you feel is necessary. • Use the “Comments” boxes at the end of each section to note your clarifications and suggestions. • Please provide feedback on the questionnaire through a brief form at the end of the document. Your comments are very important to us and will help us better define the final product for the global operation. As a result, this feedback gives you a unique opportunity to help shape the content and focus of this project to help meet your client information needs and maximize the impact on government reforms. • The questionnaire entails two types of questions: - Procedural questions, which measure the duration and difficulty of business processes and procedural steps associated with them (for example, business establishment, property registration, enforcement of arbitration awards). Responses to these survey questions should be based on your practical experience. - Legal questions, which measure the quality of laws and regulations. These survey questions explore whether your country’s laws and regulations grant certain investor rights, allow or prohibit particular actions, and so forth. Responses to these survey questions should be based on the provisions of the law and judicial precedent, if applicable. 4 At the end of the questionnaire, you will have an opportunity to tell us whether you would have preferred to receive the questionnaire in a language other than English. Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group ii
    • • The following text box provides instructions and assumptions applicable for all questionnaire tables that collect information about procedures and the time it takes to complete them. Instructions for Procedural Questions • A procedure, or a procedural step, is defined as any interaction between the foreign company (the owners and/or their representatives) and other parties (government agencies or other public authorities, local lawyers, auditors, notaries, and so forth). - Administrative interactions between company officers and employees are not considered separate procedures. - All procedures that are required legally or in practice should be recorded, even if they may be avoided in exceptional cases. - Assume that although the company may use lawyers or other professionals where necessary, it does not employ an outside facilitator to complete the procedures unless it is mandatory or standard practice. - Assume that each procedure is considered completed after the final document has been received. • The time involved for each procedure is calculated in calendar days (rather than business days), and is based on the average time needed in practice to complete each procedure, given the experience of the respondent. - Assume that GlobiDrink follows the fastest legal option available. - Assume that there is a minimum level of follow-up with government agencies by the foreign company or their legal representatives, and no extra payments are offered to accelerate the process. - Assume that GlobiDrink does not waste time and commits to completing each procedure without delay. - We understand that time cannot be predicted and varies in each case. Please provide your best estimate based on the typical practice in your country without paying bribes. Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group iii
    • Section 1: Investing Across Sectors This section examines the openness of various sectors to foreign ownership. We define for each sector a specific commercial activity for which you should provide answers. We also identify those subsectors that you should exclude and disregard. For example, in telecommunications, we only ask about fixed-line networks, and ask you to exclude mobile telephony (since, in most countries, mobile networks are open to foreign investment). The list of sectors and commercial activities was designed to focus on those industry areas in which some countries continue to impose limits on foreign equity participation. Table A focuses on statutory restrictions on foreign equity ownership for two types of FDI, (1) opening a new company, that is, greenfield investment, and (2) acquisition of shares in an existing company. If the sector is state-controlled and hence closed to any private participation, please mark 0%. Table B captures your perception of the ease of obtaining a regulatory license, and table C examines the current market structure in each specified sector. All tables use the same list of sectors and commercial activities. In each table, please answer the entire row across all columns before going to the next row. Assumptions: • Assume that your country does not enjoy any special economic, trade, or investment relationship with the home country of the foreign investor that would affect the investor’s ownership rights (that is, the home country is not part of an economic union or a cooperation block with your country, such as the European Union, Gulf Cooperation Council, or Association of Southeast Asian Nations). • Assume that the foreign investor is a private company with no equity interest or management control by the government of its home country (that is, the investor is not a state-owned enterprise, sovereign wealth fund, or so forth). What are the principal applicable laws and regulations that address foreign equity ownership       in your country (that is, Investment Code, main sectoral laws, and so forth)? Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 1
    • A. Equity Ownership Restrictions Is foreign equity ownership restricted or prohibited… … (b) for the acquisition of shares in an existing … (a) for a new investment project in the sector? enterprise? No/Yes? No/Yes? No = there are no restrictions; or No = there are no restrictions; or Comments Yes = foreign ownership is restricted; please specify Yes = foreign ownership is restricted; please specify the maximum foreign equity ownership allowed the maximum foreign equity ownership allowed (in %). For example, 0% indicates the sector is (in %). For example, 0% indicates the sector is completely closed to foreign equity participation. completely closed to foreign equity participation. 49% means foreigners can hold only a minority 49% means foreigners can hold only a minority position. position. 1.1 Agribusiness: Ownership and operation of a non-alcoholic beverage manufacturing and bottling facility. No Yes Max (%):      No Yes Max(%):            1.2 Air transport: Investment in a passenger airline flying domestic routes. Excluded: freight/cargo services and servicing of international routes. No Yes Max (%):      No Yes Max(%):            1.3 Banking services: Provision of retail banking services to public and commercial clients through opening a subsidiary or investing in a local bank. Excluded: restrictions on opening foreign bank branches (as opposed to subsidiaries), leasing, investment banking, and other financial services. No Yes Max (%):      No Yes Max(%):            1.4 Electricity generation: Participation in non-nuclear electric power generation projects. Excluded: electricity distribution and transmission. No Yes Max (%):      No Yes Max(%):            1.5 Fixed-line telecommunications services: Provision of fixed-line network services, including local, domestic long-distance, international, and data services. Excluded: mobile phone network services. No Yes Max (%):      No Yes Max(%):            1.6 Insurance services: Provision of health and life insurance services. Excluded: reinsurance, property insurance, and other forms of insurance. No Yes Max (%):      No Yes Max(%):            1.7 Health care: Provision of health care services through hospitals and clinics. Excluded: pharmacies. No Yes Max (%):      No Yes Max(%):            1.8 Mining: Development/exploitation of an average-size deposit of a mineral resource. Excluded: oil and gas extraction, diamond mining, and exploration of a deposit. No Yes Max (%):      No Yes Max(%):            1.9 Real estate construction: Construction of residential real estate. Excluded: construction of commercial and industrial real estate, and public works. No Yes Max (%):      No Yes Max(%):            1.10 Retail distribution services: Retail trade of personal and household goods through establishing outlets of all types (department stores, supermarkets, hypermarkets, and so forth). Excluded: wholesale distribution. No Yes Max (%):      No Yes Max(%):            1.11 Tourism: Ownership and operation of a resort or business hotel (as applicable to your country). Excluded: restaurants, bars, travel agencies, and so forth No Yes Max (%):      No Yes Max(%):            1.12 TV media: Transmission of television broadcasting services on a countrywide scale. Excluded: cable and satellite broadcasting, radio, and print media. No Yes Max (%):      No Yes Max(%):            1.13Is foreign participation restricted or prohibited in Comment any of the following sectors: 1.13.1 General manufacturing and assembly?       1.13.2 Oil and gas development?       1.13.3 Any other major sectors in your economy       (excluding defense-related activities)? B. Regulatory Entry Restrictions Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 2
