Investor Nationality Policy Challenges in a Globalized Economy
1. U n i t e d N a t i o n s C o n f e r e n c e o n T r a d e A n d D e v e l o p m e n t
WORLD
INVESTMENT
REPORT
Investor Nationality: Policy Challenges
2016
EMBARGO
The contents of this Report must not
be quoted or summarized in the print,
broadcast or electronic media before
21 June 2016, 17:00 GMT.
(1 p.m. New York; 7 p.m. Geneva;
10.30 p.m. Delhi; 2 a.m. on 22 June, Tokyo)
3. BAN Ki-moon
Secretary-General of the United Nations
preface
In 2015, global flows of foreign direct investment rose by about 40 per cent, to
$1.8 trillion,the highest level since the global economic and financial crisis began
in 2008. However, this growth did not translate into an equivalent expansion in
productive capacity in all countries.This is a troubling development in light of the
investment needs associated with the newly adopted Sustainable Development
Goals and the ambitious action envisaged in the landmark Paris Agreement on
climate change. This latest World Investment Report presents an Investment
Facilitation Action Package to further enhance the enabling environment for
investment in sustainable development.
The Addis Ababa Action Agenda calls for reorienting the national and
international investment regime towards sustainable development. UNCTAD
plays an important role within the United Nations system in supporting these
endeavours. Its Investment Policy Framework and the Road Map for International
Investment Agreements Reform have been used by more than 100 countries in
reviewing their investment treaty networks and formulating a new generation of
international investment policies.
Regulations on the ownership and control of companies are essential in the
investment regime of most countries. But in an era of complex multinational
ownership structures, the rationale and effectiveness of this policy instrument
needs a comprehensive re-assessment. This Report provides insights on the
ownership structures of multinational enterprises (MNEs), and maps the global
network of corporate entities using data on millions of parents and affiliates. It
analyses national and international investment policy practices worldwide, and
proposes a new framework for handling ownership issues.
This latest edition of the World Investment Report is being issued as the world
embarks on the crucial work of implementing the landmark 2030 Agenda for
Sustainable Development and the Paris Agreement on climate change. The
key findings and policy recommendations of the Report are far reaching and
can contribute to our efforts to uphold the promise to leave no one behind and
build a world of dignity for all. I therefore commend this Report to a wide global
audience.
4. iv World Investment Report 2016 Investor Nationality: Policy Challenges
ABBREVIATIONS
AGOA African Growth and Opportunity Act
APEC Asia-Pacific Economic Cooperation
BEPS base erosion and profit shifting
BIT bilateral investment treaty
BRICS Brazil, Russian Federation, India, China, South Africa
CETA Comprehensive Economic and Trade Agreement
CFIA Cooperative and Facilitation Investment Agreement
CFC controlled foreign company
CFTA African Continental Free Trade Agreement
CIS Commonwealth of Independent States
COMESA Common Market for Eastern and Southern Africa
CSR corporate social responsibility
DOB denial of benefits
DTT double-taxation treaty
EAC East African Community
EPA economic partnership agreement
FET fair and equitable treatment
FTA free trade agreement
GATS General Agreement on Trade in Services
GFCF gross fixed capital formation
GUO global ultimate owner
GVC global value chain
ICS Investment Court System
IIA international investment agreement
IPA investment promotion agency
IPFSD Investment Policy Framework for Sustainable Development
ISDS investor–State dispute settlement
JV joint venture
LDC least developed country
LLDC landlocked developing country
M&As mergers and acquisitions
MFN most favoured nation
MNE multinational enterprise
NAFTA North American Free Trade Agreement
OFC offshore financial centre
OIA outward investment agency
PAIC Pan-African Investment Code
RCEP Regional Comprehensive Economic Partnership
RTIA regional trade and investment agreements
SADC Southern African Development Community
SBA substantial business activities
SDGs Sustainable Development Goals
SEZ special economic zone
SIDS small island developing States
SPE special purpose entity
TIFA trade and investment framework agreement
TIP treaty with investment provision
TISA Trade in Services Agreement
TPP Trans-Pacific Partnership Agreement
TTIP Transatlantic Trade and Investment Partnership
UNCITRAL United Nations Commission on International Trade Law
WIPS World Investment Prospects Survey
WTO World Trade Organization
5. vWorld Investment Report 2016 Investor Nationality: Policy Challenges
acknowledgements
The World Investment Report 2016 (WIR16) was prepared by a team led by
James X. Zhan. The team members included Richard Bolwijn, Bruno Casella,
Joseph Clements, Hamed El Kady, Kumi Endo, Michael Hanni, Joachim Karl, Hee
Jae Kim, Ventzislav Kotetzov, Guoyong Liang, Hafiz Mirza, Shin Ohinata, Diana
Rosert, Astrit Sulstarova, Claudia Trentini, Elisabeth Tuerk, Joerg Weber and Kee
Hwee Wee.
