Archive for the ‘Law on Foreign Investment’ Category

N.Korea in Fresh Attempt to Lure Foreign Investment

Thursday, December 10th, 2009

Choson Ilbo
12/10/2009

Even as North Korea struggles under UN sanctions and is in the midst of a controversial currency reform aimed at breaking the back of a nascent free market, the reclusive country is apparently in the process of changing laws in order to attract more foreign investment, an expert said Wednesday. It is even offering foreign companies wages cheaper than those paid to North Korean workers at the joint-Korean Kaesong Industrial Complex, according to Jack Pritchard, president of the Korea Economic Institute in Washington D.C.

Pritchard, who visited Pyongyang last month along with Scott Snyder, director of the Center for U.S.-Korea Policy at the Asia Foundation, told reporters in Washington. The North Korean trade department official they met there told them there are no strikes among North Korea’s skilled workers and were very aggressive in luring foreign investment. He added North Korean officials offered wages of 30 euros a month (around US$44), which was lower than the average $57 paid to workers at the Kaesong Industrial Complex. The officials said they were also willing to offer various incentives to foreign companies interested in taking part in the construction of 100,000 homes in Pyongyang. North Korea appeared to be changing its attitude toward foreign countries as part of its goal to become a strong and powerful nation by 2012, he said.

In an article for Global Security [Posted below], the Internet-based provider of military and intelligence information, Snyder wrote, “North Korean colleagues at the Ministry of Trade appeared genuinely surprised and dismayed when we mentioned that UN Security Council Resolution 1874… contains provisions prohibiting companies from making new investments in North Korea.”

Snyder said North Korea’s interest in foreign investment as part of its goal to become a “strong and powerful nation” by 2012 is a new development and one that could play a role in resolving the nuclear stalemate.

But efforts to attract foreign investment and capital over the past 25 years have been a disaster. North Korea announced new regulations in September of 1984 to allow businesses from capitalist countries to operate there. It set up special economic zones in Rajin-Songbong in 1991 and in Sinuiju in 2002. But the Sinuiju project never got beyond the ground-breaking stage due to conflict with China, while empty factories litter Rajin-Sonbong.

North Korea aimed to attract $7 billion worth of foreign investment into Rajin-Sonbong, but actual investment amounted to only $140 million. According to the South Korean government and other sources, there are an estimated 400 foreign businesses operating in North Korea. Most of them are small businesses run by Chinese or North Korean residents in Japan. The shining exception is the Egyptian telecom company Orascom, which offers mobile phone services in the North. “It’s more accurate to say that there are no major foreign businesses operating in North Korea,” said Cho Dong-ho, a professor at Ewha Woman’s University.

North Korea forged its first pact guaranteeing foreign investment with Denmark in September 1996 and signed similar pacts with around 20 countries, including China, Russia, Singapore and Switzerland, as of 2008. There have been consistent reports that businesses in Europe and Southeast Asia were interested in doing business in the North, but hardly any made the move.

Cho Myung-chul, a professor at the Korea Institute for International Economic Policy, who taught economics at Kim Il Sung University in North Korea, said, “The reason why no listed foreign companies are operating in North Korea is because they may end up on the list of businesses subject to U.S. sanctions.” This is one of the reasons why North Korea has tried so desperately to be removed from the U.S. list of terrorism-sponsoring countries.

And even if foreign businesses are interested in investing in North Korea, its lack of infrastructure, including steady power supply and adequate roads and ports, make it impossible to operate factories there. Cho Young-ki, a professor at Korea University, said, “You have to build a power plant if you want to build a factory in North Korea. Cheap labor does not mean businesses will profit there.” The electricity used by the Kaesong Industrial Complex is provided by South Korea, while Hyundai Asan operates its own generator at the North Korean resort in Mt. Kumgang.

Dispatch from Pyongyang: An Offer You Can’t Refuse!
Global Security
Scott Snyder
12/07/2009

Every North Korean seems to have been mobilized for an all-out push to mark their country’s arrival as a “strong and powerful nation” in 2012, which marks the 100th anniversary of Kim Il Sung’s birth, Kim Jong Il’s seventieth birthday, and the thirtieth birthday of Kim Jong Il’s third son and reported successor, Kim Jong-Eun. Pyongyang citizens have cleaned up the city during a 150-day labor campaign, followed by a second 100-day campaign now underway. The Ryugyong Hotel in the middle of Pyongyang, unfinished for over two decades, has been given a facelift courtesy of the Egyptian telecommunications firm Orascom, which expects to have 100,000 mobile phone customers in Pyongyang by the end of the year. But it is still difficult to shake the feeling in Pyongyang that one has walked onto a movie set in between takes. Or that the used car looks good on the outside, but you really don’t know what you might find if you were able to look under the hood or give it a test-drive.

