2010年-世界发展银行全球_Investment_Law_Reform___A_Handbook_for_Development_Practitioners_150页_2mb

Summary of Investment Law Reform: A Handbook for Development Practitioners

Core Content

This handbook, published by the World Bank Group in June 2010, provides a comprehensive guide for development practitioners, policymakers, and legal drafters on how to reform investment laws in developing and transition economies. It is a practical tool that emphasizes the importance of aligning investment legislation with national investment policies and international standards to create a favorable investment climate.

Main Objectives

• To assist governments in evaluating and reforming their investment legislation.
• To provide guidance on drafting new or revising existing investment laws.
• To highlight the relationship between investment policy, legal framework, and investor incentives.
• To offer a framework for investment law reform projects and monitoring their effectiveness.

Key Concepts and Typology of Investment

Investment Climate

The investment climate is shaped by various interacting factors such as:

• Macroeconomic policies
• Trade and tax policies
• Foreign exchange and labor regulations
• Political stability and governance
• Legal and judicial systems
• Physical and institutional infrastructure

These factors collectively determine the attractiveness of a country to investors and should be aligned to form a coherent system that encourages investment while protecting national interests.

Investment Policy

An investment policy defines the government's approach to private investment, particularly foreign direct investment (FDI). It outlines:

• The level of openness to investment
• Sectoral restrictions or preferences
• Ownership limits
• Investment incentives

The investment code is the legislative instrument that translates this policy into enforceable legal terms.

Investment Typology

Investments are categorized as:

• Public vs. Private: Public investments involve government entities, while private investments are from individuals or corporations.
• Direct vs. Portfolio: Direct investment involves establishing a business or acquiring equity, whereas portfolio investment is about buying financial assets.
• Domestic vs. Foreign: Domestic investments are from local entities, while foreign investments are from international sources.

Investment codes typically focus on private direct investment and may exclude public or portfolio investments.

Investment Codes

Pervasiveness

Investment codes are increasingly common, with many countries adopting "negative lists" that specify sectors where foreign investment is regulated or prohibited, rather than "positive lists" that list open sectors.

Usefulness

Investment codes are useful for:

• Clarifying the legal treatment of investors
• Ensuring consistency with international standards
• Facilitating the implementation of national investment policies

Limitations

They may not cover all aspects of the investment climate and are not always comprehensive or accurate. Their effectiveness depends on how well they reflect the country's investment policy and are aligned with the legal and institutional context.

Preparing an Investment Code

Objective and Scope

• The objective is to create a legal framework that supports private investment.
• The scope includes defining investment, setting guarantees, outlining incentives, and establishing a framework for investment promotion.

Structure and Characteristics

• Should be clear, concise, and aligned with national policy.
• Includes definitions, investor guarantees, incentives, and procedural mechanisms.
• Should be adaptable to subnational and conflict-affected areas.

Considerations for Foreign Investment Entry

• Sectoral Restrictions: Certain sectors are closed to FDI or have ownership limits.
• Authorization and Screening: Strategic sectors require approval, while others may be subject to screening.
• Minimum Investment and Performance Requirements: These are common in many countries and can be burdensome.

Investor Rights and Obligations

• Fair and Equitable Treatment (FET): Ensures investors are treated without discrimination and with transparency.
• National Treatment: Ensures foreign investors are treated no less favorably than domestic ones.
• Most-Favored-Nation (MFN) Treatment: Ensures that foreign investors receive the same treatment as those from other countries.
• Protection Against Expropriation: Includes both direct and indirect expropriation.
• Convertibility and Repatriation: Ensures that profits can be repatriated and foreign currency can be freely converted.
• Dispute Settlement: Mechanisms for resolving conflicts between investors and the host state.

Investment Incentives

• Investment incentives are tools used to attract foreign investment.
• Fiscal Incentives include tax holidays, performance-based incentives, and export-based incentives.
• Regional and Subnational Incentives are also common.
• The handbook emphasizes the importance of aligning incentives with broader economic and legal frameworks, and provides good practice principles.

Investment Promotion Intermediaries

• Investment Promotion Intermediaries (IPIs) are key in attracting investment.
• The handbook outlines what provisions should be included in investment codes related to IPIs.
• It also discusses the structure and role of IPIs and the use of "one-stop shops" to streamline the investment process.

Project Cycle for Investment Law Reform

• The handbook outlines the stages of investment law reform, including:
  • Evaluating the government's request
  • Pre-field and field research (scoping mission)
  • Drafting the report and project plan
  • Project initiation and planning
• It emphasizes the importance of tailoring the reform to the specific context and needs of the country.

Supporting the Drafting and Promulgation of the Law

• Challenges in drafting investment codes include:
  • Ensuring alignment with national policy
  • Building stakeholder support
  • Effective communication of the reform goals
• The handbook provides practical guidance on how to address these challenges.

Monitoring and Evaluation

• Monitoring and evaluation (M&E) are essential to assess the impact of investment law reforms.
• Key indicators include:
  • Legal clarity and enforceability
  • Investor confidence
  • Economic growth and job creation
• The handbook includes tools and checklists for assessing and evaluating investment codes.

Conclusion

The handbook underscores the importance of investment laws in shaping the investment climate and fostering economic growth. It provides a framework for governments to reform their investment legislation, ensuring it reflects their policy priorities and aligns with international standards. The document is a valuable resource for policymakers, legal drafters, and development practitioners seeking to improve their investment environment.