Title

INVESTMENT FACILITATION FOR DEVELOPMENT AGREEMENT

Preamble

PREAMBLE

The Parties to this Agreement (hereinafter referred to as "the Parties"),

Recognizing the complementary relationship between investment and trade and their key role in advancing development in the global economy;

Recognizing the importance of investment in the promotion of sustainable development, economic growth, poverty reduction, job creation, technology transfer, the expansion and diversification of productive capacity and trade, as well as for the achievement of the United Nations 2030 Sustainable Development Goals;

Desiring to increase the participation of developing countries in investment flows including, inter alia, through a more transparent and efficient investment environment;

Aiming to enhance investment, including investment in and by micro, small and medium-sized enterprises (hereinafter referred to as "MSMEs");

Wishing to establish multilateral rules and disciplines on investment facilitation to enhance the transparency, efficiency and predictability of the investment regulatory environment;

Affirming the importance of responsible business conduct and of combating corruption for the promotion of sustainable investment;

Recognizing the special needs of developing and particularly least-developed country Parties and the importance of supporting them in implementing this Agreement through enhanced technical assistance and capacity building;

Recognizing the importance of information sharing, the exchange of best practices and other means of international cooperation on investment facilitation, including with relevant international organizations;

Recognizing the importance of domestic coordination, regulatory coherence and enhancing relations with relevant stakeholders;

Recognizing the right of Parties to regulate in the public interest within their territories so as to meet their policy objectives;

Desiring to encourage acceptance of this Agreement by all Members of the WTO;

Hereby agree as follows:

Body

Section I. SCOPE AND GENERAL PRINCIPLES

Article 1. Objectives

The purpose of this Agreement is to improve the transparency of measures, streamline administrative procedures, adopt other investment facilitation measures and promote international cooperation, as a means of facilitating the flow of foreign direct investment between the Parties, particularly to developing and least-developed country Parties, with the aim of fostering sustainable development.

Article 2. Scope

2.1 With the aim of facilitating foreign direct investment, this Agreement applies to measures adopted or maintained by a Party relating to investment activities of investors of another Party.

2.2 Nothing in this Agreement shall be construed as to create new or modify existing commitments relating to market access, nor to create new or modify existing rules on the protection of investments or Investor-State Dispute Settlement. (1)

2.3 A Party's obligations under this Agreement shall apply to measures adopted or maintained by:

(a) its central, regional or local governments and authorities; and

(b) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities.

2.4 In fulfilling its obligations and commitments under this Agreement, each Party shall take such reasonable measures as may be available to it to ensure their observance by regional and local governments and authorities and non-governmental bodies, as referred to in subparagraph 2.3(b), within its territory. 2.5 This Agreement shall not apply to:

(a) government procurement; or

(b) subsidies or grants of a Party, which under that Party's laws and regulations are not available to an investor of another Member.

Article 3. Definitions

For the purposes of this Agreement:

(a) "investment activities" means the establishment, acquisition, expansion, operation,  management, maintenance and sale or other disposal of an investment;

(b) "measure" means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;

(c) "authorization" means the permission (2) by a competent authority (3) to pursue investment activities, resulting from a procedure an investor must adhere to in order to demonstrate compliance with the necessary requirements;

(d) "investor of another Party" means:

(i) a natural person having the nationality of that Party in accordance with its laws and regulations;

(ii) a natural person who has the right of permanent residence in that Party, where such Party does not have nationals or has made a notification pursuant to Article XXVIII(k)(ii) of the General Agreement on Trade in Services (hereinafter referred to as the "GATS"); or

(iii) a juridical person with substantive business operations in the territory of that Party; that is engaged in investment activities in the territory of any other Party; and

(e) "juridical person" means any legal entity duly constituted or otherwise organized under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association; and

(f) "country" includes any separate customs territory Member of the WTO that is a Party to this Agreement. In the case of a separate customs territory Member of the WTO that is a Party to this Agreement, where an expression in this Agreement is qualified by the term "national', such expression shall be read as pertaining to that customs territory, unless otherwise specified.

Article 4. Relation to International Investment Agreements

4.1 International investment agreements shall not serve as a means to interpret or apply this Agreement.

4.2 This Agreement shall not serve as a means to interpret any provision of an international investment agreement, and shall not be used as the basis for a claim or in any way by a claimant under the procedures for the resolution of investment disputes between investors and States provided for in an international investment agreement. (4)

Article 5. Most-Favoured Nation Treatment

5.1 Each Party shall accord to investors of another Member and their investments treatment no less favourable than that it accords, in like circumstances, to investors of any other Member and their investments, in applying the provisions set out in this Agreement in its territory. (5)

5.2 Paragraph 5.1 shall not be construed as requiring a Party to extend to investors of another Member or their investments, the advantage of any treatment resulting from:

(a) any international investment agreement, whether it is:

