Export Processing Zones in Kenya

Kenya’s Export Processing Zones (EPZs) have failed to meet expectations on wealth and job creation, the World Bank (WB) says in a new report as the government prepares to reform the model which has lagged behind what Asian and Latin American countries offered.

Incentives provided through export processing zones and special economic zones should be compatible with World Trade Organization specifically the Subsidies and Countervailing Measures Agreement including timelines on export promotion instruments; otherwise host countries may face retaliatory actions by importing countries.

According to the Kenya Export Processing Zones Act Article 9 replicated below these are the regulations that apply to EPZs in Kenya.

Subject to subsection (1) and without prejudice to any other written law, the export processing zone enterprises, export processing zone developers and the export processing zone operators shall be granted the following exemptions—

(a) exemption from registration under the Value Added Tax Act;

(b) exemption from the payment of excise duties as specified in the Customs and Excise Act (Cap. 472);

(c) exemption from the payment of income tax as specified in the Income Tax Act (Cap. 470) for the first ten years from the date of first sale as an export processing zone enterprise, except that the income tax rate shall be limited to twenty-five percent for the ten years following the expiry of the exemption granted under this paragraph;

(d) exemption from the payment of withholding tax on dividends and other payments made to non-residents during the period that the export processing zone enterprise is exempted from payment of income tax under paragraph (c);

(e) exemption from stamp duties on the execution of any instruments relating to the business activities of an export processing zone enterprise;

(f) exemption from quotas or other restrictions or prohibitions on import or export trade with the exception of trade in firearms, military equipment or other illegal goods;

(g) exemption from exchange controls on payments for—

(i) receipts of export processing zone exports;

(ii) payments for raw materials, intermediate goods, tools, and spares, supplies, construction equipment and construction materials, capital equipment, office equipment, repatriation of royalties, management fees, technology transfer fees, profits, dividends, advertising expenses, inspection fees for quality control, debt service and any other legitimate business expenses; and

(iii) capital transactions, except on capital funds raised form Kenya residents subject to exchange control in which case remittance of dividends, profits, debt service and any other returns to such capital invested shall be subject to the Exchange Control Act (Cap. 113);

(h) exemptions from rent or tenancy controls; and

(i) any other exemptions as may be granted by the Minister for the time being responsible for finance by notice in the Gazette.

See related article here on the Kenyan experience on EPZs.

Meanwhile Mauritius can be considered one of the most successful stories in the context of the African continent on EPZs. In the past Mauritius has grown on average by 6 per cent, relying on several growth engines which include export processing zone (EPZ), the sugar sector, tourism and the emerging financial services sector. The EPZ can be credited with diversifying the Mauritian economy from the traditional sugar sector and leading to the industrialization of the country.

New Database on Trade in Services

A new services database has been developed and it may be an interesting tool for policy makers. I-TIP Services is a joint initiative of the World Trade Organization and the World Bank. It is a set of linked databases that provides information on Members' commitments under the WTO's General Agreement on Trade in Services (GATS), services commitments in Regional Trade Agreements (RTAs), applied measures in services, and services statistics.

In its four modules (GATS, RTA Commitments, Applied Regimes, and Statistics), the integrated database permits searches by Member, sector, agreement, or source of information.

To access the database click here.

Can Africa Feed Africa?

A new World Bank report Africa Can Help Feed Africa: Removing barriers to regional trade in food staples ―says that Africa’s farmers can potentially grow enough food to feed the continent and avert future food crises if countries remove cross-border restrictions on the food trade within the region. According to the Bank, the continent would also generate an extra US$20 billion in yearly earnings if African leaders can agree to dismantle trade barriers that blunt more regional dynamism. The report was released on the eve of an African Union (AU) ministerial summit in Addis Ababa on agriculture and trade.

According to the report “Africa has the ability to grow and deliver good quality food to put on the dinner tables of the continent’s families, however, this potential is not being realized because farmers face more trade barriers in getting their food to market than anywhere else in the world. Too often borders get in the way of getting food to homes and communities which are struggling with too little to eat.”

With many African farmers effectively cut off from the high-yield seeds, and the affordable fertilizers and pesticides needed to expand their crop production, including unpredictable weather patterns, the continent has turned to foreign imports to meet its growing needs in staple foods.

See full report here for some policy considerations.

WB 2013 Doing Business Report on the EAC

The World Bank Doing Business is a tool that measures regulations that enhance business activity and those that constrain it and it also measures regulatory quality and efficiency.

