SURVEY QUESTIONNAIRE EAC PARTNER STATES
A. BACKGROUND ON THE FOREIGN INVESTMENT REGIME
1.
Provide a brief description of your foreign investment policy including any recent policy changes.
The foreign investment policy is the responsibility of the Investment, Insolvency, Competition, and Corporate
policy directorate, which is part of the marketplace framework policy branch. The Kenya Investment Policy was
launched in November 2019 with the intention of promoting and facilitating private investment in Kenya by
attracting and retaining foreign investment. The policy is guided by seven core principles which includes:
openness and transparency; inclusivity; sustainable development; economic diversification; domestic
empowerment; global integration; and investor-centeredness. The KIP sets out the legal framework for foreign
investment, and the challenges faced by foreign investors and proposes strategies and policy measures to mitigate
these challenges to promote foreign investment. The Investment Promotion Act according to chapter 485b of
the constitution promotes and facilitates investment by assisting investors in obtaining the licenses necessary to
invest and by providing other assistance and incentives for related purposes.
2. Explain any significant public statement which most accurately describes and defines philosophies, policies
and attitudes toward foreign (inward and outward) investment.
County Investment Policy
The County Investment policy addresses private investments at the county. It is a comprehensive and
harmonized policy to guide the attraction, facilitation, retention, monito,ring and evaluation of private
investment. The County Investment policy further recognizes the central role of Kenya’s Constitution (2010),
which clearly delineates the complementary roles that national and county governments play in investment
promotion. The County Investment policy also creates an institutional framework that fosters coordination for
efficient investment attraction, facilitation, and a favorable investment climate.
Vision 2030
Kenya’s Vision 2030 (Vision 2030) was launched in 2008 by retired President Mwai Kibaki as a vehicle for
accelerating the transformation of Kenya into a rapidly industrializing middle-income nation by the year 2030.
The aim of Vision 2030 is to create “a globally competitive and prosperous country with a high quality of life by
2030”. Vision 2030 is based on three “pillars”;
Economic and Macro Pillar – After considerable consultations with stakeholders, the Vision 2030 research teams
settled on six priority sectors that promised to raise the GDP growth rate to the region of ten percent (10%) in a
number of years. These sectors are: Tourism; Agriculture and Livestock; Wholesale & Retail; Trade;
Manufacturing; Financial Services; Business Process Offshoring; and IT-Enabled Services.
Social Pillar – This pillar aims to improve the quality of life for all Kenyans by targeting a cross-section of human
and social welfare projects and programs. This quest is the basis of transformation in eight key social sectors,
namely: Education & Training; Health; Water & Sanitation; Environment; Housing & Urbanization; and Gender,
Youth, Sports & Culture.
Political Pillar – The political pillar of Vision 2030 is “a democratic political system that is issue-based, peoplecentered, result-oriented and accountable to the public”.
Budget Policy Statement
The Budget Policy Statement (BPS) is a policy document that sets out the broad strategic priorities
and policy goals that will guide the national and county governments in preparing their budgets for the
financial year and over the medium term. The document contains the following:
a) an assessment of the current state of the economy including macroeconomic forecasts;
b) the financial outlook with respect to Government revenue, expenditures and borrowing for the
next financial year and over the medium term;
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c) the proposed expenditure ceilings for the National Government, including those of Parliament
and the Judiciary and indicative transfers to County Governments;
d) the fiscal responsibility principles and financial objectives over the medium-term including
limits on total annual debt; and
e) Statement of Specific Fiscal Risks.
Big 4 agenda
1. Food security and nutrition
One of the four items that the government seeks to deliver on its 100% food security and nutrition
commitment. It seeks to achieve this by increasing large-scale production of staple foods, a move that
will see 700,000 new acres of maize, potatoes, and rice being put under cultivation in a private/public
partnership. The crops will be grown under irrigation, to solve the problem of erratic rains, which affect
several farmers across the country. The move is expected to increase, by a significant amount, the level
of crop production in the country. By 2022, it is expected that maize production will increase by 27
million bags, and potatoes by 0.9 million tons. Aside from large-scale crop production, the government
also aims to boost the capacity of small-scale food producers. To achieve maximum food security, the
government is also planning to set up measures that will drastically reduce the cost of food. Top among
them include having contract farmers supply the strategic food reserve, creating a subsidy model for
farmers, deploying early warning systems, and eliminating various levies applied to food products along
the value addition chain.