(i) a separate agreement; or

(ii) investment-related chapters in an agreement forming a free-trade area or a customs union pursuant to Article XXIV of the General Agreement on Tariffs and Trade 1994 (hereinafter referred to as the "GATT 1994") set out in Annex 1A to the Marrakesh Agreement Establishing the WTO (hereinafter referred to as "WTO Agreement"), or the Decision on Differential and More Favourable Treatment, Reciprocity, and Fuller Participation of Developing Countries (hereinafter referred to as the "Enabling Clause"), or an economic integration agreement pursuant to Article V of the GATS;

(b) any other relevant provision (6) in an agreement forming a free-trade area or a customs union pursuant to Article XXIV of the GATT 1994, or the Enabling Clause, or an economic integration agreement pursuant to Article V of the GATS; or

(c) any measure providing for recognition, including the recognition of the standards or criteria for authorization, licensing or certification of a natural person or an enterprise to carry out an economic activity, or the recognition of prudential measures as referred to in paragraph 3 of the Annex on Financial Services of the GATS.

5.3 For greater certainty, provisions of any other international agreement entered into by a Party do not in themselves constitute "treatment" as referred to in paragraph 5.1 and thus cannot be taken into account when assessing a breach of this Agreement.

5.4 For greater certainty, the treatment accorded by a Party under this Article means, with respect to a government other than at the central level, treatment accorded, in like circumstances, by that government to investors of any other Member and their investments.

Section II. TRANSPARENCY OF INVESTMENT MEASURES

Article 6. Publication and Availability of Measures and Information

6.1 Each Party shall promptly publish (7) or otherwise make publicly available and, except in emergency situations, at the latest by the time of their entry into force, all relevant measures of general application with respect to matters falling within the scope of this Agreement in such a manner as to enable investors, other interested persons and other Parties to become acquainted with them. Each Party shall publish, at the latest by the time of their entry into force for the Party, international agreements affecting investment to which it is a signatory party.

6.2 Each Party shall, to the extent practicable, endeavour to allow reasonable time between publication of the text of a law or regulation referred to in paragraph 6.1 and the date on which investors must comply with the law or regulation.

6.3 In publishing a new law or regulation referred to in paragraph 6.1, or changes thereto, or in advance of such publication, to the extent practicable and in a manner consistent with its legal system for adopting measures, a Party shall endeavour to explain the purpose and rationale of the law or regulation.

6.4 Each Party shall make available, via electronic means, information of importance to investors, and keep the information updated, as appropriate. Such information includes:

(a) laws and regulations specifically addressing foreign direct investment, where they exist;

(b) information on which sectors are open, restricted or prohibited to foreign direct investment;

(c) where practicable, information on the practical steps relevant to investing in its territory. This information should cover, inter alia, the requirements and procedures, where they exist, relating to:

(i) company establishment and business registration;

(ii) connecting to essential infrastructure;

(iii) acquisition and registration of property;

(iv) construction permits;

(v) capital transfers and payments;

(vi) the payment of taxes;

(vii) public incentives available to investors; and

(viii) resolving insolvency; and

(d) contact information of relevant competent authorities.

6.5 Parties that adopt or maintain measures of general application to facilitate outward foreign direct investment, are encouraged to publish them or otherwise make them publicly available, including through electronic means.

Article 7. Information to Be Made Publicly Available If Authorization Is Required for an Investment

7.1 If a Party requires authorization for an investment in its territory, the Party shall promptly publish or otherwise make publicly available in writing, to the extent practicable via electronic means, and keep updated, the information necessary to comply with the requirements and procedures for obtaining, maintaining, amending and renewing such authorization. Such information shall include, inter alia, where it exists (8):

(a) the requirements including the relevant technical regulations and standards applicable to the investment;

(b) the relevant forms;

(c) procedures;

(d) indicative timeframes for processing of an application;

(e) authorization fees;

(f) opportunities for public involvement, such as through hearings or comments;

(g) procedures for appeal or review of decisions concerning applications;

(h) procedures for monitoring or enforcing compliance with the terms and conditions of authorizations; and

(i) contact information of the relevant competent authorities.

7.2 To the extent practicable, the information in paragraph 7.1 should be made available in one of the official languages of the WTO.

Article 8. Single Information Portal

8.1 To the extent practicable, each Party is encouraged to make available measures and information referred to in paragraphs 6.1, 6.4 and 7.1 through a single information portal, which includes making available the relevant web links to electronic publications.

8.2 Parties shall endeavour to ensure that the single information portal is kept updated.

8.3 Each Party should include in the single information portal the contact information of the focal points or appropriate mechanisms referred to in paragraph 22.1.

8.4 Each Party is encouraged to publish on the single information portal the measures and information referred to in paragraphs 6.4 and 7.1 in one of the official languages of the WTO.

Article 9. No Fees Imposed for Access to Information

No fees shall be imposed on any investor or person seeking to invest in a Party's territory for access to the measures or information provided under this Section.

