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VII. INVESTMENT CLIMATE A.1. Openness to Foreign Investment Since 1990, Romania's stated policy has been to encourage foreign direct investment. In general, the debate within the coalition government is not whether to promote a market economy that is open to foreign investment, but over how to achieve that objective. There is still, however, significant resistance to foreign investment from certain parties and from managers of state-owned enterprises. There is a concern that foreign investors are being allowed to purchase state-owned companies at "bargain basement" prices, and that they will have too much influence in the economy. There is still a strong tendency to retain control over the economy, rather than letting market forces play out. Like other countries in the region, Romania has had to create a legal framework consistent with a market economy and the promotion of investment. In this respect, much progress has been made. One of the main difficulties now is in the implementation of the new laws. To date, implementation has been uneven, and there continues to be a disparity between what is "on the books" and what happens in practice. Despite the significant changes in the legal framework, foreign investment in Romania has not kept pace with expectations. Following the election of President Constantinescu's center-right reform-minded government in November, 1996, many investors expected to see a significant increase in foreign investment in 1997. Portfolio investment inflows, mostly from hedge funds and country funds, did rise sharply in the first half of 1997. However, this initial bubble of optimism burst in the summer of 1997 leading to a massive sell-off. This preceded the crisis in Asia and was due, in large degree, to lingering concerns over the ability to repatriate profits, macroeconomic concerns over currency and inflation stability, and a slower than anticipated rate of privatization. The net result was an in-flow of only $135 million in investment on both the Bucharest Stock Exchange and the RASDAQ. Direct investment has likewise not flooded Romania as anticipated, but merely continues to trickle in. In 1997, particularly in comparison with other countries in Central and Eastern Europe such as Hungary, the Czech Republic, and Poland, foreign investment in Romania remains very low. Investments which involve the government of Romania, either by the need for sovereign guarantees or by the involvement of entities such as the State Ownership Fund, are generally more difficult than greenfield investments or joint ventures with private Romanian companies. Large deals involving the government of Romania frequently become stymied by vested political and economic interests and bogged down by indecision within governmental ministries. Greater success has been encountered with less complex deals involving small to medium-sized private and state enterprises. Sectors that provide good opportunities for investment are agriculture, energy, some heavy industry, telecommunications, banking, and tourism. Successful U.S. companies tend to share a common approach to doing business in Romania. Firstly, they establish themselves in Romania so that they are able to analyze the local situation and develop the most effective corporate strategy. Doing business in Romania requires a presence on the ground. Secondly, they come with a long-term strategy that communicates long-term commitment to the Romanian market and government. This often paves the way for successful negotiations with the State Ownership Fund, labor unions, and local partners. One difficulty for investors is that the legal framework for investment in Romania is constantly changing. For example, new laws on investment and privatization were passed in late 1997 and early 1998. The investment law was changed to provide incentives to domestic as well as foreign investors. The new law also significantly changed the incentives for investment. It is recommended that any prospective foreign investor consult appropriate legal counsel to get the most up-to-date information. The legal framework for foreign investment in Romania is provided by the following laws: Commercial Register Law (No. 26/1990); Commercial Company Law (No. 31/1990; revised 1997); Foreign Investment Law (No. 35/1991; revised 1993 and 1997); Accountancy Law (No. 82/1991) Free Trade Zones Law (No. 84/1992); Value Added Tax (Ordinance No. 3/1993, as amended); Local Taxes (Law No. 27/1994) Government Ordinance Regarding Tax on Profit (No. 70/1994); Law on Stimulating Foreign Investment in Industry (No. 71/1994); Privatization Law No. 55/1995; Bankruptcy Law (No. 64/1995) Petroleum Law (No. 134/1995) Copyrights and Neighboring Rights Law (No. 8/1996); Competition Law (No. 21/1996); State Monopolies Law (No. 31/1996); Stimulation of Foreign Investment (Government Ordinance No. 92/1997); Bank Privatization Law (No. 83/1997); Government Ordinance on Privatization (No. 88/1997). This body of legislation ensures that foreign investors are granted national treatment, have free access to domestic markets, and are allowed to