There has been a recognition that regional integration alone is not enough to spur growth. The EAC needs an investment climate—including a business regulatory environment—that is well suited to scaling up trade and investment and can act as a catalyst to modernize the regional economy. Despite the reform efforts of all 5 member economies, the EAC’s average ranking on the ease of doing business has remained fairly constant over the past 4 years, at around 117 and in fact comparing the 2010 Doing Business performance to 2013, the EAC has seemingly not registered much of an improvement. This is a clear indication that critical obstacles to entrepreneurial activity remain and that economies in other regions have picked up the pace in improving business regulation. Improving the investment climate in the EAC is therefore an essential ingredient for successful integration—the foundation for expanding business activity, boosting competitiveness, spurring growth and, ultimately, supporting human development.

The development of regional strategies and institutional frameworks that connect and streamline national reform programs is an indispensable condition for a well-functioning common market that can attract foreign investment. A lack of coordination among member countries and the implementation of “isolated” national reforms—which often focus on short-term gains and fail to consider the impact on the region—can hinder progress in fully implementing the common market. Conversely, continual exchange among different authorities across countries, the implementation of an agreed-on regional reform agenda and a focus on common goals and objectives create synergies and help the region as a whole to improve its investment climate.

Fostering economic growth by tapping the potential of the private sector is among the main objectives of the fourth EAC development strategy. In addition to increasing institutional coordination, other important steps to achieve this objective are better integrating small and medium-size enterprises into the financial sector and creating business-friendly administrative structures and tax regimes. Additional challenges are to ensure the availability of reliable data and statistics and to implement credible surveillance and enforcement mechanisms.

The EAC economies have an average ranking on the ease of doing business of 117 (among 185 economies globally). But there is great variation among them—from Rwanda at 52 in the global ranking to Burundi at 159. This wide variation in business regulations is among the issues that the EAC needs to tackle to achieve the desired level of integration. While the regional average ranking is less than ideal, if a hypothetical EAC economy were to adopt the region’s best regulatory practices in each area measured by Doing Business, it would stand at 26 in the global ranking on the ease of doing business. Burundi was among the world’s most active economies in implementing regulatory reforms in 2011/12. It implemented policy changes in 4 areas measured by Doing Business: starting a business, dealing with construction permits, registering property and trading across borders.

One area where the EAC shows strong performance is business start-up. To start a business in the EAC requires only 8 procedures and 20 days on average. As such the EAC’s average ranking on the ease of starting a business is 84, higher than those of other regional blocs in Africa—104 for the Southern African Development Community (SADC), 110 for the Common Market for Eastern and Southern Africa (COMESA) and 127 for the Economic Community of West African States (ECOWAS)

The 2013 Doing Business Report on the EAC can be downloaded here.

World Bank Unveils Portal On Diaspora Remittances to Africa

This transparency is important.

Send Money Africa provides data on the cost of sending and receiving relatively small amounts of money from selected countries worldwide to a number of African countries, as well as within the African continent. The objective of the database is to increase transparency in the market and provide migrants with complete and reliable information on all the components of the transaction. Send Money Africa allows the users to compare the costs applied by several providers to send and receive money from 15 major sending countries to 27 African receiving countries, for a total of 50 "country corridors".

See country corridors here.

Ghana Reaches World Bank Middle Income Status

Interesting...

On July 1, 2011 Ghana moved from low-income to lower middle-income status, according to World Bank country classifications. 

Projections from the Bank’s Global Economic Prospects position Ghana as the fastest growing economy in Sub-Saharan Africa for 2011, with a forecast GDP growth of 13.4 percent. Authorities are now anxious to see that the oil windfall has a positive, lasting impact on the lives of all Ghanaians. In particular, Ghana hopes to steer clear of the so-called “Dutch disease”—the unique paradox where resource-rich countries grow too heavily dependent on oil at the expense of other productive sectors.

On another note, Ghana’s largest and most important creditor for the past three decades has been the International Development Association (IDA), the soft loan window of the World Bank. That will soon come to an end given the country's middle income status. The combination of Ghana’s rapid economic growth and the recent GDP rebasing exercise means that Ghana suddenly finds itself above the income limit for IDA eligibility. Formal graduation is imminent and comes with significant implications for access to concessional finance, debt, and relations with other creditors. 

See related article here.

