House of Representatives
Mr. Slobodan Bijelic, Chair
House of Peoples
Mr. Avdo Campara, Chair
Dear Sirs,
On 12 February, 1998, I forwarded to you the "Draft Law on the Policy of
Foreign Direct Investment in Bosnia and Herzegovina" (the Draft Law) for
consideration and approval by both Houses of the BiH Parliamentary Assembly.
I took this course after the Council of Ministers had repeatedly failed to
consider the Draft Law because of disagreements about procedural issues
between its members. Individually, however, both co-chairs and the
vice-chair had encouraged me to forward the Draft Law to the BiH
Parliamentary Assembly.
Regrettably, the House of Representatives in today's session removed the
Draft Law from the proposed agenda. This action is against the best interest
of Bosnia and Herzegovina. More than two years after the signing of the
Dayton Peace Agreement, the International Community cannot tolerate that the
arrival of foreign investment, which is so necessary for sustained economic
recovery, continues to be impeded by the lack of a legal framework.
I have decided to put into force the Law on the Policy of Foreign Direct
Investment in Bosnia and Herzegovina in the wording of the Draft Law
forwarded to you on 12 February, 1998, which you will find attached. This
Decision will take effect on the day of publication in the BiH Official
Gazette.
I urge the BiH Parliamentary Assembly to adopt the Draft Law as soon as
possible.
Yours sincerely,
Carlos Westendorp
High Representative
Copy:
- Council of Ministers
Bosnia and Herzegovina
- Dr. Haris Silajdzic. Co-Chair
- Mr. Boro Bosic, Co-Chair
- Mr. Neven Tomic, Vice-Chair
DRAFT LAW ON THE POLICY OF FOREIGN DIRECT INVESTMENT IN BOSNIA AND HERZEGOVINA
In accordance with Article 3 of the Constitution of Bosnia and Herzegovina,
the Parliamentary Assembly adopts LAW ON THE POLICY OF FOREIGN DIRECT INVESTMENT IN BOSNIA AND HERZEGOVINA.
PREAMBLE
Whereas, Bosnia and Herzegovina has entered a new era of peace and
stability;
Whereas, Bosnia and Herzegovina has adopted an open, free market-led
economic policy;
Whereas, Bosnia and Herzegovina is determined to promote, facilitate and
safeguard private sector investments;
Whereas, investments should be encouraged by a conducive investment
environment;
Whereas, the Constitutions of Bosnia and Herzegovina, the Federation of
Bosnia and Herzegovina and the Republika Srpska create conditions to
encourage foreign investment;
Whereas, Bosnia and Herzegovina is a member of the Multilateral Investment
Guarantee Agency and is party to the International Convention for the
Settlement of Investment Disputes;
Now, therefore, the Council of Ministers of Bosnia and Herzegovina deems it
necessary and appropriate to establish a clear, transparent, predictable and
stable policy and legal framework to secure rights and benefits of and
protection for foreign investors.
I. BASIC PROVISIONS
Article 1
The Law on the Policy of Foreign Direct Investment (hereinafter referred to
as the Law) shall regulate the basic policies and principles of the
participation of foreign investors in the economy of Bosnia and Herzegovina.
Article 2
For the purposes of this Law, the following terms shall have the following
meanings:
"Foreign investor": means a natural person, who is not resident of Bosnia
and Herzegovina and does not have his or her principal place of business in
Bosnia and Herzegovina or legal persons formed in accordance with a foreign
law and having their registered office, central administration or principal
place of business in a foreign country;
"Foreign direct investment" or "Foreign investment": means acquisition,
creation or extension of any business enterprise, or any other activity
which, alone or with others, concurrently or consequently, has the effect of
permitting one or several foreign natural or legal persons to acquire or
increase control over a company carrying out industrial, agricultural,
commercial, financial, real estate, service or other activity, or to ensure
expansion of such company already under their control. Such investments may
include any tangible or intangible property including, but not necessarily
limited to, freely convertible currency or local currency, loans, advances,
receivables, licenses, leases and conventional rights, including
concessions, machinery, equipment, spare parts, raw materials, industrial or
intellectual property rights or any financial facilities granted by a
foreign natural or legal person under foreign control, except between parent
companies and their subsidiaries if this not result in increase of the
foreign control over the domestic enterprises;
"Foreign control": means any participation with more than 10% of the capital
and/or the voting rights held directly by foreign investors or by a domestic
legal entity under such control;
"Resident of Bosnia and Herzegovina": means a natural person who has a home
or principal abode, carry out employment or independent service or has his
or her center of economic interest in Bosnia and Herzegovina, or a legal
person constituted under the laws of Bosnia and Herzegovina or the Entities
and having its registered office, central administration or principal place
of business in Bosnia and Herzegovina;
"Equity": means the ownership interest held by an investor in an enterprise;
"Freely convertible currency": means any currency determined as such by the
International Monetary Fund;
"Entities": means Federation of Bosnia and Herzegovina and the Republika
Srpska; and
"Public Information": means information contained in radio, television
(excluding cable), electronic media (excluding the Internet), newspapers and
other publications produced primarily for the local market.