Article 10. Publication In Advance and Opportunity to Comment on Proposed Measures

10.1 To the extent practicable and in a manner consistent with its legal system for adopting measures, each Party (9) shall publish in advance:

(a) its laws and regulations of general application, or changes thereto, it proposes to adopt in relation to matters falling within the scope of this Agreement; or

(b) documents that provide sufficient details about such a possible new law or regulation to allow investors, other interested persons and other Parties to assess whether and how their interests might be significantly affected.

10.2 To the extent practicable and in a manner consistent with its legal system for adopting measures, each Party is encouraged to apply paragraph 10.1 to procedures and administrative rulings of general application it proposes to adopt in relation to matters falling within the scope of this Agreement.

10.3 To the extent practicable and in a manner consistent with its legal system for adopting measures, each Party shall provide investors, other interested persons and other Parties a reasonable opportunity to comment on such proposed measures or documents published under paragraph 10.1 or 10.2 and shall consider the comments received. (10) (11)

Article 11. Notification to the WTO

Each Party shall promptly notify the Committee on Investment Facilitation (hereinafter referred to as the "Committee") established under paragraph 39.1 of:

(a) the introduction of any new, or any significant changes to existing, laws or regulations of general application referred to in paragraph 6.1;

(b) the official place(s) where the measures referred to in paragraphs 6.1 and 7.1 have been published;

(c) the website(s) referred to in paragraphs 6.4, 7.1 and 8.1; and

(d) the contact information of the relevant competent authorities referred to in subparagraphs 6.4(d) and 7.1(i), and of the focal points or appropriate mechanisms referred to in paragraph 22.1.

Article 12. Information to Be Made Publicly Available on the Entry and Temporary Stay of Natural Persons for the Purpose of Conducting Investment Activities

12.1 Except as set out in paragraph 12.3, this Agreement shall not apply to measures by a Party relating to the entry of natural persons into, or temporary stay in, its territory.

12.2 For greater certainty, this Agreement shall not apply to measures affecting natural persons seeking access to the employment market of a Party, nor shall it apply to measures regarding citizenship, nationality, residence or employment on a permanent basis.

12.3 To the extent practicable, each Party shall make publicly available online information on the requirements and procedures for entry and temporary stay of natural persons in its territory, including, where applicable, relevant forms, documents, fees, and explanatory materials that will enable interested persons of any other Party to become acquainted with applicable requirements and procedures.

Section III. STREAMLINING AND SPEEDING UP ADMINISTRATIVE PROCEDURES (12)

Article 13. Reasonable, Objective and Impartial Administration of Measures

Each Party shall ensure that all measures of general application within the scope of this Agreement are administered in a reasonable, objective and impartial manner.

Article 14. General Principles for Authorization Procedures

14.1 Each Party shall ensure that the authorization procedures it adopts or maintains do not unduly complicate or delay investment activities.

14.2 If a Party adopts or maintains measures relating to the authorization for an investment, the Party shall ensure that:

(a) such measures are based on objective and transparent criteria (13);

(b) the procedures are impartial, and that the procedures are adequate for applicants to demonstrate whether they meet the requirements, where such requirements exist; and

(c} the procedures do not in themselves unjustifiably prevent the fulfilment of requirements.

14.3 The assessment by a Party's relevant competent authorities of an application for authorization shall be made on the basis of criteria set out in a measure in accordance with the Party's legal system. (14)

Article 15. Authorization Procedures

15.1 If a Party requires authorization for an investment, it shall ensure that its competent authorities:

Application periods

(a) to the extent practicable, permit submission of an application at any time throughout the year. (15) If a specific time period exists for applying for an authorization, the Party shall ensure that the competent authorities allow a reasonable period for the submission of an application;

Acceptance of authenticated copies

(b) accept copies of documents that are authenticated in accordance with the Party's laws and regulations, in place of original documents, unless the competent authorities require original documents to protect the integrity of the authorization process;

(c) where any other competent authority of the Party requires and holds original documents, and to the extent that it is consistent with the Party's laws and regulations, accept an authenticated copy from the applicant or, where applicable, a copy from the competent authority holding the original;

Processing of applications

(d) to the extent practicable, provide an indicative timeframe for processing of an application;

(e) at the request of the applicant, provide without undue delay information concerning the status of the application;

(f) to the extent practicable, ascertain without undue delay the completeness of an application for processing under the Party's laws and regulations;

(g) if they consider an application complete for processing under the Party's laws and regulations (16), within a reasonable period of time after the submission of the application, ensure that:

(i) the processing of the application is completed; and

(ii) the applicant is informed of the decision concerning the application (17), to the extent possible in writing (18);

Treatment of incomplete applications

(h) if they consider an application incomplete for processing under the Party's laws and regulations, within a reasonable period of time after the submission of the application, to the extent practicable:

(i) inform the applicant that the application is incomplete;