Introduction to International Trade Law Note 5 of 13 Notes

Foreign Investment

Universiti Kebangsaan Malaysia Faculty of Law Pursuing PHD Program in Law

Musbri Mohamed DIL; ADIL ( ITM ) MBL ( UKM ) 1

Foreign direct investment (FDI) or foreign investment refers to the net inflows of investment to acquire a lasting management interest (10 percent or more of voting stock) in an enterprise operating in an economy other than that of the investor. It is the sum of equity capital, reinvestment of earnings, other long-term capital, and short-term capital as shown in the balance of payments. It usually involves participation in management, joint-venture, transfer of technology and expertise . There are two types of FDI: inward foreign direct investment and outward foreign direct investment, resulting in a net FDI inflow (positive or negative) and "stock of foreign direct investment", which is the cumulative number for a given period. Direct investment excludes investment through purchase of shares . FDI is one example of international factor movements .

The foreign direct investor may acquire voting power of an enterprise in an economy through any of the following methods: by incorporating a wholly owned subsidiary or company by acquiring shares in an associated enterprise through a merger or an acquisition of an unrelated enterprise participating in an equity joint venture with another investor or enterprise

A foreign direct investor may be classified in any sector of the economy and could be any one of the following: an individual; a group of related individuals; an incorporated or unincorporated entity ; a public company or private company ; a group of related enterprises; a government body; an estate (law) , trust or other social institution; or any combination of the above.

Foreign direct investment incentives may take the following forms: low corporate tax and income tax rates tax holidays other types of tax concessions preferential tariffs Special economic zones EPZ - Export Processing Zones Bonded Warehouses Maquiladoras investment financial subsidies Soft loan or loan guarantees free land or land subsidies relocation & expatriation subsidies job training & employment subsidies infrastructures subsidies R&D support derogation from regulations (usually for very large projects)
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A. INTRODUCTION TO FOREIGN INVESTMENT REGULATIONS 1. Regulation Policies and Laws a. Reasonably consistent worldwide. b. Caveat: In some counties practice is not consistent with stated policy or law. 2. Typical Foreign Investment Regulations a. Regulations authorizing and encouraging foreigners to invest locally. 1) Foreign investment guarantees are commonplace b. Regulations defining the business form a foreign firm must take. 1) Most regulations encourage a business form that allows for local participation, such as publicly traded stock companies.

c. Regulations limiting foreign equity investment: 1) Many states limit the percentage of equity that foreigners may own in a local firm. d. Regulations to oversee the local activities of foreign investors. 1) Commonly impose liability on foreign owners for obligations of local subsidiaries. e. Regulations restricting and promoting the economic sectors foreigners may invest in. f. Regulations restricting and promoting the geographical areas foreigners may invest in. g. Regulations (known as "Securities Regulations") establishing procedures for making debt and equity investments.

B. SECTORAL AND GEOGRAPHIC INVESTMENT REGULATIONS 1. Sectoral Regulations limit or encourage investments in particular economic sectors. a. Closed sectors: Foreigners are often forbidden from investing in sectors that host governments consider important to their national independence and security. b. Restricted sectors: The percentage of foreign investment allowed in certain economic sectors is limited by many countries. c. Foreign priority sectors: 1) Foreigners (commonly) are encouraged to invest in sectors where: a) Local development resources are limited. b) Where foreign investment will increase the number of local jobs. c) Where the foreign export trade will grow.

2. Geographic Regulations commonly establish Free Zones a. "Free Zone" defined: a geographical area wherein goods may be imported and exported free from customs tariffs and in which a variety of trade-related activities may be carried on. Case 5-3. Brady v. Brown b. Free zones categorized by their size: 1) Free Trade Areas: geographical areas made up of two or more states that have agreed to let some or all of each others enterprises carry on their trade across and within each state's borders free from customs tariffs and other restrictions. a) Examples: NAFTA and the EU.

2) States may open their entire territory or some part of it to international trade. a) Example of a state that has opened its entire territory: Singapore. b) Example of regional free zones: China's Special Economic Zones. 3) Free Cities (or free port) are cities that are open to international trade. 4) Free Trade Zone (or foreign trade zone in the US) is an area within a city or near a city that is open to international trade. a) Subzones are special-purpose free trade areas near a free trade zone. Case 5-4. Nissan Motor Mfg. Corp., USA v. United States

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c. Free zones categorized by activities. 1) Export Processing Zones are zones in which manufacturing facilities process raw materials or assemble parts from abroad, then re-export the finished product. a) Materials and parts brought into these zones are not subject to local customs laws. b) Example: Mexico's Maquiladora program. 2) Free Retail Zones in international airports and harbors and near some border crossings. 3) Bonded Warehouses are places where shippers can store goods between the time of their arrival from overseas to the time they clear customs and are taken away by importers. a) Found at the ports of entry of most countries. b) Privately owned and operated by transportation firms.