    • Instructions: • This table measures the perceived difficulty of obtaining sector-specific regulatory licenses for foreign companies. Note that we are not asking about the general business or investment licenses that might be necessary for all companies. We are asking about the regulatory license required for any of the specific sectors listed below, for example, a banking license from the financial regulator. • Assume that the foreign company applying for the license meets all legal and regulatory requirements, and has the appropriate characteristics, to operate in the sector. If a If a foreign investor wanted to obtain a sector-specific regulatory license to open and run a new regulatory/technical business in that sector today, how likely would it be, in your opinion, to obtain this license from the license is required, government? Use the following scale for your responses: which authority/agency 0 1 2 3 4 N/A issues it? Will not obtain a license Very unlikely Unlikely Likely Very likely Not applicable Use the N/A response if: - A sector is closed to foreign participation (as per your response in the previous table) - A regulatory license is not required in that sector - Other reasons Please use the “Comments” box to elaborate. 1.1 Agribusiness: Ownership and operation of a non-alcoholic beverage manufacturing and bottling facility. 0 1 2 3 4 N/A Comment:       Authority:       1.2 Air transport: Establishment of a new, or investment in an existing passenger airline flying domestic routes. Excluded: freight/cargo services and servicing of international routes. 0 1 2 3 4 N/A Comment:       Authority:       1.3 Banking services: Provision of retail banking services to public and commercial clients through opening a subsidiary or investing in a local bank. Excluded: restrictions on opening foreign bank branches (as opposed to subsidiaries), leasing, investment banking, and other financial services. 0 1 2 3 4 N/A Comment:       Authority:       1.4 Electricity generation: Participation in non-nuclear electric power generation projects. Excluded: electricity distribution and transmission. 0 1 2 3 4 N/A Comment:       Authority:       1.5 Fixed-line telecommunications services: Provision of fixed-line network services, including local, domestic long-distance, international, and data services. Excluded: mobile phone network services. 0 1 2 3 4 N/A Comment:       Authority:       1.6 Insurance services: Provision of health and life insurance services. Excluded: reinsurance, property insurance, and other forms of insurance. 0 1 2 3 4 N/A Comment:       Authority:       1.7 Health care: Provision of health care services through hospitals and clinics. Excluded: pharmacies. 0 1 2 3 4 N/A Comment:       Authority:       1.8 Mining: Development/exploitation of an average-size deposit of a mineral resource. Excluded: oil and gas extraction, diamond mining, and exploration of a deposit. 0 1 2 3 4 N/A Comment:       Authority:       1.9 Real estate construction: Construction of residential real estate. Excluded: construction of commercial and industrial real estate, and public works. 0 1 2 3 4 N/A Comment:       Authority:       1.10 Retail distribution services: Retail trade of personal and household goods through establishing outlets of all types (department stores, supermarkets, hypermarkets, and so forth). Excluded: hotels and restaurants. 0 1 2 3 4 N/A Comment:       Authority:       Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 3
    • 1.11 Tourism: Ownership and operation of a resort or business hotel (as applicable to your country). Excluded: restaurants, bars, travel agencies, and so forth. 0 1 2 3 4 N/A Comment:       Authority:       1.12 TV media: Transmission of television broadcasting services on a countrywide scale. Excluded: cable and satellite broadcasting, radio, and print media. 0 1 2 3 4 N/A Comment:       Authority:       1.13 General manufacturing and assembly. 0 1 2 3 4 N/A Comment:       Authority:       1.14 Oil and gas development. 0 1 2 3 4 N/A Comment:       Authority:       1.15 Any other major sectors in your economy. 0 1 2 3 4 N/A Define sector and provide a comment:       Authority:       C. Market Structure Please define and comment on the current market structure in your economy for each commercial activity described below. Use the following scale for your response, and mark only one number: 1 = perfect competition (that is, many firms) 2 = oligopoly (that is, a few large firms). Note whether the present firms are privately or state owned, or both. 3 = monopoly (that is, one firm). Note whether the present firm is privately or state owned, or both. 4 = other (please specify) 1.1 Agribusiness: Ownership and operation of a non-alcoholic beverage manufacturing and bottling facility. private private 1 2 3 4 Comment:       government government 1.2 Air transport: Establishment of a new, or investment in an existing passenger airline flying domestic routes. Excluded: freight/cargo services and servicing of international routes. private private 1 2 3 4 Comment:       government government 1.3 Banking services: Provision of retail banking services to public and commercial clients through opening a subsidiary or investing in a local bank. Excluded: restrictions on opening foreign bank branches (as opposed to subsidiaries), leasing, investment banking, and other financial services. private private 1 2 3 4 Comment:       government government 1.4 Electricity generation: Participation in non-nuclear electric power generation projects. Excluded: electricity distribution and transmission. private private 1 2 3 4 Comment:       government government 1.5 Fixed-line telecommunications services: Provision of fixed-line network services, including local, domestic long-distance, international, and data services. Excluded: mobile phone network services. private private 1 2 3 4 Comment:       government government 1.6 Insurance services: Provision of health and life insurance services. Excluded: reinsurance, property insurance, and other forms of insurance. private private 1 2 3 4 Comment:       government government 1.7 Health care: Provision of health care services through hospitals and clinics. Excluded: pharmacies. private private 1 2 3 4 Comment:       government government 1.8 Mining: Development/exploitation of an average-size deposit of a mineral resource. Excluded: oil and gas extraction, diamond mining, and exploration of a deposit. private private 1 2 3 4 Comment:       government government 1.9 Real estate construction: Construction of residential real estate. Excluded: construction of commercial and industrial real estate, and public works. Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 4
    • private private 1 2 3 4 Comment:       government government 1.10 Retail distribution services: Retail trade of personal and household goods through establishing outlets of all types (department stores, supermarkets, hypermarkets, and so forth). Excluded: hotels and restaurants. private private 1 2 3 4 Comment:       government government 1.11 Tourism: Ownership and operation of a resort or business hotel (as applicable to your country). Excluded: restaurants, bars, travel agencies, and so forth private private 1 2 3 4 Comment:       government government 1.12 TV media: Transmission of TV broadcasting services on a countrywide scale. Excluded: cable and satellite broadcasting, radio, and print media. private private 1 2 3 4 Comment:       government government 1.13 General manufacturing and assembly. private private 1 2 3 4 Comment:       government government 1.14 Oil and gas development. private private 1 2 3 4 Comment:       government government 1.15 Any other major sectors in your economy. private private 1 2 3 4 Define sector and provide a comment:       government government D. Obstacles and Reforms Please rate the extent to which the issue of “foreign ownership restrictions,” as measured by this section, is an obstacle to foreign investors in your country. (Mark only one answer. A section entitled “Investment Climate Constraints” at the end of the questionnaire assesses other barriers to foreign investment in your country.) No problem Minor obstacle Moderate obstacle Major obstacle Very severe obstacle If you were to advise your government in the area of “foreign ownership restrictions,” what legal, regulatory, institutional, or administrative improvements would you recommend and why? What reforms are most necessary?       # of minutes How long did it take you to fill out this section of the questionnaire?       How can we improve this section of the questionnaire?       Your name [     ] (title – Mr., Ms., and so forth) [     ] (first/given name) [     ] (last/family name) Please fill out the following table only if your contact information is not already provided at the beginning of this questionnaire on page i so that we can follow up with you in case we have clarifying questions. This project is being undertaken independently by the World Bank Group. All information provided will be kept confidential, and your responses will not be attributed directly to you or your organization.[[I assume that the omission from the following table (and those at end of following sections) of some of the information fields that were in the table in the Overview on page i was intentional.]] Your position [     ] Firm/organization [     ] Phone [     ] [     ] (alternate phone) Fax [     ] E-mail [     ] [     ] (alternate e-mail) Preferred mode of communication (Check all that apply.): Phone Fax E-mail Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 5