Research support and inputs were provided by Eleonora Alabrese, Dafina
Atanasova, Jorun Baumgartner, Giannakopoulos Charalampos, Malvika Monga,
Francesco Tenuta and Linli Yu. Contributions were also made by Thomas van
Giffen, Natalia Guerra, Isya Kresnadi, Kálmán Kalotay, Abraham Negash, Elizabeth
Odunlami, Jacqueline Salguero Huaman, Ilan Strauss, Tadelle Taye and Paul
Wessendorp.
Statistical assistance was provided by Bradley Boicourt, Mohamed Chiraz Baly and
Lizanne Martinez.
The manuscript was edited with the assistance of Caroline Lambert and copy-
edited by Lise Lingo; it was typeset by Laurence Duchemin and Teresita Ventura.
Pablo Cortizo was responsible for the overall design of the report, including charts,
tables, maps and infographics, as well as DTP. Sophie Combette and Nadège
Hadjemian designed the cover. Production and dissemination of WIR16 were
supported by Elisabeth Anodeau-Mareschal, Anne Bouchet, Rosalina Goyena,
Peter Navarette and Katia Vieu.
At various stages of preparation, in particular during the experts meetings
organized to discuss drafts of WIR16, the team benefited from comments and
inputs received from these experts: Rolf Adlung, Carlo Altomonte, Paul Beamish,
Nathalie Bernasconi, Martin Brauch, Jansen Calamita, Jeremy Clegg, Davide
Del Prete, Henrik Dellestrand, Chantal Dupasquier, Xiaolan Fu, Masataka Fujita,
Thomas Jost, Markus Krajewski, John Lee, Hemant Merchant, Loukas Mistelis,
Premila Nazareth, Sheila Page, Svein Parnas, Markus Perkams, Sergey Ripinsky,
Leslie Robinson,Armando Rungi, Pierre Sauvé, Boštjan Skalar, Roger Strange and
Jan van den Tooren. The report also benefitted from the discussions of the G20
Trade and Investment Working Group and the UNCTAD Expert Meeting “Taking
Stock of IIA Reform”, as well as comments received from the WAIPA Secretariat.
Also acknowledged are comments received from other UNCTAD divisions as
part of the internal peer review process, as well as comments from the Office
of the Secretary-General as part of the clearance process. The United Nations
Cartographic Section provided advice for the regional maps.
Numerous officials of central banks, government agencies, international
organizations and non-governmental organizations also contributed to WIR16. In
addition, UNCTAD appreciates the support of all the MNE and IPA executives who
responded to its 2016 World Investment Prospects and Investment Promotion
Agencies surveys. The financial support of the Governments of Finland, Sweden
and Switzerland is gratefully acknowledged.
10. KEY MESSAGES
GLOBAL INVESTMENT TRENDS
Recovery in FDI was strong in 2015. Global foreign direct investment (FDI) flows jumped by
38 per cent to $1.76 trillion, their highest level since the global economic and financial crisis
of 2008–2009. A surge in cross-border mergers and acquisitions (MAs) to $721 billion,
from $432 billion in 2014, was the principal factor behind the global rebound. The value of
announced greenfield investment remained at a high level, at $766 billion.
Part of the growth in FDI was due to corporate reconfigurations. These transactions often
involve large movements in the balance of payments but little change in actual operations.
Discounting these large-scale corporate reconfigurations implies a more moderate increase
of around 15 per cent in global FDI flows.
Inward FDI flows to developed economies almost doubled to $962 billion. As a result,
developed economies tipped the balance back in their favour with 55 per cent of global FDI,
up from 41 per cent in 2014. Strong growth in inflows was reported in Europe. In the United
States FDI almost quadrupled, albeit from a historically low level in 2014.