participate in the privatization process. There is no limit on foreign participation in commercial companies. Foreign investors are entitled to establish wholly foreign-owned enterprises in Romania (although joint ventures are the normal pattern) and to convert and repatriate 100 percent of after-tax profits. They are allowed to participate in the management and administration of the investment, as well as to assign their contractual obligations and their rights to other Romanian or foreign investors. Foreign investments in Romania are governed by the provisions established by the foreign investment law in force at the time of incorporation, unless a subsequent law contains more favorable provisions. Foreign investors may engage in business activities in Romania in any of the following ways: - set up new commercial companies, subsidiaries or branches, either wholly-owned or in partnership with Romanian natural or legal persons; - participate in the increase of the registered capital of an existing company or the acquisition of shares, bonds, or other securities of such companies; - acquire concessions, leases or agreements to manage economic activities, public services, or the production of sub-units belonging to commercial companies or state-owned public corporations; - acquire ownership rights over non-residential real estate improvements, including land, via establishment of a Romanian company; - acquire industrial or other intellectual property rights; - conclude exploration and production-sharing agreements related to the development of natural resources. Foreign investor participation can take the form of: foreign capital, equipment, means of transport, spare parts and other goods, services, intellectual property rights, know-how and management expertise, or proceeds and profits from other businesses carried out in Romania. While legally foreign investment is subject to only routine and non-discriminatory screening, in practice the government of Romania generally tries to balance investment among major foreign countries. Currently, the company incorporation procedure is handled by the Romanian Trade Registry. This process, which, in the past, could take up to several months can now be completed in a matter of weeks. Foreign investment must comply with environmental protection regulations and must not negatively affect romania's national security, defense interests, public order, or public health. The regulatory norms now being drafted generally require the publication of environmental balance sheets for privatizations involving the sale of a majority of a company's shares. Such balance sheets are also required for the sale of any company's assets that, under applicable environmental laws and regulations, are considered as having a negative environmental impact. In practice, these regulations can be difficult to comply with. There are few environmental engineering or consulting companies present in Romania and in many cases the clean up of past environmental damage will be cost prohibitive to foreign investors. Presently, if the State Ownership Fund (SOF) is selling a majority stake in a company, the prospective buyer must submit a report to the local environmental agency office. This office then issues an assessment as to whether or not additional environmental reviews/audits are necessary. By law, the SOF has discretion in deciding whether additional audits are needed. Given the considerable environmental damage inflicted by the state sector in the past, the sof will face considerable difficulty in selling a number of major enterprises if purchasers are forced to pay for clean up of past damage. The recent privatization of a major oil refinery might serve as a precedent. In this case, the SOF indemnified the purchaser from any prior environmental damage, requiring only that environmental regulations be complied with going forward. Foreign investors can participate in privatization programs by acquiring shares and assets in Romanian commercial companies from the State Ownership Fund. Sales take one of the following forms: public offering on the Bucharest Stock Exchange or RASDAQ, direct negotiation, auction, depositary receipts issued by investment banks on the international capital markets (GDR, ADR, EDR) or a combination of these methods. Many of the laws and regulations on investment as well as other information on Romania's investment climate can be found on the internet at www.sof-romania.com. A.2. Conversion and Transfer Policies Romanian legislation does not put any restrictions on converting or transferring funds associated with direct investment. All profits made by foreign investors in Romania may be converted into hard currency, and transferred abroad, after payment of taxes. Proceeds from the sale of shares, bonds, or other securities, as well as from winding-up an investment can also be repatriated. There is no limitation on the inflow or outflow of funds for remittances of profits, debt service, capital gains, returns on intellectual property or imported inputs. In February, 1998 the Romanian government implemented new regulations that liberalized the forex