Under this law, foreign investors are allowed to invest 100% equity in companies
engaged in almost all types of business activities subject to certain restrictions as
prescribed in the Foreign Investments Negative List (FINL).
Under the said law, a non-Philippine national may, upon registration with
appropriate government agencies, do business2 or invest in a domestic market
enterprise and/or in an export enterprise up to 100% of its capital, unless
participation of non-Philippine nationals in the enterprise is prohibited or limited to
a smaller percentage by existing laws.Such prohibition or limitation is contained in
the Negative List. Generally, a "non-Philippine national" is an individual who is not
a Filipino citizen or a corporation organized outside of the Philippines or a
corporation organized in the Philippines more than 40% of the voting capital of
which is owned by aliens. Non-Philippine nationals may engage in or invest up to
100% of the capital in any retail trade enterprise subject to certain limitations.3
Negative List:
The current Negative List, which is administered by the National
Economic and Development Authority ("NEDA"), has two component
lists4:
b. 30% in advertising;
(a) domestic market enterprises with paid-in equity capital less than
the equivalent of US$200,000.00 and which do not involve advanced
technology, as certified by the Department of Science and Technology, or
do not employ at least 50 direct employees;
List A:
Consists of areas of activities reserved to Philippine nationals where foreign equity
participation in any domestic or export enterprise engaged in any activity listed
therein shall be limited to a maximum of forty percent (40%) as prescribed by the
Constitution and other specific laws.
List B.
Consists of areas of activities where foreign ownership is limited pursuant to law
such as defense or law enforcement-related activities, which have negative
implications on public health and morals, and small and medium-scale
enterprises.
Note:
(Any amendment to List A may be made at any time to reflect changes instituted
in specific laws while amendments to List B shall not be made more often than
once every two years, pursuant to Section 8 of RA 7042 (as amended) and its
revised Implementing Rules and Regulations.)
The FIA clearly states that if the activity to be engaged in: is not included in the
FINL, is more than 40% foreign-owned, and will cater to the domestic market, the
capital required is at least two hundred thousand dollars (US$200,000.00). The
capital may be lowered to one hundred thousand dollars (US$100,000.00), if
activity involves advance technology, or the company employs at least 50 direct
employees.
f the foreign company will export at least 60% of its output, or a trader that
purchases products domestically will export at least 60% of its purchases, the
required capital is only Php5,000.00.
If the company is at least 60% Filipino-40% foreign-owned and will cater to the
domestic market, paid-in capital of the corporation can be less than
US$200,000.00.
A natural-born citizen of the Philippines who has lost his Philippine citizenship and
who otherwise has the legal capacity to enter into contracts under Philippine law
is allowed to acquire private land up to an aggregate area of not more than 5,000
square meters (in the case of urban land), or 3 hectares (in the case of rural land)
and which shall not comprise more than two (2) lots situated in different cities or
municipalities. The land shall be used for business or other purposes (e.g.,
agriculture, industry and services, including leasing out the same but not the
buying and selling thereof).
Subject to the maximum aggregate area limits provided above, such natural-born
Filipino citizen who has lost his Philippine citizenship may, under Batas Pambansa
Blg. 185, also be a transferee of private lands up to a maximum aggregate area of
not more than 1,000 square meters (in the case of urban land), or 1 hectare (in
the case of rural land), which lands may be used for residential purposes.
Where both spouses are qualified to avail of this privilege, the total area to be
acquired by both cannot exceed the maximum area provided above.
Moreover, said former citizens of the Philippines are granted the same investment
rights of a Philippine citizen in the following areas of investment, subject to the
relevant Philippine law on the matter: (1) cooperatives; (2) rural banks; (3) thrift
banks and private development banks; and (4) financing companies.
1. Cooperatives
2. Rural banks
3. Thrift banks and private development banks
4. Financing companies
Former natural born Filipinos can also engage in activities under List B of the
FINL.This means that their investments shall be treated as Filipino or will be
considered as forming part of Filipino investments in activities closed or limited to
foreign participation.
The equal investment rights of former Filipino nationals do not extend to activities
under List A of FINL which are reserved for Filipino citizens under the Constitution.
Former natural born Filipinos have also been given the right to be transferees of
private land up to a maximum of 5,000 square meters in the case of urban land or
three (3) hectares in the case of rural land to be used for business or other
purposes.
Foreign Investors who wish to own more than 40% to 100% of the business may
also comply Philippine investment laws. Republic Act 8179 amended Republic Act
7042 (Foreign Investment Act) reduced the minimum paid-capital of foreign
companies serving the domestic market from US$500,000 to US$200,000. The
minimum maybe decreased further to US$150,000 if a company uses advanced
technology as certified by the Department of Science and Technology or directly
employs at least 50 employees.
Yes, one hundred percent (100%) foreign equity may be allowed in all areas of
investments under the Foreign Investments Act (FIA) except financial institutions
and those included in the Regular Foreign Investment Negative List (FINL).