II. FDI ENTRY PROCESS
Article 3
Subject to the provisions of this Law, foreign investors shall be entitled
to invest, and to reinvest profits of such investments into any and all
sectors of the economy of Bosnia and Herzegovina, and in the same form and
under the same conditions as defined for the residents of Bosnia and
Herzegovina under the applicable laws and regulations of Bosnia and
Herzegovina and the Entities.
Article 4
- Notwithstanding the policy of free admission of foreign direct
investment into Bosnia and Herzegovina set forth in Article 3 of this Law,
foreign equity ownership of an enterprise engaged in the production and sale
of arms, ammunition, explosives for the military use, military equipment and
public information shall not exceed 49% of the equity of the enterprise.
- In case of investments in sectors subject to the restrictions referred
to in paragraph (a) of this Article, foreign investors must receive prior
approval from the competent body of the respective Entity.
- Within 30 days from the date of submission of the request for approval
referred to in (b) of this Article, the competent body of the respective
Entity shall inform the applicant on its decision. If the decision is not
made within the mentioned deadline, the foreign direct investment shall be
considered approved, unless such a body has advised the applicant in writing
of its decision to postpone the decision beyond the 30 day deadline.
- If the competent body of the respective Entity has an intention to
postpone making a decision on the request for a foreign investment beyond
this time limit, it shall inform the applicant within the same deadline of
30 days. The final decision on foreign investment with an explanation shall
be delivered to the applicant within 90 days from the date of receipt of the
request. If such a decision is not made within the mentioned deadline, the
foreign direct investment shall be considered approved.
- The foreign direct investment approval referred to in this Article shall
be valid without limitation as to duration.
- The conditions under which a foreign investor must submit its
application for approval shall be defined in the implementing regulations
referred to in Article 21 of this Law and published simultaneously in the
Official Gazette of Bosnia and Herzegovina and the Official Gazettes of the
Entities.
Article 5
- Foreign investors in Bosnia and Herzegovina shall register their
respective investment simultaneously with the competent body of the State
and with the competent body of the respective Entity.
- To limit the burden on the foreign investor:
- The State and the Entities shall ensure in their implementing
regulations referred to in Article 21 of this Law that their registration
formats are alike and conform to international standards. No additional
information shall be required for the purpose of registration.
- The competent bodies of the State and the respective Entity shall
confirm to foreign investors within 10 working days of their action
according to paragraph (a) of this Article that their respective investment
has been registered. If a registration format has not been fully complied
with, the respective competent body shall advise foreign investors within 10
working days of their action according to paragraph (a) of this Article
which specific item or items of the registration format have not been
complied with.
- Registration by the competent body of the State or the respective
Entity, ad the case may be, shall be deemed to have been confirmed if such
competent body has failed to act according to, and within the time limit set
by, incision (ii) of this paragraph.
- Notwithstanding paragraphs (a) and (b) of this Article, the competent
body of the respective Entity shall confirm registration of each investment
requiring approval referred to in Article 4 of this Law only after such
approval has been granted. The foreign investor shall submit the
registration format according to item (i) of this paragraph together with a
copy of the confirmation of registration by the competent body of the Entity
to the competent body of the State within 10 working days of the receipt of
such confirmation.
- Bosnia and Herzegovina and the Entities may publish foreign investment
data of general nature. In so doing, they shall respect the legitimate
interest of enterprises concerned and shall ensure that their business
secrets are not revealed.
- The procedures for registration and publication of investment data set
forth in this Article shall be stipulated in the implementing regulations
referred to in Article 21 of this Law.
Article 6
- To promote and facilitate foreign investment into Bosnia and
Herzegovina, the Council of Ministers of Bosnia and Herzegovina shall
establish an institution for such purposes.
- Entities may also establish such promotional and facilitation
institutions in their respective territories.
Article 7
If established, the institutions referred to in Article 6 of this Law shall
cooperate and exchange any necessary information to achieve the objectives
of promoting foreign direct investment in Bosnia and Herzegovina and to
ensure fulfillment of the objectives of this Law.
III. RIGHTS, BENEFITS AND OBLIGATIONS OF FOREIGN INVESTORS
Article 8
- Subject to the provisions of this Law, and subject to the other laws and
treaties of Bosnia and Herzegovina and laws of the Entities, foreign
investors shall have the same rights and obligations as the residents of
Bosnia and Herzegovina.
- Bosnia and Herzegovina and the Entities shall not discriminate with
respect to foreign investors in any form, including but not limited to their
citizenship, residency, religion, or the state of origin of investment.
Article 9
- Taxation of foreign investors and foreign direct investment shall be
carried out in accordance with the tax legislation of the Entities.
- To encourage foreign direct investment, the Entities shall ensure that
tax legislation referred to in paragraph (a) of this Article contains
attractive features and rates. The Entities shall jointly review, from time
to time, such tax legislation to ensure that attractiveness has been
maintained.