2.
Affordable universal health care
Universal healthcare is another big 4 item that the government wants to achieve. Currently, healthcare
cover in Kenya stands at 36%. The government aims to change this to 100% by the year 2022. In the
blueprint, the government has identified a number of ways to help achieve this target. Top among them
include: increasing the budget allocation and spending of the health sector by up to KES 12 billion by
2021, an overhaul of the NHIF to extend its services to more Kenyans, deployment of the free maternity
program across private and missionary hospitals, and ensuring there is at least one hospital with CT scan
capability in every county.
3.
Affordable housing
Availability of proper houses is another issue affecting many Kenyans, and thus it is not surprising to
find housing in the Big 4 Agenda. To ensure every Kenyan has access to comfortable houses, the
government plans to build at least 500,000 low-cost houses in a partnership scheme with the private
sector. Aside from offering low-income Kenyans access to housing, the scheme will help to create over
300,000 jobs, while providing a good market for local manufacturers and suppliers. Aside from building
low-cost houses, the government also plans to make to mortgages easily accessible to Kenyans, thus
making it easier for them to borrow or extend their mortgage loans. Special housing schemes will also
be started to provide police officers and prison wardens with access to better houses. On top of that,
private developers will receive incentives in the form of reduced taxes for constructing more than 100
houses per year.
Enhancing manufacturing
The last item on Kenya's big 4 agenda is enhancing the local manufacturing industry to offer employment
to Kenyans and reduce the trade deficit that the country is currently experiencing. There are several
planned initiatives for boosting the local manufacturing sector, top among them being the establishment
of special economic zones, where manufacturing companies/plants will receive several benefits such as
reduced taxation.
4.
2.
Do you have an investment priority plan or an equivalent policy used to identify key economic activities
in which investments are encouraged? Yes, we have the big 4 agenda. If so, please provide a brief
description.
The big 4 agenda entails; Food security and nutrition- The government seeks to achieve this by
increasing large-scale production of staple foods, a move that will see 700,000 new acres of maize,
potatoes, and rice being put under cultivation in a private/public partnership. Aside from large-scale crop
2
production, the government also aims to boost the capacity of small-scale food producers. To achieve
maximum food security, the government is also planning to set up measures that will drastically reduce
the cost of food. Top among them include having contract farmers supply the strategic food reserve,
creating a subsidy model for farmers, deploying early warning systems, and eliminating various levies
applied to food products along the value addition chain. It also involves Affordable universal health
care - Currently, healthcare cover in Kenya stands at 36%. The government aims to change this to 100%
by the year 2022. In the blueprint, the government has identified a number of ways to help achieve this
target. Top among them include: increasing the budget allocation and spending of the health sector by
up to KES 12 billion by 2021, an overhaul of the NHIF to extend its services to more Kenyans,
deployment of the free maternity program across private and missionary hospitals, and ensuring there is
at least one hospital with CT scan capability in every county. The third item in the big 4 agenda is
Affordable housing- To ensure every Kenyan has access to comfortable houses, the government plans
to build at least 500,000 low-cost houses in a partnership scheme with the private sector. Aside from
offering low-income Kenyans access to housing, the scheme will help to create over 300,000 jobs, while
providing a good market for local manufacturers and suppliers. Aside from building low-cost houses, the
government also plans to make to mortgages easily accessible to Kenyans, thus making it easier for them
to borrow or extend their mortgage loans. Special housing schemes will also be started to provide police
officers and prison wardens with access to better houses. On top of that, private developers will receive
incentives in the form of reduced taxes for constructing more than 100 houses per year. The last item on
Kenya’s Big 4 agenda is the government aims to enhance manufacturing by enhancing the local
manufacturing industry to offer employment to Kenyans and reduce the trade deficit that the country is
currently experiencing. There are several planned initiatives for boosting the local manufacturing sector,
top among them being the establishment of special economic zones, where manufacturing
companies/plants will receive several benefits such as reduced taxation.
B. REGULATORY FRAMEWORK/INVESTMENT FACILITATION
1. Transparency
(I) Statutory (legislative) requirements
a. Provide a list of and a summary description of all relevant laws, regulations, administrative guidelines
and policies pertaining to investment. (Indicative Respondents: Ministries, agencies and authorities
dealing with trade, investment and industry)
Citation:
Summary Description
(II) Investment Review and Approval
a.
