Event 1. Module 3. Key Elements of IIAs and their impact on domestic reform Session Two: The rules of the game on investment incentives Context: understanding the political economy of investment incentives The limits on conditions to offer incentives Lessons from experience Tools to support countries in modernizing their incentives frameworks Presenter: Arthur Appleton Resource person: Roberto Echandi
INVESTMENT POLICY AND PROMOTION WEEK Investment Incentives: The Rules of the Game Day 2 Arthur E. Appleton Vienna October 13, 2015
OUTLINE A. Introduction Political Economy of Investment Incentives B. International Disciplines 1. The TRIMs Agreement (Articles III and XI GATT) 2. The SCM Agreement 3. The AoA Agreement C. Regional Disciplines 1. Overview 2. Example: NAFTA Rules Governing Performance Requirements 3
A. The Context: Political Economy of Investment Incentives 1. Debate exists on the efficacy of investment incentives 2. Many countries nevertheless use incentives as a means to attract investment 3. Many States fear that if they do not use incentives, they will lose out to the competition 4. Incentives can take many forms: tax holidays, cheap land, relief from requirements to hire local workers, etc. 5. Not all incentives raise issues: most States build roads, airports, infrastructure, schools, hospitals, etc. 6. Most Investment incentives go unchallenged: The glass house syndrome (exceptions exist) 4
A. Political Economy Considerations 7. States able to attract investment sometimes impose conditions on investment (performance requirements such as job creation, export requirements or local content requirements) 8. States need to examine which incentives and performance requirements are appropriate, effective (economically sensible) and legal in a given case 9. In this session, Roberto and I will discuss: a) Legal limits on incentives / performance requirements b) Lessons from experience c) Tools to support States that want to modernize their incentive framework 5
B. Legal Limits on Incentives and Performance Requirements: WTO Rules The most important WTO rules affecting investment are found in the following agreements: 1) Agreement on Trade-related Investment Measures (TRIMs) and the General Agreement on Tariffs and Trade (GATT) the disciplines are similar 2) Agreement on Subsidies and Countervailing Measures (SCM) 3) Agreement on Agriculture (AoA) 6
1) TRIMs and GATT The TRIMs Agreement largely repeats obligations in: - GATT Article III (national treatment) - GATT Article XI (quantitative restrictions) - Canada Administration of the Foreign Investment Review Act ( FIRA ) (BISD 30S/140, 1984) local content requirements violate Article III:4 Certain export performance requirements are OK 7
TRIMs Agreement a. Only applies to trade in goods not to trade in services b. Does not limit entry of investors or investment c. Applies to foreign and domestic investors d. Applies to measures designed to provide an advantage ( advantage is not defined) but includes SUBSIDIES e. All TRIMS that are inconsistent with GATT Article III or Article XI of the GATT are prohibited f. GATT exceptions are fully applicable g. The Annex to the TRIMs Agreement contains an illustrative list of prohibited measure (NOT exhaustive) 8
TRIMs Annex: Prohibited Measures Based on Article III:4 (GATT) deals with purchase or use: a) LOCAL CONTENT: TRIMS that require purchase or use of domestic products whether specified in terms of particular products, in terms of volume or value of products, or in terms of a proportion of volume or value of its local production b) LOCAL CONTENT / TRADE BALANCING: Limiting the purchase or use of imported products to amounts related to the volume or value of exports 9
TRIMs ANNEX: PROHIBITED MEASURES Based on Article XI (GATT) deals with import or export: a) TRADE BALANCING: Restricting the import of products used in or related to local production (usually to an amount related to the volume or value of local production exported) b) EXCHANGE BALANCING: Restrict the importation by an enterprise of products used in or related to its local production by restricting its access to foreign exchange to an amount related to the foreign exchange inflows attributable to the enterprise c) EXPORT RESTRICTIONS: Restrict the export or sale for export of products, whether specified in terms of particular products, volume or value of products, or proportion of volume or value of local production. 10
TRIMs Agreement: Performance Requirements Performance requirements condition investment based on factors such as technology transfer, import substitution and export performance. The Illustrative List covers a subset of Performance Requirements used by Members to condition investment. Performance requirements not tied to local content or trade balancing are not covered by the TRIMs Agreement Takeaway: Avoid conditioning investment on local content requirements, and trade and exchange balancing requirements. 11
2) Subsidies and Countervailing Measures (SCM) Subsidies are sometimes applied as an investment incentive Subsidy defined: (1) Financial Contribution (2) By a Government Body (3) That Confers a Benefit 12
Subsidies: Specificity A subsidy Must be specific to violate SCM specificity can take many forms: Enterprise specificity (particular company / companies) Industry specificity (particular sector) Regional specificity (particular region) 13
SCM: How to Avoid specificity: Use objective criteria or conditions for eligibility and amount of the subsidy that are automatic, neutral, which do not favour certain enterprises over others, and which are economic in nature and horizontal in application Must be spelled out in law and strictly adhered to Possible example: base subsidies on number of employees or size of enterprise (without running afoul of conditions specified in this and other slides) - Avoid enterprise, industry or regional specificity - Watch out for de facto benefits 14
The Three Types of Subsidies 1. PROHIBITED (Red Light) 2. ACTIONABLE (Amber Light) 3. NON-ACTIONABLE (Green Light) lapsed in 2000!! a. Research & Development Subsidies b. Disadvantaged Region Subsidies c. Environmental Subsidies 15
SCM: Prohibited Subsidies (Red Light) Prohibited Subsidies (Article 3 and Annex I ) are all deemed to be specific (can be de jure or de facto). No need to prove adverse effects - Contingent on export performance - Targeting use of domestic over imported goods (Export and import substitution subsidies i.e. local content) - This should sound familiar (TRIMs, GATT, FIRA) De facto specificity - Limited number of enterprises - Predominant use by certain enterprises - Disproportionate large subsidies to certain enterprises - Manner in which discretion exercised by granting authority (to grant or refuse a subsidy) 16
