c) Double Taxation Treaties
The following countries stated that they have entered into Double Taxation Treaties with other countries in the Hemisphere:
Argentina: Bolivia, Brazil, Canada, Chile, Colombia, Cuba, Ecuador, the United States (*).
Bolivia: Argentina
Brazil: Argentina, Canada, Ecuador.
Canada: Argentina, Barbados (*), Brazil, the Dominican Republic, Guyana, Jamaica, Mexico, Trinidad and Tobago, and the United States.
Chile: Argentina.
Colombia: With respect to transport and/or air navigation, and/or shipping: Argentina, Brazil, Chile (*), the United States, Venezuela and with countries of the Andean Community.
The Dominican Republic: Canada.
Ecuador: Andean Community countries, Argentina, Mexico, the United States (*).
Guyana: Canada.
Jamaica: CARICOM, Canada, the United States.
Mexico: Canada, Ecuador, the United States.
Paraguay: Uruguay, Chile(*).
Trinidad and Tobago: Canada, the United States, Venezuela (*).
The United States: Barbados (*), Canada, Jamaica, Mexico, Trinidad and Tobago.
(*) It may be observed that, in certain cases, the data does not correlate between the countries.
d) Other Incentives to Foreign Investment
Regarding the existence of special incentives for foreign investment, in addition to the aforementioned, most countries stated that they existed, although the incentives offered are equally available to foreign and domestic investors. Several reports mentioned the principle of equity and listed the incentives which foreign and local investors enjoy. Other reports also provided such a list and, although they did not make express reference to this, it can be understood from their responses that the incentives are available to both foreign and local investors. There are very few cases in which an incentive is offered exclusively to foreign investors: some countries announced the formation of companies to insure investments, to be formed with private capital, others referred to tax exemptions. Also with respect to investment insurance, some countries mentioned their membership in MIGA or OPIC. It is useful to keep in mind the possible existence of incentive plans at the state level, usually aimed at creating new jobs.
V. DISPUTE SETTLEMENT
The purpose of the present section is to examine the legal protection available to the foreign investor in case of controversies or disputes related to investments. The countries were asked to provide information relating to the procedural recourse open to the foreign investor as a result of membership in international conciliation or arbitration bodies and the Investment Protection Treaties to which they are members. Only general information regarding the Investment Protection Treaties was requested. The details will be left to a later study.
5.1 National Jurisdiction
All the countries, in conformity with the principle of equality under the law, provide the foreign investor with legal guarantees and access to the judicial system similar to that afforded nationals. Nevertheless, almost no country considers additional recourse other than that common to all nationals. Notwithstanding the aforementioned, and as a complementary measure to the provisions of local legislation, it should be borne in mind that the Investment Protection Treaties, for those countries which have signed them, establish the international arbitration jurisdiction for foreign investors. In this regard, it is interesting to note the evolution of these treaties in relation to the exhaustion of internal recourse as a prerequisite for resorting to international arbitration. This requirement was being eliminated in some international agreements, such as MERCOSUR, or in investment protection agreements recently entered into by some countries.
5.2 International Arbitration
Regarding the availability of international arbitration, all the countries indicated that they were members of or in the process of becoming members of ICSID.
Other international arbitration mentioned in the replies are: UNCITRAL; the Inter-American Convention on Commercial Arbitration; the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and NAFTA. It must be borne in mind that in the cases in which investments are made through OPIC or MIGA, the investor has recourse to the dispute settlement mechanisms provided by those entities.
5.3 Investment Protection Treaties
The countries were asked to report on the status of the Investment Protection Treaties under negotiation, signed, approved, ratified, or in force. Although most countries acknowledged having entered into such conventions with countries in other continents, it has been decided to prepare a summary related only to the negotiations and the status of those between countries within the Americas. It must be kept in mind that the dynamic of the process of negotiation of these agreements requires constant updating of information.
Conventions in force:
Argentina: with Bolivia, Canada, Chile, the United States and Venezuela
Belize: with Canada (*), Colombia (*), the United States (*), Venezuela, and CARICOM countries
Bolivia: with Argentina, Mexico (Chapter XV of the Free Trade Agreement) and Peru
Canada: with Argentina, with NAFTA countries
Chile: with Argentina and Venezuela
Costa Rica: with Mexico (*)
Ecuador: with Argentina (*), Chile (*), El Salvador, Paraguay and the United States (*)
El Salvador: with Ecuador
Mexico: with NAFTA countries
Panama: with the United States
Peru: with Argentina (*), Bolivia and Paraguay
Trinidad and Tobago: with Canada (*) and the United States (*)
Uruguay: with the United States (*) and MERCOSUR countries
The United States: with Argentina, Grenada and Panama, with NAFTA countries
Venezuela: with Argentina, Chile and Ecuador (*)
Conventions that have been approved although they have not yet entered into force:
Argentina: with Ecuador and Jamaica
Bolivia: with the United States
Canada: with Trinidad and Tobago, and Uruguay
Chile: with Ecuador.