    • Case Study GlobiDrink − Beverage Manufacturing and Bottling Plant Instructions: Please read carefully the following case study describing a hypothetical investment project, because it provides the context for all subsequent sections in this questionnaire. It is designed so that your responses can be compared with those of other respondents. Given that for many questions your answers will depend on the specific parameters of the investment (that is, sector, size, legal form, and so forth), detailed assumptions about the investment project were developed to avoid possible misinterpretation of questions. Our intent is to describe through the case study a standard, representative investment project that will allow us to assess the ease of operating foreign-owned companies in your country. The questionnaire aims to capture the “standard practice” for a typical investor who does not receive any extraordinary treatment from the public authorities. Case study: A multinational beverage company called GlobiParent seeks to enter your country to manufacture and bottle its own brand of a fruit-based juice. This will be the company’s first investment in your country. The company aims to establish a subsidiary incorporated in your country under the name GlobiDrink. GlobiDrink’s planned investment project (that is, beverage manufacturing and bottling plant) is to be located in a peri-urban area (perimeter/outskirts) of your country’s most populous (largest) city. Assumptions about the company: GlobiDrink: • Will be incorporated in your country as a limited liability company (LLC), or an equivalent of this legal form applicable to your country. • Will be wholly foreign owned and controlled by its parent company, GlobiParent. Assume that GlobiParent is a private company with no equity interest or management control by the government of its home country (that is, the investor is not a state-owned enterprise, sovereign wealth fund, and so forth). GlobiDrink will thus not have any local partners financially participating in the investment project and is thus not a joint venture with domestic equity holders. • Plans an initial capital investment of US$10 million. • Plans to produce 30-50,000 tons (approx. 8-12 million gallons) of juice per year. • Plans to employ 200 people in its bottling plant, including several expatriate managers. • Is not applying to receive any special benefits and privileges from your country (for example, extraordinary tax holidays/breaks/exemptions, and customs duty exemptions), apart from the investment incentives available automatically on a legal basis. • Will not be investing in an export processing zone (EPZ), special economic zone (SEZ), or any other zone governed by a special FDI regime in your country. • Plans to sell the manufactured beverage locally as well as to export it. However, GlobiDrink does not want to pre-commit to any specific export requirements. • Will import about 60-70 percent of the value of its production inputs other than its capital equipment (for example, concentrates, flavors, sugar, and bottles). It intends to source the remaining 30-40 percent of inputs locally (for example, fresh fruits, and vegetables). • Will not acquire any agricultural lands or plantations to source this production. Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 6
    • Section 2: Starting a Foreign Business This section measures the procedures GlobiDrink needs to complete before it can start operating in your country. The establishment process includes obtaining the investment approval/permit (if applicable in your country), commercial registration, and any other procedures required for a foreign-owned company to operate in your country. As noted, some countries require approval of investment projects by the national or municipal authorities, others require approval of the investing company, and others have no formal approval requirement at all. The questions in this section should be answered according to the relevant approval requirements for your country. Assume that GlobiDrink will not use a national of your country to establish the company on its behalf and later transfer it to GlobiDrink. (In some countries, this practice is used to accelerate the establishment process.) 2.1 Please recall GlobiDrink wants to incorporate as a limited liability GlobiDrink’s legal form company (LLC). What is the precise name of this legal form in your country applicable to GlobiDrink (for example, LLC, private limited company, private limited liability company)? Provide this information             in English and your principal official language (if different from (English term) (other language) English). 2.2 Does your country have multiple possible processes for establishing a foreign-owned company such as Yes No GlobiDrink? 2.2.1 If “Yes,” specify the fastest legal option for which you will be completing       the questions below. 2.3 How long does a qualified law firm, completing all activities on behalf of their Total time in practice foreign client, take on average to prepare all documentation for submission to the (days) public authorities in order to establish GlobiDrink?       2.4 How long does the entire process of establishing a company like GlobiDrink       typically take? (Do not include the time spent preparing documentation.) The following procedural steps, listed in table A below, have been identified by the Doing Business project as necessary to incorporate a domestically owned small- and medium-size enterprise as a private limited company in your country.5 Please review this list and indicate whether: • Each procedure is also necessary to establish GlobiDrink, our foreign-owned company. • If “Yes,” estimate the duration (in calendar days) of completing each such necessary procedure for GlobiDrink based on your experience in practice. • Indicate the order/sequence in which all necessary procedural steps are undertaken. If two procedures happen concurrently (that is, at the same time), give them the same order number. A. Establishment Procedures Necessary for If “Yes,” time in Order GlobiDrink? Procedural step practice (days) (#) Yes No Pick up the specimen application from the Commercial Register             Deposit the initial capital in a bank and obtain a bank certificate             Pay the registration fee and obtain proof             Sign the memorandum and articles of association in the presence of an official of the             Registry at the Ministry of Industry and Trade Apply for the ministerial decree licensing the company formation             5 More information is available at www.doingbusiness.org. Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 7
    • Follow up with the publisher on the publication of the formation announcement             Apply for the Commercial Register Card at the Ministry of Industry and Trade             Register as taxpayer with the General Taxes Department for the payment of income tax,             obtain taxation card, and register the employees and register for other taxes Apply for membership with the local Chamber of Commerce             Apply to the municipality to obtain license             Register employees for social security             Make a company seal             Please list, in table B below, any additional procedural steps required for establishing GlobiDrink in your country. In some countries these might include: • Investment approval/authorization from the Investment Promotion Agency/Center, or other authority • Authentication/regularization of GlobiDrink’s parent company’s documentation overseas • Obtaining certificates of capital importation from the Central Bank or other appropriate regulatory authority These procedural steps are just examples. If these or other steps exist in your country, please provide the precise description below. Estimate the average time in practice needed to complete each procedure based on your experience, and provide the name of the authority/agency associated with each procedural step. Please indicate when each of these procedural steps is undertaken relative to the order/sequence list from table A. For example, if obtaining an investment approval is the third step necessary for GlobiDrink’s establishment, write “after 2.” to indicate that this step occurs after the second step listed in table A. B. Additional Establishment Procedures for GlobiDrink Time in practice Order Procedural step Authority/agency involved (days) (#)                                                                                                                         Please continue writing here if you need more space to complete the list of procedures:       Comments and clarifications:       C. Characteristics of Establishment Procedures for GlobiDrink 2.5 Is there a government agency (such as an investment promotion center) whose mandate is to act as a one-stop Yes No shop for establishment-related procedures for investors? 2.5.1 If “Yes,” what is its name? Agency name       2.5.2. How effectively and efficiently, in your opinion, does it function? (Please comment.)       2.5.3 Can it issue any approvals/authorizations directly, or is it only a coordinating       agency that facilitates investors’ procedures? (Please comment.) 2.6 Does your country require an investment project approval/authorization to operate a foreign company like Yes No GlobiDrink? Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 8
    • 2.7 Do laws and regulations specify a time limit within which authorities must notify the foreign company of the result of the registration? Time 2.7.1 If “Yes,” what is this time limit? (calendar days)       2.7.2 If “Yes,” is this limit usually respected? Yes No 2.7.3 Do laws and regulations specify that no response from authorities within this time limit can be interpreted as consent (that is, silent/deemed approval)? 2.7.3.1 Is the silent consent an effective system, in your opinion? (Please       comment.) Comments:       Instructions: Fill out the following table D only if you answered “Yes” to Question 2.6 – which means that foreign-owned companies like GlobiDrink must obtain an investment approval/authorization before starting their operation. If you answered “No” to Question 2.6, skip to table E on “Principal Establishment Laws.” D. Characteristics of Investment Approval Procedures for GlobiDrink Yes No 2.8 Is investment approval automatic (requiring only notification by the foreign-owned company)? 2.9 Is the investment application form downloadable online? 2.9.1 If “Yes,” can the investment application form be submitted online? 2.10 Is a minimum of annual sales required for approval of a foreign investment project? Size (LCU) 2.10.1 If “Yes,” what is the amount of the minimum annual sales required (in local currency units, LCU)?       2.11 Is GlobiDrink’s parent company required to demonstrate projected net economic benefits of the planned Yes No investment? 2.12 Is GlobiDrink’s parent company required to complete a project feasibility study? 2.12.1 If “Yes,” is this requirement excessively burdensome? 2.13 Is there a limit on the period of validity of a foreign investment approval (separate from any operational licenses/permits that need to be renewed)? Period of validity (in years) 2.13.1 If “Yes,” what is the approval’s validity period (in years)?       2.14 Do laws and regulations specify a time limit within which authorities must notify the foreign company of the Yes No result of the approval? Time 2.14.1 If “Yes,” what is this time limit? (calendar days)       2.14.2 If “Yes,” is this limit usually respected? Yes No 2.14.3 Do laws and regulations specify that no response from authorities within this time limit can be interpreted as consent (that is, silent/deemed approval)? Time 2.14.3.1 If “Yes,” what is the required amount of time in calendar days for no response to be considered (calendar days) silent/deemed consent?       2.14.3.2 Is the silent consent an effective system, in your opinion? (Please comment.)       Comments:       Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 9
