Ministère de l Economie et des Finances MOROCCO'S EXPERIENCE IN NEGOTIATING BILATERAL INVESTMENT TREATIES (BIT) (EVOLUTION OF CONTENT OF MOROCCAN BITS) Casablanca, November 22 nd 2012 Mrs. Amina Ousmoi Chef de Service Ministry of Economy and Finance, Morocco 1
CONTENTS Introduction I- International Agreements related to trade and investments signed by Morocco II- Moroccan BITs from independence to the 90s III- Moroccan BITs from 90s to mid 2000s IV-Latest evolutions in Moroccan BITs Conclusion 2
I- INTERNATIONAL AGREEMENTS RELATED TO TRADE AND INVESTMENTS SIGNED BY MOROCCO I- Free Trade Agreements Association agreement with the European Union Free Trade Agreement with the European Free Trade association Greater Arab Free Trade Area (GAFTA) Free Trade Agreement with the United States Free Trade Agreement with Tunisia, Egypt and Jordan (Agadir Agreement) Free Trade Agreement with United Arab Emirates Free Trade Agreement with Turkey entered into force in March 2000 entered into force in 2000 entered into force in 2005 entered into force in 2006 entered into force in 2005 entered into force in 2003 entered into force in 2006 3
I- INTERNATIONAL AGREEMENTS RELATED TO TRADE AND INVESTMENTS SIGNED BY MOROCCO II- Bilateral Investment Agreements (BITs) Morocco has developed an extensive network of BITs with many countries around the world with 63 signed BITs. Morocco is the second country in Africa after Egypt in number of BITs: Geographical distribution of BITs signed by Morocco 4
II- MOROCCAN BITS FROM INDEPENDENCE TO THE 90S admission was conditioned by local participation Limited application of National Treatment transfer of assets was limited BITs of Morocco were of a limited nature: BITs covered only investments made after their entry into force BITs were limited to direct investment International arbitration was possible only after the exhaustion of domestic legislation 5 5
III- MOROCCAN BITS FROM 90S TO MID 2000S In order to restore macroeconomic balances and attract investments Policy of structural adjustment Modernization of the economy Liberalization and opening to the rest of the world. 6
III- MOROCCAN BITS FROM 90S TO MID 2000S Reforms membership in various international institutions, including the MIGA, ICSID and the WTO recommendations of theses institutions substantial evolution in Moroccan BITs content 7
III- MOROCCAN BITS FROM 90S TO MID 2000S reforms and large-scale actions Liberalization - Removal of the obligation of local participation - Promulgation of Investment charter - Liberalization of Financial sector and modernization of the stock exchange - Launch of privatization program and concession of public services - Liberalization of foreign exchange regulations - Adoption of strategic programs in many sectors Modernization/good Governance Establishment of commercial courts and the commercial law New labor law Public procurement law Establishment of an institution in charge of the promotion of investments: Moroccan Investment Development Agency Creation of RICs, as a One Stop Shop 8
III- MOROCCAN BITS FROM 90S TO MID 2000S - Removal of the obligation of local participation - Promulgation of Investment charter - Liberalization of Financial sector and modernization of the stock exchange - Industrial and commercial property law Adoption of a broader definition of "investment - Launch of privatization program and concession of public services - Promulgation of Investment Charter National treatment Liberalization of foreign exchange regulations Free transfer of investments and returns 9
III- MOROCCAN BITS FROM 90S TO MID 2000S Membership in various international institutions, including the MIGA, ICSID and the WTO Establishment of commercial courts and the commercial law Granting to the investor more protection and security Establishment of free zones Introduction of the comparative in similar circumstances regarding the treatment of investors and their investments; NPF treatment Promulgation of Investment charter NT 10
IV- LATEST EVOLUTIONS IN MOROCCAN BITS Membership in the OECD Declaration on International Investment and Multinational Enterprises Balancing between public interests of the State and private interests of investors technical assistance of and collaboration work with UNCTAD Jurisprudence arising cases Reinforcement of the evolution of the Moroccan economy made it at the same time an importer as well as an exporter of foreign investments Led Morocco to proceed to a more thorough updating of its BITs International environment evolution 11
IV- LATEST EVOLUTIONS IN MOROCCAN BITS Introduction of Exceptions of commercial transactions from the definition of investments Moroccan BITs have known a substantial evolution The framing of fair and equitable treatment within the generally accepted principles of international law and international customary law Introduction of Exceptions to free transfers clarification of the umbrella clause (exclusion of State Contracts Exclusion/framing of indirect expropriation by clarification Introduction of Exceptions related to measures taken by the State of the Host Contracting Party in the matter of issuing laws and regulation 12
IV- LATEST EVOLUTIONS IN MOROCCAN BITS * 46 ongoing BITs in advanced stages; most of them following the initiative of our partners. * FTA: Canada,EU (services and global frame). * A speedy ratification procedure is in the best interest of all parties to an IIA. * IIAs are most effective when they are part of broader investment attraction strategies 13
CONCLUSION What s the impact of BITs on the attraction of investments? Diverges studies showed that BITs are one of the determinants of the attraction of investments, emphasize the place and the role of the State and are considered as one of economic diplomacy tools and a means to strengthen legal framework between countries. For these reasons, Morocco is determined to go ahead with its policy of intensifying BITs to build investment relationships with the maximum number of partners while introducing appropriate improvements to protect and safeguard the interests of investors as well as his own. 14
Thank you for your attention 15