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Québec
Québec’s New Transparency Rules for Businesses’ Ultimate Beneficial Owners
24 mayo 2023
- Compliance
- Inversiones
Summary
The Loi visant principalement à améliorer la transparence des entreprises came into force in Québec on March 31, 2023, imposing new obligations on businesses in the province. The law requires businesses to disclose information about their ultimate beneficial owners (UBOs) to the Registraire des entreprises. UBOs are individuals who possess voting rights, fair market value of shares, or de facto control over the business. Certain entities are exempt from disclosing their UBOs. The information disclosed will be accessible to the public, except for the date of birth and, in some cases, the home address.
On March 31, 2023, the Loi visant principalement à améliorer la transparence des entreprises (Act mainly to improve the transparency of enterprises) came into force in Québec, imposing new obligations for businesses in the province.
The new law modifies the Loi sur la publicité légale des entreprises (Act respecting the legal publicity of entreprises) and seeks to increase corporate transparency, namely by requiring businesses to provide to the Registraire des entreprises (the “REQ”) information about their bénéficiaires ultimes, i.e. ultimate beneficial owners (“UBO”).
An UBO is, namely, any individual who:
- possesses at least 25% of voting rights;
- possesses at least 25% of the fair market value of all shares; or
- has enough influence to exercise de facto control of the business.
All UBOs of a business must be disclosed, although some entities such as non-profit organizations, legal persons established in public interest, public corporations, financial institutions and trust companies are not required to disclose their UBOs. For every UBO, the following information is required to be communicated to the REQ:
- names and aliases;
- home address (and optionally, business address);
- date of birth;
- type of control exercised or percentage of shares, interests, or units held;
- date at which he/she became an UBO and date at which he/she ceased to be one.
Most of this information will be accessible to the public, with the exceptions of the date of birth and, in cases where a business address is provided, the home address. The names and home addresses of minors are also hidden from public access.
By providing access to shareholder information, the Province of Québec was already the only Canadian corporate jurisdiction that required public disclosure of the names and domiciles of the three principal shareholders. The province again takes the lead by forcing disclosure of corporations’ UBOs. For now, in the rest of Canada, the identity of UBOs for privately held companies is not a matter of public record.
Entities doing business in Québec should ensure to conduct a proper examination of their organizational structure, so as to correctly and fully disclose the information required by the new transparency rules. Any failure to do so can lead to immediate revocation of the business’ registration under the REQ, as well as to fines ranging from CAD 1,000 to CAD 40,000.
The new rules only require the businesses themselves to take the necessary measures to confirm the identities of their UBOs. Professional advisers do not have any due diligence obligations in this regard.
Under Vietnam’s presidency of the Association of South East Asian Nations (ASEAN), after eight years of negotiations, the ten ASEAN member states (Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, Vietnam) on 15 November 2020 signed a groundbreaking free trade agreement (FTA) with China, Japan, South Korea, Australia and New Zealand, called Regional Comprehensive Economic Partnership (RCEP).
The ASEAN economic community is a free trade area kickstarted in 2015 among the above-mentioned ten members of the homonymous association, comprising an aggregate GDP of US$2.6 trillion and over 622 million people. ASEAN is China’s main trading partner, with the European Union now slipping into second place.
Unlike the EuroZone and the European Union, ASEAN does not have a single currency, nor common institutions, like the EU Commission, Parliament and Council. Similarly to what happens in the EU, though, a single member holds a rotational presidency.
Individual ASEAN Countries, like Vietnam and Singapore, have recently entered into free trade agreements with the European Union, whilst the entire ASEAN block had and still has in place the so-called “plus one” agreements with other regional Countries, namely The People’s Republic of China, Hong Kong, The Republic of Korea, India, Japan and Australia and New Zealand together.
With the exception of India, all the other Countries with “plus one” agreements with ASEAN are now part of the RCEP, which will gradually overtake individual FTAs through the harmonisation of rules, especially those related to origin.
RCEP negotiations accelerated with the United States of America’s decision to withdraw from the Trans-Pacific Partnership (TPP) upon the election of President Trump in 2016 (although it is worth noting that a large part of the US Democratic Party also opposed the TPP).
The TPP would have then been the largest free trade agreement ever and, as the name suggest, would have put together twelve nations on the Pacific Ocean, namely Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam, and the USA. With the exclusion of the latter, the other eleven did indeed sign a similar agreement, called Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).
The CPTPP has however been ratified only by seven of its signatories and clearly lacks the largest economy and most significant partner of all. At the same time, both the aborted TPP and the CPTPP evidently exclude China.
The RCEP’s weight is therefore self evidently heavier, as it encompasses 2.1 billion people, with its signatories accounting for around 30% of the world’s GDP. And the door for India’s 1.4 billion people and US$2.6 trillion GDP remains open, the other members stated.
Like most FTAs, RCEP’s aim is to lower tariffs, open up trade in goods and services and promote investments. It also briefly covers intellectual property, but makes no mention of environmental protections and labour rights. Its signatories include very advanced economies, like Singapore’s, and quite poor ones, like Cambodia’s.
RCEP’s significance is at this very moment probably more symbolic than tangible. Whilst it is estimated that around 90% of tariffs will be abolished, this will only occur over a period of twenty years after entry into force, which will happen only after ratification. Furthermore, the service industry and even more notably agriculture do not represent the core of the agreement and therefore will still be subject to barriers and domestic rules and restrictions. Nonetheless, it is estimated that, even in these times of pandemic, the RCEP will contribute some US$40billion more, annually, to the world’s GDP, than the CPTPP does (US$186billion vis-à-vis US$147billion) for ten consecutive years.
Its immediate impact is geopolitical. Whilst signatories are not exactly best friends with each other (think of territorial disputes over the South China Sea, for instance), the message is clear:
- The majority of this part of the world has tackled the Covid-19 pandemic remarkably well, but cannot afford to open its borders to Europeans and Americans any time soon, lest the virus spread again. Therefore, it has to try and iron out internal tensions, if it wants to see some positive signs within its economies given by private trade, in addition to (not always good) deficit spending by the State. Most of these Countries do rely heavily on Western talents, tourists, goods, services and even strategic and military support, but they are realistic about the fact that, unless the much touted vaccine works really well really soon, the West will struggle with this coronavirus for many months, if not years.
- Multilateralism is key and isolationism is dangerous. The ASEAN bloc and the Australia-New Zealand duo work exactly in this peaceful and pro-business direction.
The ASEAN’s official website (https://asean.org/?static_post=rcep-regional-comprehensive-economic-partnership) is very clear in this regard and states, in fact that:
RCEP will provide a framework aimed at lowering trade barriers and securing improved market access for goods and services for businesses in the region, through:
- Recognition to ASEAN Centrality in the emerging regional economic architecture and the interests of ASEAN’s FTA partners in enhancing economic integration and strengthening economic cooperation among the participating countries;
- Facilitation of trade and investment and enhanced transparency in trade and investment relations between the participating countries, as well as facilitation of SMEs’ engagements in global and regional supply chains; and
- Broaden and deepen ASEAN’s economic engagements with its FTA partners.
RCEP recognises the importance of being inclusive, especially to enable SMEs leverage on the agreement and cope with challenges arising from globalisation and trade liberalisation. SMEs (including micro-enterprises) make up more than 90% of business establishments across all RCEP participating countries and are important to every country’s endogenous development of their respective economy. At the same time, RCEP is committed to provide fair regional economic policies that mutually benefit both ASEAN and its FTA partners.
Still, the timing is right also for EU businesses. As mentioned, the EU has in place FTAs with Singapore, South Korea, Vietnam, an Economic Partnership Agreement with Japan, and is negotiating separately with both Australia and New Zealand.
Generally, all these agreements create common rules for all the players involved, thus making it is simpler for companies to trade in different territories. With caveats on entry into force and rules of origin, Countries that have signed both an FTA with the EU and the RCEP, notably Singapore, a major English speaking hub, that ranks first in East Asia in the Rule of Law index (third in the region after New Zealand and Australia and twelfth worldwide: https://worldjusticeproject.org/sites/default/files/documents/Singapore%20-%202020%20WJP%20Rule%20of%20Law%20Index%20Country%20Press%20Release.pdf), could bridge both regions and facilitate global trade even during these challenging times.
President Erdogan made a presidential decree that mandatorily requires use of Turkish lira for transactions concluded between parties resident in Turkey. The Decree amending the Decree on Protecting the value of Turkish Lira, (The Decree) is published in the Official Gazette and came into force on 13th September 2018.
The Decree orders use of Turkish Lira for purchase and sale of all kinds of goods, commodities, services and real estate. All kinds of lease and rental of vehicles and all kinds of goods and real estate must also be made by using Turkish Liras. The decree also stipulates that no reference to currency exchange tying a contract payment or value to foreign currency can be made and the all contracts between Turkish residents even if foreign owned must be based on Turkish Liras.
Let’s see the changes introduced by the regulation point by point.
No Use of Foreign Currency in domestic Contracts
New currency policy states that all payments related to contracts between local parties i.e. Turkish Residents whether legal persons or real persons must be made in Turkish liras.
Accordingly all real estate transactions must be made in Turkish liras and no reference can be made to foreign currencies.
All Contracts Must be Amended within 30 days
The Decree establishes also that all contracts between Turkish residents made before 13th September 2018 must be amended and the payments must be converted into Turkish liras from any foreign currency within 30 days from the publish date of The Decree (13th September 2018): this shall mean that all contracts based on foreign currencies must be amended within 14th October 2018.
There is no reference to a currency exchange rate when amending contracts into Turkish Liras. The parties are free to agree on any currency rate when amending however this cannot be stipulated in the contract but only for negotiation purposed when drafting the amendment.