The Future of African Remittances

Did you know that the remittance service landscape in Africa is dominated by two international money transfer operators that control in excess of 60 percent of the remittance access points across Africa? In addition, because of exclusivity agreements between international money transfer operators and their mainly commercial bank partners, other types of institutions are largely excluded from the market due to regulations that limit non-financial institutions from playing a meaningful role in remittance services markets in most African countries.

International remittance flows to sub-Saharan Africa currently exceed 30 billion dollars annually, while on a global basis, remittances are estimated to have exceeded $315 billion in 2009. In SSA, they affect as many as 25 million recipient households, and have the potential to significantly reduce poverty and stimulate growth. Over the past decade, remittances have evolved from a miscellaneous trade accounting item into a widely recognized flow of foreign financing that often exceeds FDI and ODA to many African countries.

Recognizing the impact that remittances have on development, policy makers and development partners in many other regions have invested substantially in measures to leverage their potential. Worldwide, remittances are now better tracked, transaction costs have declined, and recipients are being integrated into the financial system, giving them more productive options to use their money, thereby leveraging development impact for the communities where they live.

Unfortunately, much of this progress in remittances has not yet reached Africa. However this is slowly changing especially in light of a useful World Bank initiative in collaboration with national central banks of Kenya, Ethiopia, Uganda- to address the Future of African Remittances (FAR).

For instance, the cost of sending remittances to Africa still exceeds 10-15 percent for many countries and reaches 20-25 percent for remittances sent within Africa, which are of growing importance given migration patterns. Reducing transaction costs by only 5 percentage points could increase total resources available to the recipient households by as much as US$ 1.5 billion per year.

In addition, only 20 percent of African households have access to formal financial services and remittances are often relegated to informal transmission channels, which are less secure and even more costly. Promoting product innovation and improving payment services tailored to the needs of the recipient households (especially in rural areas) offers a win-win solution. Households can use remittances as an asset to access formal financial services and benefit from safer and cheaper remittance transfers, while banks and other financial institutions can mobilize a higher share of the remittances to fund private sector investment.

The Future of African Remittances Program aims at strengthening the market for remittance transfers through the following efforts:

• • Technical assistance for regulatory reform targeting the remittance services market
• • Technology development incentives for products linking remittances to financial products (housing, insurance, savings and investments), with a focus on mobile software applications
• • Knowledge exchange with advanced remittance markets in Asia and Latin America
• • Training for regulators on best practices for regulating remittance markets and fostering innovation
• • Financial literacy and encouragement programs for first and last mile remittance product uptake

In combination with rapid innovations in mobile technology in Africa, remittances present a unique opportunity to expand access to finance and lift thousands of communities out of poverty.

More information on the African Remittances Program can be obtained here. 

Investment Arbitration- ICSID

At ICSID this year, there have been investment dispute developments involving African parties to Bilateral Investment Treaties (BITs), such as: South Africa's Mining dispute under the Italy-South Africa BIT and Belgo-Luxembourg-South Africa BIT; Egypt's hotel industry dispute under the Denmark-Egypt BIT; Ghana's cocoa production dispute under the Germany-Ghana BIT. Previously, we considered a working paper by the WTO, which found that stricter dispute settlement provisions in BITs do not necessarily result in higher FDI inflows.

ICSID is the International Center for Settlement of Investment Disputes which is an autonomous international institution, considered the leading international arbitration institution devoted to investor-State dispute settlement. ICSID's Membership consists of one hundred and forty  four (144) member States that have deposited their instruments of ratification, acceptance or approval of the Convention and have become ICSID Contracting States.  Overall however, there are currently 155 signatory States to the ICSID Convention. The ICSID Convention is a multilateral treaty formulated by the Executive Directors of the International Bank for Reconstruction and Development (the World Bank). It was opened for signature on March 18, 1965 and entered into force on October 14, 1966. 

ICSID has released this years caseload statistics Report, which shows that: 

Bilateral Investment Treaties (BITS) have a usage rate of 62% and thereby form the substantial basis for consent invoked to establish ICSID's jurisdiction in registered cases. Other legal basis for consent includes: investment contracts between the host state and investor (22%); investment laws of the host state (5%); free trade agreements e.g. NAFTA (6%) and the Energy Charter Treaty (5% ). 


Click Figures to enlarge.

  

The South American region has the largest number of disputes handled at 30% while Sub Saharan Africa's caseload is 16%, and is the third highest after Eastern Europe and Central Asia (22%).