Developing economies saw their FDI inflows reach a new high of $765 billion, 9 per cent
higher than in 2014. Developing Asia, with FDI inflows surpassing half a trillion dollars,
remained the largest FDI recipient region in the world. Flows to Africa and Latin America and
the Caribbean faltered. Developing economies continue to comprise half of the top 10 host
economies for FDI flows.
Outward FDI flows from developed economies jumped by 33 per cent to $1.1 trillion. The
increase notwithstanding, their outward FDI remained 40 per cent short of its 2007 peak.
With flows of $576 billion, Europe became the world’s largest investing region. FDI by MNEs
from North America stayed close to their 2014 levels.
Primary sector FDI activity decreased, manufacturing increased. A flurry of deals raised
the share of manufacturing in cross-border MAs above 50 per cent in 2015. FDI in the
primary sector declined because of reductions in planned capital expenditures in response
to declining commodity prices, as well as a sharp fall in reinvested earnings as profit margins
shrank. Services continue to hold over 60 per cent of global FDI stock.
Looking ahead, FDI flows are expected to decline by 10-15 per cent in 2016, reflecting the
fragility of the global economy, persistent weakness of aggregate demand, sluggish growth
in some commodity exporting countries, effective policy measures to curb tax inversion
deals and a slump in MNE profits. Over the medium term, global FDI flows are projected to
resume growth in 2017 and to surpass $1.8 trillion in 2018, reflecting an expected pick up
in global growth.
REGIONAL INVESTMENT TRENDS
FDI flows to Africa fell to $54 billion in 2015, a decrease of 7 per cent over the previous
year. An upturn in FDI into North Africa was more than offset by decreasing flows into Sub-
Saharan Africa, especially to West and Central Africa. Low commodity prices depressed
FDI inflows in natural-resource-based economies. FDI inflows to Africa are expected to
increase moderately in 2016 due to liberalization measures and planned privatizations of
state-owned enterprises.
annualrecord
ISDScases
$1.76trillion
chaper1-2
GlobalFDI
2015
Developedeconomies
tooklargestshareofglobalFDI
Developed $962 bn
Developing
$765 bn
Transition
$35 bn
2005–2015
largestinvestor
regionin2015
Europe
$576bn
38%+
annualrecord
$1.76trillion
chaper1-2
GlobalFDI
2015
Developedeconomies
tooklargestshareofglobalFDI
Developed $962 bn
Developing
$765 bn
Transition
$35 bn
2005–2015
largestinvestor
regionin2015
Europe
$576bn
38%+
$1.76trillion
FDIinflows
forecast
tofallin2016
1.8
10-15%
Developedeconomies
tooklargestshareofglobalFDI
Developed $962 bn
Developing
$765 bn
Transition
$35 bn
2005–2015
largestinvestor
regionin2015
Europe
$576bn
butgrowovermedium-term
$54bn
Africa
2015
x World Investment Report 2016 Investor Nationality: Policy Challenges
11. Developing Asia saw FDI inflows increase by 16 per cent to $541 billion – a new record.
The significant growth was driven by the strong performance of East and South Asian
economies. FDI inflows are expected to slow down in 2016 and revert to their 2014 level.
Outflows from the region dropped by about 17 per cent to $332 billion – the first decline
since 2012.
FDI flows to Latin America and the Caribbean – excluding offshore financial centres –
remained flat in 2015 at $168 billion. Slowing domestic demand and worsening terms of
trade caused by falling commodity prices hampered FDI mainly in SouthAmerica.In contrast,
flows to Central America made gains in 2015 due to FDI in manufacturing. FDI flows to the
region may slow down in 2016 as challenging macroeconomic conditions persist.
FDI flows to transition economies declined further, to levels last seen almost 10 years ago
owing to a combination of low commodity prices, weakening domestic markets and the
impact of restrictive measures/geopolitical tensions. Outward FDI from the region also
slowed down, hindered by the reduced access to international capital markets. After the
slump of 2015, FDI flows to transition economies are expected to increase modestly.