The governmental projects which have been signed earlier should be coordinated with the related authority and adaption should be made in line with the new currency regime.
Import and Export of Goods and Services
The new decree does not impact an export or import relation, as long as one of the parties is not Turkish resident. However one must note that The Decree may have an impact on Turkish based subsidiaries of multinational companies trading with foreign currency.
There is no limitation in bringing foreign currency into country.
Sanctions
New foreign currency policy does not address any criminal or administrative sanctions. New regulations should be expected to implement the practice of The Decree. Needless to say, if one of the parties of an existing contract based on foreign currency will be eager to take the matter to the civil courts if no amendment is made within 30 days and easily obtain a court decision for amendment.
Conclusion
This move is considered as one of the steps of measure step to support the ailing local currency.
Slipping Turkish Liras has been an on-going concern for Turkey in last 6 months. The sudden drop of Turkish Liras exchange rate urged the government to find a quick cure to increase the value of Turkish liras or at least to maintain the status.
Those days, some rough policies have been adopted by governments to safeguard the fragile Turkish Lira. The measures taken indeed prevented Turkish economy to accelerate and take off. With the new liberal look after 1983 elections many of these hard measures were lifted and the law on Protection of Turkish Liras was eased. The era before 1980s when there were hard policies applied to protect Turkish Lira was in a different world than today.
The latest measure may or may not address an improvement but it is a fact that many foreign investors or local investors funded by foreign institutions will have to struggle due to the new regulations pushing them to amend their contracts into Turkish Liras from foreign currencies.
Currency rate has always been a significant issue in the oil dependent economy of Iran. Therefore, through the last few decades different policies have been adopted by the authorities in order to manage and alleviate the impacts caused by the change of currency rate on growth of the Iranian economy.
The situation regarding the currency market, regardless of conclusion of JCPOA and lifting of economic sanctions against Iran, did not experience much improvement. In fact, during the last few months Iranian currency market has experienced a sudden increase in demand of popular foreign currencies such as United States Dollar (“USD”) and Euro. This chaotic development, also known as foreign currency rate jump crisis, eventually leaded to adoption of a new policy by the Iranian authorities in light of unifying the rate of hard currencies.
New Policy
In light of the above-said developments, on April 11, 2018 the Cabinet of Ministers adopted a new policy in form of a By-law in order to regulate the Iranian currency market and bring order to it. The most important subject within the By-law is paragraph No. 5, establishing a fixed exchange rate – the “Nerkh Mobadelee” – for foreign currencies from April 10, 2018. This fixed exchange rate amounts to IRR 42,000 for each USD and is opposed to the free market rate, which fluctuates according to the rules of supply and demand. Iranian Government recently removed Nerkhe Mobadelee from banking system and forced the market to implement the unified rate, but the enforcement of this unified rate does not meet with the economic conditions of the country and value of IRR and this is causing a paralysis of the economic system.
Import and Export of Goods and Services
According to para. 1 of the By-law, import of all type of goods to Iran weather through Free Industry-Commercial Zones and Special Economic Zones or other entrances is only allowed after order-register. In this respect the Notice No. 9 issued by CBI dated April 14, 2018 states that supply of any currency for the purpose of import of goods to Iran is only possible after the completion of order-register process.
The currency needed for all order-registered goods and services will be supplied through the banking system and authorized exchanges in accordance with the CBI’s regulations. For the implementation of this process a unified platform for exchange of hard currency has been created that is called “NIMA”. Within NIMA four major actors are interacting: goods and services importers as currency applicants, goods and services exporters as currency supplier, banks and exchange offices as intermediaries that direct hard currency from suppliers to applicants and finally the policy maker that determines, among others, currency rate and preference uses of hard currency. In other words, all importers and exporters must supply their needed currency from NIMA or sell their currency through it.
Additionally, if the relevant hard currency is supplied by CBI on the basis of Nerkh Mobadelee, (i.e.: the government fixed exchange rate) but the bill has not been issued yet, the shipping documents must be submitted to the issuing bank within at most six months from the date of supply of the currency; if so, rate of the supplied currency is the basic for the settlement. Moreover, in case of receiving the shipping documents after the prescribed period, admission of the submitted documents is subject to the acceptance of CBI and payment of the difference between the hard currency rate at the time of the issuance of the bill and the date of submission of the shipping documents to the issuing bank (in case of an increase in the rate).
Foreign Currency for Abroad Travels
In accordance with the Notice No. 2 Issued by CBI it is stated that foreign currency for abroad travel is only provided once a year for the amount of EUR 1,000 or its equivalent of other foreign currencies to the passengers at the air outlet boundaries. The amount of foreign currencies provided to passengers to the neighbouring countries and Common-Wealth countries with the exception of Iraq is EUR 500 or its equivalent of other foreign currencies. This foreign currency is only available to the passengers holding an Iranian passport.
Also, entrance of foreign currency to Iran through passengers is only allowed up to the amount of EUR 10,000 or its equivalent of other foreign currencies; entrance of any sums more than that is only permissible in case of declaration in accordance with the conditions sets by CBI.
Allocation of Foreign Currency to Finance Contracts
After adoption of equalisation of foreign currency rate, as explained above, Notice No. 4 issued on April 12, 2018 by CBI provides conditions in respect to the finance contracts in light of the new policy. It states that all payments related to finance contracts including advance payments, repayment of costs etc. from this date is conducted in accordance with the new rate i.e. IRR 42,000 for each USD or its equivalent of other foreign currencies. Also, as to the governmental projects, necessary coordination should be made by the relevant authorities for the purpose of payment based on the new rate.
In addition, regarding those projects that bring foreign currency into country, the project executor must supply relevant foreign currency for the payments.
Currency Exchanges
In light of the new foreign currency polices, para. 13 of the By-law provides for some restrictions on activities conducted by currency exchanges. In this respect, any exchange operation and foreign currency trade outside the conditions provided by CBI is considered as smuggling and will be dealt with in accordance with relevant regulations.
Conclusion
By considering the above it is understood that payment for all import and export transactions related to Iran should be conducted through a governmental controlling channel, imposed by the Central Bank of Iran. Allocation of hard currencies shall also be subject to ratification of the order-register and acceptance of the CBI.
Hence, any Company that is willing to conduct transaction in Iran is advised to remain flexible and adjust itself with these procedures, until further notification and instructions are released in this respect.
Convertible notes, SAFE Agreements, participative financial instruments: the growing interest in start-up investing has led to a progressive differentiation both in investment strategies and, as a consequence, in legal/contractual instruments so to best suit the investors’ needs.
The introduction of these tools, specific to foreign ecosystems such as the Silicon Valley, and the difficulties in sourcing sufficient capitals to back the development of start-up companies, in particular with regard to the early/seed stage, has encouraged several players to opt for instruments alternative to equity investment, either developed “nationally” or under common law systems.
This mind-set has many positive side effects since it opened up the capital raising landscape that now includes venture capital funds, business angels networks, family offices and even club deals composed of small investors willing to buy into start-ups (mostly over the incubation/acceleration stage) with an injection of capital for a relatively small amount of shares.
In Italy, this trend towards non-equity or demi-equity instruments had two major results: it contributed to dust off legal instruments first introduced by the latest comprehensive reform of the Italian company law in 2004 (e.g. participative financial instruments – in Italian: Strumenti Finanziari di Partecipazione or SFP – art. 2346, par. 6 of the Italian Civil Code); and it fostered the creation of new contractual models plainly inspired by well-known instruments used in the Silicon Valley. That is the case of Convertible Notes and SAFE Agreements (Simple Agreement for Future Equity).
These instruments, together with the SFPs, have a trait in common: they all require a cash investment which is meant to be converted to equity at a specific milestone or on a pre-set date. On the other hand, none of them entails the possibility for an investor to hold a participation as a shareholder (at least not straightaway). Investors become stakeholders instead and they may hold as many administrative/patrimonial rights as they manage to negotiate with the company or with the founders themselves as well as depending on the specific contractual instrument they selected. It is important to point out that profits distribution rights are not included among those subject to negotiation since innovative start-ups (namely early-stage companies that meet certain criteria set by the law: i.e. high level technology of the company’s scope, R&D expenditure or number of graduates employed, etc.) are prevented from distributing profits for the first five years according the pertaining Italian regulation (see art. 25, par. 2 of the D.L. 179/2012).
Convertible Note and SFP
Starting off with convertible notes: these instruments are extremely flexible and mainly used by club deals and family offices. They are structured as a hybrid between convertible obligations and traditional loans. Investors in facts lend money to a start-up on a specific interest rate and according to a contract where the parties have previously set out terms and conditions that would preside over their relationship. The investment is classified as a liability of the company to third parties and, more specifically, as a long term liability.
The parties set two different dates, one for the conversion of the credit to equity and another one for the possible payback (in case the conversion has not been exercised). Sometimes the parties decide to leave the payback aside and set directly the date of the conversion to equity thus transforming the instrument from a demi-loan to an option on a prospective capital increase, where the money invested in the company would be considered as the price of the option; or even an obligation that can be converted to shares, an hypothesis admitted by eminent scholars not only for corporations, but also for limited liability companies.