SCM: Actionable Subsidies (Amber Light) How to avoid Actionable subsidies: Avoid specificity Limit adverse effects to the economic interests of trading partners if there is specificity Takeaway: Many WTO Members use various forms of subsidies. If not based on fulfillment of local content or export performance requirements and if not otherwise specific some policy space exists for subsidies 17
3) Agreement on Agriculture (AoA) Agricultural subsidies: the SCM Agreement applies to subsidies for agricultural products subject to Article 21 of the AoA (which gives the AoA precedence). Domestic Support (pillar 2 of the AoA): The AoA allows Members to use certain subsidies that would otherwise violate the SCM Agreement but seeks to discipline these subsidies (which supposedly do not distort trade) 18
AoA: Domestic Support (Subsidies) Three categories of domestic support: Amber Box market price support, non-exempt direct payments and input subsidies Trade distorting but possibly legal (or illegal!) Scheduled and were subject to reduction commitments. Blue Box Unlimited. Designed to reduce distortion. Possibly trade distorting but permitted. Designed to reduce production. (Production limiting programmes) (Now actionable under the SCM) (See Art.6.5 AoA) Green Box Unlimited. Not trade distorting so allowed. (See Annex 2 AoA) (Now actionable under the SCM) If it is not green or blue, it s amber. 19
AoA: Export Subsidies The SCM Agreement prohibits all export subsidies not allowed by the AoA (SCM definition of subsidy applies) AoA prohibits a Member from providing export subsidies in excess of its scheduled commitments Article 9 of the AoA lists six types of export subsidies and subjects them to reduction commitments: 1. Cash payments contingent on export performance 2. Disposal through export of gov t stocks below domestic market price 3. Export subsidies paid by producers and processors financed by government action (taxes and levies) 4. Marketing subsidies (except widely available promotional subsidies) 5. Transport and freight subsidies on better terms than domestic rates 6. Subsidies for agricultural products contingent on their incorporation into exported products 20
AoA: Takeaways The AoA takes precedence over the SCM Pay attention to scheduled AoA commitments if you intend to use export subsidies or domestic support programs to attract agricultural investment Green Box programs offer the safest alternatives. They are unlimited if in accord with Annex 2 AoA. They include: Programs that not targeted at specific products; Income support decoupled from production or prices; Environmental and regional development programs. (Note similarity with now expired non-actionable/green Light subsidies under SCM) 21
C. Regional Disciplines on Investment Incentives Most BITs do not cover investment incentives Some BITs include limitations on performance requirements Some limit obligations to TRIMs Agreement (BIT Canada and Costa Rica) Other BITS go beyond TRIMs 2004 Canada Model BIT, Chapter on Investment in U.S. FTAs Apply also to investment in services Obligations to abstain from imposing a specific list of banned performance requirements Includes exceptions May apply the same rules and disciplines vis-à-vis all other countries that are not a Party to the Agreement 22
Regional Disciplines on Investment Incentives The investment and services chapters of Preferential Trade Agreements (PTAs) often exclude National Treatment obligations from applying to subsidies PTAs frequently include more detailed disciplines on performance requirements NAFTA provides an excellent example 23
NAFTA Example (An FTA) Article 1106 1. No Party may impose or enforce any of the following requirements, or enforce any commitment or undertaking, in connection with the establishment, acquisition, expansion, management, conduct or operation of an investment of an investor of a Party or of a non-party in its territory: (a) to export a given level or percentage of goods or services; (b) to achieve a given level or percentage of domestic content; (c) to purchase, use or accord a preference to goods produced or services provided in its territory, or to purchase goods or services from persons in its territory; (d) to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment; 24
NAFTA Example (An FTA) Article 1106 (e) to restrict sales of goods or services in its territory that such investment produces or provides by relating such sales in any way to the volume or value of its exports or foreign exchange earnings; (f) to transfer technology, a production process or other proprietary knowledge to a person in its territory, except when the requirement is imposed or the commitment or undertaking is enforced by a court, administrative tribunal or competition authority to remedy an alleged violation of competition laws or to act in a manner not inconsistent with other provisions of this Agreement; or (g) to act as the exclusive supplier of the goods it produces or services it provides to a specific region or world market. 25
2012 NAFTA Dispute: Mobil Investments Canada Inc. and Murphy Oil Corporation v Government of Canada Heard under ICSID s Additional Facility Rules The Tribunal ruled that a Canadian Petroleum Board s imposition of a new requirement that foreign investors must spend millions of dollars per year on R&D and education and training (E&T) breached NAFTA Chapter 1106(1)(c). Tribunal found that R&D and E&T are services, and that the Board s measure was mandatory Tribunal found that a Canadian treaty reservation permitting performance requirements for its crude petroleum and natural gas industries was not applicable 26
D. Conclusions 1) Avoid conditioning private sector investment on local content requirements 2) Avoid trade balancing and exchange balancing requirements 3) Avoid export subsidies or import substitution subsidies (prohibited subsidies) 4) Avoid subsidies that are specific (targeted at an enterprise, industry or region) 5) Act consistently with scheduled commitments under the AoA 6) Make good use of the Green Box 7) Act in accord with obligations under bilaterals, RTAs 27
DISCUSSION Lessons learned from experience World Bank tools to support States that want to modernize their incentive framework Strategies for investment attraction (incentives) that do not violate international and regional commitments 28
INVESTMENT POLICY AND PROMOTION WEEK THANK YOU appleton@appletonluff.com 29