Policies Towards Foreign Direct Investment

The GOI has publicly and repeatedly stated its desire to attract foreign investment as part of national plans to strengthen local industries and promote the “Made in Iraq” brand. Although the GOI partnered with the World Bank and Kuwaiti government to host the Kuwait International Conference for the Reconstruction of Iraq in February 2018, the GOI has yet to follow through on commitments made at the conference to reform processes and regulations that hinder investment. Iraq has claimed that countries have not followed through on their financial pledges, either.

Iraq operates under its National Investment Law (Investment Law), amended in December 2015. The Investment Law outlines improved investment terms for foreign investors, the purchase of land in Iraq for certain projects, and an investment license process. The purchase of land for commercial or residential development remains extremely difficult. Since 2015, Iraq has been a party to the International Convention on the Settlement of Investment Disputes between States and Nations of Other States (ICSID).

Foreign investors continue to encounter bureaucratic challenges, corruption, and a weak banking sector, which make it difficult to successfully conclude investment deals. State-owned banks in Iraq serve predominantly to settle the payroll of the country’s public sector. Privately-owned banks, until recently, served almost entirely as currency exchange businesses. Some privately-owned banks have begun commercial lending programs, but Iraq’s lack of a credit monitoring system, insufficient legal guarantees for lenders, and limited connections to international banks hinder commercial lending. The financial sector in the IKR is still recovering from years of financial instability, and the Central Bank of Iraq (CBI) levied sanctions against the IKR’s financial institutions immediately following the Kurdistan independence referendum in September 2017.

Recently, the GOI has been exploring financing options to pay for large scale development projects rather than relying on its previous practice of funding investments entirely from current annual budget outlays.

According to Iraqi law, a foreign investor is entitled to make investments in Iraq on terms no less favorable than those applicable to an Iraqi investor, and the amount of foreign participation is not limited. However, Iraq’s Investment Law limits foreign direct and indirect ownership of most natural resources, particularly the extraction and processing of natural resources. It does allow foreign ownership of land to be used for residential projects and co-ownership of land to be used for industrial projects when an Iraqi partner is participating.

Despite this legal equity between foreign and domestic investment, the GOI reserves the right to screen foreign direct investment. The screening process is vague, although it does not appear to have been used to block foreign investment. Still, bureaucratic barriers to foreign direct investment, such as a requirement to place a significant portion of the capital investment in an Iraqi bank prior to receiving a license, remain significant.

The IKR operates under a 2006 investment law and its supporting regulations. The KRG is generally open to public-private partnerships and long-term financing, as demonstrated by the KRG’s oil and gas sector contracts that increase production. Legislation to amend the investment law to broaden its reach to potential investors remains pending in the Iraqi Kurdistan Parliament (IKP).

The GOI established the National Investment Commission (NIC) in 2007, along with its provincial counterparts Provincial Investment Commissions (PICs), as provided under Investment Law 13 (2006). This cabinet-level organization provides policy recommendations to the Prime Minister and support to current and potential investors in Iraq. The NIC’s “One Stop Shop” is intended to guide investors through the investment process, though investors have reported challenges using NIC services. The NIC can also grant investment licenses and facilitate visa and residency permit issuances for business travelers. In November 2019, the Council of Ministers enforced a retirement requirement for government officials, ending the term of Dr. Sami al-Araji as the Chairman of the NIC, and replacing him with an acting chairman until a new chairman is assigned.

Limits on Foreign Control and Right to Private Ownership and Establishment

Iraqi law stipulates that 50 percent of a project’s workers must be Iraqi nationals in order to obtain an investment license (National Investment Regulation No. 2, 2009). Investors must prioritize Iraqi citizens before hiring non-Iraqi workers. The GOI pressures foreign companies to hire more local employees and has encouraged foreign companies to partner with local industries and purchase Iraqi-made products.

The GOI generally favors SOEs and state-controlled banks in competitions for government tenders and investment. This preference discriminates against both local and foreign investors.

Other Investment Policy Reviews

In the past three years, the GOI did not conduct any investment policy reviews through the Organization for Economic Cooperation and Development (OECD), the World Trade Organization (WTO), or the United Nations Conference on Trade and Development (UNCTAD).