The conversion date is usually set before the reimbursements, for the latter is meant as the last resort in the event the capital increase has not been approved by the company and provided that the parties had previously agreed upon such possibility. Furthermore, the reimbursement might be considered as a consequence of certain events, in particular when there is a payback request for cause or when a party violates any of the representations and warranties set out in the contract. In order to avoid unpleasant surprises, it is “customary” to provide for a future capital increase specifically dedicated to the investor – as well as an obligation for the investor to convert his loan – directly in the contract. The parties are free to determine whether the conversion should take place on a certain date or subject to the company meeting specific milestones such as: turnover goals, the achievement of specific results both economically and with reference to the development of its tangible/intangible technological assets (for instance, the development of software or the patenting of an invention). The actual conversion may take place at once or in instalments through a resolution of the shareholders to schedule the capital increase in two or more tranches. The convertible note must provide for a price per share for the conversion based on the so-called pre-money valuation; it is quite usual to set also a conversion discount, that is a price per share lower than the per share price paid by other investors in that round.
SAFE Agreement
The SAFE Agreement – developed and used by the world-renowned California-based incubator “Y Combinator” – is neither a debt instrument, unlike convertible notes, nor an equity one since it does not give its holder the right to profit sharing or the right to vote as a shareholder. It is rather a financial instrument that incorporates a prospective right to buy out preferred shares.
Although SAFE Agreements do not have an Italian counterpart, SFPs may look alike when they are “designed” as semi-equity participative instrument (without payback) and used to collect capitals to be allocated in a specific equity reserve, which should be used only to cover the company’s operating losses and be considered otherwise unavailable. However, the extent of this unavailability is still a matter of debate among scholars and the possibility for the parties to a SFP agreement to determine that the reserve at issue might only be used upon depletion of the others (legal reserve fund included) is not undisputed as well. In one of the latest ruling on the matter, the judge has indeed opted for the availability of the reserve created upon issuance of the SFPs on account of its statutory nature, stating that it can therefore be depleted before legal reserve fund and equity (Court of Naples, 25/2/2016). This is basically the main reason why SAFE agreements cannot be implemented tout court in Italy.
In any case, the Italian Civil Code allows the possibility to design the SFPs so as to meet specific requirements since they are essentially “empty boxes” that can be filled by the parties based on the needs of either the issuing start-up company and/or the investors willing to fund it. In fact, the law only sets two guidelines: i) it excludes that the SFP could grant its holder the right to vote as a shareholder; ii) it establishes that these instruments can be endowed with patrimonial or even administrative rights. The possibility for a company to issue SFPs must be specified in the articles of association/bylaws, which refers to a future extraordinary meeting of the shareholders for the adoption of the pertaining regulation, which will also set out the functioning rules of the special assembly dedicated to the holders of SFPs.
Turning to the SAFE Agreement, the American model sets a conversion price that cannot exceed a certain cap, according to which the company assigns shares on a capital increase (i.e. SAFE preferred) with privileged rights and with restrictions closely similar to those typical of standard “preferred shares”. Furthermore, it also sets a discounted conversation price which, in the US experience, is in the range of 15-20%, while there no provision as to a future deadline for paying the investment back.
Nothing prohibits to adapt the regulation of the SFPs to the best practice resulted from the implementation of the SAFE Agreement in the US. That is the case of the “acceleration” clauses that allow the investor to convert its investment before the original date set out in the agreement in case of equity-financing/liquidity events, namely the acquisition of the start-up or a capital increase that brings new investors in. This type of clauses is also often used in convertible notes. Some clauses, on the contrary, cannot be transferred into a SFP. That is the case of the clauses that regard the payback in relation to dissolution events such as: (i) the voluntary suspension of the business activity of the company; (ii) the transfer of the company’s assets to benefit the creditors or (iii) the company’s winding-up process both voluntary and not. According to Italian law, the winding-up due to a total loss of equity implies the possibility to use the reserve destined to SFPs with the consequent loss of the money invested by the SFP holders. Hence the common practice – still debated among scholars – that sees the possibility to use the reserves created upon issuance of the SFPs subordinated to the complete depletion of the other reserves, legal reserve fund included.
Eventually, these practices have taken hold over the last few years since they are meant to provide the investors with more and more flexibility when dealing with financial/investment instruments as those described above. They represent in fact an opportunity for both start-ups, that can obtain capital on the short period, and investors, who can grade their entrepreneurial risk allocating their investment as a debt or not – depending on the chosen instruments – with a view to a conversion to equity that will eventually depend on several factors, not least the company’s business metrics and economical standing.
In conclusion, the dynamism of this sector and the recent intervention of the Italian legislator show that there is plenty of room for growth in the Italian start-up ecosystem.
The author of this post is Milena Prisco.
In this post we will briefly outline some legal aspects related to e-commerce in Iran, starting from the definition of the average Iranian user and main characteristics and advantages of e-commerce in the Islamic Republic, which is attracting several foreign investors.
We will then analyze the requirements for the issuance of online business licenses in Iran, which is mandatory in order to open an e-shop. Finally we will take a look at some successful examples of online business in Iran.
The average Iranian user
Some statistics regarding Iranian users active in the virtual space are useful for understanding the size of the Iranian market, and why it is attracting several investors.
According to the “Internet Data and Statistics”, Iran is the thirteenth country for number of internet users, as 57 million of Iranian (on 83 million of Iran’s population) have access to internet (approximately the 68% of the population), but Government sources believe these numbers are underestimated.
What matters for the purpose of this analysis, however, is that approximatively the 58% of the internet users search on the Internet is about information on goods and services and that – until the end of Azar 1394 (December 2015) – the average internet users are male (58%) and young (47% between 20 and 29 years old).
In addition, the 42% of the Iranian internet users are involved in electronic commerce and the 13% use the e-banking services.
Online Business Licenses in Iran
Whether carried out in the traditional way or electronically, all the businesses need a business-license to operate on the Iranian market. The most important law governing is the Union System Act 1971, amended in 1980, 2003 and in 2013, which provides that the business license is issued by the competent union or legal authority.
E-commerce is no exception, therefore all those who intend to sell goods or provide services using the virtual space must acquire a business license.
On February 19th, 2017 the Iranian Government issued an Executive Regulation in regard to the Issuance of License and Supervision on Businesses in Virtual Space and Network Marketing, dividing the activities in virtual space into two categories:
- Virtual Business;
- Network Marketing.
According to Paragraph 1 in Article 1, Virtual Business is a business established by any natural or legal person in order to provide products (goods or services) directly or indirectly on a wholesale or retail basis, to wholesalers, retailers and consumers through telecommunication means such as websites and digital software (applications).
According to Paragraph 2 of Article 1, Network Marketing is a method for selling products based on which the Network Marketing company uses its website to organize the sellers in order to sell their products directly to consumers in a place far from the regular business location. Through this method, each seller can introduce another marketer as it subset and create a multi-product sales group in order to increase sales.
The competent authority for issuance of licenses in this regard is the National Union. Therefore, any person who intends to acquire a license in order to have its activities carried out online, must apply on the website of Center for Development of Electronic Commerce (an organ of the Ministry of Industry, Mine and Commerce, hereinafter: “CDEC” – www.enamad.ir) in order to acquire the Reliance Symbol, which is a symbol necessary to certify the identity and competence of online activities.
Requirements for the Online Business License
Article 3 of the Executive Regulation on Issuance of License and Supervision on Businesses in Virtual Space and Network Marketing, which governs the Issuance of Online Business Licenses in Iran, provides that business licenses shall be issued according to the following procedure:
- Establishment of the virtual business conforming to the checklists provided by the CDEC.
- Registration of application in E-Namad website (then the CDEC automatically submits the application to the unions’ website).
- Upload of the required documents, which we will list below.
- Issuance and submission of the license (after verifying the uploaded documents and the original copies thereof) to the applicant within 15 days and submission of the license information to E-Namad website.
- Grant of Electronic Reliance Symbol concurrent with issuance of the license.
Furthermore, the said Regulation specifies the required documents for issuance of business license, as follows:
- Office or legal domicile address of the applicant;
- Negative criminal record from the Police;
- Certificate of the relevant Tax Organization regarding tax compliance;
- Certificate for attendance in educational courses of commerce and business;
- Confirmation of specialized features regarding virtual business issued by the CDED;
- Photocopy of ID-card/Company-Registration number, plus passport/work-permit for foreigners;
- Photocopy of Military Service Termination Card or Permanent or Medical Exemption Card for men under 50 or a Student Certificate.
In addition to those, the Regulation provides some other documents for particular sectors, so it is advisable to contact an Iranian expert in the matter to verify the compliance with all applicable regulations. For instance, the Cultural Heritage, Handicrafts and Tourism Organization of Iran has set out some specific criteria for travel and tourism activities in the virtual space, so travel agency services, accommodation centers, private entities and other tourism services must follow a special procedure to render their services on virtual space.
Successful Examples of Iranian Start-ups
In order to become familiar with this sector, hereinafter we would like to report some inspirational examples of investments.
- Snapp
Snapp is an Iranian ride hailing company which renders its services online. The Snapp application automatically connects the users to the nearest driver and shows the driver the user’s location. Afterwards, the nearest ready driver will pick up the users from their location, and Snapp calculates the price beforehand. This price is normally lower than the Taxi Agency Unions prices and can be received either in cash or via online payment or credit card.
- Digikala
Digikala is the name of one of the biggest e-marketplaces in Iran. Cellphones, laptops and computers, digital cameras, office appliances, automobiles, watches, home appliances, instruments, jewelry, toys, clothes and books are some of the items sold on this website. One of the features of this website is the detailed and comprehensive reviews of different types of digital goods which can be a reliable source for purchasers.
- Pintapin
Pintapin is a comprehensive tool for rendering travel services online. Accommodation services are listed in Pintapin and users can book online their desired location. It is also possible to submit the information regarding your destination, duration of stay and number of companions in order to receive suitable suggestions from Pintapin.