North Korean foreign ministry officials saw United Nations condemnation of their April missile launch as an affront to their sovereignty. This is the ostensible reason the North Koreans have walked away from six party talks. Having conducted a second nuclear test, North Korean officials want to be considered as a nuclear power, choosing instead to “magnanimously” set aside nuclear differences in order to focus on the need to eliminate U.S. “hostile policy” by replacing the armistice with a permanent peace settlement. Essentially, Pyongyang’s new offer–as a “nuclear weapons state”–has shifted from the denuclearization for normalization deal at the core of the 2005 Six Party Joint Statement to “peace first; denuclearization, maybe later.” There was no mention of “action for action” by our North Korean interlocutors.

But the North Koreans are likely to find when Ambassador Stephen Bosworth arrives in Pyongyang next week that the United States will not accept North Korea as a nuclear weapons state. There is virtually no area of agreement between the two governments on the nuclear issue based on public statements made by the two sides thus far, suggesting the likelihood that both sides will face a difficult conversation.

A new component of North Korea’s strategy for achieving its economic and infrastructure goals in the run-up to 2012 is its effort to attract investment from overseas. The Director of North Korea’s newly established Foreign Investment Board unveiled a new plan for attracting equity, contractual, and 100% foreign owned joint venture investments. On paper, the rules incorporate provisions for repatriation of profit, generous tax incentives, and a labor rate of thirty Euros per month. This rate undercuts the compensation of $57.50 per month currently offered at the South Korean-invested Kaesong Industrial Zone. Even more generous was the offer of special concessions in North Korea’s natural resources sector for companies willing to build 100,000 units of new housing in Pyongyang that have already been promised in the run-up to 2012.

North Korean colleagues at the Ministry of Trade appeared genuinely surprised and dismayed when we mentioned that UN Security Council Resolution 1874, which condemned North Korea’s May 25, 2009, nuclear test, contains provisions prohibiting companies from making new investments in the DPRK. This is all the more unfortunate because on paper, North Korean efforts to open its economy through foreign investment are exactly the course that should be encouraged, and North Korea’s goals for 2012 could be advanced significantly with inward investment from companies that might be willing to take the risk, but the nuclear issue stands in the way. This is not to mention that North Korea’s own economic retrenchment and anti-market policies, including the “currency reforms” announced earlier this week, stretch the credibility of the North Korean government to back up these laws. Recent surveys of Chinese investors suggest few demonstration projects for successful investment in North Korea and a high probability of getting scammed or fleeced on the ground.

But the North Korean plea for foreign investment does suggest a potential point of leverage that deserves careful consideration, and that is the possibility of an investment in a strategic commodity that is of special interest to the United States: North Korea’s plutonium stock. During the Clinton administration, former Defense Secretary William Perry led efforts to make similar purchases of nuclear materials from the Ukraine and Kazakhstan, which had inherited stocks of nuclear materials from the breakup of the Soviet Union. These transactions advanced the cause of nuclear non-proliferation by ensuring that these countries would not become nuclear states. A 2004 report of a Task Force on U.S.-Korea Policy co-sponsored by the Center for International Policy and the University of Chicago, also suggested a plutonium “buy-out” proposal for North Korea, despite the obvious moral hazard of appearing to reward North Korea’s bad behavior. Any transaction with North Korea involves moral hazard, and North Korea has already proven that it will sell or sub-contract nuclear materials to the highest bidder. One positive of this approach is that any transaction involving removal of nuclear materials or capabilities from the North would be irreversible, in contrast to past practice of offering irreversible food-aid benefits to North Korea in exchange for participation in multilateral dialogue, but not for irreversible steps toward denuclearization.

In a post-9/11, post-North Korean nuclear test world, the Obama administration must find a formula that facilitates North Korea’s irreversible actions on the path toward denuclearization rather than agreeing to half-measures: North Korea’s immediate focus is on gaining the resources necessary to mark 2012 as a year of accomplishment, yet the North has been highly critical of Lee Myung-bak’s “grand bargain” Proposal. Denuclearization needs to be placed on the North Korean agenda as an accomplishment that North Korea will be able to justify as part of its broader 2012 objective of becoming a “strong and prosperous state.” Unless a new formula can be found by which to bring these two objectives into line with each other, it is likely that the United States and North Korea will continue to talk past each other.

DPRK Law on Foreign Investment

Thursday, January 1st, 2009

From Naenara

Adopted by the resolution of the Standing Committee of the Supreme People’s Assembly (SPA) on Oct. 5, 1992, and revised and supplemented by the decree of the SPA Presidium on Aug. 19, 2008

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Article 1. Mission and status

This Law contributes to encouraging investment by foreign investors in the DPRK and protecting legal rights and interests of foreign-invested businesses.

