Page 25 III. TRADE-RELATED ASPECTS OF INVESTMENT POLICIES (1) Foreign Direct Investment: General Policy Direction 1 1. Thailand encourages foreign direct investment (FDI), a policy which is supervised by the Board of Investment (BOI) under the Office of the Prime Minister. The implementation of the policy involves granting foreign firms (together with local firms) in industrial and service sectors both non-tax and tax incentives, such as tax holidays and waivers of duties on imported capital goods. Since April 1993, the BOI has shifted its emphasis, including for FDI-related investment, from export promotion to industrial decentralization. 2 New measures have been initiated to encourage companies to establish or relocate in regional areas; the more remote the project, the better the incentives given, including both tax exemptions and import duty reductions (Table AIV.1). 3 2. Thai law, including tax laws and most regulations, makes no major distinction between domestic investment and foreign investment except for prohibited sectors under the Alien Business Law or the National Executive Announcement No. 281 of 1972 (Table AIII.1). The Alien Business Law governs all foreign natural and juridical persons, i.e. those with over 50 per cent foreign shareholding or those where at least one-half of the shareholders are foreigners. The BOI has another set of joint venture criteria, which are set forth in BOI Announcement No. 1/2536; only foreign investment seeking BOI promotion is subject to these criteria. Conditions for the operation of joint ventures were revised in 1993 (Appendix III.1). Foreigners are generally not allowed to own land in Thailand, except in the case of projects promoted by the BOI (Chapter IV (4)(i)). For services, the Government's preferred mode of operation is joint venture firms with Thai partners or through management contracts. 3. A limited number of trade-related performance requirements are imposed on certain investment projects receiving investment incentives, regardless of the source or nationality of the investment; measures are only applied to foreign investment seeking investment promotion incentives. Recognizing Thailand's obligations to phase out performance requirements inconsistent with the Uruguay Round Agreement on Trade Related Investment Measures (TRIMs), 14 previously required local content requirements imposed by the BOI were abolished for new investment projects granted investment promotion approval after 1 April 1993; however, such requirements remain in dairy products, motor vehicle engines, diesel engines for agriculture, multi-purpose benzene engines and motorcycle assembly. 4 The remaining local content requirements imposed by the BOI and the Ministry of Industry are to be 1 This section draws mainly from Christensen, et. al. (1993), The Lessons of East Asia: Thailand- the institutional and political underpinnings of growth, the World Bank; Bank of Thailand Quarterly Bulletin (1993), "Managing Foreign Capital in a Rapidly Growing Economy: Thailand's Recent Experience and Issues", pp. 35-54; Economist Intelligence Unit: Thailand (1993); Dowling (1994), "Outlook and Prospects for Developing Asia", The Australian Economic Review; Euromoney supplement (1994), "Thailand: A new dawn for the capital markets"; and materials provided by the Government of Thailand. 2 See Table IV.11 for current BOI policy objectives. As of April 1993, incentives are granted for research and development activities (Table AIV.l). 3 Additional government initiatives have been introduced to open previously restricted sectors to greater competition, including new FDI, in order to improve efficiency. Examples include such industries as steel and petrochemicals. 4 The Ministry of Industry also imposes local content requirements on passenger cars, vans and other types of passenger cars, small vans and trucks, motorcycles and dairy products (Chapter IV(2)(xv)).