- Bamilo
Bamilo is probably the most important Marketplace businesses in Iran. It started its activity in 2014 and is now among the most viewed websites in Iran. Based on the Amazon-model, the online store is considered as the main Iranian middleman between suppliers and consumers.
- Eskano
Eskano is a smart system for searching real estate in Iran which is performed under international standards. With its huge database of transferable real estates divided between several Iranian cities, Eskano facilitates the sale and lease process, also with the possibility of setting up appointments directly through the website.
The author of this post is Mohammad Rahmani.
En mi post anterior, resaltamos como un inversor extranjero podía realizar sus negocios en la Argentina y, específicamente, analizamos las principales características de las Sociedades de Responsabilidad Limitada (“SRL”).
Las principales diferencias entre las Sociedades de Responsabilidad Limitada y las Sociedades Anónimas son las siguientes:
- Las transferencias de cuotas (SRL) deben ser registradas ante el Registro Público de Comercio vs. Las transferencias de acciones únicamente se registran en el Libro de Registro de Accionistas de las SA.
- En la SRL no pueden haber más de 50 socios.
- El Directorio de una SA tiene la obligación de reunirse al menos una vez cada 3 meses, mientras que en las SRL, la Gerencia no tiene dicha obligación.
- En caso que un socio posea la mayoría de votos, necesita del voto de otro socio para aprobar las resoluciones de la asamblea de socios (SRL) vs. Un accionista con la mayoría de votos no necesita de otro accionista (SA).
En el presente post vamos a hacer foco en las Sociedades Anónimas (“SA”)
Principales características de las SA
Accionistas: Se requiere un mínimo de dos accionistas, los cuales pueden ser o no residentes en la Argentina.
Capital Social: El capital social mínimo requerido por ley es igual a $100.000 (Pesos Cien Mil) (aproximadamente US$6.250), de los cuales únicamente el 25% debe ser integrado al momento de la constitución, y el 75% restante dentro de los 2 años siguientes de dicho momento. Sin embargo, el Registro Público de Comercio puede requerir que el capital social inicial sea mayor que $100.000 en el caso que, teniendo en cuenta la naturaleza y características del negocio estipulado en el objeto social, considere que el capital social es insuficiente.
Responsabilidad SA: La responsabilidad de los accionistas está limitada al capital social de la SA. La única excepción a dicha regla es la doctrina del “corrimiento del velo societario”, la cual es aplicable únicamente cuando, abusando de la limitación de la responsabilidad, una sociedad es constituida o utilizada para cometer fraude.
Libros societarios y contables: La ley establece la obligación de contar con al menos 4 libros societarios: 1) Registro de Accionistas; 2) Registro de asistencia a Asambleas; 3) Actas de Asambleas; y 4) Actas de Directorio.
Administración: El Directorio es el órgano encargado de la administración de la sociedad. No hay obligación de que sean accionistas o residentes en la Argentina. Sin embargo, la Ley requiere que la mayoría de sus miembros residan en la Argentina. Asimismo, la Ley establece que el Directorio debe reunirse al menos una vez cada 3 meses con la presencia de la mayoría de sus miembros.
En caso que el capital social de la sociedad sea de Pesos $10.000.000 o más, el mínimo de directores debe ser de 3; caso contrario, la Ley no establece ningún mínimo de número de directores.
El presidente del Directorio posee la representación legal de la sociedad y, en caso de ausencia, el Vicepresidente puede actuar como representante legal de la sociedad.
Además y, sin perjuicio de lo mencionado anteriormente, la representación de la sociedad puede ser otorgada mediante poderes otorgados por el Directorio para fines específicos (bancario, asuntos administrativos, judiciales, etc).
Fiscalización: En caso que el capital sociedad de la SA sea menor a Pesos $ 10.000.000, no es necesario nombrar un síndico (es como un auditor, con el objetivo de asegurar que la sociedad cumpla con las formalidades de la Ley). En caso que el capital social sea mayor al monto mencionado, la SA debe nombrar una Comisión Fiscalizadora, integrada por al menos 3 síndicos (siempre número impar).
La SA que no realiza oferta pública de sus acciones puede nombrar un solo síndico titular y uno suplente. Los mismos son elegidos por los Accionistas. Para ser síndico es necesario contar con un título de abogado o contador público con residencia en la Argentina. No pueden ser nombrados síndicos los empleados, directores o gerentes de la sociedad o de una sociedad vinculada o subsidiaria. Los Accionistas pueden remover a los síndicos a su sola discreción.
Órgano de Gobierno: La Asamblea de Accionistas es la autoridad de gobierno de la SA y la toma las resoluciones sociales, facultada – entre otros asuntos – para aprobar los estados contables de la sociedad, nombrar y/o remover directores y síndicos, y tratar cualquier otro tema relacionado con el curso ordinario de los negocios de la SA.
Estados Contables: los estados contables anuales deben ser sometidos a la aprobación de la Asamblea de Accionistas. La Ley Argentina establece que dichos estados contables anuales deben ser presentados en el Registro Público de Comercio.
El autor de este post es Tomás García Navarro.
El Perú antes de 1990
Si usted no es peruano y escuchaba hablar del Perú antes del año 1990 es muy probable que las noticias hayan sido negativas, tales como la catastrófica economía, la violencia terrorista y la falta del “Estado de Derecho” o “Rule of Law”, que no es otra cosa que el sometimiento de los poderes públicos a las leyes.
A fines de los años 60, un gobierno militar sustituyó, una vez más, una precaria democracia que trataba de convivir en el entorno internacional post segunda guerra mundial. Mientras muchos países del mundo abrían sus economías y apostaban por la inversión, en Latinoamérica el camino preferido era diferente. Reivindicando nacionalismos y luchas sociales, el golpe de estado de 1968 guio al Perú a ser una economía centralizada y controlada desde el Estado. Se restringió la inversión extranjera, se limitaron las iniciativas privadas y se promovió la actividad económica estatal.
En los años 80’s, a pesar que se sucedieron dos gobiernos civiles elegidos democráticamente, se hizo poco por cambiar las bases económicas planteadas por el gobierno militar anterior, quizás, solo para demostrar que las economías dirigidas no son sostenibles. Simultáneamente, la violencia terrorista impactaba negativamente, no solo en la seguridad, sino en la economía, destruyendo la poca infraestructura y la tranquilidad necesaria para invertir.
Las reformas legislativas de los 90´s
Pero en 1990, un nuevo gobierno entendió que eran necesarias reformas radicales para cambiar la situación que amenazaba el futuro del Perú. De manera unilateral se decidió liberalizar la tenencia y cambio de moneda extranjera, reducir los aranceles de importación y dar prioridad a la inversión privada frente a la Estatal, lo que fue seguido por una ola de privatizaciones.
Un papel a destacar en dicha coyuntura es el del Decreto Legislativo 662, “Ley de Promoción de las Inversiones Extranjeras” promulgado el 29 de agosto de 1991.
Garantías del Estado a los inversionistas extranjeros
Este Decreto modificó de un día para el otro la concepción económica del Perú, mediante el cual, ahora el Estado Peruano: (1) promueve y garantiza las inversiones extranjeras efectuadas y por efectuarse, en todos los sectores de la actividad económica; (2) reconoce la igualdad de trato para los inversionistas nacionales y extranjeros; (3) elimina requisitos previos para la inversión; (4) protege la propiedad privada; (5) promueve igualdad de condiciones en cuanto a la propiedad intelectual de inversionistas nacionales y extranjeros; (6) confiere a los inversionistas extranjeros el derecho a la libertad de comercio e industria, así como a comerciar con el exterior; (7) permite la libre transferencia de moneda extranjera; (8) garantiza el uso del tipo de cambio más conveniente en el mercado, e incluso, (9) implementa un mecanismo de estabilidad jurídica, mediante el cual, el inversionista puede mantener un régimen legal determinado por un período de 10 años, dádosele así seguridad a los planes de inversión en un mediano plazo.
Eliminación de restricciones a la inversión
Finalmente, destaca entre las disposiciones complementarias de este Decreto que, a partir de su vigencia, quedan derogadas todas las leyes que limitan o restrinjan de alguna manera la inversión extranjera.
Al día de hoy, han pasado poco más de 25 años desde la entrada en vigencia de esta Ley y queda claro que fue el camino correcto. El Perú se encuentra ahora insertado en la economía mundial y ha afrontado con éxito el reto del crecimiento económico y social, habiendo rescatado a millones de personas de la pobreza extrema con el crecimiento sostenido de la clase media.
Asimismo, a través de la integración comercial, se han firmado múltiples acuerdos comerciales y de protección de inversiones, tanto bilaterales como multilaterales, consintiendo a los inversionistas la posibilidad de acudir a foros internacionales a fin de presentar eventuales reclamos en contra del Estado Peruano, en el caso que sus inversiones se vieran afectadas indebidamente por el Estado.
Cabe destacar que, desde la entrada en vigencia de esta ley, han sido pocos los casos en los cuales un inversionista extranjero se ha visto en la necesidad de acudir a alguna de estas instancias internacionales, lo que se explica por el alto respeto que han tenido los sucesivos gobiernos por la inversión privada y extranjera.
Conclusión
De esta manera, podemos concluir que no solo los inversionistas extranjeros gozan de los mismos derechos que los inversionistas nacionales, sino que, incluso, teniendo el derecho a acudir a foros internacionales, tienes mayores derechos que los inversionistas locales.
El autor de este artículo es Frank Boyle.