In terms of sectors, gas, oil, mining (25%) and electricity and other energy (13%) and transport (11%) sectors  have the highest number of disputes.  Other highly disputed sectors are water, sanitation and flood protection (8%), finance (8%) and construction (7%).

The distribution of appointments of Arbitrators, Conciliators and ad hoc Committee Members appointed in ICSID Cases is about three quarters (71%) from the west i.e. North America (23%) and Europe (48%), while the rest of the world shares a quarter. Latin America holds a 10% share while Sub Saharan Africa takes a share of only 2%.

.

This Report can be accessed here.

In a previous discussion we considered the EC's proposal to accede to the ICSID Convention as part of its new EC Wide investment policy. However that would require the modification of the Convention which currently, is open only to Member States of the World Bank and any State which is a party to the Statute of the International Court of Justice, on the invitation of the ICSID Administrative Council by a vote of two-third of its members.  

New EU-Wide Investment Policy

As a region, the EU is the most significant global investment player. It is the world's leading host of Foreign Direct Investment (FDI) as well as the world's biggest source of FDI outside the EU. By 2008 outward stocks of the EU FDI amounted to € 3.3 trillion while EU inward stocks accounted for € 2.4 trillion. 


According to a recent press statement, the EC has now formulated a comprehensive investment policy which will seek to integrate investment liberalisation and investment protection.  Under the Lisbon Treaty, investment is one of the areas covered by the EU common commercial policy which is developed and managed at the European level giving the EU a strengthened negotiating leverage. However, there are 1200 Bilateral Investment Treaties (BITs) concluded by individual EU Member States and other countries. In addition, the European Commission (EC) as a legal entity is also negotiating investment agreements, for instance with African countries, as part of the Economic Partnership Agreements (EPAs). 

To address this anomaly, the  EC has released a comprehensive investment package which consists of: 

(1) a policy paper titled "Towards a comprehensive European international investment policy" and 

(2) a draft regulation which sets up transitional arrangements offering guarantees to existing or pending BITs concluded between EU and Non-EU countries prior to the enforcement of the Lisbon Treaty. Here, the Commission has provided legal security for European and foreign investors, without hampering the EU's ability to negotiate new investment treaties at EU level.  

The EU Member States together account for almost half of the investment agreements currently in force around the world. However, not all Member States have concluded such agreements, and not all agreements provide for the same high or equivalent level of standards. According to the EC, this leads to an uneven playing field for EU companies investing abroad, depending on whether they are covered as a "national" (granted national treatment) under a certain Member State BIT or not. 

Another feature of the agreements of individual EU Member States is that they relate to the treatment of investors “post-entry” or “post-establishment” only. This implies that Member States’ BITs provide no specific binding commitments regarding the conditions of entry, neither from third countries regarding outward investment by companies originating in EU Member States, nor vice versa. Here the EC might want to be guaranteed non discriminatory pre-establishment MFN Status.  Gradually, the European Union has begun the process of filling the gap of "entry" or "admission" through both multilateral and bilateral agreements at EU level, covering investment market access and investment liberalization, ensuring the non-discriminatory treatment of investors upon entry to a third country market.

The EC recognizes that a one-size-fits-all model for investment agreements with 3rd countries would be neither feasible nor desirable. Therefore the EC will have to take into account each specific negotiating context. However since actual trade and investment flows are in and of themselves important determinants for defining priorities, the EC indicates that they should go where its investors would like to go, through the liberalisation of investment flows. The policy paper identifies some candidates for a full investment agreement including India, Canada, Mercosur and where possible China and Russia, but also states that should a comprehensive, across-the-board, investment agreement with a country, or a set of countries, prove impossible or inadvisable, sectoral agreements may be an option whose desirability, feasibility and possible impact would have to be further assessed.

On the specifics of the approach, the EC would look beyond FDI and protect all the operations that accompany investment and make it possible in practice e.g. payments, the protection of intangible assets such as Intellectual Property Rights, etc. Enforcement is also addressed and identified as a key issue in the new policy. Currently, the EC has included in all of its recent FTAs, an effective and expedient state-to-state dispute settlement system. In addition, investor-state dispute settlement will be featured since it is a key part of the inheritance that the Union receives from its Member State BITs.  

However there is a uniqueness of investor-state dispute settlement in international economic law which impacts the EC's mandate in this area. For example, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention), is open to signature and ratification by Member States of the World Bank or those party to the Statute of the International Court of Justice. The European Commission does not qualify under either.  This new investment policy paper however proposes that the EC could seek accession to the ICSID, but notes that this would require modification of its convention.


