Doing Business in Iran: legal aspects

Transcription

1 Doing Business in Iran: legal aspects Milano May 10 th, 2017 David AMIACH 1

2 AGENDA I. How to address the Iranian market II. Protection of foreign investments III. Type of companies available under Iranian company law IV. Guidance for foreign investors 2

3 I. How to address the Iranian market 3

4 I. How to address the Iranian market 1. Direct or indirect investments DIRECT INVESTMENTS Create a new company in Iran, solely or entirely, held by the foreign investor; Take capital participation in a company established in Iran either by: Acquiring shares of the Iranian company; or by Subscribing shares through a capital increase. Establish contractual relations with an Iranian company (via contractual joint venture) INDIRECT INVESTMENTS Types of contractual arrangements: Joint venture (i.e. partnership) in case of sale of securities; Build-Operate-Transfer Contract (BOT); Engineering, Procurement and Construction Contract (EPC); Turnkey (public project); Buy-back contract. 4

5 I. How to address the Iranian market 2.1. Licence and distribution agreements The intermediary already have a network and an in-depth market knowledge Such agreement may be a strategic step in order to address the Iranian market before any implementation (network, market / culture analysis) May be revocable without any penalty or prior notice if specifically agreed (revocable contract vs. binding contract) 5

6 I. How to address the Iranian market 2.2 Joint ventures (JV) : partnership with a local partner Defined as an economic group with common interests with the participation of two or more persons with the aim of achieving, facilitating or developing economic and commercial Created for a limited period of time No specific authorization is needed to create a JV Whichever the form chosen for the company, the JV contract must be drafted in Persian (official language in Iran) Case study: M&A Joint Venture: Advising and assisting a leading French automotive manufacturer in the negotiation and draft of legal documentation in relation to the implementation of a joint venture with IRAN KHODRO, largest Iranian car manufacturer. M&A: advising and assisting a leading French automotive manufacturer in the negotiation and draft of legal documentation in a joint venture operation with SAIPA involving a carve out and subsequent reverse take over of a subsidiary of a listed company. 6

7 II. Protection of foreign investments 7

8 II. Protection of foreign investments 2 ways to protect the foreign investments: Local way with the Iranian Foreign Investment Promotion and Protection Act of 2002 (FIPPA) International way with the Bilateral Investment Treaties (BIT) between Iran and other countries (there is a BIT between Iran and Italy signed in 1999) Iran has concluded over 60 BITs which approx. 45 are in force Articulation between FIPPA and BITs: BITs : Provide a more favorable treatment for the contracting parties; Shall be regarded as an additional guarantee; Provide an internationalization of the contractual relation. In absence of BIT, it is the local law (i.e. FIPPA) which is applicable. 8

9 II. Protection of foreign investments 1. Protection under domestic law: The Foreign Investment Promotion and Protection Act (FIPPA, 2002) 4 criteria to be satisfied in order to obtain an investment license under FIPPA (article 2) : Enhance economic growth (employment, transfer of know-how, assets ); Do not threat the national security and public benefits, and deteriorate the environment; Do not involve granting of concessions by the Government to foreign investors (i.e. special rights which place the foreign investors in a monopolistic position); The ratio of the value of the goods and services produced by the foreign investments ( ) shall not exceed 25% in each economic sector and 35% in each field (sub-sector). 9

10 II. Protection of foreign investments 1. Protection under domestic law: FIPPA 2002 Benefits: Equal treatment between foreign and domestics investors (article 8); Protection against nationalization and expropriation (article 9); Facilitation of the repatriation of the foreign investment and profits (article 13-18) Attention: The principal of the foreign capital and profit therefrom shall be transferable abroad (i) subject to a three-month prior notice submitted to the Board of the OEITAI, after (ii) fulfillment of all obligations and payment of legal dues and (iii) upon the approval of the Board and confirmation by the Minister of Economic Affair and finance; Indemnification in case of change of laws or regulations leading to prohibition or cessation of approved financial agreements (article 17); Visas facilitation for the foreign nationals in relation to the investment project (article 35 of the Executive Bylaws of FIPPA); The applicable foreign currency exchange rate shall be (article 12): The rate officially prevailing in the country s official network (Iran s banking system) in case of a unified rate of exchange, or The free market rate as acknowledged by the Central Bank of Iran. 10

11 II. Protection of foreign investments 1. Protection under domestic law: The Foreign Investment Promotion and Protection Act (FIPPA, 2002) A foreign investor under FIPPA (article 1): Non-Iranian person and/or legal entity; or, Iranian persons using capital of foreign source Who obtained the investment license A foreign investment under FIPPA (article 1): Application of foreign capital in a new or exiting economic entity after obtaining the investment license. A foreign capital under FIPPA (article 1) : All types of capital, being cash or non-cash, brought into the country by foreign investors: Cash Non-cash tangible items (i.e. machinery/equipment and parts) Non-cash intangible items (i.e. know-how, patent, trademark, engineering and technical services) Transferable profits 11