The Law is the basic law relevant to foreign investment.

Article 2. Definition of terms

1. A foreign investor is a corporate body or an individual of a foreign country that invests in the territory of the DPRK.

2. Foreign-invested businesses include foreign-invested enterprises and foreign enterprises.

3. A foreign-invested enterprise stands for an equity or contractual joint venture or a wholly foreign-owned enterprise that are set up in the territory of the DPRK.

4. A foreign enterprise indicates an institution, enterprise, individual or other economic organizations from foreign countries with a source of income in the territory of the DPRK.

5. A contractual joint venture is a form of business activity in which investors from the DPRK and a foreign country jointly invest, the management is assumed by the partner from the host country and, depending on the provisions of the contract, the portion of the investment made by the foreign investor is redeemed or the share of the profits to which the foreign investor is entitled is distributed to him.

6. An equity joint venture is a form of business activity in which investors from the DPRK and from a foreign country invest jointly, operate the business jointly, and profits are distributed to the investors in accordance with the shares of their investment.

7. A wholly foreign-owned enterprise is a business enterprise in which a foreign investor invests and manages on his own account.

Article 3. Location

A foreign investor shall be permitted to set up and operate an equity or contractual joint venture within the territory of the DPRK, and a wholly foreign-owned enterprise in the specified area.

Article 4. Protection of rights and interests, provision of their management conditions

The State shall guarantee the legal rights and interests of foreign investors and foreign-invested businesses, as well as the conditions of their management activities.

Article 5. Parties to investment

Institutions, enterprises, individuals and other economic bodies of foreign countries shall be permitted to invest within the territory of the DPRK.

Overseas Korean compatriots shall also be allowed to invest within the territory of the DPRK, subject to the relevant laws and regulations.

Article 6. Sectors and forms of investment

A foreign investor shall be allowed to invest in various sectors such as industry, agriculture, construction, transport, telecommunications, science and technology, tourism, commerce and financial services in various forms.

Article 7. Priority sectors

The State particularly encourages investment in sectors that introduce modern technologies including the high technology, sectors that produce internationally competitive goods, the sectors of resource development and infrastructure construction, and the sectors of scientific research and technical development.

Article 8. Preferential treatment

Those foreign-invested enterprises that invest and operate in priority sectors stipulated in the previous Article shall receive preferential treatment, including the reduction of and exemption from income and other taxes, favourable conditions for land use, and the preferential supply of bank loans.

Article 9. Preferential treatment in the Rason economic and trade zone

Those foreign-invested enterprises that are established in the Rason economic and trade zone shall receive preferential treatments as follows:

1. No customs duty shall be levied on export and import goods other than those items that are prescribed by the State.

2. For an enterprise in a production sector, no income tax shall be payable for 3 years from the first profitable year and income tax may be reduced by up to 50 per cent for the following 2 years. The rate of income tax shall be 14 per cent, which is lower than in other areas.

Article 10. Immigrations in the Rason economic and trade zone

The State shall ensure that the relevant institutions make convenient the immigration formalities and methods for foreign investors entering or leaving the country with the purpose of setting up or operating business enterprises in the Rason economic and trade zone.

Article 11. Prohibition and restrictions on investment

The projects where investment shall be prohibited or restricted are as follows:

1. Projects which endanger the national security or injure public morals of the nation

2. Projects geared to resource export

3. Projects that are inconsistent to the specific standards for environmental protection

4. Technically obsolete projects

5. Projects with low profit

Article 12. Investment property, property rights

A foreign investor may invest in the form of currency, property in kind, industrial property rights, technical know-how and other assets and property rights. The value of assets and property rights invested shall be determined through an agreement between the partners on the basis of the international market prices prevailing at the time of the valuation.

Article 13. Establishment of a branch office, representative office and agency

Foreign-invested enterprises shall be permitted to open branch offices, agencies or liaison offices and to establish subsidiaries in the DPRK or other countries. They shall also be permitted to conduct joint operations with companies in other countries.

Article 14. Legal capacity

Equity or contractual joint venture enterprises and wholly foreign-owned enterprises shall become corporate bodies of the DPRK. Foreign enterprises and their branches, agencies and liaison offices that are set up within the territory of the DPRK shall not become corporate bodies of the DPRK.

Article 15. Term of land lease

The State shall lease the land required for foreign investors and the establishment of foreign-invested enterprises for a maximum period of 50 years.

Land so leased may be transferred or inherited during the period of lease with an approval of the relevant organ.

Article 16. Employment and dismissal of labour

A foreign-invested business shall employ its labour force from the host country. Managerial personnel, technicians and skilled workers for special jobs that are prescribed in the contract may be employed from abroad in agreement with the central trade guidance organ.