Brasil 
Turkey – New Regulation on mandatory use of Turkish Lira
- Contratos de distribución
- Inversiones
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Turquía
Irán 
España 
Italia 
Argentina – Inversiones extranjeras. Sociedades Anónimas (“SA”)
- Derecho Societario
- Inversiones
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Argentina
Perú Contacta con Martin
RCEP – The largest Free Trade Agreement
19 noviembre 2020
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Singapur -
Vietnam
- Contratos de distribución
- Inversiones
Summary
The Loi visant principalement à améliorer la transparence des entreprises came into force in Québec on March 31, 2023, imposing new obligations on businesses in the province. The law requires businesses to disclose information about their ultimate beneficial owners (UBOs) to the Registraire des entreprises. UBOs are individuals who possess voting rights, fair market value of shares, or de facto control over the business. Certain entities are exempt from disclosing their UBOs. The information disclosed will be accessible to the public, except for the date of birth and, in some cases, the home address.
On March 31, 2023, the Loi visant principalement à améliorer la transparence des entreprises (Act mainly to improve the transparency of enterprises) came into force in Québec, imposing new obligations for businesses in the province.
The new law modifies the Loi sur la publicité légale des entreprises (Act respecting the legal publicity of entreprises) and seeks to increase corporate transparency, namely by requiring businesses to provide to the Registraire des entreprises (the “REQ”) information about their bénéficiaires ultimes, i.e. ultimate beneficial owners (“UBO”).
An UBO is, namely, any individual who:
- possesses at least 25% of voting rights;
- possesses at least 25% of the fair market value of all shares; or
- has enough influence to exercise de facto control of the business.
All UBOs of a business must be disclosed, although some entities such as non-profit organizations, legal persons established in public interest, public corporations, financial institutions and trust companies are not required to disclose their UBOs. For every UBO, the following information is required to be communicated to the REQ:
- names and aliases;
- home address (and optionally, business address);
- date of birth;
- type of control exercised or percentage of shares, interests, or units held;
- date at which he/she became an UBO and date at which he/she ceased to be one.
Most of this information will be accessible to the public, with the exceptions of the date of birth and, in cases where a business address is provided, the home address. The names and home addresses of minors are also hidden from public access.
By providing access to shareholder information, the Province of Québec was already the only Canadian corporate jurisdiction that required public disclosure of the names and domiciles of the three principal shareholders. The province again takes the lead by forcing disclosure of corporations’ UBOs. For now, in the rest of Canada, the identity of UBOs for privately held companies is not a matter of public record.
Entities doing business in Québec should ensure to conduct a proper examination of their organizational structure, so as to correctly and fully disclose the information required by the new transparency rules. Any failure to do so can lead to immediate revocation of the business’ registration under the REQ, as well as to fines ranging from CAD 1,000 to CAD 40,000.
The new rules only require the businesses themselves to take the necessary measures to confirm the identities of their UBOs. Professional advisers do not have any due diligence obligations in this regard.
Under Vietnam’s presidency of the Association of South East Asian Nations (ASEAN), after eight years of negotiations, the ten ASEAN member states (Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, Vietnam) on 15 November 2020 signed a groundbreaking free trade agreement (FTA) with China, Japan, South Korea, Australia and New Zealand, called Regional Comprehensive Economic Partnership (RCEP).
The ASEAN economic community is a free trade area kickstarted in 2015 among the above-mentioned ten members of the homonymous association, comprising an aggregate GDP of US$2.6 trillion and over 622 million people. ASEAN is China’s main trading partner, with the European Union now slipping into second place.
Unlike the EuroZone and the European Union, ASEAN does not have a single currency, nor common institutions, like the EU Commission, Parliament and Council. Similarly to what happens in the EU, though, a single member holds a rotational presidency.
Individual ASEAN Countries, like Vietnam and Singapore, have recently entered into free trade agreements with the European Union, whilst the entire ASEAN block had and still has in place the so-called “plus one” agreements with other regional Countries, namely The People’s Republic of China, Hong Kong, The Republic of Korea, India, Japan and Australia and New Zealand together.
With the exception of India, all the other Countries with “plus one” agreements with ASEAN are now part of the RCEP, which will gradually overtake individual FTAs through the harmonisation of rules, especially those related to origin.
RCEP negotiations accelerated with the United States of America’s decision to withdraw from the Trans-Pacific Partnership (TPP) upon the election of President Trump in 2016 (although it is worth noting that a large part of the US Democratic Party also opposed the TPP).
The TPP would have then been the largest free trade agreement ever and, as the name suggest, would have put together twelve nations on the Pacific Ocean, namely Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam, and the USA. With the exclusion of the latter, the other eleven did indeed sign a similar agreement, called Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).
The CPTPP has however been ratified only by seven of its signatories and clearly lacks the largest economy and most significant partner of all. At the same time, both the aborted TPP and the CPTPP evidently exclude China.
The RCEP’s weight is therefore self evidently heavier, as it encompasses 2.1 billion people, with its signatories accounting for around 30% of the world’s GDP. And the door for India’s 1.4 billion people and US$2.6 trillion GDP remains open, the other members stated.
Like most FTAs, RCEP’s aim is to lower tariffs, open up trade in goods and services and promote investments. It also briefly covers intellectual property, but makes no mention of environmental protections and labour rights. Its signatories include very advanced economies, like Singapore’s, and quite poor ones, like Cambodia’s.
RCEP’s significance is at this very moment probably more symbolic than tangible. Whilst it is estimated that around 90% of tariffs will be abolished, this will only occur over a period of twenty years after entry into force, which will happen only after ratification. Furthermore, the service industry and even more notably agriculture do not represent the core of the agreement and therefore will still be subject to barriers and domestic rules and restrictions. Nonetheless, it is estimated that, even in these times of pandemic, the RCEP will contribute some US$40billion more, annually, to the world’s GDP, than the CPTPP does (US$186billion vis-à-vis US$147billion) for ten consecutive years.
Its immediate impact is geopolitical. Whilst signatories are not exactly best friends with each other (think of territorial disputes over the South China Sea, for instance), the message is clear:
- The majority of this part of the world has tackled the Covid-19 pandemic remarkably well, but cannot afford to open its borders to Europeans and Americans any time soon, lest the virus spread again. Therefore, it has to try and iron out internal tensions, if it wants to see some positive signs within its economies given by private trade, in addition to (not always good) deficit spending by the State. Most of these Countries do rely heavily on Western talents, tourists, goods, services and even strategic and military support, but they are realistic about the fact that, unless the much touted vaccine works really well really soon, the West will struggle with this coronavirus for many months, if not years.
- Multilateralism is key and isolationism is dangerous. The ASEAN bloc and the Australia-New Zealand duo work exactly in this peaceful and pro-business direction.
The ASEAN’s official website (https://asean.org/?static_post=rcep-regional-comprehensive-economic-partnership) is very clear in this regard and states, in fact that:
RCEP will provide a framework aimed at lowering trade barriers and securing improved market access for goods and services for businesses in the region, through:
- Recognition to ASEAN Centrality in the emerging regional economic architecture and the interests of ASEAN’s FTA partners in enhancing economic integration and strengthening economic cooperation among the participating countries;
- Facilitation of trade and investment and enhanced transparency in trade and investment relations between the participating countries, as well as facilitation of SMEs’ engagements in global and regional supply chains; and
- Broaden and deepen ASEAN’s economic engagements with its FTA partners.
RCEP recognises the importance of being inclusive, especially to enable SMEs leverage on the agreement and cope with challenges arising from globalisation and trade liberalisation. SMEs (including micro-enterprises) make up more than 90% of business establishments across all RCEP participating countries and are important to every country’s endogenous development of their respective economy. At the same time, RCEP is committed to provide fair regional economic policies that mutually benefit both ASEAN and its FTA partners.
Still, the timing is right also for EU businesses. As mentioned, the EU has in place FTAs with Singapore, South Korea, Vietnam, an Economic Partnership Agreement with Japan, and is negotiating separately with both Australia and New Zealand.
Generally, all these agreements create common rules for all the players involved, thus making it is simpler for companies to trade in different territories. With caveats on entry into force and rules of origin, Countries that have signed both an FTA with the EU and the RCEP, notably Singapore, a major English speaking hub, that ranks first in East Asia in the Rule of Law index (third in the region after New Zealand and Australia and twelfth worldwide: https://worldjusticeproject.org/sites/default/files/documents/Singapore%20-%202020%20WJP%20Rule%20of%20Law%20Index%20Country%20Press%20Release.pdf), could bridge both regions and facilitate global trade even during these challenging times.
President Erdogan made a presidential decree that mandatorily requires use of Turkish lira for transactions concluded between parties resident in Turkey. The Decree amending the Decree on Protecting the value of Turkish Lira, (The Decree) is published in the Official Gazette and came into force on 13th September 2018.
The Decree orders use of Turkish Lira for purchase and sale of all kinds of goods, commodities, services and real estate. All kinds of lease and rental of vehicles and all kinds of goods and real estate must also be made by using Turkish Liras. The decree also stipulates that no reference to currency exchange tying a contract payment or value to foreign currency can be made and the all contracts between Turkish residents even if foreign owned must be based on Turkish Liras.
Let’s see the changes introduced by the regulation point by point.
No Use of Foreign Currency in domestic Contracts
New currency policy states that all payments related to contracts between local parties i.e. Turkish Residents whether legal persons or real persons must be made in Turkish liras.
Accordingly all real estate transactions must be made in Turkish liras and no reference can be made to foreign currencies.
All Contracts Must be Amended within 30 days
The Decree establishes also that all contracts between Turkish residents made before 13th September 2018 must be amended and the payments must be converted into Turkish liras from any foreign currency within 30 days from the publish date of The Decree (13th September 2018): this shall mean that all contracts based on foreign currencies must be amended within 14th October 2018.