    • E. Principal Establishment Laws What are the principal applicable (national and/or subnational) laws and regulations regarding establishment procedures for foreign investment projects? National laws/Regulations Subnational laws/Regulations6 (central government) (local, municipal, provincial, or state government)             National Subnational If both national and subnational laws and regulations apply, which take precedent? Comments and clarifications:       We would like to ask a few additional questions regarding the investment review and approval process outside of the scope of the GlobiDrink case study. These questions primarily concern foreign acquisition of domestic enterprises, rather than new, greenfield investment projects. Assume that the foreign investor is a private company with no equity interest or management control by the government of its home country (that is, the investor is not a state-owned enterprise, sovereign wealth fund, and so forth). F. Government Review of Acquisitions 2.15 Do your laws require a government review and approval of foreign acquisitions of domestic companies for Yes No any of the following reasons? 2.15.1 The investment is above a certain threshold amount. 2.15.1.1 If “Yes,” please specify amount (in local currency units, LCU). Amount (LCU)       2.15.2 The acquisition will affect your country’s national security. Yes No 2.15.3 The acquisition will affect your country’s economic security (for example, protection of critical infrastructure and other industries, acquisition of famous trademarks). 2.15.4 The acquisition will affect competition with a sector/industry (for example, anti-trust considerations). 2.16 Are there any sectors that automatically require a government review/approval of investment projects? 2.16.1 If “Yes,” what are these sectors?       Comments and clarifications:       If you answered “Yes” to any of the questions above in this table F, please continue. If you answered “No” to all of them, skip to Question 2.19. 2.17 Do your laws require a review of investments (for any of the Other Require Authorize reasons identified above), or just authorize your government to conduct (please comment) the review if the government deems it necessary? (Mark only one       response.) Comments and clarifications:      2.18 Is the government required to complete the review within a specific number of days? Yes No # of days 2.18.1 If “Yes,” within how many days?       2.18.2 In practice, how many days does the review typically take?       2.18.3 Does the law allow for an extended period of review beyond the time period indicated in your response Yes No to 2.18.1? 6 Subnational laws and regulations refer primarily to the local, municipal, and province- and state-level laws and regulations. Given our case study specification that GlobiDrink’s planned beverage production facility will be located in the peri-urban area (that is, perimeter/outskirts) of the country’s most populous city, we are interested in the subnational laws and regulations applicable for that location. Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 10
    • 2.18.3.1 If “Yes,” what is the basis, as stipulated by your law, for this extension?       # of days 2.18.3.2 If “Yes,” how long is this extended period?       2.19 What are the principal laws that govern the investment review process?       2.20 Are there any examples of investments that have not been allowed, or of investor’s withdrawal from a planned project due to the government’s       protective/restrictive actions? (Please comment and elaborate.) 2.21 Have investment reviews been targeted at investors from specific       countries or regions? (Please comment.) Comments and clarifications:       G. Obstacles and Reforms Please rate the extent to which the issue of “establishment procedures,” as measured by this section, is an obstacle to foreign investors in your country? (Mark only one answer. A section entitled “Investment Climate Constraints” at the end of the questionnaire assesses other barriers to foreign investment in your country.) No problem Minor obstacle Moderate obstacle Major obstacle Very severe obstacle If you were to advise your government in the area of “establishment procedures,” what legal, regulatory, institutional, or administrative improvements would you recommend and why? What reforms are most necessary?       # of minutes How long did it take you to fill out this section of the questionnaire?       How can we improve this section of the questionnaire?       Your name [     ] (title – Mr., Ms., and so forth) [     ] (first/given name) [     ] (last/family name) Please fill out the following table only if your contact information is not already provided at the beginning of this questionnaire on page i so that we can follow up with you in case we have clarifying questions. This project is being undertaken independently by the World Bank Group. All information provided will be kept confidential, and your responses will not be attributed directly to you or your organization. Your position [     ] Firm/organization [     ] Phone [     ] [     ] (alternate phone) Fax [     ] E-mail [     ] [     ] (alternate e-mail) Preferred mode of communication (Check all that apply.) Phone Fax E-mail Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 11
    • Section 3: Accessing Land The goal of this section is to measure the ease of access to land for GlobiDrink. GlobiDrink is our case study company described on page 6. Please make sure you are familiar with this case study. The section helps to establish what types of land rights are available (for example, ownership, lease rights), what type of land can be purchased or leased (for example, privately owned, state-owned), and what is the process of acquiring land rights for GlobiDrink. This section also aims to assess the legal framework established to protect GlobiDrink’s land and other tangible property against what is collectively referred to as expropriation, condemnation or compulsory taking (acquisition). Assumptions: The land: • Is currently unoccupied by any buildings or immovable property, and GlobiDrink intends to construct a suitable production facility on the site. • Is designated for industrial use (no rezoning will be required). • Is not part of an export processing zone (EPZ), special economic zone (SEZ), or any other special industrial zone that is governed by a special investment regime. • Is located in a peri-urban area (that is, perimeter/outskirts) of your country’s most populous (largest) city. • Is not close to a national border, a coastline, or any other area where land cannot be privately held for national security reasons. • Is currently privately or publicly owned, as applicable in your country. Specific questions to differentiate current ownership are included in the survey. • Is not customary or communally owned7 (unless this is the only option for your country). • Has no trees, natural water sources, natural reserves, historical monuments or occupants (legal or illegal) of any kind. • Will only be used for its designated purpose of manufacturing GlobiDrink’s juice beverage. As a result, there are no requirements for special permits such as for residential use, waste management, and certain types of agricultural activities. A. National Treatment for Acquisition of Land Rights Yes No Are procedures for the acquisition of land rights the same for foreign and domestically owned companies? B. Land Rights for GlobiDrink Please indicate what type of land right is most Ownership rights Lease rights commonly acquired by a foreign-owned company like N/A State Private State Private Duration GlobiDrink in your country (and, therefore, for which land land land land (# years) you will be answering the list of procedures below.) Choose only one box. If you selected lease rights, please indicate the typical duration of a lease contract. Please only answer N/A if your country has neither       state, nor private land occupancy systems (for example, all land is communal/stool or customarily owned). Comments:       The following table C examines the procedures with which GlobiDrink needs to comply in order to acquire the land rights. Instructions: 7 Customary ownership rights, typically found in sub-Saharan Africa, refer to lands that are not surveyed and are granted officially to local indigenous communities. Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 12