Trade Policy Review Page 26 eliminated by the end of 1999 (Chapter IV(2)(xiv)). In order to comply with the obligations under the Agreement on Subsidies and Countervailing Measures, the BOI will eliminate its export-related incentives by the end of 2002. 4. Since 1992, the BOI has begun to facilitate overseas investment by Thai firms; the BOI also offers assistance to Thai investors seeking business partners abroad. 5 Missions have been organized for Thai firms to identify investment opportunities in China, Indochina and ASEAN countries, among others, and to familiarize themselves with laws and regulations in the host countries. The BOI maintains information on investing in these countries, and helps Thai investors to identify potential partners and write contracts. 6 (2) Legal Framework of Foreign Direct Investment 5. Major legislation overseeing foreign direct investment in Thailand includes the Alien Business Law of 1972 and the Investment Promotion Act of 1993. 7 The Alien Business Law specifies the main areas for which Thailand imposes restrictions on foreign majority ownership (Table AIII.1). Under the Investment Promotion Act, the BOI may grant tax privileges as well as non-tax incentives. 6. With limited exceptions, foreigners may participate in any type of business in Thailand; however, equity participation may not in general exceed 49 per cent of registered capital. Annexes to the Alien Business Law classify business activities into three categories: under Annex A foreigners cannot own more than 49 per cent of the specified activities; under Annex B majority owned foreign enterprises are not allowed to invest in the activities listed, unless the BOI grants promotional privileges; and Annex C lists activities open to majority foreign ownership by foreigners if such activities cannot be adequately carried out by a majority Thai-owned company (Table AIII.1). 8 Under BOI Announcement No. 1/2536, however, foreign nationals may hold a majority or all of the shares in an enterprise, subject to conditions relating to export performance, in the case of manufacturing, or to the capitalization of the enterprise in the case of investments in resource-based activities and services (Appendix III.1). In addition, foreign shareholding restrictions may be waived in the case of investment in priority areas, such as the 14 designated support industries (Chapter IV(4)(i)). 7. Foreign nationals intending to engage in any business specified under Annex C must apply for a permit from the Department of Commercial Registration in the Ministry of Commerce. The Department will notify the applicant of the result within seven days of receipt of the application. If a permit is granted, the Department may prescribe specific conditions. In the case of foreign nationals p. 186. 5 See OECD (1993), Foreign Direct Investment Relations between the OECD and the Dynamic Asian Economies, 6 Foreign direct investment by residents in amounts not exceeding US$10 million does not require prior authorization. 7 These are complemented by the Alien Working Act of 1978, the Immigration Act of 1979, Regulations Governing Applications for Establishment of Representative Offices of Foreign Juristic Persons Representing International Trading Businesses (1986), and Regulations Governing Applications for Establishment of Regional Offices of Transnational Corporations (1992). 8 Among the regulatory changes, as of November 1993, Thailand allows 100 per cent foreign ownership of automobile assembly plants (Chapter IV (4)(xiii)). Details regarding joint venture criteria are specified in Appendix III.1.
Page 27 granted promotional incentives under the Investment Promotion Act to engage in a business specified in Annex C, notification should be made to the Department within thirty days from the date of receiving the promotion certificate; after receiving acknowledgement, the foreign investor may engage in the business concerned. 9 8. As noted above, government incentives are provided to promoted industries (Table AIV.9). Except for ownership limits, criteria used in granting incentives are equally applied to both local and foreign companies. To receive investment incentives, a project must be granted 'promoted' status by the BOI; once achieved, projects are entitled to the investment incentives specified in the promotion certificates. Incentives granted may include tax and non-tax benefits, notably guarantees against: nationalization, competition from new State enterprises, State monopolization of the sale of products produced by promoted projects, price controls, and the tax-exempt importation by government or State enterprises of the products produced by the promoted projects. In certain cases, only non-tax incentives are granted. Promoted projects also receive permission to employ skilled foreign workers and own land. 9. The Commercial Banking Act limits foreign equity in a Thai commercial bank to 25 per cent of paid-up registered capital. With the launching of the Financial System Master Plan (1995-2000), foreign banks will increasingly be permitted to open additional branches by 1996 in line with the policy to promote growth and prosperity in rural areas (Chapter V(5)(ii)). These liberalization measures have been included within Thailand's GATS commitments. A limit of 49 per cent is imposed on foreign equity participation for other financial services, in line with National Executive Announcement No. 281, with the exceptions of insurance companies, finance companies and credit fonciers, where participation is limited to 25 per cent of paid-up registered capital. 10. Thailand has recently initiated revisions of its restrictions on foreign ownership, and a draft revision of the Alien Business Law promises to formally open additional sectors to foreign investment within two years. The revised law would establish two special business categories: Annex 1, listing sectors not open to foreign majority ownership; and Annex 2, listing sectors that will be opened to foreigners within two years of the law taking effect. All sectors not in Annex 1 or 2 would be open to foreign investors, unless restricted by other laws. Annex 1 sectors closed to foreigners include agriculture, newspaper ownership, businesses related to Thai culture and such activities as tailoring and laundering. Annex 2 lists include services and other businesses of strong interest to foreign companies: tourism, hotel ownership, accounting, law, architecture, retailing and wholesaling, pharmaceutical and beverage manufacturing, and restaurant ownership. 10 11. Under the Thai-U.S. Treaty of Amity and Economic Relations signed in 1966, U.S. companies in Thailand are granted equal treatment with Thai companies. This permits 100 per cent U.S.-owned companies to operate in sectors where other foreign companies are generally allowed a maximum ownership level of 49 per cent. The treaty does not apply to certain sectors such as telecommunications, banking and fiduciary functions. According to the authorities, the proposed revision of the Alien Business Law would simplify procedures and groupings of sectors in the Annexes; the revision is not expected to affect the acquired rights of U.S. companies under the Thai-U.S. Treaty. 9 The regulations concerned are the Regulations Governing Applications for Establishment of Representative Offices of Foreign Juristic Persons Representing International Trading Businesses (1986) and Regulations Governing Applications for Establishment of Regional Offices of Transnational Corporations (1992). 10 Asian Wall Street Journal (1995), 3 April, pages 1 and 4.
