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Toward for the Creation of International Investment Rules
and Improvement of the Japanese Investment Environment

ANNEX 3: Outline of Results of Investment Questionnaire

Results of the Questionnaire Survey on Investment, which was conducted by Keidanren (now Nippon Keidanren, or JBF; same below) in April 2002, were as follows.

1. Survey objectives

With the new round of World Trade Organization (WTO) negotiations launched this year, work is currently underway toward initiating negotiations on the creation of international investment rules following the Ministerial Conference to be held in Mexico in 2003. Recent years have also seen the worldwide conclusion of a growing number of bilateral investment treaties (BITs) and investment-inclusive bilateral and regional free trade agreements (FTAs) and economic partnership agreements (EPAs).

This survey was conducted as a means of bringing together the views of Japanese business on the formation of investment rules through WTO negotiations and at other levels, and to provide a reference in lobbying the Japanese Government, government and industry in other nations, and the WTO.

2. Respondents

Keidanren member companies (members of the Committee on Trade and Investment and the Regional and Bilateral Committees): 159 responses from 140 companies
(Survey sent out to 980 companies; 14.3 % response rate)

3. Key views

(1) In the WTO context, a high-level plurilateral agreement should be sought which includes the ASEAN members, China and the NIEs.

Many companies wanted to see a high level of content in order to ensure agreement effectiveness. Many therefore were prepared to consider a plurilateral agreement which included the ASEAN members, China and the NIEs. In the case of a plurilateral agreement, most-favored-nation (MFN) treatment would have to be conditional, extending benefits only to signatory parties.

(2) Rules should include a high level of transparency and investment protection.

Expectations regarding investment rules were particularly high for transparency and investment protection. The transparency of laws and regulations in the investment host nation was clearly the most critical factor in promoting and stabilizing investment by Japanese companies. Many respondents called for public announcement of laws and regulations and transparency in administrative approval procedures. In terms of the traditional area of investment protection (freedom of remittance, expropriation and compensation), many companies wanted a high level of protection to be applied even in developing countries.

(3) In addition to foreign direct investment (FDI), intellectual property rights (IPR) also need to be covered.

Many respondents felt that the agreement should cover not only FDI, but also IPR, contractual rights, long-term and short-term portfolio investment, and real estate investment. Many noted that the diversification of international business had boosted the importance of protection for contractual rights and IPR in regard to technology provision, etc.

(4) Special measures such as transitional periods could be allowed for developing countries. Due account could also be given to developing countries in terms of pre-establishment MFN treatment and national treatment.

Many companies felt that to encourage the East Asian nations and other developing countries to participate in the agreement, some account needed to be taken of their needs. Transitional periods could therefore be granted for some measures, or conditional temporary exemptions from obligations allowed.

Developing countries could also be exempted to some extent from MFN treatment and national treatment obligations for pre-establishment investment (establishment of commercial presence), or a positive-list modality could be adopted.

(5) Movement of key personnel will be extremely critical.

Many respondents regarded the liberalization of entry, sojourn and work for key personnel accompanying foreign investment as a critical issue given the status of these personnel as a key management resource.

(6) Performance requirements relating to joint ventures, domestic sales, technology transfer, and exports should be stipulated.

The various performance requirements accompanying investment have greatly impeded the foreign operations of Japanese companies. Japanese business strongly urges systemic regulation in regard to requirements for joint ventures with local companies, restriction of domestic sales, technology transfer requirements, and requirements for a certain ratio of exports.

(7) Investment incentives should not be prohibited.

Many Japanese companies operating abroad benefit from investment incentives, and virtually all respondents felt that these should not be regulated as they were part of legitimate efforts by developing countries to improve their business environments in order to attract more investment.

(8) While priority should be given to the WTO negotiation, BITs should also be formed with ASEAN members, etc.

Given the range of WTO membership and the need for administrative efficiency, many companies believed that while priority should be given to WTO negotiation efforts, Japan should also actively conclude BITs with the ASEAN members and China as critical trading partners. There was also some expectation of an investment agreement with the NAFTA countries and ROK.

4. Outline of results by question

(1) Agreement structure

(2) Specific points

(3) Relation to BITs

The great majority of respondents (89%) thought that while efforts in WTO negotiations should be given priority, high-level BITs should also be concluded with the ASEAN countries and other trading partners.

ASEAN was highest on the list (14 responses) of those regions with which a BIT should be concluded, followed by China (8), NAFTA (7), the ROK (5) and the EU (3).

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