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2. Trading of Securities a. Most countries limit the persons who may publicly trade in securities 1) Typically they are brokers and dealers who have registered with a Securities Commission. b. Securities Exchanges are marketplaces where member brokers and dealers buy and sell securities on behalf of investors. 1) The six largest exchanges (New York, NASDAQ, Tokyo, London, Frankfurt and Paris) account for 90 percent of all securities transactions in the world.

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3. Issuance of Securities a. Securities laws require securities issuers who offer securities to the general public to prepare and register a prospectus which they must then make available to buyers. 1) Prospectus: a printed statement setting out a full, true, and plain language disclosure of all material facts relating to the security and the issuer. a) Usually it must be audited. b) Must be signed by officers and directors of an issuing corporation. 1) They certify that the prospectus is true and complete to the best of their knowledge.

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2) Prospectus must be registered with a state's Securities Commission or (in some countries) a Securities Exchange. a) Not required if the issuer is a government body, a bank, or a non-profit company. b) Not required if offer is made to a very limited number of potential buyers. c) May be a simplified prospectus if the number of buyers or the monetary amount is limited. 3) Foreign companies may offer securities if they comply with the prospectus requirements.

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4. Clearance and Settlement Procedures a. Procedure by which the buyer actually pays the price and the seller delivers the security certificate. b. Domestic clearance and settlement procedures. 1) In the United States: a) Settlement is handled by the National Securities Clearing Corporation (NSCC). b) If buyer does not need a certificate, the recording of ownership transfers is handled by the Depository Trust Company (DTC). 2) Most developed countries follow a similar procedure. 3) In developing countries the buyers and sellers actually meet to exchange money for certificates.

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c. International clearance and settlement procedures. 1) Two clearinghouses handle most international clearance and settlement transactions: a) Euroclear in Brussels handles $125 billion in daily transactions b) Cedel Bank in Luxembourg handles $60 billion in daily transactions 2) Depository Receipts are used by clearinghouses to facilitate international trade in securities. a) Depository Receipts are issued by a bank or clearinghouse as a substitute for securities. b) How they are created (an example): 1] Company X stocks are deposited in a Country X bank in the name of Cedel Bank. 2] Cedel Bank then issues Receipts which are traded as substitutes for the securities.

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c) American Depository Receipts (ADRs) are issued by a US bank. d) Advantages of Depository Receipts: 1] The physical delivery requirements of many small exchanges is avoided by trading the receipt on one of the large exchanges. 2] Security transfer taxes imposed by some home states can be avoided since the security itself remains registered in the name of the depository bank. Case 5-6. Batchelder v. Kawamoto

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5. Takeover Regulations a. Countries without takeover regulations are generally biased against foreign acquisitions, mergers, and takeovers. 1) Common barriers to takeover attempts include: a) Restrictions on share transferability. b) Cross-ownership of shares. c) Restrictions on the voting rights of publicly held shares. b. Countries with an active acquisitions market (UK and US) directly regulate the takeover process. 1) US: Williams Act of 1968. 2) UK: City Code on Takeovers and Mergers.

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6. Insider Trading Regulations. a. Insider trading is using material nonpublic information about a corporation to buy or sell securities for personal gain. 1) Outlawed in the US by the Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 issued by the Securities and Exchange Commission. Case 5-7. United States v. O'Hagan 2) Outlawed in the UK by the Company Securities (Insider Dealing) Act of 1985. 3) Outlawed in Japan, Germany, and France by similar laws.

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UNCTAD said that there was no significant growth of Global FDI in 2010. In 2010 was $1,122 billion and in 2009 was $1.114 billion. The figures was 25 percent below the pre-crisis average between 2005 to 2007

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D. ENFORCEMENT OF SECURITIES REGULATIONS INTERNATIONALLY 1. Cooperative arrangements: a. Memorandums of Understanding (MOUs) between Securities Commissions in developed countries provide for the exchange of information and mutual cooperation in the investigation of securities violations. b. Council of Europe's Convention on Insider Trading provides for similar information exchanges and investigative cooperation 2. Extraterritorial Application of National Securities Laws: a. The country most willing to apply its securities regulations internationally is the US. 1) Jurisdictional requirements: "minimum contacts." Case 5-8. Securities and Exchange Commission v. Knowles Musbri Mohamed February 2012 Continue to Part 6
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