Labour force of the DPRK shall be employed or dismissed according to a contract made with the relevant labour service agency.

Article 17. Taxation

Foreign investors and relevant foreign-invested businesses shall pay income tax, turnover tax, property tax and other taxes.

Article 18. Reinvestment

Foreign investors shall be permitted to reinvest the whole or part of their profit within the territory of the DPRK.

In such cases the whole or part of the income tax already paid on the reinvested portion may be refunded.

Article 19. Protection of invested property

Foreign-invested enterprises and assets invested by foreign investors shall not be subject to nationalization or seizure by the State.

Should unavoidable circumstances make it necessary to nationalize or seize such enterprises and assets, fair compensation shall be paid.

Article 20. Remittance

Legal profit and other incomes earned by a foreign investor in its business may be remitted abroad, subject to the laws and regulations of the DPRK relating to foreign exchange control.

Article 21. Confidentiality

The State shall protect by law the business secrets of foreign-invested enterprises and shall not disclose them without the consent of the foreign investor.

Article 22. Settlement of disputes

Any disagreement concerning foreign investment shall be settled through consultation.

In case of failure in consultation, it shall be settled by arbitration or legal procedures provided by the DPRK or may be brought to an arbitration agency in a third country for settlement.

Preferential Treatment for Investment in Priority Sectors
From Naenara:

Article 8 of the Law of the Democratic People’s Republic of Korea on Foreign Investment specifies that the foreign-invested enterprises that invest and operate in priority sectors shall receive preferential treatment, including the reduction of and exemption from income and other taxes, favourable conditions for land use, and preferential supply of bank loans.

In accordance with the law, the DPRK government grants such preferential treatment as the reduction of and exemption from taxes and favourable conditions for land use to foreign-invested enterprises that invest in priority sectors, enterprises that are established and operated with the investment by overseas Koreans with the citizenship of the DPRK and foreign-invested enterprises that are operated in the special economic zone.

Preferential treatment in the rate of enterprise income tax is as follows.

1) Preferential treatment

- The rate of enterprise income tax of a foreign-invested business is 25 per cent of the taxable income but that of a business funded by an overseas Korean holding the citizenship of the DPRK is 20 per cent. (No. 1 of Article 20 of the Regulations for the Implementation of the Law of the Foreign-invested Business and Foreign Individual Tax)

- The rate of enterprise income tax of a foreign-invested business operating in the Rason economic and trade zone is 14 per cent of the taxable income but that of a business funded by an overseas Korean with the citizenship of the DPRK is 10 per cent. (No. 2 of Article 20 of the Regulations for the Implementation of the Law of the Foreign-invested Business and Foreign Individual Tax)

- The rate of enterprise income tax of a foreign-invested business engaged in the State-encouraged sectors—high technology, development of underground resources, infrastructure construction, scientific research and technological development is 10 per cent of the taxable income. This rate is 10 per cent lower than that of other income taxes of a foreign-invested business. (No. 3 of Article 20 of the Regulations for the Implementation of the Law of the Foreign-invested Business and Foreign Individual Tax)

- When a foreign enterprise earns other incomes such as income from dividends, interests, rent, royalties or other sources in the territory of the DPRK, such incomes shall be taxable at the rate of 20 per cent in other parts of the country and 10 per cent in the Rason economic and trade zone. (Article 10 of the DPRK Law on Foreign-invested Business and Foreign Individual Tax)

2) Privilege

Article 29 of the Regulations for the Implementation of the Law of the Foreign-invested Business and Foreign Individual Tax stipulates that:

-Tax may not be imposed on the dividends earned by a foreign-invested enterprise through business activities inside the DPRK.

- In case the government of a foreign country or an international financial organization grants loans to the government of the DPRK or a State bank, or in case a foreign-invested bank gives loans to a bank or an enterprise of the DPRK on favourable terms such as low interest rates (lower than the LIBOR) and the return period of at least 10 years including a grace period, the enterprise income tax on the interest on the loan may be exempted.

-The foreign-invested business which operates for at least 10 years either in the priority sectors or in the manufacturing sectors inside the Rason economic and trade zone may receive immunity from enterprise income tax for 3 years from the first profit-making year and reduction of up to 50 per cent during the two ensuing years.

Enterprise income tax may be exempted or reduced on an income earned by a financial business through offshore banking transactions.

-For a foreign-invested business that makes a total investment of at least 4 500 000 000 won in infrastructure construction projects such as railways, roads, telecommunications, airports and seaports inside the Rason economic and trade zone, enterprise income tax may be exempted for 4 years from the first profit-making year and reduced up to 50 per cent during the three ensuing years.