After three successive years of contraction, FDI inflows to developed countries bounced
back sharply to the highest level since 2007. Exceptionally high cross-border MA values
among developed economies were the principal factor. Announced greenfield investment
also remained high. Outward FDI from the group jumped. Barring another wave of cross-
border MA deals and corporate reconfigurations, the recovery of FDI activity is unlikely
to be sustained in 2016 as the growth momentum in some large developed economies
weakened towards the end of 2015.
FDI flows to structurally weak and vulnerable economies as a group increased moderately by
2 per cent to $56 billion. Developing economies are now major sources of investments in all
of these groupings. Flows to least developed countries (LDCs) jumped by one third to $35
billion; landlocked developing countries (LLDCs) and small island developing States (SIDS)
saw a decrease in their FDI inflows of 18 per cent and 32 per cent respectively. Divergent
trends are also reflected in their FDI prospects for 2016. While LLDCs are expected to see
increased inflows, overall FDI prospects for LDCs and SIDS are subdued.
INVESTMENT POLICY TRENDS
Mostnewinvestmentpolicymeasurescontinuetobegearedtowardsinvestmentliberalization
and promotion. In 2015, 85 per cent of measures were favourable to investors. Emerging
economies in Asia were most active in investment liberalization, across a broad range of
industries. Where new investment restrictions or regulations were introduced, these mainly
reflected concerns about foreign ownership in strategic industries. A noteworthy feature in
new measures was also the adoption or revision of investment laws, mainly in some African
countries.
National security considerations are an increasingly important factor in investment policies.
Countries use different concepts of national security, allowing them to take into account key
economic interests in the investment screening process. Governments’ space for applying
national security regulations needs to be balanced with investors’ need for transparent and
predictable procedures.
3,304
annualrecord
ISDScases
70New
$1.76trillion
chaper1-2
GlobalFDI
2015
1.8
Developedeconomies
tooklargestshareofglobalFDI
Developed $962 bn
Developing
$765 bn
Transition
$35 bn
2005–2015
largestinvestor
regionin2015
Europe
$576bn
38%+
Inflowsto
Developed
economies
attheirhighest
levelsince2007
Recordinflowsto
$541bn
+16%
developingAsia
Complexownership:
100MNEs
500affiliates
50countries
85%
15%
Restriction/Regulation
Liberalisation/Promotion
National investment
policy measures
chaper3
xiKey Messages
12. The universe of international investment agreements (IIAs) continues to grow. In 2015, 31
new IIAs were concluded, bringing the universe to 3,304 treaties by year-end. Although
the annual number of new IIAs continues to decrease, some IIAs involve a large number of
parties and carry significant economic and political weight. Recent IIAs follow different treaty
models and regional agreements often leave existing bilateral treaties between the parties
in force, increasing complexity. By the end of May 2016, close to 150 economies were
engaged in negotiating at least 57 new IIAs.
With 70 cases initiated in 2015, the number of new treaty-based investor-State arbitrations
set a new annual high. Following the recent trend, a high share of cases (40 per cent) was
brought against developed countries. Publicly available arbitral decisions in 2015 had a
variety of outcomes, with States often prevailing at the jurisdictional stage of proceedings,
and investors winning more of the cases that reached the merits stage.
IIA reform is intensifying and yielding the first concrete results. A new generation of
investment treaties is emerging. UNCTAD’s Investment Policy Framework and its Road Map
for IIA Reform are shaping key reform activities at all levels of policymaking. About 100
countries have used these policy instruments to review their IIA networks and about 60 have
used them to design treaty clauses. During this first phase of IIA reform, countries have built
consensus on the need for reform, identified reform areas and approaches, reviewed their
IIA networks, developed new model treaties and started to negotiate new, more modern IIAs.
Despite significant progress, much remains to be done. Phase two of IIA reform will require
countries to focus more on the existing stock of treaties. Unlike the first phase of IIA reform,
where most activities took place at the national level, phase two of IIA reform will require
enhanced collaboration and coordination between treaty partners to address the systemic
risks and incoherence of the large body of old treaties. The 2016 World Investment Forum
offers the opportunity to discuss how to carry IIA reform to the next phase.
Investment facilitation: a policy gap that needs to be closed. Promoting and facilitating
investment is crucial for the post-2015 development agenda. At the national level, many
countries have set up schemes to promote and facilitate investment, but most efforts relate
to promotion (marketing a location and providing incentives) rather than facilitation (making
it easier to invest). In IIAs, concrete facilitation measures are rare.