    • • Based on your professional experience working with foreign investors, state the total time in calendar days the entire process of acquiring land rights by GlobiDrink would take on average. • List and number the procedures in the order in which they occur. If two procedures happen concurrently (that is, at the same time), give them the same order number. • Estimate the time (in calendar days) necessary for GlobiDrink to complete each procedure. • For each procedure, list the appropriate authority/agency involved. • In the last column please indicate whether the procedure is required by law or regulation. • Consider the starting point (that is, the first procedural step) of the list of procedures the moment in which GlobiDrink has already identified the land plot for investment (however, title due diligence and land surveying still need to be done) and the ending point (that is, the last procedural step) when the land is fully registered under GlobiDrink’s name. • Refer to the list following table C for examples of procedural steps. • Refer to the text box entitled “Instructions for Procedural Questions” on page iii for a reminder of the detailed set of instructions on how to fill out procedural tables. C. Description of All Procedures Involved for GlobiDrink to Acquire Land Rights Total time in practice If GlobiDrink were to ask you to start the application tomorrow, how many calendar days in (days) total would the entire process of acquiring land rights take, on average?       Legally Authority/ Order Procedural steps Time in practice required? Agency (#) (including required documentation) (days) involved Yes No                                                                                                                                                                                                                                                                                                                                                                         Please continue writing here if you need more space to complete the list of procedures:       Comments and clarifications:       Examples of possible procedural steps for acquiring land rights (in your country the list could be shorter or longer, and procedures may have a different name): • Seller must acquire or search for a domain • Pay transfer fees/taxes to relevant government/tax certificate and personal annotation certificate authorities (local and/or national) from the land registry • Public notary files the property transfer for Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 13
    • • A surveyor measures and values the property registration with land registry • Investor obtains a certificate issued by a • The parties execute the public deed with the surveyor describing measures, boundaries, and intervention of a public notary tax appraisal of the land and building • Conduct community consultation, agreement, and • A public authority conducts a social and compensation environmental impact assessment Tables D-H ask about characteristics of land rights. Please answer the following questions, keeping in mind the assumptions about the land (above). D. Types of Occupancy Rights for GlobiDrink (a) State land (b) Private land 3.1 Can GlobiDrink lease land? (Mark as many boxes as apply.) Yes No Yes No 3.2 Can GlobiDrink purchase land (for example, hold free-hold Yes No Yes No title)? (Unless there is outright prohibition of foreign ownership, mark “Yes.” Mark as many boxes as apply.) Comments and clarifications:       E. Lease Rights for GlobiDrink (for example, lease-hold title) Assumption: Lease payments will be made annually over the lifetime of the lease and not upfront. State land Private land 3.3 Is GlobiDrink more likely to lease state or private land? Yes No 3.4 Do your national laws allow unlimited duration of lease? Maximum (# years) 3.4.1 If “No” what is the statutory maximum duration of the lease (in years)?       Yes No 3.5 Do your national laws require the same lease payments for foreign companies as local companies? 3.6 Is there a fast-track option for land registration that allows companies like GlobiDrink to pay a higher fee to have land registration application processed faster than normal application processing? 3.7 Is GlobiDrink allowed to renew its lease? 3.8 Is GlobiDrink allowed to transfer its lease? 3.8.1 If “Yes,” can GlobiDrink transfer land to another foreign company? 3.9 Can GlobiDrink sublease land from an existing lease holder? 3.10 Can GlobiDrink subdivide its lease? 3.11 Can GlobiDrink mortgage the leased land? 3.12 Do your national laws allow GlobiDrink to lease land of unlimited size? Size (hectares) 3.12.1 If “No,” what is the maximum size (in hectares)?       Yes No 3.13 Are regulations and forms for leasing land downloadable online? 3.14 Is there a national land registry or cadastre with publicly available information about land plots for lease? Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 14
    • 3.14.1 If answered “Yes” to 3.14, is the national land registry or cadastre centralized into a single searchable database open to the public? 3.14.2 If answered “Yes” to 3.14, is the national land registry or cadastre centralized into a single searchable electronic database (for example, land information system)? 3.14.3 If answered “Yes” to 3.14, is the national land registry or cadastre the same for land plots and buildings? 3.14.4 If answered “No” to 3.14, is there a municipal or subnational land registry or cadastre that is centralized into a single searchable database open to the public? 3.14.5 If answered “No” to 3.14, is there a municipal or subnational land registry or cadastre that is centralized into a single searchable electronic database (for example, municipal land information system)? 3.14.6 If answered “No” to 3.14, is the municipal or subnational land registry or cadastre the same for land plots and buildings? 3.15 Is there publicly available information about annual lease payment/rent rates? 3.16 Is GlobiDrink legally required to do a social and environmental impact assessment as part of the process of acquiring land? 3.17 What are the principal applicable land lease laws and regulations       in your country for a company like GlobiDrink? 3.18 Which applicable laws, national or subnational (municipal, National Subnational regional, and so forth), are more restrictive for a company like GlobiDrink? Comments and clarifications:       Instructions: Fill out the following table on ‘Ownership rights’ only if you answered “Yes” to Question 3.2 (for either state or privately owned land). F. Ownership Rights for GlobiDrink (for example, free-hold title) State land Private land 3.19 Is GlobiDrink more likely to purchase state or private land? Yes No 3.20 Do your national laws allow GlobiDrink to buy land without partnership with a national? Maximum share (%) 3.20.1 If “No,” what is the maximum share of ownership GlobiDrink can hold?       3.21 Is there a fast-track option for land registration that allows companies like GlobiDrink to pay a higher fee to Yes No have land registration application processed faster than normal application processing? Yes No 3.22 Do your national laws allow GlobiDrink to purchase land of unlimited size? Size (hectares) 3.22.1 If “No,” what is the maximum size (in hectares)?       Yes No 3.23 Can GlobiDrink sell the land once purchased? 3.23.1 If “Yes,” can GlobiDrink sell the land to another foreign-owned company? 3.24 Can GlobiDrink subdivide the land? 3.25 Can GlobiDrink mortgage the land? 3.26 Are regulations and forms for purchasing land downloadable online? 3.27 Is there a national land registry or cadastre with publicly available information about land plots for sale? Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 15
    • 3.27.1 If answered “Yes” to 3.27, is the national land registry or cadastre centralized into a single searchable database open to the public? 3.27.2 If answered “Yes” to 3.27, is the national land registry or cadastre centralized into a single searchable electronic database (for example, land information system)? 3.27.3 If answered “Yes” to 3.27, is the national land registry or cadastre the same for land plots and buildings? 3.27.4 If answered “No” to 3.27, is there a municipal or subnational land registry or cadastre that is centralized into a single searchable database open to the public? 3.27.5 If answered “No” to 3.27, is there a municipal or subnational land registry or cadastre that is centralized into a single searchable electronic database (for example, municipal land information system)? 3.27.6 If answered “No” to 3.27, is the municipal or subnational land registry or cadastre the same for land plots and buildings? 3.28 Is GlobiDrink legally required to do a social and environmental impact assessment as part of the process of acquiring land? 3.29 What are the principal applicable land ownership laws       and regulations in your country for foreign investors? 3.30 Which applicable laws, national or subnational National Subnational (municipal, regional, and so forth), are more restrictive for foreign companies? Comments and clarifications:       G. Obstacles and Reforms Please rate the extent to which the issue of “access to land,” as measured by this section, is an obstacle to foreign investors in your country? (Mark only one answer. A section entitled “Investment Climate Constraints” at the end of the questionnaire assesses other barriers to foreign investment in your country.) No problem Minor obstacle Moderate obstacle Major obstacle Very severe obstacle If you were to advise your government in the area of “access to land,” what legal, regulatory, institutional, or administrative improvements would you recommend and why? What reforms are most necessary?       Tables H, I and J below aim to assess the legal framework established to protect GlobiDrink’s land and other tangible property against what is collectively referred to as expropriation, condemnation or compulsory taking (acquisition). GlobiDrink is our case study company described on p. 6. Please make sure you are familiar with this case study. Governments in every country maintain and exercise statutory power to expropriate (that is, to take without the consent of the owner) private properties for public purposes. This section deals with the eminent-domain expropriation of property and not with the deprivation of property as a regulatory exercise of police power on the part of the state. H. Applicable Law for Protection Against Expropriation 3.31 Please list the national and subnational laws, including judicial precedent if applicable, related to expropriation of       private property in your country (for example, Constitution, general expropriation law, land act): 3.32 Please list the laws that establish protection against expropriation of foreign investors (for example, investment       code): 3.33 Web site where the applicable expropriation (or related)       laws can be found, if available online: Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 16
