ANALYSIS OF THE SECTION II: TRANSPARENCY OF INVESTMENT

MEASURES OF INVESTMENT FACILITATION DRAFT 2022.

PUBLICATION AND AVAILABILITY OF MEASURES AND INFORMATION

In order to make investors, interested parties, and other members become familiar with

any relevant general application measures linked to matters falling within its scope, each
member is required to disclose or make it readily accessible. The member state is obligated to
make public any international agreements to which it is a party.1 However, this provision is
waived in the case of an emergency situation. Once a member publishes the text of a law or
regulations, there should be a reasonable amount of time before investors are required to
comply.2 The member shall make every effort to announce in advance the aim and
objective of a new legislation or regulation or amendments that are relevant with the legal
framework for adopting measures.3 The Member shall maintain electronically accessible
information for investors.4 Information relevant to investing in its domain includes the laws
and regulations pertaining to FDI5, details regarding which sectors are open, limited, or
prohibited, and any other such data6. The information on how to start a company 7 and get it
registered8, as well as how to procure basic utilities9 & construction permits10, pay taxes11,
transfer money between investors12 and resolve insolvency13. The information should provide
contact details of the relevant authorities.14

INFORMATION TO BE MADE PUBLICLY AVAILABLE IF AN AUTHORIZATION IS REQUIRED

FOR AN INVESTMENT

If a member needs an approval for investment within its territory, it must make that
information publicly available in written form via electronic means, and information up to
1
Paragraph 5.1, Section II of the Investment Facilitation Draft, 2022.
2
Paragraph 5.2, Section II of the Investment Facilitation Draft, 2022.
3
Paragraph 5.3, Section II of the Investment Facilitation Draft, 2022.
4
Paragraph 5.4, Section II of the Investment Facilitation Draft, 2022.
5
Paragraph 5.4 (a), Section II of the Investment Facilitation Draft, 2022.
6
Paragraph 5.4 (b), Section II of the Investment Facilitation Draft, 2022.
7
Paragraph 5.4 (c) (i), Section II of the Investment Facilitation Draft, 2022.
8
Paragraph 5.4 (c) (iii), Section II of the Investment Facilitation Draft, 2022.
9
Paragraph 5.4 (c) (ii), Section II of the Investment Facilitation Draft, 2022.
10
Paragraph 5.4 (c) (iv), Section II of the Investment Facilitation Draft, 2022.
11
Paragraph 5.4 (c) (vi), Section II of the Investment Facilitation Draft, 2022.
12
Paragraph 5.4 (c) (vii), Section II of the Investment Facilitation Draft, 2022.
13
Paragraph 5.4 (c) (viii), Section II of the Investment Facilitation Draft, 2022.
14
Paragraph 5.4 (d), Section II of the Investment Facilitation Draft, 2022.
date with the standards and procedures for procuring, sustaining, amending, and renewing it.
This information could concern the technical standards and procedures that are relevant to the
investment under consideration.15 The form16, procedures17, timelines for filing an
application18, licensing fees19, public involvement opportunities20, application review21 &
compliance procedures22, and contact information23 of the necessary authorities should also be
made public. It is imperative that the information be made freely available in one of
the official Word Trade Organization (WTO) languages.24

SINGLE INFORMATION PORTAL

Through a single information portal, a member is encouraged to make the measures and
information available by sharing the relevant web links to electronic publications. 25 The
member is responsible for maintaining the contact details of the authorities in the single
information portal.26 It is imperative that the information be made freely available in one of
the official Word Trade Organization (WTO) languages.27

NO FEES IMPOSED FOR ACCESS TO INFORMATION

There won't be any fees levied for access to the measures and information on investors or
those wishing to invest in their territory.28

PUBLICATION IN ADVANCE AND OPPORTUNITY TO COMMENT ON PROPOSED MEASURES

The laws and regulations that have broad application or amendments connected to them must
be published beforehand by a Member.29 Additionally, documents that provide adequate
information about any potential new law or regulation must be made available. 30 A Member is
urged to use recommended guidelines and administrative decisions with broad application in

15
Paragraph 6.1 (a), Section II of the Investment Facilitation Draft, 2022.
16
Paragraph 6.1 (b), Section II of the Investment Facilitation Draft, 2022.
17
Paragraph 6.1 (c), Section II of the Investment Facilitation Draft, 2022.
18
Paragraph 6.1 (d), Section II of the Investment Facilitation Draft, 2022.
19
Paragraph 6.1 (e), Section II of the Investment Facilitation Draft, 2022.
20
Paragraph 6.1 (f), Section II of the Investment Facilitation Draft, 2022.
21
Paragraph 6.1 (g), Section II of the Investment Facilitation Draft, 2022.
22
Paragraph 6.1 (h), Section II of the Investment Facilitation Draft, 2022.
23
Paragraph 6.1 (i), Section II of the Investment Facilitation Draft, 2022.
24
Paragraph 6.2, Section II of the Investment Facilitation Draft, 2022.
25
Paragraph 7.1, Section II of the Investment Facilitation Draft, 2022.
26
Paragraph 7.3, Section II of the Investment Facilitation Draft, 2022.
27
Paragraph 7.4, Section II of the Investment Facilitation Draft, 2022.
28
Paragraph 8.1, Section II of the Investment Facilitation Draft, 2022.
29
Paragraph 9.1 (a), Section II of the Investment Facilitation Draft, 2022.
30
Paragraph 9.1 (b), Section II of the Investment Facilitation Draft, 2022.
connection with issues falling under its purview.31 A Member must also ensure investors,
interested parties, and other Members a chance to provide feedback on the published
materials or proposed measures.32

