Legislation for Foreign Investment Statutes in Countries in the Americas
Comparative Study
1. Legal bases for foreign investment
Objective: Indicate if there is a Foreign Investment Statute and describe it. In the paragraphs below, indicate the legal rank of the norms contained in the Statute, i.e., regulations for expropriation fall under which rank?
1.1 Constitutional
1.2 Legal
1.3 Administrative
2. Concept and subject of foreign investment
Objective: It is essential that both the investor and the nature of the investment be identified, so as to determine to which activity and to whom the regulations will be applied. This is also essential at the international level, especially in case of dispute and arbitration.
2.1 Is foreign investment in your country legally defined or conceptualized?
Conceptualized, no investment law that defines the proportion of equity that foreign investors can own.
Yes. Registration of business records that incorporates nationality of owner and type of business actions.
2.3 Is it possible for a natural person to resort to the foreign investment legislation?
Yes. No minibus investment law that describes the Government treatment of foreign and domestic investment.
2.4 Is it possible for a citizen or resident to resort to the foreign investment regime?
Yes. As explained in 2.3
2.5 Can a recipient company funded with both domestic and foreign capital resort to foreign investment regulations? Is this subject to restrictions?
Yes. Subject to financial regulations
2.6 Is there a time limit for a foreign investor to be considered as such?
No.
2.7 Are restrictions imposed on the executive body or other staff of an enterprise. Are there nationality quotas? Under what conditions can the executives or other staff hired abroad send their earnings to their country of residence?
Both executive body and staff are restricted by the immigration laws.
No nationality quotas. Exchange Control Act governs repatriation of earnings.
3. Scope of foreign investment activities
Objective: Define the legal scope of foreign investment in your country, as well as their conditions and limitations.
3.1 Describe the regulating principles of economic activity in your country.
a) Describe how economic freedom is guaranteed.
Guyana has liberal policies and protection of investment. There are no restrictions on the proportion of private or foreign ownership. It is the policy of the Government to protect all investment.
b) Is the principle of economic nondiscrimination guaranteed? Describe how.
Guyana has liberal policies and protection of investment. There are no restrictions on the proportion of private or foreign ownership. It is the policy of the government to protect all investment.
c) Public and private enterprises (local and foreign): do they compete on equal terms, or does the State have higher benefits?
Government fully respects the property rights of all investment. These rights are embodied under the national laws and they do not discriminate between foreign and local or public and private.
3.2 Indicate the scope of foreign investment, i.e., does it include movable and immovable property, assets, concessions, claims to money, intellectual property, industrial property, leasing, technology, etc.
Foreign investment entitlement are no less favorable than domestic investments. They include movable and immovable property assets. concessions, claims to money, intellectual property, leasing, technology etc.
3.3 Reserved sectors
a) Indicate the sectors or economic activities reserved exclusively for the state in your country. Explain the regulations pertinent to these areas.
b) Indicate the sectors or economic activities in which only foreign investment is excluded, restricted or limited in your country. Explain in what consists said exclusion, restriction or limitation.
Some limitation exists in mining whereby investors are only eligible to apply for licenses to engage in large scale mining.
c) Does the Principle of International Reciprocity exist in the legislation of your country?
Yes
d) Is foreign investment subject to performance requirements?
Yes
e) Can foreign investors take part in the privatization processes of your country?
Yes
4. Rights and protection of foreign investment
Objective: Identify the type of treatment granted foreign investment i.e.: its rights, protection and incentives.
4.1 Treatment granted to the foreign investor and the investment
a) National treatment or Most-Favored-Nation clause ? (Refer to paragraphs 3.1 and 3.3)
National Treatment.
4.2 Protection of Property
a) Constitutional or legal grounds that may lead to expropriation of, or limitations to property.
It is not part of Government policy to nationalize property. The objective circumstances which led to nationalization during the 1970's no longer exists.
b) How is compensation determined? Which value is it based on? How is it settled?
Investment disputes can, under the country's Arbitration Act be referred to the High Court for determination or to ICSID or MIGA.
c) Can the authorities take possession of expropriated assets prior to paying compensation?
No
d) Is property of both corporal and incorporeal assets equally guaranteed?
Yes
4.3 Transfers of investment, remittances of capital and benefits
a) Under what conditions may investments in the form of foreign exchange, capital goods, technology, associated credits, etc., be brought into the country? Are there specific regulations for each item?
Only aspect related to foreign exchange under the FE Control Act.
b) Are there restrictions to the remittances of capital, benefits, debt service, or other remittances derived from foreign investment?
No
c) Are there different kinds of exchange rates? To which does the foreign investor have access?
At the prevailing exchange rates
4.4 Taxes and incentives to foreign investment
a) Explain briefly the taxes that foreign investments are subject to.
Income, corporation and capital gains Tax
b) Are there special tax rules for foreign investment?
No
c) Has your country signed agreements with other countries in the Americas to avoid double taxation? If yes, list those countries.
Canada
d) Are there other incentives to foreign investment, such as access to domestic credit, investment insurance, industrial parks, customs exemptions, etc.?
Foreign and domestic investments enjoy the same benefits.
5. Dispute settlement
Objective: Because Bilateral Investment Treaties (BITs) will be part of another study, only an overview of the subject is required here.
5.1 Domestic settlements: Can the foreign investor resort to the same procedures as the national investor? Are there special forms of appeal available to foreign investors? Please describe.
Foreign and domestic investors can resort to the same procedure. Foreign investors can resort to the High Court for settlement of disputes.
5.2 International settlements: Is your country a member of ICSID or other international arbitration mechanisms on the subject of investment?
Guyana is a signatory to ICSID, MIGA and has applied for membership in WIPO.
5.3 Has your country signed BITs with other countries in the Americas? What is the present status of said agreements, i.e., approved, ratified, in effect?
USA
Venezuela
Colombia
CARIBCAN
CARICOM
Cuba (being finalized)
5.4 Where in the juridical hierarchy of your country are international treaties and specifically the Investment Protection Agreements? Analyze your response in relation to the Constitution and domestic laws.
5.5 Do said agreements have "direct effect", that is to say, can they be invoked by the parties directly before the Courts and then applied to the case in question? If not, under what circumstances can they be invoked and applied?
6. National authorities
Objective: To identify the agencies in charge of foreign investment, their organization and functions.
6.1 Is foreign investment handled by specially appointed offices in your country? What is their hierarchical status? How are their actions integrated? What are their main attributions?
GOINVEST, the investment promotion agency, is managed by a Board of Directors with private sector dominance.