Business Facilitation

Foreign investors interested in establishing an office in Iraq or bidding on a public tender are required to register as a foreign business with the Ministry of Trade’s Companies Registration Department. The procedure costs and time to obtain a business license can be found at https://baghdad.eregulations.org/procedure/21?l=en . Many international companies use a local agent to assist in this process, due to its complexity. The GOI is working with UNCTAD to streamline the business registration process. The KRG is also working to put the business registration process and procedures online. Initial steps have been completed in both projects.

The KRG offers business registration for companies seeking business only in the IKR; however, companies that seek business in both the IKR and greater Iraq must register with the GOI Ministry of Trade.

Iraqi laws give the NIC and PICs authority to provide information, sign contracts, and facilitate registration for new foreign and domestic investors. The NIC offers investor facilitation services on transactions including work permit applications, visa approval letters, customs procedures, and business registration. Investors can request these services through the NIC website: http://investpromo.gov.iq/ . The NIC does not exclude businesses from taking advantage of its services based on the number of employees or the size of the investment project. The NIC can also connect investors with the appropriate provincial investment council.

These official investment commissions do struggle to operate amid unclear lines of authority, budget constraints, and the absence of regulations and standard operating procedures. Importantly, the investment commissions lack the authority to resolve investors’ bureaucratic obstacles with other Iraqi ministries.

To incorporate a company in Iraq, an investor must first obtain a statement from an Iraqi bank showing a minimum capital deposit. All investors must also apply for an investment license from the appropriate national, regional, or provincial investment commission. Companies must register with the Ministry of Finance’s General Commission for Taxation (GCT) and register employees for social security (if applicable). Companies receive their tax identification number as part of registering their business with the Ministry of Trade. Companies that provide security are also required to register with the Ministry of the Interior.

The Kurdistan Board of Investment (BOI) manages an investment licensing process in the IKR that can take from three to six months and may involve more than one KRG ministry or entity, depending on the sector of investment. Due to oversaturated commercial and residential real estate markets, the BOI has moved away from approving licenses in these sectors but may still grant them on a case-by-case basis. Businesses reported some difficulties establishing local connections, obtaining qualified staff, and meeting import regulations. Some businesses have reported that the KRG has not provided all of the promised support infrastructure such as water, electricity, or wastewater services, as required under the investment law framework. Additional information is available at the BOI’s website: http://www.kurdistaninvestment.org/ .

Outward Investment

Iraq does not restrict domestic investors from investing abroad.

Transparency of the Regulatory System

Iraq’s overall regulatory environment remains opaque and the Investment Law does not establish a full legal framework governing investment. Corruption, unclear regulations, and bureaucratic bottlenecks are major challenges for companies that bid on public procurement contracts or seek to invest in major infrastructure projects. The KRG procurement reform measures, beginning in 2016, sought to address these problems, but with little result. Iraq’s commercial and civil laws generally fall short of international norms.

The absence of other investment laws, and the GOI’s failure to implement laws, creates ambiguity. One example is Iraq’s Legislative Action Plan for the Implementation of WTO Agreements, which is the legislative “road map” for Iraq’s eventual WTO accession. While the Council of Representatives passed a Competition Law and a Consumer Protection Law in 2010, the GOI has not established the legally-requisite Competition and Consumer Protection Commissions that would implement the reforms and oversight. Without these commissions, investors do not have recourse against unfair business practices such as bid rigging or abuse of a dominant position in the market.

The process of Iraqi government rulemaking can be opaque and lends itself to arbitrary application. To illustrate, while ministries must publish regulations imposing duties on citizens or private businesses in the official government gazette, internal ministerial regulations have no corresponding requirement. This loophole allows officials to create internal requirements or procedures with little or no oversight, which can result in additional burdens for investors and businesses. Furthermore, the lack of regulatory coordination between GOI ministries and national and provincial authorities can result in conflicting regulations, which makes it difficult to accurately interpret the regulatory environment. In addition, accounting and legal procedures are opaque, inconsistent, and generally do not meet international standards.