Colombia: with Cuba and Peru
Paraguay: with Argentina, Brazil, Chile, Ecuador, Peru and Uruguay
Peru: with Colombia.
Uruguay: with Canada.
Venezuela: with Barbados and Brazil
Conventions that have merely been signed:
Bolivia: with Chile and Ecuador
Brazil: with Argentina (*), Chile, Paraguay, Uruguay (*) and Venezuela
Chile: with Brazil, Bolivia, Paraguay and Uruguay (*)
Colombia: with Argentina (*), Canada (*), and the United States (*)
Costa Rica: with Chile
Ecuador: with Bolivia (*) and Venezuela (*)
El Salvador: with the United States
Honduras: with the United States
Nicaragua: with the United States
Trinidad and Tobago: with the United States
Uruguay: with Ecuador and Paraguay
The United States: with Ecuador (*), Haiti, Honduras, Jamaica, Nicaragua and Trinidad and Tobago
(*) As may be observed, the information provided on the status of the conventions does not always correspond.
5.4 Juridical Hierarchy of Foreign Investment Regulations
This section seeks clarification on the hierarchy or regulatory rank, especially to determine the significance of international agreements on foreign investment within each country’s legal system. Countries were also asked if those agreements had a "direct impact," that is, whether they could be invoked by the parties directly before the courts and applied by the courts to the case in question.
5.5 Enforceability and Direct Effect of the Regulations
Most countries replied that, in compliance with their respective constitutional provisions, international treaties take legal precedence over national laws (with the exception of the constitution) and that they have direct effect.
VI. COMPETENT AUTHORITIES
The purpose of this section is to identify the entities responsible for foreign investment in each country, as well as their organization and functions.
Only three countries stated that they did not have any entities specifically charged with the regulation of foreign investment. Of the rest, some countries indicated that they had various entities with competence in this area.
These entities differ in structure and function from one country to another. In fact, they are public, private, and at times mixed.
c) Double Taxation Treaties
The following countries stated that they have entered into Double Taxation Treaties with other countries in the Hemisphere:
Argentina: Bolivia, Brazil, Canada, Chile, Colombia, Cuba, Ecuador, the United States (*).
Bolivia: Argentina
Brazil: Argentina, Canada, Ecuador.
Canada: Argentina, Barbados (*), Brazil, the Dominican Republic, Guyana, Jamaica, Mexico, Trinidad and Tobago, and the United States.
Chile: Argentina.
Colombia: With respect to transport and/or air navigation, and/or shipping: Argentina, Brazil, Chile (*), the United States, Venezuela and with countries of the Andean Community.
The Dominican Republic: Canada.
Ecuador: Andean Community countries, Argentina, Mexico, the United States (*).
Guyana: Canada.
Jamaica: CARICOM, Canada, the United States.
Mexico: Canada, Ecuador, the United States.
Paraguay: Uruguay, Chile(*).
Trinidad and Tobago: Canada, the United States, Venezuela (*).
The United States: Barbados (*), Canada, Jamaica, Mexico, Trinidad and Tobago.
(*) It may be observed that, in certain cases, the data does not correlate between the countries.
d) Other Incentives to Foreign Investment
Regarding the existence of special incentives for foreign investment, in addition to the aforementioned, most countries stated that they existed, although the incentives offered are equally available to foreign and domestic investors. Several reports mentioned the principle of equity and listed the incentives which foreign and local investors enjoy. Other reports also provided such a list and, although they did not make express reference to this, it can be understood from their responses that the incentives are available to both foreign and local investors. There are very few cases in which an incentive is offered exclusively to foreign investors: some countries announced the formation of companies to insure investments, to be formed with private capital, others referred to tax exemptions. Also with respect to investment insurance, some countries mentioned their membership in MIGA or OPIC. It is useful to keep in mind the possible existence of incentive plans at the state level, usually aimed at creating new jobs.
V. DISPUTE SETTLEMENT
The purpose of the present section is to examine the legal protection available to the foreign investor in case of controversies or disputes related to investments. The countries were asked to provide information relating to the procedural recourse open to the foreign investor as a result of membership in international conciliation or arbitration bodies and the Investment Protection Treaties to which they are members. Only general information regarding the Investment Protection Treaties was requested. The details will be left to a later study.