    • Comments and clarifications:       Assumptions: When completing this section, please keep in mind the following additional assumptions about GlobiDrink: • GlobiDrink has acquired (bought or leased, as applicable) a plot of land in the outskirts of your most populous (that is, largest) city. • The land is occupied by GlobiDrink’s production facility and its office buildings. • During the second year of GlobiDrink’s operation, your government approves a plan for the construction of a new highway to better connect the north and south parts of your country. • In order to complete the construction plan, the government must expropriate the lands through which the highway will pass. GlobiDrink’s entire property (land and buildings) falls within those lands. • GlobiDrink has to relocate if it wants to continue its business. Instructions: When answering the questions, please keep in mind the following instructions: • When a question asks about the name of a public authority, please provide the name of the relevant authority in your most populous city. • If the answer to a question depends on the purpose for which the land is expropriated, keep in mind that the land is expropriated for building a national highway that passes through the outskirts of your most populous city. • Please base your answers on the legal framework on expropriation in your country, including national and subnational statutes and regulations, judicial precedent, and practice. If your answer is based on the legal regime applicable only for foreign investors, please indicate that in the “comments and clarifications” field. I. Legal Protections against Expropriation of Private Property 3.34 Does expropriation of GlobiDrink’s property have to meet the following requirements? Yes No (a) legitimate public purpose/interest (b) due process of law (c) non-discriminatory manner (d) payment of compensation (e) other (please specify below) Please list other requirements in the yellow field:       Comments and clarifications:       3.35 Does a public authority, different from the expropriating authority, have to approve the expropriation Yes No of GlobiDrink’s property before it takes place (for example, national Parliament, court, government minister)? 3.35.1 If “Yes,” please indicate the name of the approving authority:       3.36 Does the expropriating authority have to provide GlobiDrink with an initial notice of its intention to Yes No expropriate GlobiDrink’s land? 3.36.1 If “Yes,” how is this notice served on GlobiDrink (for example, by mail,       publication in the newspaper, posting at the land’s location)? 3.37 Can GlobiDrink appeal the expropriation order (or “notice of expropriation,” as applicable) before it Yes No enters into force? 3.37.1 If “Yes,” before which authority can GlobiDrink appeal the order (for       example, authority superior to the expropriating authority, court)? # of calendar N/A 3.37.2 If “Yes,” what is the time period within which GlobiDrink can appeal the order days not applicable or notice of expropriation?       Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 17
    • 3.38 If GlobiDrink only has lease rights over its land (for example, a lease-hold title), is it entitled to the Yes No same standard of protection against expropriation as a land owner with a free-hold title? Comments and clarifications:       J. Valuation and Compensation 3.39 If GlobiDrink’s land is expropriated for the construction of a highway, does the expropriating authority Yes No have to pay compensation to GlobiDrink? 3.39.1 If “Yes,” does compensation have to meet the following criteria: Yes No (a) prompt (for example, paid without delay)? (b) adequate (for example, equivalent to the fair market value of the expropriated investment immediately before the expropriation took place)? (c) effective (for example, fully realizable and freely transferable)? 3.40 Does the compensation payable to GlobiDrink include the following: Yes No (a) the land (legal rights, interest in the land)? (b) immovable property located on the land (for example, a manufacturing plant)? (c) transaction costs? (d) relocation costs? (e) other (please specify in the yellow field)?       3.41 Does GlobiDrink have the option to choose between monetary compensation and another equivalent Yes No property of the same/similar type? 3.42 Is the expropriating authority authorized to substitute the expropriated property with another property at its own discretion, even if GlobiDrink prefers monetary compensation? 3.43 If GlobiDrink relocates its business due to the expropriation of its land, does the expropriating authority have to compensate GlobiDrink for its relocation expenses? 3.44 Please indicate the name of the authority/agency that assesses the value of the expropriated property:       3.44.1 Is the above authority public? Yes No 3.45 Does your national law specify a method of calculation for compensation? 3.45.1 If “Yes,” please indicate the method used for calculation of compensation:       3.46 If GlobiDrink does not agree with the amount of compensation, does the law provide for negotiation Yes No proceedings between the owner and the expropriating authority regarding the amount of compensation? 3.47 If GlobiDrink does not agree with the compensation offered, does it have a legal recourse against the expropriating authority in court? 3.48 Is there a specific time limit within which the expropriating authority must provide compensation for expropriation? # of calendar days 3.48.1 If “Yes,” please specify the time limit in number of calendar days.       3.49 How long does it typically take in your country 6 months-1 year 1 year-2 years More than 2 years to compensate the owners of expropriated property? 3.50 Does the expropriating authority have to pay interest on the principal compensation amount from the Yes No time the property was expropriated until the date of payment? 3.50.1 If “Yes,” is the interest simple (calculated on the original principal only) or compound       (calculated each period on the original principal and all interest accumulated during past periods)? 3.51 Can compensation be paid in foreign currency (for example, in the currency of GlobiDrink’s initial Yes No investment)? Please list the relevant laws and judicial precedent, if applicable, that address compensation for expropriation of private property and the dates they were adopted:       Comments and clarifications:       Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 18
    • We would like to ask a few additional questions outside of the scope of this Investing Across Borders project. These are important for the World Bank’s research purposes. K. Additional Questions Yes No 3.52 Do your national laws allow women to lease land? 3.53 Do your national laws allow women to own land? 3.54 Do your national laws allow foreign nationals to lease land? 3.55 Do your national laws allow foreign nationals to own land? 3.56 Do your national laws allow a female foreign national to be chairperson/chief executive officer (CEO) of a private company’s board? 3.56.1 If “Yes,” do your national laws allow foreign-owned companies with a female chairperson/CEO to lease land? 3.56.2 Do your national laws allow foreign-owned companies with a female chairperson/CEO to own land? 3.57 Do your national laws allow foreign-owned companies to lease agricultural land? 3.58 Do your national laws allow foreign-owned companies to own agricultural land? L. Obstacles and Reforms Please rate the extent to which the issue of “expropriation”, as measured by this section, is an obstacle to foreign investors in your country? (Mark only one answer. A section entitled “Investment Climate Constraints” at the end of the questionnaire assesses other barriers to foreign investment in your country.) No problem Minor obstacle Moderate obstacle Major obstacle Very severe obstacle If you were to advise your government in the area of “expropriation” what legal, regulatory, institutional, or administrative improvements would you recommend and why? What reforms are most necessary?       # of minutes How long did it take you to fill out this section of the questionnaire?       How can we improve this section of the questionnaire?       Your name [     ] (title – Mr., Ms., and so forth) [     ] (first/given name) [     ] (last/family name) Please fill out the following table only if your contact information is not already provided at the beginning of this questionnaire on page i so that we can follow up with you in case we have clarifying questions. This project is being undertaken independently by the World Bank Group. All information provided will be kept confidential, and your responses will not be attributed directly to you or your organization. Your position [     ] Firm/organization [     ] Phone [     ] [     ] (alternate phone) Fax [     ] E-mail [     ] [     ] (alternate e-mail) Preferred mode of communication (Check all that apply.) Phone Fax E-mail Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 19