Draft bills, including investment laws, are not available for public comment. The promulgation of new regulations with little advance notice and requirements related to investment guarantees have also slowed projects.

The GOI encourages private sector associations but private sector associations are generally not influential, given the dominant role of SOEs in Iraq’s economy. In the IKR, private sector associations have some influence and many, such as the contractors’ union, are very active in advocacy with the KRG.

Iraq has limited transparency of its public finances or government held debt. Publicly available budgets did not include expenditures by ministry or revenues by source and type. The budget provided limited details regarding allocations to, and earnings from, SOEs. Financial statements for most SOEs were generally not publicly available. Limited information on debt obligations was available on the Central Bank and Ministry of Finance websites.

International Regulatory Considerations

Iraq is not a member of the WTO and is not a signatory to the Trade Facilitation Agreement.

Legal System and Judicial Independence

Iraq has a civil law system, although Iraqi commercial jurisprudence is relatively underdeveloped. Over decades of war and sanctions, Iraqi courts did not keep up with developments in international commercial transactions. Corruption and bureaucratic bottlenecks remain significant problems. As trade with foreign parties increases, Iraqi courts have seen a significant rise in complex commercial cases. Although contracts should be enforceable under Iraqi law, such enforcement remains a challenge due to unclear regulations, lack of decision-making authority, and rampant corruption.

Laws and Regulations on Foreign Direct Investment

Iraq is a signatory to the League of Arab States Convention on Commercial Arbitration (1987) and the Riyadh Convention on Judicial Cooperation (1983). Iraq formally joined the ICSID Convention on December 17, 2015, and on February 18, 2017, Iraq joined the Investor-State Dispute Settlement (ISDS) process agreement between investors and states.

Additional information can be found in “A Legal Guide to Investment in Iraq” http://cldp.doc.gov/programs/cldp-in-action/details/1551 .

Competition and Anti-Trust Laws

The Council of Representatives (COR) passed a Competition Law and a Consumer Protection Law in 2010. However, the Iraqi government has yet to form the Competition and Consumer Protection Commissions authorized by these laws. The COR has also amended Iraqi law several times to promote fair competition and “competitive capacities” in the local market (2010, 2015).

The Council of Ministers has also issued many recommendations regarding the amendments of investment licenses and to improve the investment and businesses environment in Iraq. The August 2019 Resolution 245 announced investment opportunities through the NIC.

The prominent role of SOEs in Iraq and corruption issues undermine the competitive landscape.

Expropriation and Compensation

The Iraqi Constitution prohibits expropriation, unless done for the purpose of public benefit and in return for just compensation. The Constitution stipulates that expropriation may be regulated by law, but the COR has not drafted specific legislation regarding expropriation. Article 9 of the Investment Law guarantees non-seizure or nationalization of any investment project that the provisions of this law cover, except in cases with a final judicial judgment. The law prohibits expropriation of an investment project, except in cases of public benefit and with fair compensation. Iraq’s Commercial Court is charged with resolving expropriation cases. Over the past six years, there have not been any government actions or shifts in government policy that would indicate possible expropriations in the foreseeable future.

In the IKR, the BOI can impose fines and potentially confiscate land if it determines that investors are using land awarded under investment licenses for purposes other than those outlined in the license. The IKR investment law (Article 17) outlines an investor’s arbitration rights, which fall under the civil court system. Arbitration clauses should be written into local contracts in order to facilitate enforcement in the event of a dispute.

Dispute Settlement

ICSID Convention and New York Convention

Iraq is considering, but has not yet signed or ratified, the convention on Recognition and Enforcement of Foreign Arbitral Awards (1958 New York Convention) and the ad hoc arbitration rules and procedures that the UN Commission on International Trade Law has established (UNCITRAL Model Law). The enforcement of arbitral awards must comply with the special requirements set forth in current Iraqi civil procedure law and other related laws.