12 II. Protection of foreign investments 2. Protection under international law: The Bilateral Investment Treaty (BIT) between Italy and Iran (1999) BIT between Iran and Italy signed in March 10th, 1999 and entered into force in August 3rd, BITs offer the highest level of protection of foreign investments to be made in Iran; BITs grant investors common investment treaty protection. 12

13 II. Protection of foreign investments 2. Protection under international law: The Bilateral Investment Treaty (BIT) between Italy and Iran (1999) The term Investments refers to every kind of asset invested by the investors of one contracting party in the territory of the other contracting party including the following: Movable and immovable property; Shares or any kind of participation in companies; Money and/or receivables; All industrial and intellectual property rights; Rights to search, extract and/or exploit natural resources; Economic rights as well as license and franchise conferred by law. The term Investors refers to the persons who invest such as: Natural persons; or Legal entities established under the laws of that contracting party and their headquarters or their real economic activities are located in the territory of that contracting party. 13

14 II. Protection of foreign investments 2. Protection under international law: The Bilateral Investment Treaty (BIT) between Italy and Iran (1999) Protections provided by the Iran-Italy BIT: Right to fair and equitable treatment (article 2); National treatment and most-favored-nation treatment (article 3); Protection against direct and indirect expropriation and compensation (article 4); Treatment for damages or losses (article 5); Guaranty of free repatriation and transfer of capital without undue delay (article 6); 14

15 II. Protection of foreign investments FIPPA If not settled trough negotiations, the disputes shall be referred to domestic courts, unless another method have been agreed under a BIT (article 19) BIT Disputes between a contracting party and investor(s) of the other contracting party (article 8): Primarily endeavor to settle the dispute in an amicable manner (negotiation and consultation); If no amicable agreement is reached within 6 months, submission at the investor s choice: Either the host contracting party s court having territorial jurisdiction; Or, an ad hoc arbitral tribunal, in compliance with the arbitration rules of the UN Commission on the International Trade Law (UNCITRAL); Or, the International Center for Settlement of Investment Disputes (ICSID) Disputes between the contracting parties (article 9): Primarily endeavor to settle the dispute though consultations and negotiations; If no amicable agreement is reached within 6 months, submission of the dispute to an ad hoc arbitration tribunal. 15

16 III. Type of companies available under Iranian law 16

17 III. Type of companies available under Iranian law The Iranian Commercial Code provides 8 types of company: Joint Stock company (either public (Sherkat Sahami Am) or private (Sherkat Sahami Khass)) Limited liability company (Sherkat ba Masouliyat Mahdoud) General partnership (Sherkat Tazamoni) Limited partnership (Sherkat Mokhtalet Gheyr Sahami) Mixed joint stock partnership (Sherkat Mokhtalet Sahami) Proportional liability partnership (Sherkat Nesbi) Production and consumption cooperative (Sherkat Ta'avoni Towlid va Masraf) 17

18 III. Type of companies available under Iranian law General characteristics of the Joint Stock Company (JSC) (recommended type of company) : Shareholders: Minimum 3 shareholders No legal restrictions with respect to the nationality of persons who may form JSC (except in sensitive sectors) Shares: JSC may issue both ordinary and preferred shares; Share capital: Minimum capital rials (approx. 30 euros); Subscriptions: 100% of the capital must be subscribed at the time of formation; Contribution in-kind and/or in cash: In cash payment: Only 35% need o be paid in at the time of formation and the remainder within 5 years upon the call of the board of directors or shareholders; In-kind payment: The value of the property involved must be appraised by an official of the Iranian Ministry of Justice. 18

19 IV. Guidance for foreign investors 19

20 IV. Guidance for Foreign Investors 1. To get familiar with the Iranian economy Importance of the State and the Islamic Revolutionary Guard Corps into the economy High risk of corruption announced (corruption perception index: 131 on 176 countries in 2016) Lack of transparency as regards ownership of companies assets Outdated infrastructures High inflation rate, prices control and state subsidiaries 20

21 IV. Guidance for Foreign Investors 2. To get familiar with a complex local legal framework Slow bureaucratic system (World Bank, Ease of doing business index : 120 on 190 countries in 2016) Strict labor law for employers Complex tax system Diversity of sources of law Absence of public case law records 21

22 IV. Guidance for Foreign Investors 3. To build a strong and trusting relationship To identify a reliable local partner To implement in-depth Due Diligence To have a Farsi speaker in the team To foster face to face contacts To be ready for difficult and long negotiations To set medium-term planning 22

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