market on the current account. Initially the new regulations caused confusion, but that was resolved when the National Bank of Romania (NBR) issued a circular letter published in the Official Gazette on May 29, 1998 clarifying the new rules. Procedural delays in processing capital outflows still exist. The NBR is studying the eventual liberalization of capital account transactions, but in the wake of recent disruptions caused by capital outflows in Asia and other developing economies the Ministry of Finance and NBR will proceed cautiously and implementation is not expected in the short-term. The Ministry of Finance is particularly concerned about "hot money", that is, about potentially large inflows of short-term capital investment and the potential impact on exchange rate stability. A.3. Expropriation and Compensation The law on direct investment includes a guarantee against nationalization and expropriation and other equivalent actions. The law also allows investors to choose the court or arbitrary body they want to settle any potential litigation. Since 1989 there have been no cases involving expropriation of American property, although there are many unresolved cases involving dwellings nationalized during the communist era. A.4. Dispute Settlement Property and contractual rights are recognized, but enforcement through Romanian courts is difficult. Foreign companies engaged in trade or investment in Romania often express concerns with respect to the international commercial experience of Romanian courts. Judges generally have little experience in the functioning of a market economy, international business methods, or the application of new Romanian commercial laws. Many agreements involving international companies and Romanian counterparts provide for the resolution of such disputes through third-party arbitration. Arbitration offers an effective means of dispute resolution which avoids long trials before non-specialized legal courts. The parties may choose one or more arbitrators who are specialists in international commerce or a particular industry. Romania recognizes the importance of arbitration in the settlement of commercial disputes. It is a signatory to the New York convention of 1958 regarding the recognition and execution of foreign arbitration awards. Romania is also a party to the European convention on international commercial arbitration concluded in Geneva in 1961 and a member of the International Center for the settlement of investment disputes. Romanian law and practice recognize applications to other internationally renowned arbitration institutions, such as the ICC Paris Court of Arbitration. Arbitration awards are enforceable through the Romanian courts under circumstances similar to those in western countries. In addition, Romania has an International Commerce Arbitration Court administered by the Chamber of Commerce and Industry of Romania. (The "Arbitration Court"). The regulations and procedural rules provide for the Arbitration Court to be a permanent non-governmental arbitration institution. The Arbitration Court is independent financially, administratively and organizationally. The Chamber of Commerce and Industry of Romania is also non-governmental, and is a self-governing, public interest organization, which organizes arbitration proceedings through the Arbitration Court. The Arbitration Court has cooperation agreements with arbitration institutions in the United States, Austria, Switzerland, India, South Korea, and other countries. Romania's bankruptcy law contains provisions for liquidation and reorganization that are generally consistent with western legal standards. It emphasizes enterprise restructuring and job preservation. Its major drawback is that it does not apply to the liquidation of strategic state enterprises ("autonomous regies"). Legal education and the training of existing judges and lawyers has lagged behind law making bodies, making it difficult to bring bankruptcy cases to court with consistent outcomes. A.5. Performance Requirements/Incentives There are no performance requirements imposed as a condition for establishing, maintaining or expanding an investment. The current investment incentives, listed in the Investment Law, and available to both foreign and domestic investors include: -- the import of goods that represent a contribution to the capital base of the company are exempt from customs duties and the value added tax; -- the import of industrial equipment is exempt from customs duties; -- advertising expenses can be fully deducted from taxable profits; -- reductions in profit taxes, by deductions from the level of profitable income, including deductions for losses in previous years; -- and accelerated depreciation. Incentives granted other the previous investment law were grandfathered by the new law. Like other Central and Eastern European countries, Romania provides tariff preferences for EU goods under its association agreement with the EU. A.6. Right to Private Ownership and Establishment The Romanian constitution, adopted in December 1991, guarantees the right to ownership of private property. Mineral rights, air