Investor-State Dispute Settlement

In November 2010, Iraq’s Higher Judicial Council established the First Commercial Court of Iraq — a court of specialized jurisdiction for disputes involving foreign investors — as part of a national strategy to improve Iraq’s investment climate. This court began hearing cases in January 2011. In 2017, a Higher Judicial Council survey of the 16 federal courts of appeals that heard Iraq’s commercial cases showed that 1,565 commercial cases had been filed and 83 percent of those cases had been completed. Given that all of Iraq’s ministries are located in the capital, and the vast majority of commercial cases involve a foreign party and an Iraqi government agency, the Baghdad Commercial Court reviews far more commercial cases than the general jurisdiction courts in the surrounding provinces. In 2017, 982 commercial cases were filed with Baghdad’s Commercial Court, representing 63 percent of the total commercial cases filed.

In the IKR, commercial disputes are handled through the civil court system.

Additional information can be found in “A Legal Guide to Investment in Iraq:”  http://cldp.doc.gov/programs/cldp-in-action/details/1551 

International Commercial Arbitration and Foreign Courts

Iraq is a signatory to the League of Arab States Convention on Commercial Arbitration (1987) and the Riyadh Convention on Judicial Cooperation (1983). Iraq formally joined the ICSID on December 17, 2015, and on February 18, 2017, Iraq joined the ISDS process agreement between investors and states.

Bankruptcy Regulations

Under Iraqi law, an Iraqi debtor may file for bankruptcy, and an Iraqi creditor may file for liquidation of the debtor. Bankruptcy is not criminalized. The Iraqi Companies Law regulates the process for the liquidation of legal entities. Nevertheless, the mechanism for resolving insolvency remains opaque. Iraq ranks 168 out of 190 countries in the category of Resolving Insolvency, according to the World Bank’s 2020 Doing Business Report.

tableSOEs are active across all sectors in Iraq. GOI ministries currently own and operate over 192 SOEs, a legacy of the state planning system. The GOI’s continued support of unprofitable entities places a substantial fiscal burden on Iraq, as many SOEs are unproductive. These firms employ over half a million Iraqis, many of whom are underemployed. The degree to which SOEs compete with private companies varies by sector; SOEs face the most competition in the market for consumer goods. The GOI had expressed a commitment to reforming the SOEs and taking steps toward privatization as part of its previous international financing programs.

Iraqi law permits SOEs to partner with foreign companies. When parent ministries wish to initiate a partnership for an SOE under their purview, they generally advertise the tender on their ministry’s website. Partnerships are negotiated on a case-by-case basis, and require the respective minister’s approval. The Ministry of Industry and Minerals (MIM), which oversees the largest number of Iraq’s SOEs, established the following requirements for partnerships: minimum duration to three years, the foreign company must register a company office in Iraq, and the foreign company must participate in the production of goods. Foreign companies have faced challenges in partnerships because the GOI has, at times, cut subsidies to SOEs after partnerships were formed and due to conflicts between the parent ministry and the GOI’s official policy. In addition, the MIM has often required that the foreign investor pay all SOE employees’ salaries regardless of whether they are working on the agreed project.

GOI entities are required to give preferential treatment to SOEs, under multiple laws. A 2009 Council of Ministers’ decision requires all Iraqi government agencies to procure goods from SOEs unless SOEs cannot fulfill the quality and quantity requirements of the tender. A Board of Supreme Audit decision requires government agencies to award SOEs tenders if their bids are no more than 10 percent higher than other bids. Furthermore, some GOI entities, including the MIM, have also issued their own internal regulations requiring tenders to select Iraqi SOEs, unless Iraqi SOEs state that they cannot fulfill the order. Sometimes a foreign firm must form a partnership with an Iraqi firm to fulfill SOE-promulgated tenders. Further, SOEs are exempt from the bid bond and performance bond requirements that private businesses are subject to.

As a result of years of sanctions and war, most of these SOEs suffer from sclerotic management and dependence on GOI contracts. Many of them are not commercially viable due to bloated payrolls and obsolete equipment, although some have adapted and are producing goods for the domestic market. In 2015, the MIM developed a plan to restructure its 59 SOEs. Under the proposed plan, the MIM would rate SOEs based on their profitability and degree of government dependence. The government would then sell or shut down unprofitable SOEs that are unable to cover payroll obligations. However, no action to implement this plan has been undertaken. Another attempt at reform under the 2017 Federal General Budget Law would have expanded the potential role of private investment in SOE reform, giving governorates the mandate to expand partnerships with the private sector, with approval of the governorate’s council.