There is no reference to a currency exchange rate when amending contracts into Turkish Liras. The parties are free to agree on any currency rate when amending however this cannot be stipulated in the contract but only for negotiation purposed when drafting the amendment.
The governmental projects which have been signed earlier should be coordinated with the related authority and adaption should be made in line with the new currency regime.
Import and Export of Goods and Services
The new decree does not impact an export or import relation, as long as one of the parties is not Turkish resident. However one must note that The Decree may have an impact on Turkish based subsidiaries of multinational companies trading with foreign currency.
There is no limitation in bringing foreign currency into country.
Sanctions
New foreign currency policy does not address any criminal or administrative sanctions. New regulations should be expected to implement the practice of The Decree. Needless to say, if one of the parties of an existing contract based on foreign currency will be eager to take the matter to the civil courts if no amendment is made within 30 days and easily obtain a court decision for amendment.
Conclusion
This move is considered as one of the steps of measure step to support the ailing local currency.
Slipping Turkish Liras has been an on-going concern for Turkey in last 6 months. The sudden drop of Turkish Liras exchange rate urged the government to find a quick cure to increase the value of Turkish liras or at least to maintain the status.
Those days, some rough policies have been adopted by governments to safeguard the fragile Turkish Lira. The measures taken indeed prevented Turkish economy to accelerate and take off. With the new liberal look after 1983 elections many of these hard measures were lifted and the law on Protection of Turkish Liras was eased. The era before 1980s when there were hard policies applied to protect Turkish Lira was in a different world than today.
The latest measure may or may not address an improvement but it is a fact that many foreign investors or local investors funded by foreign institutions will have to struggle due to the new regulations pushing them to amend their contracts into Turkish Liras from foreign currencies.
Currency rate has always been a significant issue in the oil dependent economy of Iran. Therefore, through the last few decades different policies have been adopted by the authorities in order to manage and alleviate the impacts caused by the change of currency rate on growth of the Iranian economy.
The situation regarding the currency market, regardless of conclusion of JCPOA and lifting of economic sanctions against Iran, did not experience much improvement. In fact, during the last few months Iranian currency market has experienced a sudden increase in demand of popular foreign currencies such as United States Dollar (“USD”) and Euro. This chaotic development, also known as foreign currency rate jump crisis, eventually leaded to adoption of a new policy by the Iranian authorities in light of unifying the rate of hard currencies.
New Policy
In light of the above-said developments, on April 11, 2018 the Cabinet of Ministers adopted a new policy in form of a By-law in order to regulate the Iranian currency market and bring order to it. The most important subject within the By-law is paragraph No. 5, establishing a fixed exchange rate – the “Nerkh Mobadelee” – for foreign currencies from April 10, 2018. This fixed exchange rate amounts to IRR 42,000 for each USD and is opposed to the free market rate, which fluctuates according to the rules of supply and demand. Iranian Government recently removed Nerkhe Mobadelee from banking system and forced the market to implement the unified rate, but the enforcement of this unified rate does not meet with the economic conditions of the country and value of IRR and this is causing a paralysis of the economic system.
Import and Export of Goods and Services
According to para. 1 of the By-law, import of all type of goods to Iran weather through Free Industry-Commercial Zones and Special Economic Zones or other entrances is only allowed after order-register. In this respect the Notice No. 9 issued by CBI dated April 14, 2018 states that supply of any currency for the purpose of import of goods to Iran is only possible after the completion of order-register process.
The currency needed for all order-registered goods and services will be supplied through the banking system and authorized exchanges in accordance with the CBI’s regulations. For the implementation of this process a unified platform for exchange of hard currency has been created that is called “NIMA”. Within NIMA four major actors are interacting: goods and services importers as currency applicants, goods and services exporters as currency supplier, banks and exchange offices as intermediaries that direct hard currency from suppliers to applicants and finally the policy maker that determines, among others, currency rate and preference uses of hard currency. In other words, all importers and exporters must supply their needed currency from NIMA or sell their currency through it.
Additionally, if the relevant hard currency is supplied by CBI on the basis of Nerkh Mobadelee, (i.e.: the government fixed exchange rate) but the bill has not been issued yet, the shipping documents must be submitted to the issuing bank within at most six months from the date of supply of the currency; if so, rate of the supplied currency is the basic for the settlement. Moreover, in case of receiving the shipping documents after the prescribed period, admission of the submitted documents is subject to the acceptance of CBI and payment of the difference between the hard currency rate at the time of the issuance of the bill and the date of submission of the shipping documents to the issuing bank (in case of an increase in the rate).
Foreign Currency for Abroad Travels
In accordance with the Notice No. 2 Issued by CBI it is stated that foreign currency for abroad travel is only provided once a year for the amount of EUR 1,000 or its equivalent of other foreign currencies to the passengers at the air outlet boundaries. The amount of foreign currencies provided to passengers to the neighbouring countries and Common-Wealth countries with the exception of Iraq is EUR 500 or its equivalent of other foreign currencies. This foreign currency is only available to the passengers holding an Iranian passport.
Also, entrance of foreign currency to Iran through passengers is only allowed up to the amount of EUR 10,000 or its equivalent of other foreign currencies; entrance of any sums more than that is only permissible in case of declaration in accordance with the conditions sets by CBI.
Allocation of Foreign Currency to Finance Contracts
After adoption of equalisation of foreign currency rate, as explained above, Notice No. 4 issued on April 12, 2018 by CBI provides conditions in respect to the finance contracts in light of the new policy. It states that all payments related to finance contracts including advance payments, repayment of costs etc. from this date is conducted in accordance with the new rate i.e. IRR 42,000 for each USD or its equivalent of other foreign currencies. Also, as to the governmental projects, necessary coordination should be made by the relevant authorities for the purpose of payment based on the new rate.
In addition, regarding those projects that bring foreign currency into country, the project executor must supply relevant foreign currency for the payments.
Currency Exchanges
In light of the new foreign currency polices, para. 13 of the By-law provides for some restrictions on activities conducted by currency exchanges. In this respect, any exchange operation and foreign currency trade outside the conditions provided by CBI is considered as smuggling and will be dealt with in accordance with relevant regulations.
Conclusion
By considering the above it is understood that payment for all import and export transactions related to Iran should be conducted through a governmental controlling channel, imposed by the Central Bank of Iran. Allocation of hard currencies shall also be subject to ratification of the order-register and acceptance of the CBI.
Hence, any Company that is willing to conduct transaction in Iran is advised to remain flexible and adjust itself with these procedures, until further notification and instructions are released in this respect.
Convertible notes, SAFE Agreements, participative financial instruments: the growing interest in start-up investing has led to a progressive differentiation both in investment strategies and, as a consequence, in legal/contractual instruments so to best suit the investors’ needs.
The introduction of these tools, specific to foreign ecosystems such as the Silicon Valley, and the difficulties in sourcing sufficient capitals to back the development of start-up companies, in particular with regard to the early/seed stage, has encouraged several players to opt for instruments alternative to equity investment, either developed “nationally” or under common law systems.
This mind-set has many positive side effects since it opened up the capital raising landscape that now includes venture capital funds, business angels networks, family offices and even club deals composed of small investors willing to buy into start-ups (mostly over the incubation/acceleration stage) with an injection of capital for a relatively small amount of shares.
In Italy, this trend towards non-equity or demi-equity instruments had two major results: it contributed to dust off legal instruments first introduced by the latest comprehensive reform of the Italian company law in 2004 (e.g. participative financial instruments – in Italian: Strumenti Finanziari di Partecipazione or SFP – art. 2346, par. 6 of the Italian Civil Code); and it fostered the creation of new contractual models plainly inspired by well-known instruments used in the Silicon Valley. That is the case of Convertible Notes and SAFE Agreements (Simple Agreement for Future Equity).
These instruments, together with the SFPs, have a trait in common: they all require a cash investment which is meant to be converted to equity at a specific milestone or on a pre-set date. On the other hand, none of them entails the possibility for an investor to hold a participation as a shareholder (at least not straightaway). Investors become stakeholders instead and they may hold as many administrative/patrimonial rights as they manage to negotiate with the company or with the founders themselves as well as depending on the specific contractual instrument they selected. It is important to point out that profits distribution rights are not included among those subject to negotiation since innovative start-ups (namely early-stage companies that meet certain criteria set by the law: i.e. high level technology of the company’s scope, R&D expenditure or number of graduates employed, etc.) are prevented from distributing profits for the first five years according the pertaining Italian regulation (see art. 25, par. 2 of the D.L. 179/2012).
Convertible Note and SFP
Starting off with convertible notes: these instruments are extremely flexible and mainly used by club deals and family offices. They are structured as a hybrid between convertible obligations and traditional loans. Investors in facts lend money to a start-up on a specific interest rate and according to a contract where the parties have previously set out terms and conditions that would preside over their relationship. The investment is classified as a liability of the company to third parties and, more specifically, as a long term liability.
The parties set two different dates, one for the conversion of the credit to equity and another one for the possible payback (in case the conversion has not been exercised). Sometimes the parties decide to leave the payback aside and set directly the date of the conversion to equity thus transforming the instrument from a demi-loan to an option on a prospective capital increase, where the money invested in the company would be considered as the price of the option; or even an obligation that can be converted to shares, an hypothesis admitted by eminent scholars not only for corporations, but also for limited liability companies.