A key outcome of this policy is that the EC may request renegotiation of existing BITs by individual member States. "The Commission will review the existing MS BITs. If it finds clauses that are incompatible with EU law (e.g. transfer clauses that would hamper the implementation of EU financial restrictions against a certain third country), it would ask the Member State to renegotiate such clause. If this proves impossible, the authorisation may be withdrawn as a matter of last resort.  Likewise, authorisations can be withdrawn if the EU negotiates an investment treaty at European level, and recourse to Member State BITs with the same third country is not necessary anymore."

While FDI will be within the full competence of the EC, the expectation is that by following available best practices, they would ensure that no EU investor would be worse off than they would be under Member States' BITs. Member States will however have scope to pursue and implement investment promotion policies that complement and fit well alongside the common international investment policy. In addition, BITs maintained by Member States may require amendments in order to bring them in compliance with EU law. The same framework is intended to be available also for Member States that would like to negotiate and conclude new investment treaties with countries, which are not targeted for EU-wide investment agreements, e.g. for foreign policy purposes.  

Overall, this is an interesting development in the wake of the EPA services and investment negotiations and should be studied carefully in light of the scope of the EC's investment text which covers all economic sectors including services i.e.: A) Agriculture, hunting and forestry; B) Fishing; C) Mining and quarrying; D) Manufacturing; and E) Production, transmission and distribution on own account of electricity, gas, steam and hot water. It is therefore useful to note that sectoral agreements rather than comprehensive investment agreements could be considered a viable option where feasible. 


One should also note that on "policy space" the EC's approach will be to ensure that the EU common investment policy fits in with the way the EU and its Member States regulate economic activity within the Union and across its borders. ...."EU investment policy has to be consistent with the other policies of the Union and its Member States, including policies on the protection of the environment, health and safety at work, consumer protection, cultural diversity, development policy and competition policy." African States negotiating investment chapters in the EPA could opt to also ensure compatibility of proposed EPA investment provisions with their own development policies.

The Life Cycle of Trade in Services Negotiations

Despite the experience gained from more than two decades of services negotiations at the multilateral, plurilateral, and bilateral levels, trade in services continues to rank among the most complex subject matters in modern trade diplomacy. Such complexity arises from a number of factors, including:

1. the intangible nature of service-sector activity, and the corresponding difficulty of measuring and assessing a sector’s contribution to production and exchange and the economic consequences of alternative policy choices;

2. the considerable diversity of activities encompassed in a sector;

3. the challenge of factor mobility (capital and labor) involved in services transactions; and

4. the ubiquity (and diversity) of market failures affecting services transactions and related regulatory intensity.

For instance some African countries may be considering services market opening with the EC, as a part of the EPA Services and Investment negotiations. In this regard, the World Bank has developed a useful manual on trade in services negotiations, which addresses the 5 stages of the services negotiations life cycle. The stages include:

1. mapping a strategy for services in national development plans;
2. preparing for services negotiations (i.e., developing an informed negotiating strategy or identifying the capacity needs required to do so; setting up the proper channels of communication with key stakeholders; and conducting a trade-related regulatory audit);
3. conducting services negotiations (i.e., acquiring a voice in debates on outstanding rule-making  challenges in services trade by pursuing offensive interests; devising strategies to deal with defensive concerns; analysis of negotiating requests of trading partners; formulating own requests and offers; and participating in collective requests and offers);
4. implementing negotiated outcomes (i.e., addressing regulatory capacities and weaknesses; and identifying implementation bottlenecks); and
5. supplying newly-opened markets with competitive and international standard-compliant services (i.e., addressing supply-side constraints on the ability to take full advantage of the outcome of trade negotiations, including aid-for-trade in services).

The manual provides guidance on each of these platforms and can be accessed here.  


Meanwhile. the EPA-EC negotiations remain contentious and inclusive interim goods agreements in several regions have not even been completed (e.g. West Africa, East Africa, SADC EPA and Pacific regions).  On services and investment, it is not clear if African countries will get sufficient time and resources to negotiate with the the largest services economy in the world, the EU.  


Nonetheless, African countries should proceed with caution and with a clear strategy.  They should also bear in mind that Europe as a single market is the world‘s largest exporter of manufactured goods and services; the biggest export market for more than one hundred countries and has over 20 FTA and other trade negotiations under way (counted by country), which include services agreements.