Iraq is not party to the Government Procurement Agreement within the framework of the WTO.

Iraqi law supports a degree of autonomy in the selection process of an SOE’s board of directors. For example, it requires that a minister’s sole appointment to a board of directors receive the approval of an “opinion board.” Nevertheless, in practice, the majority of board members have close personal and political connections to their parent ministry’s leadership.

SOEs do not adhere to OECD Guidelines. Iraq does not have a centralized ownership entity that exercises ownership rights for each of the SOEs. SOEs are required to seek their parent ministry’s approval for certain categories of financial decisions and operation expansions. However, in practice, SOEs defer to the parent ministry for the vast majority of decisions. SOEs submit financial reports to their parent ministry’s audit departments and the Board of Supreme Audit. These reports are not published and sometimes exclude salary expenses.

Privatization Program

The GOI has repeatedly announced that it plans to reorganize failing SOEs across multiple sectors.  Additionally, the GOI is eager to modernize Iraq’s financial and banking institutions.  There are, however, no concrete timelines for these initiatives, and entrenched patronage networks tying SOEs to ministries remain a stumbling block.  Presumably, foreign investors would have an opportunity to invest in privatization projects.  The IMF Stand-By Arrangement had required the GOI to conduct an audit of state-owned banks and the World Bank’s Development Policy Loan had required Iraq to audit SOEs.

The international oil companies active in Iraq are required to observe international best practices in corporate social responsibility (CSR) as part of their contracts with the GOI. Nevertheless, the GOI does not have policies in place to promote CSR and raise awareness of environmental and social issues among investors. The concept of CSR is not widely recognized in Iraq and few NGOs and business associations are monitoring it. Iraq has not subscribed to the OECD’s Guidelines for Multinational Enterprises.

In the IKR, oil companies are mandated in their production sharing contracts with the KRG to give back to the communities in which they work through corporate responsibility agreements. These agreements require yearly payments from which the KRG prioritizes and allocates funds for projects such as improved roads, university training for local youth in the geotechnical and energy fields, and health clinics.

Investors are required to protect the environment and adhere to quality control systems. These include soil testing requirements on the land designated for the project as well as conducting an environmental impact study. In practice, the GOI lacks a mechanism to enforce environmental protection laws and implementation is limited.

Iraq became a member of the Extractive Industries Transparency Initiative (EITI) in 2009. The Government of Iraq established a 15-person committee to work on EITI, including several Directors General within the Ministry of Oil, four representatives from NGOs, and oil company executives. The committee provided required reports through 2013. In February 2017, the World Bank approved a USD350,000 program to assist Iraq with carrying out its EITI obligations. In November 2017, the EITI Board concluded Iraq had made inadequate progress and temporarily suspended Iraq’s membership.

Iraq ranked 162 out of 180 on Transparency International’s 2019 Corruption Perception Index. Public corruption is a major obstacle to economic development and political stability. Corruption is pervasive in government procurement, in the awarding of licenses or concessions, dispute settlement, and customs.

While large-scale investment opportunities exist in Iraq, corruption remains a significant impediment to conducting business, and foreign investors can expect to contend with corruption in many forms, at all levels. While the GOI has moved toward greater effectiveness in reducing opportunities for procurement corruption in sectors such as electricity, oil, and gas, credible reports of corruption in government procurement are widespread, with examples ranging from bribery and kickbacks to awards involving companies connected to political leaders. Investors may come under pressure to take on well-connected local partners to avoid systemic bureaucratic hurdles to doing business. Similarly, there are credible reports of corruption involving large-scale problems with government payrolls, ranging from “ghost” employees and salary skimming to nepotism and patronage in personnel decisions.

Moving goods into and out of the country continues to be difficult, and bribery of or extortion by port officials is commonplace; Iraq ranks 181 out of 190 countries in the category of “Trading Across Borders” in the World Bank’s 2020 Doing Business report.