The conversion date is usually set before the reimbursements, for the latter is meant as the last resort in the event the capital increase has not been approved by the company and provided that the parties had previously agreed upon such possibility. Furthermore, the reimbursement might be considered as a consequence of certain events, in particular when there is a payback request for cause or when a party violates any of the representations and warranties set out in the contract. In order to avoid unpleasant surprises, it is “customary” to provide for a future capital increase specifically dedicated to the investor – as well as an obligation for the investor to convert his loan – directly in the contract. The parties are free to determine whether the conversion should take place on a certain date or subject to the company meeting specific milestones such as: turnover goals, the achievement of specific results both economically and with reference to the development of its tangible/intangible technological assets (for instance, the development of software or the patenting of an invention). The actual conversion may take place at once or in instalments through a resolution of the shareholders to schedule the capital increase in two or more tranches. The convertible note must provide for a price per share for the conversion based on the so-called pre-money valuation; it is quite usual to set also a conversion discount, that is a price per share lower than the per share price paid by other investors in that round.
SAFE Agreement
The SAFE Agreement – developed and used by the world-renowned California-based incubator “Y Combinator” – is neither a debt instrument, unlike convertible notes, nor an equity one since it does not give its holder the right to profit sharing or the right to vote as a shareholder. It is rather a financial instrument that incorporates a prospective right to buy out preferred shares.
Although SAFE Agreements do not have an Italian counterpart, SFPs may look alike when they are “designed” as semi-equity participative instrument (without payback) and used to collect capitals to be allocated in a specific equity reserve, which should be used only to cover the company’s operating losses and be considered otherwise unavailable. However, the extent of this unavailability is still a matter of debate among scholars and the possibility for the parties to a SFP agreement to determine that the reserve at issue might only be used upon depletion of the others (legal reserve fund included) is not undisputed as well. In one of the latest ruling on the matter, the judge has indeed opted for the availability of the reserve created upon issuance of the SFPs on account of its statutory nature, stating that it can therefore be depleted before legal reserve fund and equity (Court of Naples, 25/2/2016). This is basically the main reason why SAFE agreements cannot be implemented tout court in Italy.
In any case, the Italian Civil Code allows the possibility to design the SFPs so as to meet specific requirements since they are essentially “empty boxes” that can be filled by the parties based on the needs of either the issuing start-up company and/or the investors willing to fund it. In fact, the law only sets two guidelines: i) it excludes that the SFP could grant its holder the right to vote as a shareholder; ii) it establishes that these instruments can be endowed with patrimonial or even administrative rights. The possibility for a company to issue SFPs must be specified in the articles of association/bylaws, which refers to a future extraordinary meeting of the shareholders for the adoption of the pertaining regulation, which will also set out the functioning rules of the special assembly dedicated to the holders of SFPs.
Turning to the SAFE Agreement, the American model sets a conversion price that cannot exceed a certain cap, according to which the company assigns shares on a capital increase (i.e. SAFE preferred) with privileged rights and with restrictions closely similar to those typical of standard “preferred shares”. Furthermore, it also sets a discounted conversation price which, in the US experience, is in the range of 15-20%, while there no provision as to a future deadline for paying the investment back.
Nothing prohibits to adapt the regulation of the SFPs to the best practice resulted from the implementation of the SAFE Agreement in the US. That is the case of the “acceleration” clauses that allow the investor to convert its investment before the original date set out in the agreement in case of equity-financing/liquidity events, namely the acquisition of the start-up or a capital increase that brings new investors in. This type of clauses is also often used in convertible notes. Some clauses, on the contrary, cannot be transferred into a SFP. That is the case of the clauses that regard the payback in relation to dissolution events such as: (i) the voluntary suspension of the business activity of the company; (ii) the transfer of the company’s assets to benefit the creditors or (iii) the company’s winding-up process both voluntary and not. According to Italian law, the winding-up due to a total loss of equity implies the possibility to use the reserve destined to SFPs with the consequent loss of the money invested by the SFP holders. Hence the common practice – still debated among scholars – that sees the possibility to use the reserves created upon issuance of the SFPs subordinated to the complete depletion of the other reserves, legal reserve fund included.
Eventually, these practices have taken hold over the last few years since they are meant to provide the investors with more and more flexibility when dealing with financial/investment instruments as those described above. They represent in fact an opportunity for both start-ups, that can obtain capital on the short period, and investors, who can grade their entrepreneurial risk allocating their investment as a debt or not – depending on the chosen instruments – with a view to a conversion to equity that will eventually depend on several factors, not least the company’s business metrics and economical standing.
In conclusion, the dynamism of this sector and the recent intervention of the Italian legislator show that there is plenty of room for growth in the Italian start-up ecosystem.
The author of this post is Milena Prisco.
In this post we will briefly outline some legal aspects related to e-commerce in Iran, starting from the definition of the average Iranian user and main characteristics and advantages of e-commerce in the Islamic Republic, which is attracting several foreign investors.
We will then analyze the requirements for the issuance of online business licenses in Iran, which is mandatory in order to open an e-shop. Finally we will take a look at some successful examples of online business in Iran.
The average Iranian user
Some statistics regarding Iranian users active in the virtual space are useful for understanding the size of the Iranian market, and why it is attracting several investors.
According to the “Internet Data and Statistics”, Iran is the thirteenth country for number of internet users, as 57 million of Iranian (on 83 million of Iran’s population) have access to internet (approximately the 68% of the population), but Government sources believe these numbers are underestimated.
What matters for the purpose of this analysis, however, is that approximatively the 58% of the internet users search on the Internet is about information on goods and services and that – until the end of Azar 1394 (December 2015) – the average internet users are male (58%) and young (47% between 20 and 29 years old).
In addition, the 42% of the Iranian internet users are involved in electronic commerce and the 13% use the e-banking services.
Online Business Licenses in Iran
Whether carried out in the traditional way or electronically, all the businesses need a business-license to operate on the Iranian market. The most important law governing is the Union System Act 1971, amended in 1980, 2003 and in 2013, which provides that the business license is issued by the competent union or legal authority.
E-commerce is no exception, therefore all those who intend to sell goods or provide services using the virtual space must acquire a business license.
On February 19th, 2017 the Iranian Government issued an Executive Regulation in regard to the Issuance of License and Supervision on Businesses in Virtual Space and Network Marketing, dividing the activities in virtual space into two categories:
- Virtual Business;
- Network Marketing.
According to Paragraph 1 in Article 1, Virtual Business is a business established by any natural or legal person in order to provide products (goods or services) directly or indirectly on a wholesale or retail basis, to wholesalers, retailers and consumers through telecommunication means such as websites and digital software (applications).
According to Paragraph 2 of Article 1, Network Marketing is a method for selling products based on which the Network Marketing company uses its website to organize the sellers in order to sell their products directly to consumers in a place far from the regular business location. Through this method, each seller can introduce another marketer as it subset and create a multi-product sales group in order to increase sales.
The competent authority for issuance of licenses in this regard is the National Union. Therefore, any person who intends to acquire a license in order to have its activities carried out online, must apply on the website of Center for Development of Electronic Commerce (an organ of the Ministry of Industry, Mine and Commerce, hereinafter: “CDEC” – www.enamad.ir) in order to acquire the Reliance Symbol, which is a symbol necessary to certify the identity and competence of online activities.
Requirements for the Online Business License
Article 3 of the Executive Regulation on Issuance of License and Supervision on Businesses in Virtual Space and Network Marketing, which governs the Issuance of Online Business Licenses in Iran, provides that business licenses shall be issued according to the following procedure:
- Establishment of the virtual business conforming to the checklists provided by the CDEC.
- Registration of application in E-Namad website (then the CDEC automatically submits the application to the unions’ website).
- Upload of the required documents, which we will list below.
- Issuance and submission of the license (after verifying the uploaded documents and the original copies thereof) to the applicant within 15 days and submission of the license information to E-Namad website.
- Grant of Electronic Reliance Symbol concurrent with issuance of the license.
Furthermore, the said Regulation specifies the required documents for issuance of business license, as follows:
- Office or legal domicile address of the applicant;
- Negative criminal record from the Police;
- Certificate of the relevant Tax Organization regarding tax compliance;
- Certificate for attendance in educational courses of commerce and business;
- Confirmation of specialized features regarding virtual business issued by the CDED;
- Photocopy of ID-card/Company-Registration number, plus passport/work-permit for foreigners;
- Photocopy of Military Service Termination Card or Permanent or Medical Exemption Card for men under 50 or a Student Certificate.
In addition to those, the Regulation provides some other documents for particular sectors, so it is advisable to contact an Iranian expert in the matter to verify the compliance with all applicable regulations. For instance, the Cultural Heritage, Handicrafts and Tourism Organization of Iran has set out some specific criteria for travel and tourism activities in the virtual space, so travel agency services, accommodation centers, private entities and other tourism services must follow a special procedure to render their services on virtual space.
Successful Examples of Iranian Start-ups
In order to become familiar with this sector, hereinafter we would like to report some inspirational examples of investments.
- Snapp
Snapp is an Iranian ride hailing company which renders its services online. The Snapp application automatically connects the users to the nearest driver and shows the driver the user’s location. Afterwards, the nearest ready driver will pick up the users from their location, and Snapp calculates the price beforehand. This price is normally lower than the Taxi Agency Unions prices and can be received either in cash or via online payment or credit card.
- Digikala
Digikala is the name of one of the biggest e-marketplaces in Iran. Cellphones, laptops and computers, digital cameras, office appliances, automobiles, watches, home appliances, instruments, jewelry, toys, clothes and books are some of the items sold on this website. One of the features of this website is the detailed and comprehensive reviews of different types of digital goods which can be a reliable source for purchasers.