Trade Policy Review Page 28
Page 29 (3) Trends in inward and outward foreign direct investment (FDI) 11 12. Net foreign direct investment inflows, according to the authorities, peaked in 1990 at Baht 64.7 billion, with FDI as a share of private business investment reaching 8.7 per cent (Chart III.1). In both absolute as well as relative terms, the level of net FDI inflows subsequently declined; by 1993, FDI inflows had fallen to Baht 41.9 billion. As a share of private business investment it had fallen to 4.3 per cent (Chart III.1). Net FDI inflows declined further in 1994, to about Baht 15 billion and 1.4 per cent of private business investment, due largely to the reclassification of reporting statistics in connection with the operations of the Bangkok International Banking Facility (BIBF) (Chapter V(5)(ii)). Due to the reorientation of Thailand's investment promotion policy, the share of foreign investment projects applying for promotional privileges in the Bangkok metropolitan area (Zone 1) decreased remarkably, from 43.2 per cent in 1992 to only 5.8 per cent in 1994; investment in Zone 2 which is adjacent to Zone 1 increased from 10.6 per cent in 1992 to 18.4 per cent in 1994; investment in remote areas (Zone 3) increased from 46.2 per cent in 1992 to 75.5 per cent in 1994 (Chart III.2). 13. In the late 1980s Japan was a major source of increased FDI into Thailand, accounting for more than 40 per cent of total inflows. Main investment fields for Japanese FDI included automobile parts, electronics, and metal industries. 12 Facing yen appreciation and high domestic wage levels, Japanese firms relocated their manufacturing facilities to lower-cost locations such as China to maintain international competitiveness. Since 1992, however, the share of FDI from Japan has declined to less than 6 per cent (Table III.1), most likely due to the emergence of other countries more attractive to foreign investors and the near-saturation of Japanese FDI into Thailand. Other important sources of investment in Thailand are the United States, Singapore and Hong Kong. During the 1990s, the share of FDI from Hong Kong and Singapore has increased significantly. Singapore's share has increased especially quickly, to almost half of total FDI inflows. Table III.1 Foreign direct investment flows into Thailand, by country, 1988-94 (Baht billion) 1988 1990 1992 1993 1994 Japan 15.7 29.7 10.9 12.1 8.8 United States 3.3 6.5 13.0 9.4 8.6 Hong Kong 3.9 9.4 35.2 38.8 41.0 Chinese Taipei 3.1 7.6 2.8 2.5 3.2 Switzerland 0.6 0.9 0.9 0.4 0.7 Australia 0.0 0.1 1.5 0.4 0.4 Korea, Republic of 0.3 0.5 0.3 0.4 0.3 Singapore 2.6 11.7 51.9 79.9 79.3 United Kingdom 0.9 2.0 3.7 4.2 1.5 Germany 0.6 1.2 0.7 1.0 1.0 France 0.3 0.7 1.9 2.3 1.1 Netherlands 0.3 1.1 0.9 1.9 1.4 Others 1.1 5.9 3.2 8.4 2.2 Total 32.7 77.3 126.9 161.7 149.5 Note: Excludes commercial banks and Bangkok International Banking Facility (BIBF). Source: The Government of Thailand. 11 For information on foreign direct investment in Thailand before 1991, see GATT (1991) and Phasukavanich (1993), "The Rôle of the Thai Government in Encouraging Foreign Direct Investment", in Foreign Direct Investment Relations between the OECD and the Dynamic Asian Economies, OECD. 12 Journal of Japanese Trade and Industry (1995), No. 2, p. 11.