- The tax regimes in the two Entities shall be governed by the following
principles:
- corporate tax regimes should not discriminate between foreign and
domestic investments;
and
- the Entities recognise that competition in granting incentives is
undesirable and that they are committed to avoiding such competition.
Article 10
Subject to the provisions of the Customs Policy Law, or any future Law
replacing the Customs Policy Law, a foreign investment shall be exempted
from customs and customs duties, except for customs registration.
Article 11
- Foreign investors shall have right, for the purposes of their
investments, to open on the territory of Bosnia and Herzegovina accounts in
any commercial bank denominated in the national or any freely convertible
currency.
- Foreign investors, with respect to all payments related to their
investments in Bosnia and Herzegovina, shall have the right to freely
convert the national currency of Bosnia and Herzegovina into any other
freely convertible currency.
- Foreign investors shall have the right to transfer abroad, freely and
without delay, in freely convertible currency, proceeds resulting form their
investment in Bosnia and Herzegovina, including, but not limited to:
- income from investments received in the form of profit, dividends,
interest, and other forms of profit;
- funds received by investors after partial or full liquidation of their
investments in Bosnia and Herzegovina, or disposal of invested property or
proprietary rights; and
- compensation referred to in Article 16 of this Law.
- All transactions will be carried out in accordance with the laws of
Bosnia and Herzegovina and the Entities.
Article 12
Foreign investors shall have the same property rights in respect to real
estate as the citizens and legal entities of Bosnia and Herzegovina. Foreign
investors, who are citizens of one of the successor states to the former
Socialist Federal Republic of Yugoslavia, shall have such rights subject to
investors of Bosnian and Herzegovinian citizenship and legal entity status
having like rights in the respective successor state.
Article 13
Foreign investors shall maintain books and file reports in accordance with
internationally accepted accounting and auditing standards and principles
and the laws of the Entities.
Article 14
Subject to the labor and immigration laws in Bosnia and Herzegovina, foreign
investors shall have the right to freely employ foreign employees.
Article 15
- Foreign investors shall observe the laws and regulations of Bosnia and
Herzegovina and the Entities.
- Restrictions applicable to domestic investment on account of public
policy (l'ordre public),
public health and the protection of the environment shall equally apply to
foreign investment.
Article 16
- Foreign investment shall not be subject to any act of nationalization,
expropriation, requisition or measures which have similar effects, except in
the public interest in accordance with applicable laws and regulations,
without any type of discrimination and against the payment of appropriate
compensation.
- Such compensation will be deemed appropriate if it is adequate,
effective and prompt.
- The details of the standards for compensation in event of
nationalization, expropriation, requisition or such similar acts referred to
in paragraph (a) of this Article shall meet international standards and
shall be spelled out in the implementing regulations referred to in Article
21 of this Law.
IV. SETTLEMENTS OF DISPUTES
Article 17
Foreign investment disputes shall be settled by the relevant courts in
Bosnia and Herzegovina, unless the parties concerned agree on another
procedure for the settlement of disputes, including but not limited to
domestic or international conciliation or arbitration.
V. TRANSITIONAL AND FINAL PROVISIONS
Article 18
- The Law shall enter into force on the eighth day from the date of its
publication in the Official Gazette of Bosnia and Herzegovina.
- The Official Gazettes of the Entities shall simultaneously publish the
Law.
Article 19
- On the date of entry into force of this Law, the provisions of laws and
regulations concerning foreign investment in Bosnia and Herzegovina that are
contrary to or inconsistent with this Law shall become null and void without
the prejudice to the rights and benefits granted and the obligations imposed
upon the existing foreign investors under the previous laws and regulations.
- Notwithstanding this provision, an existing foreign investor may elect
in writing to the competent body of the respective Entity within 120 days of
the coming into force of this Law, to become subject to the term of this
Law.
Article 20
The rights and benefits of foreign investors granted and obligations
imposed, by this Law cannot be terminated or eliminated by the subsequently
passed laws and regulations. If such subsequently passed laws and
regulations shall have been more favorable to foreign investors, they shall
have the right to choose under which regime the respective foreign
investment will be governed.
Article 21
Bosnia and Herzegovina and the Entities shall, in the areas of their
respective competence, issue implementing regulations to this Law within 60
days from the day of the entry into force of this Law. Such regulations
shall be published in the Official Gazette of Bosnia and Herzegovina and the
Official Gazettes of the Entities, respectively, and shall enter into force
on the eighth day from the date of their publication in such Gazettes.
Article 22
The Entities shall be responsible in their respective territories for the
implementation of this Law.
Article 23
Bosnia and Herzegovina and the Entities shall cooperate fully to achieve the
policy objectives set by this Law and shall take all steps to ensure
fulfillment of the obligations arising out of the Law.
Article 24
In case of conflict, provisions of international agreements and treaties to
which Bosnia and Herzegovina is a party shall prevail over the provisions of
this Law.
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