5.1 National Jurisdiction
All the countries, in conformity with the principle of equality under the law, provide the foreign investor with legal guarantees and access to the judicial system similar to that afforded nationals. Nevertheless, almost no country considers additional recourse other than that common to all nationals. Notwithstanding the aforementioned, and as a complementary measure to the provisions of local legislation, it should be borne in mind that the Investment Protection Treaties, for those countries which have signed them, establish the international arbitration jurisdiction for foreign investors. In this regard, it is interesting to note the evolution of these treaties in relation to the exhaustion of internal recourse as a prerequisite for resorting to international arbitration. This requirement was being eliminated in some international agreements, such as MERCOSUR, or in investment protection agreements recently entered into by some countries.
5.2 International Arbitration
Regarding the availability of international arbitration, all the countries indicated that they were members of or in the process of becoming members of ICSID.
Other international arbitration mentioned in the replies are: UNCITRAL; the Inter-American Convention on Commercial Arbitration; the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and NAFTA. It must be borne in mind that in the cases in which investments are made through OPIC or MIGA, the investor has recourse to the dispute settlement mechanisms provided by those entities.
5.3 Investment Protection Treaties
The countries were asked to report on the status of the Investment Protection Treaties under negotiation, signed, approved, ratified, or in force. Although most countries acknowledged having entered into such conventions with countries in other continents, it has been decided to prepare a summary related only to the negotiations and the status of those between countries within the Americas. It must be kept in mind that the dynamic of the process of negotiation of these agreements requires constant updating of information.
Conventions in force:
Argentina: with Bolivia, Canada, Chile, the United States and Venezuela
Belize: with Canada (*), Colombia (*), the United States (*), Venezuela, and CARICOM countries
Bolivia: with Argentina, Mexico (Chapter XV of the Free Trade Agreement) and Peru
Canada: with Argentina, with NAFTA countries
Chile: with Argentina and Venezuela
Costa Rica: with Mexico (*)
Ecuador: with Argentina (*), Chile (*), El Salvador, Paraguay and the United States (*)
El Salvador: with Ecuador
Mexico: with NAFTA countries
Panama: with the United States
Peru: with Argentina (*), Bolivia and Paraguay
Trinidad and Tobago: with Canada (*) and the United States (*)
Uruguay: with the United States (*) and MERCOSUR countries
The United States: with Argentina, Grenada and Panama, with NAFTA countries
Venezuela: with Argentina, Chile and Ecuador (*)
Conventions that have been approved although they have not yet entered into force:
Argentina: with Ecuador and Jamaica
Bolivia: with the United States
Canada: with Trinidad and Tobago, and Uruguay
Chile: with Ecuador.
Colombia: with Cuba and Peru
Paraguay: with Argentina, Brazil, Chile, Ecuador, Peru and Uruguay
Peru: with Colombia.
Uruguay: with Canada.
Venezuela: with Barbados and Brazil
Conventions that have merely been signed:
Bolivia: with Chile and Ecuador
Brazil: with Argentina (*), Chile, Paraguay, Uruguay (*) and Venezuela
Chile: with Brazil, Bolivia, Paraguay and Uruguay (*)
Colombia: with Argentina (*), Canada (*), and the United States (*)
Costa Rica: with Chile
Ecuador: with Bolivia (*) and Venezuela (*)
El Salvador: with the United States
Honduras: with the United States
Nicaragua: with the United States
Trinidad and Tobago: with the United States
Uruguay: with Ecuador and Paraguay
The United States: with Ecuador (*), Haiti, Honduras, Jamaica, Nicaragua and Trinidad and Tobago
(*) As may be observed, the information provided on the status of the conventions does not always correspond.
5.4 Juridical Hierarchy of Foreign Investment Regulations
This section seeks clarification on the hierarchy or regulatory rank, especially to determine the significance of international agreements on foreign investment within each country’s legal system. Countries were also asked if those agreements had a "direct impact," that is, whether they could be invoked by the parties directly before the courts and applied by the courts to the case in question.
5.5 Enforceability and Direct Effect of the Regulations
Most countries replied that, in compliance with their respective constitutional provisions, international treaties take legal precedence over national laws (with the exception of the constitution) and that they have direct effect.
VI. COMPETENT AUTHORITIES
The purpose of this section is to identify the entities responsible for foreign investment in each country, as well as their organization and functions.
Only three countries stated that they did not have any entities specifically charged with the regulation of foreign investment. Of the rest, some countries indicated that they had various entities with competence in this area.
These entities differ in structure and function from one country to another. In fact, they are public, private, and at times mixed.
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