    • Section 4: Arbitrating Disputes Arbitration is a well-established method for resolving disputes arising from cross-border transactions and disputes relating to FDI. Foreign-owned companies often choose to include arbitration provisions in international contracts with their commercial partners, so their disputes can be definitively resolved by independent, non-governmental decision-makers. The goal of this section is to measure the ease of resolving disputes by international arbitration for GlobiDrink in your country and the ease of enforcement of a foreign arbitration award by GlobiDrink in your jurisdiction. The last part of the section (table D) asks if there are special rules when one of the parties to the arbitration is the state or a state entity. A. Applicable law 4.1 Does your national law recognize arbitration as a means of dispute resolution between business parties? Yes No 4.2 Does the legal framework expressly promote international arbitration? If “Yes”, please list the relevant legal provisions:       Yes No 4.3 Has your country enacted a uniform law on commercial arbitration? 4.4 Which method of resolution of their commercial disputes do foreign Arbitration Litigation companies in your country use more often? Please explain your answer:       4.5 What are the principal applicable laws (national and sub-national), regulations and judicial precedent (case law) in your country concerning       international commercial arbitration? 4.6 Websites where the applicable statutes governing arbitration can be found:       Comments and clarifications:       B. International arbitration proceedings conducted in your country Instructions: • Fill out the following table B on ‘International Arbitration Proceedings’ only if you answered “Yes” to Question 6.1. If you answered “No”, please continue to tables C, D and E. • If your national law differentiates between domestic and international arbitration, please answer the questions with regard to the rules applicable to international arbitration. Assumptions: When completing table B, please keep in mind the following assumptions: • As you remember from our case study, GlobiDrink is a locally incorporated company. For more details on the GlobiDrink case study, please refer to the text box on page 6. • “Buyer” is a distribution company incorporated abroad. • GlobiDrink and Buyer enter into a distribution contract under which Buyer undertakes to market and sell GlobiDrink’s bottled juice abroad and GlobiDrink undertakes to supply the agreed-upon volumes of bottled juice to Buyer for a period of five years. • GlobiDrink and Buyer include a provision in their contract that expressly provides that any and all disputes arising out of the contract shall be exclusively and finally settled by means of arbitration. • GlobiDrink and Buyer agree that the seat of arbitration will be your country’s most populous city. • One year after signing the distribution contract, a dispute arises between GlobiDrink and Buyer over an alleged breach on the part of Buyer. Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 20
    • • Further to the alleged breach, GlobiDrink plans to file a request for arbitration against Buyer, in accordance with the arbitration provision in the distribution contract. GlobiDrink and Buyer wish that their dispute is finally settled under the rules of arbitration of a recognized international arbitration center (for example, the Rules of Arbitration of the International Chamber of Commerce (ICC) by three arbitrators appointed in accordance with the said rules International arbitration proceedings 4.7 Does your national law permit GlobiDrink and Buyer to freely select international rules of arbitration Yes No (such as the ICC Rules of Arbitration) applicable to govern their arbitration proceedings conducted in your country? 4.8 If “Yes”, do the chosen rules of arbitration (e.g., the ICC Rules of Arbitration) have to meet certain minimum standards under your national law (e.g., that the parties are treated with equality, that the parties are given an opportunity to present their case, etc.)? Please list all applicable minimum standards:       Yes No 4.9 Can the arbitration proceedings in your country be conducted in a foreign language? 4.10 Are GlobiDrink and Buyer free to choose arbitrators to resolve their dispute, regardless of the arbitrators’ nationality, citizenship, professional affiliation, etc? If “No”, please list all applicable requirements/restrictions on the arbitrators:       4.11 Can GlobiDrink retain a foreign lawyer, not licensed to practice in your country, to represent it in the Yes No arbitration proceedings taking place in your national territory? Comments and clarifications: 4.12 Under your national law, are courts authorized to review procedural orders or decisions of the arbitrators, upon a party’s request, before the arbitrators make a final award (e.g., arbitrator’s procedural order fixing a time schedule for submissions and hearings, etc.)? 4.12.1 If “Yes”, what are the grounds for judicial review of       arbitrators’ procedural decisions? (please list) 4.13 Does your national law expressly provide that local courts must assist the arbitrators in arbitration Yes No proceedings taking place in your country in the taking of evidence (e.g., court-ordered document production, preservation of evidence, etc.)? 4.13.1 If “Yes”, under what conditions, if any, local courts       must assist arbitrators in the taking of evidence? (please list) 4.14 Under your national law, can the arbitrators order precautionary/provisional measures during the Yes No course of the arbitration proceedings? 4.14.1 If “Yes”, does the law expressly provide for local courts’ assistance of arbitrators in the enforcement of precautionary/provisional measures ordered by the arbitrators in the course of the proceedings (e.g., sequestration, seizures, embargoes, etc.)? 4.14.1.1 If “Yes”, under what conditions, if any, may local courts assist arbitrators in the enforcement of       precautionary/provisional measures: 4.15 Can an arbitration award rendered in your country be appealed to the court? Yes No 4.16 What are the grounds for courts to set aside (vacate, Upon request by a party On the court’s own motion annul) an international arbitration award issued in your country (e.g., incapacity of a party, lack of jurisdiction of the             arbitral tribunal, public policy grounds, etc.)? 4.17 If a party to an arbitration agreement brings a claim in a local court against the other party, and the Yes No claim falls under the scope of the arbitration agreement, is the court required to decline jurisdiction if requested by the defendant? Comments and clarifications:       Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 21
    • 4.18 Are there arbitration institutions in your country? Yes No 4.18.1 Please indicate the name of each center and of the respective hosting institution (e.g. national chamber of       commerce, etc.): 4.18.2 Please indicate the website/s of this arbitration center/       s: Comments and clarifications:       C. Enforcement of foreign arbitration awards In contrast to table B, on “International Arbitration Proceedings,” the table C asks about enforcement in your jurisdiction of foreign arbitration awards. The term “foreign arbitration award” as used in table C means an award issued outside of your country. Enforcement of foreign arbitration awards is the conversion of the award into a court judgment with all the sanctions that a court judgment entails, such as the right to have the debtor’s assets seized. Assumptions: When completing tables C, please keep in mind the following assumptions: • The arbitration agreement in the contract between GlobiDrink and Buyer provides that international arbitration will be the exclusive and final mechanism for resolution of all disputes arising out of their contract, under the ICC Rules of Arbitration. • The arbitration agreement stipulates that the seat of arbitration will be a city located outside of your country, as opposed to your country’s most populous city, as we assumed in the previous table (B). • GlobiDrink and Buyer engage in arbitration proceedings in said city pursuant to their agreement. • A panel of three arbitrators renders an award in the amount of US$2 million in favor of GlobiDrink. • Buyer disagrees with the arbitration award and refuses to comply with it voluntarily. • Buyer has substantial assets in your most populous city. • GlobiDrink now seeks to enforce the award in your courts against Buyer to recover the amount awarded by the arbitrators. • GlobiDrink requests to attach Buyer’s assets before the court’s decision on enforcement. • Buyer requests your court to refuse enforcement of the arbitration award. • GlobiDrink and Buyer provide all necessary documents to the court promptly and comply with the court’s instructions on deadlines. C.1. Competent court and applicable rules 4.19. Is the jurisdiction on recognition and enforcement of foreign arbitration awards concentrated in a Yes No higher level tribunal/court in your country (i.e., higher than a general first instance court)? 4.20 Please indicate the name of the tribunal or court that has jurisdiction to       enforce the above described foreign arbitration award. 4.21 Please indicate the procedural rules used in the above case (i.e., all rules that regulate the judicial enforcement of arbitration awards, such as specific court       rules, code of civil procedure, etc). 4.22 Please list all the documents GlobiDrink is required to supply to the court with the application for enforcement (e.g., duly authenticated original award,       original or a copy of arbitration agreement, original or a copy of the arbitration case file, translations, etc.). Comments and clarifications:       C.2. Recognition and enforcement of foreign arbitration awards Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 22