UNCTAD’s Global Action Menu for Investment Facilitation provides policy options to
improve transparency and information available to investors, ensure efficient and
effective administrative procedures, and enhance predictability of the policy environment,
among others. The Action Menu consists of 10 action lines and over 40 policy options.
It includes measures that countries can implement unilaterally, and options that can guide
international collaboration or that can be incorporated in IIAs.
INVESTOR NATIONALITY: POLICY CHALLENGES
More than 40 per cent of foreign affiliates worldwide have multiple “passports”. These
affiliates are part of complex ownership chains with multiple cross-border links involving on
average three jurisdictions. The nationality of investors in and owners of foreign affiliates is
becoming increasingly blurred.
“Multiple passport affiliates” are the result of indirect foreign ownership, transit investment
through third countries, and round-tripping. About 30 per cent of foreign affiliates are
indirectly foreign owned through a domestic entity; more than 10 per cent are owned through
an intermediate entity in a third country; about 1 per cent are ultimately owned by a domestic
entity. These types of affiliates are much more common in the largest MNEs: 60 per cent
of their foreign affiliates have multiple cross-border ownership links to the parent company.
Total IIAs
3,304
31in2015
+
annualrecord
ISDScases
70New
$1.76trillion
chaper1-2
GlobalFDI
2015
Developedeconomies
tooklargestshareofglobalFDI
Developed $962 bn
Developing
$765 bn
Transition
$35 bn
2005–2015
38%+
National investment
policy measures
Total IIAs
3,304
31in2015
+
annualrecord
ISDScases
70New
$1.76trillion
chaper1-2
GlobalFDI
2015
Developedeconomies
tooklargestshareofglobalFDI
Developed $962 bn
Developing
$765 bn
Transition
$35 bn
2005–2015
$576bn
38%+
xii World Investment Report 2016 Investor Nationality: Policy Challenges
13. The larger the MNEs, the greater is the complexity of their internal ownership structures. The
top 100 MNEs in UNCTAD’s Transnationality Index have on average more than 500 affiliates
each, across more than 50 countries. They have 7 hierarchical levels in their ownership
structure (i.e. ownership links to affiliates could potentially cross 6 borders), they have about
20 holding companies owning affiliates across multiple jurisdictions, and they have almost
70 entities in offshore investment hubs.
Rules on foreign ownership are ubiquitous: 80 per cent of countries restrict majority foreign
ownership in at least one industry. The trend in ownership-related measures is towards
liberalization, through the lifting of restrictions, increases in allowed foreign shareholdings,
or easing of approvals and admission procedures for foreign investors. However, many
ownership restrictions remain in place in both developing and developed countries.
The blurring of investor nationality has made the application of rules and regulations on
foreign ownership more challenging. Policymakers in some countries have developed a
range of mechanisms to safeguard the effectiveness of foreign ownership rules, including
anti-dummy laws, general anti-abuse rules to prevent foreign control, and disclosure
requirements.
Indirect ownership structures and mailbox companies have the potential to significantly
expand the reach of IIAs. About one third of ISDS claims are filed by claimant entities that
are ultimately owned by a parent in a third country (not party to the treaty on which the claim
is based). Some recent IIAs try to address the challenges posed by complex ownership
structures through more restrictive definitions, denial of benefits clauses and substantial
business activity requirements, but the vast majority of existing treaties does not have such
devices.
Policymakers should be aware of the de facto multilateralizing effect of complex ownership
on IIAs. For example, up to a third of apparently intra-regional foreign affiliates in major
(prospective) megaregional treaty areas, such as the Trans-Pacific Partnership (TPP), the
Transatlantic Trade and Investment Partnership (TTIP), and the Regional Comprehensive
Economic Partnership (RCEP), are ultimately owned by parents outside the region, raising
questions about the ultimate beneficiaries of these treaties and negotiations. Policymakers
should aim to avoid uncertainty for both States and investors about the coverage of the
international investment regime.