rights, and similar attributes are excluded from private ownership. Foreign investors involved with commercial companies having partial or full foreign capital may acquire land or property necessary for fulfilling or developing the company's corporate goals. If the company is dissolved or liquidated, the land must be sold within one year of the company's closure and may be sold only to a buyer(s) with the legal right to purchase such assets. Agricultural land cannot be purchased by foreign investors at this time. The process of establishing a company in Romania, although recently streamlined, can be bureaucratic and time consuming. The Romanian Trade Registry is responsible for company registration. A.7. Protection of Property Rights Romania is a signatory to international conventions concerning intellectual property rights and has enacted legislation protecting patents, trademarks, and copyrights. While the legal framework is generally good, enforcement remains weak. Romania has yet to pass border enforcement provisions required under the WTO. -- Patents: Romania is a party to the Paris Convention for the protection of industrial property and has subscribed to all of its amendments. Foreign investors are therefore entitled to the same treatment as Romanian citizens. A modern Patent Law (No. 64/91) broadens and clarifies the basis on which a patent is granted. Several other laws (No. 129/92, on the protection of industrial drawings and designs; No. 16/95, on the protection of integrated circuit designs, etc.) have helped bring Romanian patent legislation up to international standards. Patents are valid for 20 years. The period for contesting a patent application is six months. Legislation providing for transitory ("pipeline") patent protection was enacted in early 1998. -- Trademarks: In 1998 Romania passed a new law on trademarks which is generally consistent with international standards. Romania is a signatory to the Madrid Agreement relating to the international registration of trademarks. Trademark registrations are valid for 10 years from the date of application, being renewable for similar periods. The first applicant is entitled to the registration. The period for contesting a trademark is six months. -- Copyrights: Romania is a member of the Bern Convention on copyrights. Its 1996 law on protection of copyrights and neighboring rights is among the most modern in this field. It is consistent with EU provisions and incorporates many suggestions made by U.S. experts. In 1998, the Romanian parliament ratified the latest versions of the Bern and Rome conventions. A.8. Transparency of the Regulatory System Cumbersome and non-transparent bureaucratic procedures are a major problem. Foreign investors point to the excessive time it takes to secure the necessary zoning permits, property titles, licenses, and utility hook-ups. Furthermore, regulations change frequently, sometimes literally overnight, and without advance notice. The government does not have an effective means of communicating with foreign investors or with Romanian private businesses about changes in the regulatory framework. These changes, which can significantly change the costs of doing business, make it difficult for investors to develop effective business plans. Many successful foreign investors choose to work with a local Romanian partner to alleviate some of these problems. Many foreign investors feel they are unfairly targeted by Romanian tax authorities for audits and reviews and that Romanian authorities view them as "cash cows" that can be milked to fill government coffers. Unlike most Romanian companies, foreign investors generally have good financial records that make them easier to investigate. Foreign investors also tend to be more conscious of the need to remain in compliance with local laws and regulations. The presence of large state-owned government-subsidized enterprises in the economy is also a major impediment to the efficient mobilization and allocation of investment capital. A.9. Efficient Capital Market and Portfolio Investment Romania seeks to develop efficient capital markets. However, because of the slow pace of the privatization process, capital markets have only recently become fully operational in Romania. Ordinance No. 18/93 and Government Decision No. 552/92 established a securities commission (CNVM) charged with regulating the securities market in order to protect investors. The process principally provides for: registration and licensing of brokers and financial intermediaries, filing and approval of prospectuses, and approval of market mechanisms. Romania officially opened the Bucharest Stock Exchange (BSE) on June 22, 1995. On November 20, 1995, the stock exchange made its first transactions after a hiatus of 50 years. The BSE now operates a two-tier system that lists a total of 72 companies with 12 companies on the first tier. The official index, BET, is based on a basket of the 10 most active stocks listed on the first tier. The BSE has a home page at http://www.bse.ccir.ro. In September 1996, the Romanian over-the-counter stock market, RASDAQ, was inaugurated. It is supported