    • 4.23 Are foreign arbitration awards, as the one described above, entitled to recognition and enforcement by Yes No the court? 4.24 Are foreign arbitration awards, as the one described above, presumptively valid under your national law (i.e., the court must recognize them unless limited exceptions apply)? 4.25 Does your national law require that a foreign arbitration award is confirmed by a court in order to be final and binding? 4.26 Is the scope of court review of foreign arbitration awards subject to limited procedural grounds as opposed to a court review of the merits of the award? 4.27 On what grounds can Buyer request the court to refuse recognition and enforcement (e.g., procedural, jurisdictional       grounds, etc)? (please list all grounds) 4.28 On what grounds may the court refuse recognition and enforcement on its own motion, without being requested by       Buyer (jurisdictional, public policy grounds, etc.)? (please list) Comments and clarifications       4.29 Has your country ratified the New York Convention on the Recognition and Enforcement of Foreign Yes No Arbitral Awards? (This question will be filled out for each country by the World Bank based on the following source: http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html) Comments and clarifications       C.3. Speed, cost and frequency of enforcing foreign arbitration awards in your jurisdiction 4.30 Under your national law, is there a time limit from the issuance of the arbitration award within which Yes No GlobiDrink must file an application for enforcement in the local court? # of calendar days 4.30.1 If “Yes”, what is this time limit?       Less than a Between 1 More than 2 4.31 How long would the entire process of enforcement of an arbitration award year and 2 years years typically take from application to writ of execution, if no objection for non- enforcement has been filed? More than 4.32 How many applications for enforcement of foreign arbitration awards are 0-5 6-20 20 typically filed per year in your country? 4.33 In your experience, what is the likelihood that your courts would enforce a 0-30 % 31-50 % 51-100% foreign arbitration award as the one described above? Comments and clarifications       C.4. List of procedural steps for enforcing foreign arbitration awards Instructions: When completing table C.4, please keep in mind the following: • Table C.4 aims to collect information on the actual process of enforcement of a foreign arbitration award in your courts, including the individual procedural steps. • Consider the starting point of the enforcement process (that is, the first procedural step) the moment when GlobiDrink files an application for enforcement of the arbitration award with the appropriate court and the ending point (that is, the last procedural step) when the court issues a writ of execution. • List all procedural steps (including documentation required for each step) involved in the enforcement of foreign arbitration awards in the order in which they occur in practice. If two procedures happen simultaneously, give Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 23
    • them the same order number. • Estimate the time (in calendar days) in practice necessary to complete each step and list the appropriate court/authority involved. • Refer to the text box entitled “Instructions for Procedural Questions” on page iii for a reminder of the detailed set of instructions on how to fill out procedural tables. Examples of possible procedural steps for enforcing a foreign arbitration award in national courts (in your country the list will be shorter or longer and procedures will have a different name): • Filing an application for enforcement • Court attaches Buyer’s assets • Presenting additional documentation to the court of • Court issues an enforcement decision enforcement • Court issues a writ of execution after the • Payment of necessary fees, levies, taxes or duties enforcement decision becomes effective in connection with the application for enforcement TIME APPLICABLE ORDER PROCEDURAL STEPS IN COURT/AUTHORITY FEES, TAXES (#) (including required documentation) PRACTICE INVOLVED OR DUTIES (amount or %)                                                                                                                                                                                                                                                                                                             Please continue writing here if you need more space to complete the list of procedures:       The following Table D asks general questions on arbitration with the state and its constituencies (government, state agencies, state companies, etc.). When completing this table, please disregard the case study assumptions about GlobiDrink from the previous tables. D. Access to international arbitration with the state and state entities 4.34 Are the state and its constituencies allowed to enter into arbitration agreements in their contracts with Yes No foreign investors? Comments and clarifications:       4.35 If “Yes”, are there any arbitration specific restrictions/requirements related to arbitration with the Yes No state or state entities which do not apply to commercial arbitration (i.e., restrictions on the seat of arbitration, the applicable procedural rules, etc.)? Please indicate the applicable restrictions/requirements:       4.36 Is there a public authority designated or appointed to handle administrative, logistical and other issues Yes No related to investment disputes (i.e. specific agency, office of the prime minister, etc.)? Please indicate the name of the designated authority:       Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 24
    • 4.37 Has your country ratified the ICSID Convention? Yes No (This question will be filled out for each country by the World Bank based on the following source: http://icsid.worldbank.org/ICSID/FrontServlet? requestType=ICSIDDocRH&actionVal=ContractingStates&ReqFrom=Main) Comments and clarifications:       E. Mediation and conciliation 4.38 Has your country adopted laws on commercial mediation and conciliation (i.e., voluntary mediation of Yes No commercial disputes)? If “Yes”, please indicate the applicable laws and the years when they were adopted :       4.39 Are there institutions in your country which administer commercial mediation and/or conciliation Yes No disputes? 4.39.1 If “Yes”, please indicate the name of the respective institution (e.g. center for arbitration and mediation with the       national chamber of commerce, etc.): 4.39.2 Please indicate the website/s of the institution/s, if       available: F. Obstacles and reforms Please rate the extent to which the issue of “international arbitration”, as measured by this section, is an obstacle to foreign investors in your country? (Mark only one answer. A section titled “Investment Climate Constraints” at the end of the questionnaire assesses other barriers to foreign investment in your country.) No problem Minor obstacle Moderate obstacle Major obstacle Very severe obstacle If you were to advise your government in the area of “international arbitration”, what legal, regulatory, institutional or administrative improvements would you recommend and why? What reforms are most necessary?       # of minutes How long did it take you to fill out this section of the questionnaire?       How can we improve this section of the questionnaire?       Your name [     ] (title – Mr., Ms., etc.) [     ] (first/given name) [     ] (last/family name) Please fill out the following table only if your contact information is not already provided at the beginning of this questionnaire on page i so that we can follow-up with you in case we have clarifying questions. This project is being undertaken independently by the World Bank Group. All information provided will be kept confidential, and your responses will not be attributed directly to you or your organization. Your position [     ] Firm/organization [     ] Phone [     ] [     ] (alternate phone) Fax [     ] E-mail [     ] [     ] (alternate e-mail) Preferred mode of communication (Check all that apply.) Phone Fax E-mail Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 25
    • Investment Climate Constraints Please tell us if any of the following issues are problems and obstacles for foreign investors in your country.8 Use the following scale: 0 1 2 3 4 No problem Minor obstacle Moderate obstacle Major obstacle Very severe obstacle No problem Degree of obstacle Issue 0 1 2 3 4 Access and cost of financing (for example, collateral, interest rates, and so forth) Access to land Business licensing and permits (including starting a business) Corruption Courts Crime, theft, and disorder Customs and trade regulations Electricity Employment of expatriate labor Expropriation / nationalization / breach of contract Ineffective / insufficient investment promotion Intellectual property rights (IPR) protection and enforcement International arbitration (access and enforcement) Foreign exchange access and transfer Foreign ownership restrictions in various sectors Labor regulations Labor skills and availability Local content requirements Macroeconomic instability Negative / skeptical attitude toward foreign investment by the government or public Political instability Regulatory uncertainty Restrictions on membership of boards of directors Tax administration Tax rates Telecommunications Transportation Other (please specify):       8 These issues present a wide spectrum of variables that affect the quality of investment climates. As such, they go much beyond the issues of investment policy framework, which are the focus of this Investing Across Borders project. Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 26
    • Questionnaire Feedback Thank you very much for participating in this project and completing the survey. We greatly appreciate your contribution. Would you prefer to have had the Yes, strongly prefer Yes, somewhat prefer No, English was fine questionnaire in another language? If “Yes,” in what Arabic French Portuguese Russian Spanish Other language?       Is your organization already a contributor to the Doing Business project of the World Bank Group, Yes No which measures the quality of business regulation for domestic companies? If “No,” please let us know whether you are interested in contributing to any of the following Yes No topics measured by the Doing Business project: - Starting a business - Construction licenses / building regulation - Labor and social security regulation - Registering property - Collateral laws / secured transactions - Corporate governance law - Enforcing contracts / commercial disputes - Closing business / bankruptcy law CONTACT: For questions, or to submit a completed questionnaire, please contact: Ms. Tanya Primiani, Investment Policy and Promotion Specialist, FIAS, e-mail: tprimiani@ifc.org, tel.: +1 202 458 5848. Investing Across Borders Project – Pilot Testing Questionnaire – World Bank Group 27