Trade Policy Review Page 30 14. Almost one-half of inward FDI went to industry during the late 1980s, including electrical appliances, metal-working, chemicals, and textiles. During the 1990s, however, FDI inflows into the finance sector increased strongly due to financial liberalization (Chapter V(5)(ii)). The finance sector constituted about two-thirds of total FDI inflows in 1993-94, compared to only some 14 per cent in 1988 (Table III.2). Table III.2 Foreign direct investment flows into Thailand, by sector, 1988-94 (Baht billion) 1988 1990 1992 1993 1994 Finance 4.5 11.7... 109.6... Trade 4.1 14.2... 8.9... Construction 1.9 3.6... 6.0... Oil exploration 0.4 0.9... 3.3... Manufacturing 18.5 33.4... 24.8... Textiles 1.4 1.8... 0.5... Metal and non-metal 2.5 3.0... 2.7... Electrical appliances 6.4 11.6... 5.1... Chemicals 1.4 4.6... 5.8... Others 6.8 12.4... 10.7... Services 1.1 2.1... 1.8... Real estate 1.5 9.4... 6.3... Others 0.7 2.0... 1.0... Total 32.7 77.3... 161.7...... Not available. Note: Excludes commercial banks and Bangkok International Banking Facility (BIBF). Source: Government of Thailand (BOI). 15. Overall FDI outflows have increased sharply since 1992 reaching Baht 134.6 billion by 1994, concentrated mostly in industry and finance. In 1993 and 1994 the finance sector (excluding commercial bank and BIBF outflows) accounted for about 85-90 per cent of the total (Table III.3). Table III.3 Foreign direct investment flows from Thailand, by sector, 1988-94 (Baht billion) 1988 1990 1992 1993 1994 Finance 1.9 7.1 65.2 106.2 114.7 Trade 0.3 1.3 1.7 3.3 4.1 Construction 0.1 0.3 0.1 2.2 0.6 Manufacturing 2.4 2.4 2.9 4.4 9.1 Real estate 0.1 1.0 1.3 1.5 4.6 Others 0.0 0.5 1.8 2.3 1.5 Total 4.8 12.6 73.0 119.9 134.6 Note: Excludes commercial banks and Bangkok International Banking Facility (BIBF). Source: Government of Thailand (BOI).
Page 31 Annex III.1 Comparison of joint venture criteria I. Criteria before 1993 1. Manufacturing sector For manufacturing projects, if production is mainly for the domestic market, Thai nationals are required to hold at least 51 per cent of total registered capital. 2. Primary and service sectors For investment projects in agriculture, animal husbandry, fishery, mineral exploration and mining, or services, Thai shareholding must account for at least 60 per cent of total registered capital. 3. Trade performance If 50 per cent or more of output is exported, foreign nationals may hold a majority of the shares. If the total production is for exports, foreign nationals may hold all the shares. II. Criteria applicable since april 1993 under BOI Announcement No. 1/2536 1. Manufacturing sector For manufacturing projects, if production is mainly for the domestic market, Thai nationals are required to hold at least 51 per cent of total registered capital. However, in the case of projects located in Zone 3, maximum foreign shareholding is considered on a case-by-case basis. 2. Primary and service sectors For investment projects in agriculture, animal husbandry, fishery, mineral exploration and mining, or services, Thai shareholding must account for at least 51 per cent of total registered capital. However, in cases where investment capital (excluding the cost of land and working capital) is over Baht 1 billion, foreign nationals may initially hold a majority or all of the shares, but Thai nationals must acquire at least 51 per cent of the shares within five years of operational start-up. 3. Trade performance If at least 50 per cent of total sales are derived from exports, foreign nationals may hold a majority of the shares. If at least 80 per cent of total sales are derived from exports, foreign nationals may hold all the shares. 4. Other During the Seventh Development Plan period (1992-96), the BOI will not consider the foreign ownership issue. Instead, foreign ownership requirements were established by the ministries concerned for such projects as the development of transportation systems, public utilities, environmental conservation and restoration. Joint venture criteria are also waived in the case of projects in 14 specified supporting industries (Table IV.12). Source: Government of Thailand (Board of Investment).