by an independent registry and depository for Romanian securities. Over 5,500 companies are listed on the RASDAQ though typically around 600 companies are traded each day. RASDAQ has a home page at http://www.rasd.ro. Given the trading volume and pace of privatization many brokers feel the broker/dealer industry is close to saturation. Tight competition has brought trading fees down and lack of liquidity among listed companies makes it difficult to place large purchase orders. Together with unsatisfactory disclosure and annual audit reports this lack of liquidity has tended to keep large institutional investors away. Country funds, hedge funds, and venture capital funds however continue to participate actively in the capital markets or through direct investment in private enterprises. Recent complaints have been aired by one of the largest U.S. investment funds present in Romania regarding the abuse of minority shareholder rights. To date the Romanian government has not responded to complaints by U.S. investment funds regarding the abuse of minority shareholder rights and failure to do so could slow foreign direct investment in state-owned enterprises particularly the purchase of minority stakes via the capital markets. A.10. Political Violence There have been no incidents in Romania involving politically motivated damage to foreign investments (projects and/or installations). Major civil disturbances are not likely to occur in Romania in the near future. A.11. Corruption Romanian law and regulations contain provisions intended to prevent corruption, but enforcement is generally weak. Corruption is currently punishable under a variety of statutes in the penal code. An anti-corruption bill before parliament would establish a new institute to create a database on organized crime and corruption, and a new commission to combat these problems, but parliament has not taken action on the bill. A money laundering law and changes to the criminal code are expected to be passed before the end of the year. Prison sentences are sometimes imposed for white collar crimes, but powerful and influential individuals often evade punishment. The government is preparing to accede to the OECD convention on combatting bribery, but is not yet a signatory. U.S. firms have complained of government corruption in Romania. The customs service, municipal zoning offices, local financial authorities, and other bodies are affected to some degree by this problem. In some cases, demands for payoffs by mid- to low-level officials can reach the point of harassment. Data on which to judge the prevalence of corruption are lacking. President Constantinescu has made fighting corruption a central theme of his administration, which took office in late 1996. He established a national commission to combat organized crime and corruption, and the government re-organized its control board, financial guard, and other institutions charged with fighting corruption, but with few tangible benefits. Bribery is punishable by fines or imprisonment, but not both. Fines permitted under the existing penal code are too low to be effective deterrents. There is no deduction for bribery in the tax code. B. Bilateral Investment Agreements Romania has concluded bilateral investment protection agreements or treaties with the following countries: Albania, Algeria, Argentina (1994), Armenia (1995), Australia (1994), Austria (1997), Bangladesh (1987), Belarus (1995), Belgium + Luxembourg (1997), Bolivia (1996), Bulgaria (1991), Cameroon (1981), Canada (1997), Chile (1995), China (1995), Croatia, Cuba (1997), Czech Republic (1985), Cyprus (1993), Denmark (1995), Egypt (1997), Finland (1993), France (1995), Gabon (1982), Germany (1981), Ghana, Greece (1997), Hungary (1991), Indonesia, Israel (1992), Italy (1991), Jordan (1995), Kazakstan (1997), Kuwait (1992), Lebanon (1995), Lithuania, Malaysia (1997), Moldova (1994), Mauritania (1989), Mongolia (1996), Morocco, Nigeria, Norway (1991), Netherlands (1984), Pakistan (1979), Paraguay, Peru, Philippines, Poland (1991), Portugal, Qatar (1997), Russia (1992), Senegal (1984), Singapore, Slovakia, Slovenia (1996), South Korea (1997), Spain (1995), Sri Lanka (1982), Sudan, Switzerland (1994), Tunisia (1996), Turkey (1994), Turkmenistan (1995), Ukraine (1995), United Kingdom (1995), USA (1994), Uruguay (1993), Uzbekistan (1997), Yugoslavia (1996). The U.S.