NOTIFICATION TO THE WTO

A Member must report the committee regarding any new laws or regulations of broad
application33, official places where the measures have been accepted for publication 34 and
websites35. The member must make sure that the single information portal is updated with
contact information of the required authorities.36

DISCLOSURE OF CONFIDENTIAL INFORMATION

A Member should refrain from disclosing confidential information that would hinder the
safety of the public or legitimate business interests of public or private entities.37

31
Paragraph 9.2, Section II of the Investment Facilitation Draft, 2022.
32
Paragraph 9.3, Section II of the Investment Facilitation Draft, 2022.
33
Paragraph 10.1 (a), Section II of the Investment Facilitation Draft, 2022.
34
Paragraph 10.1 (b), Section II of the Investment Facilitation Draft, 2022.
35
Paragraph 10.1 (c), Section II of the Investment Facilitation Draft, 2022.
36
Paragraph 10.1 (d), Section II of the Investment Facilitation Draft, 2022.
37
Paragraph 11.1, Section II of the Investment Facilitation Draft, 2022.
 REVISIONS IN TRANSPARANCY REGULATIONS OF THE INVESTMENT
FACILITATION DRAFT 2022 WITH RESPECT TO THE 2021 DRAFT

The paragraph 5.138, 5.239 & 5.340 of the Investment facilitation draft, 202241 did not witness
any changes from its previous draft42 dated 12.04.2021. Paragraph 5.4 (a)43 also remained the
same but in 5.4 (b)44, there was minor modification. In the previous draft, there was no clarity
regarding information related to Foreign Direct Investment. The revised draft mentions
“information on which sectors are open, restricted or prohibited to foreign direct
investment”. Para 5.4(c)45 of the previous draft was struck off in the current draft.

The paragraph 6.1 (a)46 of the 2022 draft gets revised with the addition of “including the
relevant technical regulations and standards applicable to the respective investment “.
Earlier, the paragraph 6.1 (a)47 of the 2021 draft stated that, “the requirements [, including
relevant forms]”. It was ambiguous in nature. The para 6.248 remains unaltered.

The para 7.1 (a)49 of the revised draft becomes meaningful & easy to comprehend with the
revised sentence framing. The paras 7.250, 7.351 & 7.452 see no revisions. The para 8.1 53 of the
revised draft states, “No fee shall be imposed on any investor or person seeking to invest in a
Member's territory for access to the measures or information provided under this section”.
This remains unmodified as compared to the previous draft. The paras 9.154, 9.255 & 9.356 of
the draft looks similar to the previous draft without any modifications.
38
Paragraph 5.1, Section II of the Investment Facilitation Draft, 2022.
39
Paragraph 5.2, Section II of the Investment Facilitation Draft, 2022.
40
Paragraph 5.3, Section II of the Investment Facilitation Draft, 2022.
41
“Wto Structured Discussions on Investment Facilitation for Development, 2022”, The WTO,
<https://www.bilaterals.org/IMG/pdf/wto_plurilateral_investment_facilitation_draft_consolidated_revised_easte
r_text-2.pdf> as accessed on 25th September, 2022.
42
“Wto Structured Discussions on Investment Facilitation for Development, 2021”, The WTO,
<https://www.bilaterals.org/IMG/pdf/wto_plurilateral_investment_facilitation_draft_consolidated_easter_text.p
df> as accessed on 25th September, 2022.
43
Paragraph 5.4 (a), Section II of the Investment Facilitation Draft, 2022.
44
Paragraph 5.4 (b), Section II of the Investment Facilitation Draft, 2022.
45
Paragraph 5.4 (c), Section II of the Investment Facilitation Draft, 2021.
46
Paragraph 6.1 (a), Section II of the Investment Facilitation Draft, 2022.
47
Paragraph 6.1 (a), Section II of the Investment Facilitation Draft, 2021.
48
Paragraph 6.2, Section II of the Investment Facilitation Draft, 2022.
49
Paragraph 7.1 (a), Section II of the Investment Facilitation Draft, 2022.
50
Paragraph 7.2, Section II of the Investment Facilitation Draft, 2022.
51
Paragraph 7.3, Section II of the Investment Facilitation Draft, 2022.
52
Paragraph 7.4, Section II of the Investment Facilitation Draft, 2022.
53
Paragraph 8.1, Section II of the Investment Facilitation Draft, 2022.
54
Paragraph 9.1, Section II of the Investment Facilitation Draft, 2022.
55
Paragraph 9.2, Section II of the Investment Facilitation Draft, 2022.
56
Paragraph 9.3, Section II of the Investment Facilitation Draft, 2022.
Earlier, the paragraph 10.1 (a)57 of the 2021 draft stated that, “the introduction of any new, or
any changes to existing, laws or regulations of general application referred to in paragraph
5.1”. Whereas now, the para 10.1 (a)58 of the 2022 draft has included a word “significant”
which throws major light on what the sentence wants to propagate. The para 10.1 (d) 59 seems
more detailed with the addition of term “relevant competent authorities” as compared to the
earlier draft. Disclosure of Confidential Information is present under Para 11 60 of the
Investment Facilitation Draft. There was an inclusion of the Para 11.1 61 in the revision draft
which states that a member must refrain from revealing information that could jeopardise the
public's safety or the legitimate business interests of either public or private enterprises.

57
Paragraph 10.1 (a), Section II of the Investment Facilitation Draft, 2021.
58
Paragraph 10.1 (a), Section II of the Investment Facilitation Draft, 2022.
59
Paragraph 10.1 (d), Section II of the Investment Facilitation Draft, 2022.
60
Paragraph 11, Section II of the Investment Facilitation Draft, 2022.
61
Paragraph 11.1, Section II of the Investment Facilitation Draft, 2022.