However, for a company that will do business locally or for domestic market, it is
mandatory that the minimum amount of investment should be US$200,000.00 if
foreign ownership is more than 40% to 100%.
GTALAW. Yes, there is an exemption. You can apply for an exemption from the
Foreign Investment Act at the Securities and Exchange Commission (SEC),
preferably upon the filing of your application for Incorporation, whenever your
business is considered an export market enterprise - an enterprise wherein a
manufacturer, processor or service (including tourism) enterprise exports sixty
percent (60%) or more of its output, or wherein a trader purchases products
domestically or exports sixty percent (60%) or more of such purchases. But you
have to submit a detailed business plan including the outline of your business
targets and projections.
Q. We are planning to operate a call center business and/or back-office operation
in the Philippines. We will be doing services for all our clients in the United States,
Canada and the UK. Can we own 100% of the business without investing
US$200,000.00?
Yes, but you have to apply for an exemption with the Securities and Exchange
Commission and prove that your business is considered as an export market
enterprise. Business Process Outsourcing, Call Centers and Back Office Operations
are all considered export market enterprise because more than 60% of its service
output is exported.
Q. What are the areas of investments covered by Foreign Investments Act (FIA)?
The FIA covers all investment areas except banking and other financial
institutions, which are governed and regulated by the Bangko Sentral ng Pilipinas
(BSP).
If the proposed activity he intends to venture in is not among those listed in the
Foreign Investment Negative List. If the paid-up capital for domestic market
enterprise is at least US$200,000.00, which may be lowered to US$100,000 if the
following conditions are met: (1)Introduction of advanced technology; or (2)
Employment of at least 50 direct employees.
Q. What are the kinds of investments?
Depending on the type of incentives desired, the kind of investment under E.O.
226 are:
Q. What are the basic rights and guarantees given to the safety of foreign
investments?
All investors and enterprises are entitled to the basic rights and guarantees
provided in the Philippine Constitution. Among other rights recognized by the
government of the Philippines are the following:
Foreign Investments Act (FIA) of 1991 (or Republic Act 7042 and Republic 8179)
allows foreign ownership of up to 100% in most industries, except those specified
in the Foreign Investment Negative List (FINL).
Investors who do not seek incentives and/or whose chosen activities do not
qualify for incentives, (i.e. the activity is not listed in the IPP, and they are not
exporting at least 70% of their production) may go ahead and make the
investments. They only have to be guided by the FINL.
The FINL clearly defines investment area requiring at least 60% Filipino ownership.
All other areas outside this list are fully open to foreign investors.
Before a foreign corporation can engage in business in the Philippines, it must first
secure the necessary licenses or registration certificates from the appropriate
government agencies. Generally, the registration process starts with the
Securities and Exchange Commission (SEC).
If the proposed project or activity qualifies for incentives, the foreign investor may
file its application with the appropriate government agency depending on the
projects location.
In general, investment incentives are not transferable. Tax credit certificates may,
however, be transferred subject to certain conditions. In the case of tax credit
certificates issued pursuant to the Export Development Act of 1994, said
documents are considered negotiable instruments and may be transferred to any
person, natural or juridical, except to local government units.
Q. Does our proposed project qualify for registration with the BOI/PEZA?
To qualify for registration with the BOI for incentive purposes, the proposed
foreign investment must be made in any of the following:
Projects in less-developed areas provided that the activities in all of the above
cases are not reserved for Philippine nationals.
On the other hand, the projects that may qualify for registration with PEZA are
those that involve manufacturing for export and the domestic market, free trade,
tourism, information technology, utilities, facilities enterprises including those
engaged in warehousing and trading operations in the ecozones and development
and operation of ecozones.
An application shall be made in the form prescribed by the BOI / PEZA in two (2)
copies and properly sworn to before a notary public. A project feasibility study is
required as one of the primary documents supporting the application for
registration.
Q. How long will it take to obtain BOI/PEZA approval once all requirements are
complied with?
Under the 1987 Omnibus Investments Code, applications filed with the BOI shall
be considered automatically approved if not acted upon by the Board within
twenty (20) working days from official acceptance thereof, subject to the usual
terms and conditions.
In the case of PEZA, the processing and evaluation by the appropriate department
usually takes about two weeks. The decision on the project is made during the bi-
monthly meetings of the PEZA Board.
A list of general and specific terms and conditions is normally attached to the
approval letter issued by the BOI/PEZA upon approval of the application for
registration. The general conditions include certain management, financial,
operational and marketing restrictions which must be properly complied with so
as to avoid grounds for cancellation of registration. The specific terms and
conditions which may include nationality, operational and reporting requirements
vary depending upon the nature of the business enterprise.
The amount of time allowed for starting a registered project depends on the type
of the proposed project and the period set by the proponent in the feasibility
study with the approval of the BOI/PEZA.
References:
1. http://www.gtalawphil.com/FAQ.htm
2. http://boiown.gov.ph/db-main-final/foreign-investments/
3.http://www.mondaq.com/x/9612/Investment+Strategy/Liberalization+Of+Foreig
n+Investments+In+The+Philippines