U.S. firms frequently identify corruption as a significant obstacle to foreign direct investment, particularly in government contracts and procurement, as well as performance requirements and performance bonds.

Several institutions have specific mandates to address corruption in Iraq. The Commission of Integrity, initially established under the Coalition Provisional Authority (CPA), is an independent government agency responsible for pursuing anti-corruption investigations, upholding the enforcement of laws, and preventing crime. The COI investigates government corruption allegations and refers completed cases to the Iraqi judiciary. COI Law No. 30, passed in 2011, updated the CPA provisions by granting the COI broader responsibilities and jurisdiction through three newly created directorates: asset recovery, research and studies, and the Anti-Corruption Academy. On October 28, the COR abrogated CPA Order 57, which had established Inspectors General (IGs) for each of Iraq’s ministries. Similar to the role of IGs in the U.S. government, these offices had been responsible for inspections, audits, and investigations within their ministries, although detractors claimed they in fact added another layer of bureaucracy and corruption.

The Board of Supreme Audit, established in 1927, is an analogue to the U.S. government’s General Accountability Office. It is a financially and administratively independent body that derives its authority from Law 31 of 2011 — the Law of the Board of Supreme Audit. It is charged with fiscal and regulatory oversight of all publicly-funded bodies in Iraq and auditing all federal revenues, including any revenues received from the IKR.

None of these organizations have provided an effective check on public corruption.

Neither the Commission for Integrity nor the IGs has effective jurisdiction within the IKR. The Kurdistan Board of Supreme Audit is responsible for auditing regional revenues with IKP and GOI oversight. The IKP established a regional Commission of Integrity in late 2013 and increased its jurisdiction the next year to include other branches of the KRG and money laundering.

Iraq is a party but not a signatory to the UN Anticorruption Convention. Iraq is not a party to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

Resources to Report Corruption

According to Iraqi law, any person or legal entity has the right to submit corruption-related complaints to the Commission for Integrity and the inspector general of a GOI ministry or body.

Commission for Integrity
Department of Complaints and Reports
Mobile: 07901988559
Landline: 07600000030
Hotline@nazaha.iq

Iraqi forces continue to carry out counter-terrorism operations against ISIS cells throughout the country.  Terrorist attacks within the IKR occur less frequently than in other parts of Iraq, although the KRG, U.S. government facilities, and Western interests remain possible targets. In addition, anti-U.S. sectarian militias may threaten U.S. citizens and companies throughout Iraq.

The Department of State maintains a Level Four Travel Advisory for Iraq and advises travelers not to travel to Iraq due to terrorism, kidnapping, and armed conflict.  U.S. government personnel in Iraq are required to live and work under strict security guidelines.  State Department guidance to U.S. businesses in Iraq advises the use of protective security details.  Detailed security information is available on the U.S. Embassy website: http://iraq.usembassy.gov/.  Some U.S. and third-country business people travel throughout much of Iraq; however, in general their movement is restricted and most travel with security advisors and protective security teams.

The GOI collects and publishes limited statistics with which to compare international and U.S. investment data. The NIC and PICs granted 1067 licenses between 2008 and 2015 (latest statistics available) with a total potential value of USD53.9 billion. An investment license does not mean that the proposed investment will be implemented.

In the IKR, the Kurdistan BOI granted 51 licenses in 2018, with a total potential value of USD3.13 billion. Compared to 2017, the BOI granted licenses to 18 more projects, representing a capital increase of USD2.4 billion (340 percent). The granting of an investment license from the BOI does not mean that the proposed investment will be implemented. All of the licenses granted in 2018 were to national (i.e. Iraqi-owned) projects.

Table 3: Sources and Destination of FDI
Data not available.

Table 4: Sources of Portfolio Investment
Data not available.

Embassy Baghdad Economic Section
Al-Kindi Street, International Zone, Baghdad
Office: +1-301-985-8841 x3013
USIraqTrade@state.gov
https://iq.usembassy.gov/business/getting-started-iraq/