Rethinking ownership-based investment policies means safeguarding the effectiveness of
ownership rules and considering alternatives. On the one hand, policymakers should test the
“fit-for-purpose” of ownership rules compared to mechanisms in investment-related policy
areas such as competition, tax, and industrial development. On the other, policymakers
can strengthen the assessment of ownership chains and ultimate ownership and improve
disclosure requirements. However, they should be aware of the administrative burden
this can impose on public institutions and on investors. Overall, it is important to find a
balance between liberalization and regulation in pursuing the ultimate objective of promoting
investment for sustainable development.
of countries restrict
majority foreign
ownership in at
least one industry
80%
Inflowsto
Developed
economies
attheirhighest
levelsince2007
Recordinflowsto
$541bn
+16%
developingAsia
Complexownership:
100MNEs
500affiliates
50countries
directultimateowners
havedifferentpassports
offoreignaffiliates:
40%
directultimateowners
havedifferentpassports
offoreignaffiliates:
xiiiKey Messages
Mukhisa Kituyi
Secretary-General of the UNCTAD
24. Transatlantic Trade and Investment Partnership (TTIP)
With $13.4 trillion in FDI stock in 2015, the TTIP initiative is the second largest holder of FDI
stock after the G20, and received 46 per cent of worldwide FDI flows (figure I.8). Yet the group
generated a much smaller proportion of global GDP than the G20. FDI flows to members of
this proposed group rose by 106 per cent in 2015 to $819 billion, due to a significant rise in
inflows to the United States and selected EU countries (Belgium, France, Germany, Ireland and
the Netherlands) (chapter II). Negotiations for a TTIP agreement are still under way.
The proposed partnership – home to about half of the Fortune Global 500 companies, as well as
smaller MNEs – already exhibits strong corporate connectivity. Intra-TTIP FDI flows accounted
for 63 per cent of total inflows to the group in 2010−2014, by far the largest proportion among
all major partnerships and forums (figure I.10). Cross-border MA transactions within the TTIP
rose to $331 billion in 2015 – 46 per cent of the world total – driven by several very large
transatlantic deals (chapter II). The proposed transatlantic partnership, depending on the scope
and depth of the arrangement, will impact corporate connectivity, FDI flows and cross-border
MAs to and within the group (section A.1.a).6
Asia Pacific Economic Cooperation (APEC)
In 2015, APEC7
was the largest recipient of global FDI flows, attracting 54 per cent of the
total (figure I.8), which was roughly in line with its share of world GDP. APEC economies held
about $12.8 trillion FDI stock in 2015, the third largest among major existing and prospective
groupings. FDI flows to APEC, which rose by 42 per cent to $953 billion in 2015, are also highly
concentrated: almost 80 per cent went to the United States, China, Hong Kong (China) and
Singapore. Intragroup investment is significant in APEC, accounting for 47 per cent of the total
in 2010−2014 (figure I.10) and reflecting increasingly connected economies.
MNEs headquartered inAPEC member economies have been actively investing within the group.
MNEs from Japan, the Republic of Korea,ASEAN member economies, China, Hong Kong (China)
and Taiwan Province of China have a significant presence in other Asian APEC members, while
United States8
and Canadian MNEs are heavily invested in the NAFTA subregion.Taken together,
these MNEs are contributing to a wide production network and to inter- and intraregional value
chains across the Pacific.
Trans-Pacific Partnership (TPP)
The TPP9
receives a significant share of global FDI inflows (34 per cent) (figure I.8), largely in
line with its weight in world GDP. In 2015, FDI to the partnership rose by 68 per cent to $593
billion, reflecting a significant rebound of investment to the United States from an atypical low
point of $107 billion in 2014 to $380 billion in 2015 (chapter II).Within the group, NAFTA, which
accounted for 75 per cent of the TPP’s GDP in 2015, remains the largest recipient subgroup,
attracting about 80 per cent of FDI flows to the TPP. The partnership’s FDI stock in 2015 was
$9 trillion, about the size of the economies of Australia, Belgium, Canada, France, Germany and
Sweden combined.
Intra-TPP investment accounted for an average 36 per cent of total inflows to the group between
2010 and 2014 (figure I.10). Unlike in other major groups, however, intra-TPP cross-border
MA sales in 2015 increased by 7 per cent to $113 billion. TPP partner countries acquired
46 per cent more assets in the United States than in 2014. FDI into and within TPP continues
to be highly concentrated, with the United States and Singapore both the main recipients and
sources.
10 World Investment Report 2016 Investor Nationality: Policy Challenges