-Romanian Treaty on the reciprocal encouragement and protection of investment (signed May 1992, ratified by the U.S. party in 1994) guarantees national treatment for American and Romanian investors. It provides a workable dispute resolution mechanism. C. Opic and Other Investment Insurance Programs Following the signing of an investment incentive agreement in June 1992, the Overseas Private Investment Corporation (OPIC) began operations in Romania in late 1992. Four major projects have been approved to date totaling $22 million in loans and up to $86 million in investment insurance. Since 1992, Romania has been a member of the Multilateral Investment Guarantee Agency (MIGA). D. Labor Romania offers a large skilled labor force at comparatively low rates in most sectors. Annually, the university system matriculates a high percentage of technically oriented graduates and positive reports have been received from U.S. businesses that employ Romanian engineers and software designers. With appropriate on-the-job training, local labor can perform well with new technologies and more exacting quality requirements. However, there is a shortage of western-trained managers. Since the revolution of December 1989, labor-management relations have occasionally been tense as a result of economic restructuring efforts and attendant personnel layoffs. Unemployment is 9 percent of the country's active labor-force. Trade unions are vocal defenders of their prerogatives. The government adheres to the ILO convention protecting worker rights, and in accordance with a 1997 ILO recommendation is seeking to amend legislation restricting the right to strike. Many Romanian state enterprises maintain that the first priority for an enterprise is to preserve jobs rather than turn a profit. Individual dismissals for poor performance must be carefully documented and are subject to legal challenge by the affected employee. Some foreign investors have run into labor problems when they have tried to trim staff in loss-making product lines. Foreign investors should be wary about purchasing an enterprise that is in need of substantial restructuring. Steep salary taxes may also generate problems. Romania currently levies a maximum tax rate of 45 percent on gross salaries above $300 per month. The law makes it very costly to locate expatriate staff in Romania. Foreign companies often resort to expensive staff rotations, special consulting contracts, and non-cash benefits. E. Foreign Trade Zones/Free Ports Free trade zones and warehouses operate under Law No. 84/1992. General provisions include unrestricted entry and re-export of goods as well as exemption from customs duties and value added tax. They also include an exemption from profit taxes for the duration of a company's operations in the free trade zones. The law further permits the leasing or transfer of buildings or lands for terms of up to 50 years to either legal or natural persons, Romanian and non-Romanian. Currently, there are five free trade zones: -- Sulina (located at the mouth of the Danube) -- Constanta-Sud (located close to the port of Constanta, at the entrance to the Black Sea-Danube canal); -- Galati (located about 100 km from the Danube mouth); -- Braila (located 30 km up the Danube from Galati); and -- Giurgiu (located on the Danube, 60 km south of Bucharest). These free trade zones are operated by the Free Trade Zones Agency of the Ministry of Transportation. F. Foreign Direct Investment Statistics Despite some substantial gains in recent years, direct investment flows into Romania remain far below the levels that the economy needs to promote economic growth. According to data provided by the Romanian Development Agency, cumulative foreign direct investment for the 1990-1997 period totaled $3.4 billion. As of end-1997, the largest direct foreign investors in Romania were France ($427.1 million), South Korea ($368.3 million), the Netherlands ($294.6 million), Germany ($290.1 million), the U.S. ($254.4 million), and Italy ($200.0 million). Figures for France, the Netherlands, Germany and Italy also include amounts resulting from their participation in the privatization of some Romanian enterprises. The number of companies with foreign capital amounted to 55,694 at the end of 1997, representing about 9 percent of all companies registered in Romania. The largest number of companies with foreign capital (12,290) were set up in 1992, but the peak year for foreign investment was 1994, when FDI reached $811.7 million. In 1997, FDI totalled $571.3 million, which represents 1.63 percent of GDP for 1997. The total stock of FDI since 1990 equals 8 percent of GDP for 1997. Preferred areas for foreign investment include oil exploration (Shell, Amoco, Enterprise Oil, Occidental); the automobile and automotive component industry (Daewoo, Siemens, Daimler Benz); banking and finance (Credit Lyonnais, Wasserstein Perella Group, ABN Amro bank, ING Bank, Chase-Manhattan, Citibank); food processing (Tenneco); telecommunications (France Telecom, Telesystem International Wireless Services, Airtouch); commercial construction and development (Bouygues); hotels (Hilton, Howard Johnson, Holiday Inn, Compagnie Immobiliere Phoenix, Ilbau Holding); and consumer products (Procter and Gamble, Unilever, Henkel, Colgate Palmolive). As of February 1998, the top corporate foreign investors in Romania were Daewoo (South Korea, $156.1 million), Mobifon (Canadian-U.S. consortium, $78.5 million), France Telecom ($61.2 million), Tofan Group (The Netherlands, $60 million), Timken ($60 million), Shell Romania (U.K., $57 million), and Lukoil ($52 million). Significant U.S. investors include Coca-Cola, Pepsi, McDonalds, Kraft Jacobs Suchard, Philip Morris, Reynold's Tobacco, Procter and Gamble, Colgate-Palmolive, Tenneco Packaging, IBM, Oracle, Amoco, Citibank, Chase-Manhattan, AIG, Airtouch.
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