- Pintapin
Pintapin is a comprehensive tool for rendering travel services online. Accommodation services are listed in Pintapin and users can book online their desired location. It is also possible to submit the information regarding your destination, duration of stay and number of companions in order to receive suitable suggestions from Pintapin.
- Bamilo
Bamilo is probably the most important Marketplace businesses in Iran. It started its activity in 2014 and is now among the most viewed websites in Iran. Based on the Amazon-model, the online store is considered as the main Iranian middleman between suppliers and consumers.
- Eskano
Eskano is a smart system for searching real estate in Iran which is performed under international standards. With its huge database of transferable real estates divided between several Iranian cities, Eskano facilitates the sale and lease process, also with the possibility of setting up appointments directly through the website.
The author of this post is Mohammad Rahmani.
En mi post anterior, resaltamos como un inversor extranjero podía realizar sus negocios en la Argentina y, específicamente, analizamos las principales características de las Sociedades de Responsabilidad Limitada (“SRL”).
Las principales diferencias entre las Sociedades de Responsabilidad Limitada y las Sociedades Anónimas son las siguientes:
- Las transferencias de cuotas (SRL) deben ser registradas ante el Registro Público de Comercio vs. Las transferencias de acciones únicamente se registran en el Libro de Registro de Accionistas de las SA.
- En la SRL no pueden haber más de 50 socios.
- El Directorio de una SA tiene la obligación de reunirse al menos una vez cada 3 meses, mientras que en las SRL, la Gerencia no tiene dicha obligación.
- En caso que un socio posea la mayoría de votos, necesita del voto de otro socio para aprobar las resoluciones de la asamblea de socios (SRL) vs. Un accionista con la mayoría de votos no necesita de otro accionista (SA).
En el presente post vamos a hacer foco en las Sociedades Anónimas (“SA”)
Principales características de las SA
Accionistas: Se requiere un mínimo de dos accionistas, los cuales pueden ser o no residentes en la Argentina.
Capital Social: El capital social mínimo requerido por ley es igual a $100.000 (Pesos Cien Mil) (aproximadamente US$6.250), de los cuales únicamente el 25% debe ser integrado al momento de la constitución, y el 75% restante dentro de los 2 años siguientes de dicho momento. Sin embargo, el Registro Público de Comercio puede requerir que el capital social inicial sea mayor que $100.000 en el caso que, teniendo en cuenta la naturaleza y características del negocio estipulado en el objeto social, considere que el capital social es insuficiente.
Responsabilidad SA: La responsabilidad de los accionistas está limitada al capital social de la SA. La única excepción a dicha regla es la doctrina del “corrimiento del velo societario”, la cual es aplicable únicamente cuando, abusando de la limitación de la responsabilidad, una sociedad es constituida o utilizada para cometer fraude.
Libros societarios y contables: La ley establece la obligación de contar con al menos 4 libros societarios: 1) Registro de Accionistas; 2) Registro de asistencia a Asambleas; 3) Actas de Asambleas; y 4) Actas de Directorio.
Administración: El Directorio es el órgano encargado de la administración de la sociedad. No hay obligación de que sean accionistas o residentes en la Argentina. Sin embargo, la Ley requiere que la mayoría de sus miembros residan en la Argentina. Asimismo, la Ley establece que el Directorio debe reunirse al menos una vez cada 3 meses con la presencia de la mayoría de sus miembros.
En caso que el capital social de la sociedad sea de Pesos $10.000.000 o más, el mínimo de directores debe ser de 3; caso contrario, la Ley no establece ningún mínimo de número de directores.
El presidente del Directorio posee la representación legal de la sociedad y, en caso de ausencia, el Vicepresidente puede actuar como representante legal de la sociedad.
Además y, sin perjuicio de lo mencionado anteriormente, la representación de la sociedad puede ser otorgada mediante poderes otorgados por el Directorio para fines específicos (bancario, asuntos administrativos, judiciales, etc).
Fiscalización: En caso que el capital sociedad de la SA sea menor a Pesos $ 10.000.000, no es necesario nombrar un síndico (es como un auditor, con el objetivo de asegurar que la sociedad cumpla con las formalidades de la Ley). En caso que el capital social sea mayor al monto mencionado, la SA debe nombrar una Comisión Fiscalizadora, integrada por al menos 3 síndicos (siempre número impar).
La SA que no realiza oferta pública de sus acciones puede nombrar un solo síndico titular y uno suplente. Los mismos son elegidos por los Accionistas. Para ser síndico es necesario contar con un título de abogado o contador público con residencia en la Argentina. No pueden ser nombrados síndicos los empleados, directores o gerentes de la sociedad o de una sociedad vinculada o subsidiaria. Los Accionistas pueden remover a los síndicos a su sola discreción.
Órgano de Gobierno: La Asamblea de Accionistas es la autoridad de gobierno de la SA y la toma las resoluciones sociales, facultada – entre otros asuntos – para aprobar los estados contables de la sociedad, nombrar y/o remover directores y síndicos, y tratar cualquier otro tema relacionado con el curso ordinario de los negocios de la SA.
Estados Contables: los estados contables anuales deben ser sometidos a la aprobación de la Asamblea de Accionistas. La Ley Argentina establece que dichos estados contables anuales deben ser presentados en el Registro Público de Comercio.
El autor de este post es Tomás García Navarro.
El Perú antes de 1990
Si usted no es peruano y escuchaba hablar del Perú antes del año 1990 es muy probable que las noticias hayan sido negativas, tales como la catastrófica economía, la violencia terrorista y la falta del “Estado de Derecho” o “Rule of Law”, que no es otra cosa que el sometimiento de los poderes públicos a las leyes.
A fines de los años 60, un gobierno militar sustituyó, una vez más, una precaria democracia que trataba de convivir en el entorno internacional post segunda guerra mundial. Mientras muchos países del mundo abrían sus economías y apostaban por la inversión, en Latinoamérica el camino preferido era diferente. Reivindicando nacionalismos y luchas sociales, el golpe de estado de 1968 guio al Perú a ser una economía centralizada y controlada desde el Estado. Se restringió la inversión extranjera, se limitaron las iniciativas privadas y se promovió la actividad económica estatal.
En los años 80’s, a pesar que se sucedieron dos gobiernos civiles elegidos democráticamente, se hizo poco por cambiar las bases económicas planteadas por el gobierno militar anterior, quizás, solo para demostrar que las economías dirigidas no son sostenibles. Simultáneamente, la violencia terrorista impactaba negativamente, no solo en la seguridad, sino en la economía, destruyendo la poca infraestructura y la tranquilidad necesaria para invertir.
Las reformas legislativas de los 90´s
Pero en 1990, un nuevo gobierno entendió que eran necesarias reformas radicales para cambiar la situación que amenazaba el futuro del Perú. De manera unilateral se decidió liberalizar la tenencia y cambio de moneda extranjera, reducir los aranceles de importación y dar prioridad a la inversión privada frente a la Estatal, lo que fue seguido por una ola de privatizaciones.
Un papel a destacar en dicha coyuntura es el del Decreto Legislativo 662, “Ley de Promoción de las Inversiones Extranjeras” promulgado el 29 de agosto de 1991.
Garantías del Estado a los inversionistas extranjeros
Este Decreto modificó de un día para el otro la concepción económica del Perú, mediante el cual, ahora el Estado Peruano: (1) promueve y garantiza las inversiones extranjeras efectuadas y por efectuarse, en todos los sectores de la actividad económica; (2) reconoce la igualdad de trato para los inversionistas nacionales y extranjeros; (3) elimina requisitos previos para la inversión; (4) protege la propiedad privada; (5) promueve igualdad de condiciones en cuanto a la propiedad intelectual de inversionistas nacionales y extranjeros; (6) confiere a los inversionistas extranjeros el derecho a la libertad de comercio e industria, así como a comerciar con el exterior; (7) permite la libre transferencia de moneda extranjera; (8) garantiza el uso del tipo de cambio más conveniente en el mercado, e incluso, (9) implementa un mecanismo de estabilidad jurídica, mediante el cual, el inversionista puede mantener un régimen legal determinado por un período de 10 años, dádosele así seguridad a los planes de inversión en un mediano plazo.
Eliminación de restricciones a la inversión
Finalmente, destaca entre las disposiciones complementarias de este Decreto que, a partir de su vigencia, quedan derogadas todas las leyes que limitan o restrinjan de alguna manera la inversión extranjera.
Al día de hoy, han pasado poco más de 25 años desde la entrada en vigencia de esta Ley y queda claro que fue el camino correcto. El Perú se encuentra ahora insertado en la economía mundial y ha afrontado con éxito el reto del crecimiento económico y social, habiendo rescatado a millones de personas de la pobreza extrema con el crecimiento sostenido de la clase media.
Asimismo, a través de la integración comercial, se han firmado múltiples acuerdos comerciales y de protección de inversiones, tanto bilaterales como multilaterales, consintiendo a los inversionistas la posibilidad de acudir a foros internacionales a fin de presentar eventuales reclamos en contra del Estado Peruano, en el caso que sus inversiones se vieran afectadas indebidamente por el Estado.
Cabe destacar que, desde la entrada en vigencia de esta ley, han sido pocos los casos en los cuales un inversionista extranjero se ha visto en la necesidad de acudir a alguna de estas instancias internacionales, lo que se explica por el alto respeto que han tenido los sucesivos gobiernos por la inversión privada y extranjera.
Conclusión
De esta manera, podemos concluir que no solo los inversionistas extranjeros gozan de los mismos derechos que los inversionistas nacionales, sino que, incluso, teniendo el derecho a acudir a foros internacionales, tienes mayores derechos que los inversionistas locales.
El autor de este artículo es Frank Boyle.