Tick Yes or No next to any category below to indicate whether foreign investments in sectors of
concern are/are not subject to screening. Add additional categories where appropriate. (Indicative
Respondents: Competition Authorities and specific sectors in particular: Ministries, agencies or
3
authorities they deal with) Telecommunications, Transport, Construction, Mining, Finance and
Tourism)
Categories
1. Merger
2. Acquisitions
3. Greenfield Investment
4. Real Estate/Land
5. Joint Venture
6. Other
6.1. …
6.2. …
b.
Yes
No
For each category (Identify a sector where appropriate where categories are sectoral) sector listed
below identify guidelines/conditions that apply for screening (e.g., mandatory or voluntary
notification, notification only required if foreign equity in excess of 10%). (Indicative Respondents:
Competition Authorities and specific sectors in particular: Ministries, agencies or authorities the
deal with) Telecommunications, Transport, Construction, Mining, Finance and Tourism)
Categories
7. Merger
8. Acquisitions
9. Greenfield Investment
10. Real Estate/Land
11. Joint Venture
12. Other
6.1. …
6.2. …
Guidelines/Conditions
c. In view of categories in b. above, provide details of any special conditions that apply to individual
AfCFTA trade in services priority sectors below. (Indicative Respondents: Competition Authorities
and specific sectors in particular: Ministries, agencies or authorities the deal with)
Telecommunications, Transport, Construction, Mining, Finance and Tourism)
1.
2.
3.
4.
5.
6.
7.
Sectors
Telecommunications
Transport
Construction
Mining
Finance
Tourism
…
Guidelines/Conditions
d. Indicate all application/approval forms required for screening purposes. Briefly summarise additional
documentation that is required for review or approval processes. (Attach the referred forms to the
responses) (Indicative Respondents: Competition Authorities and specific sectors in particular:
Ministries, agencies or authorities the deal with) Telecommunications, Transport, Construction,
Mining, Finance and Tourism)
List the Application Forms
1. …
Summary description of key information Required
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e. Identify the Agencies to which applications should be made and provide physical as well as electronic
contacts. (Indicative Respondents: Ministries, agencies and authorities dealing with trade, investment
and industry)
Contacts – (Physical & Electronic)
Agency
1. …
f. Identify the availability of a website (s) and whether there is that capacity to apply for approvals online.
(Indicative Respondents: Competition Authorities and specific sectors in particular: Ministries, agencies
or authorities the deal with) Telecommunications, Transport, Construction, Mining, Finance and
Tourism)
Agency
Availability of a website (Y/N)
Capacity for Online Approvals
(Y/N)
1. …
2. …
(f) What is the average period from the formal submission of all relevant/required documentation to final
approval/rejection? (Indicative Respondents: Competition Authorities and specific sectors in particular:
Ministries, agencies or authorities the deal with) Telecommunications, Transport, Construction, Mining,
Finance and Tourism)
Agency
1.
…
2. …
3. …
Average Period of Time
Approval:
Rejection:
Approval:
Rejection:
Approval:
Rejection:
(g) List agencies responsible for dealing with appeals (including contacts) in cases where a proposal is denied
or a modification of the proposal is requested. (Indicative Respondents: Ministries, agencies and authorities
dealing with trade, investment and industry)
Agency Responsible for Appeals
1. …
Contacts
(h) Briefly describe appeal processes and the average time for an appeal to be considered. (Indicative
Respondents: Competition Authorities and specific sectors in particular: Ministries, agencies or
authorities the deal with) Telecommunications, Transport, Construction, Mining, Finance and Tourism)
Agency Responsible for Appeals
Summary Description of Appeal Process
Average Time
5
1. …
Briefly describe what conditions need to be met for an expedited review of a foreign investment proposal.
(Indicative Respondents: Competition Authorities and specific sectors in particular: Ministries, agencies
or authorities the deal with) Telecommunications, Transport, Construction, Mining, Finance and
Tourism)
(i)
Agency Responsible for Appeals
Summary Description of Expedited Review Conditions
1. ..
(j) Indicate agencies that consider foreign investment related complaints, the types of complaints that the agency
deals with and how the agency can be contacted for appeals (provide addresses, and phone/fax numbers for these
agencies). (Indicative Respondents: Ministries, agencies and authorities dealing with trade, investment and
industry) and (Indicative Respondents: Competition Authorities and specific sectors in particular:
Ministries, agencies or authorities the deal with) Telecommunications, Transport, Construction, Mining,
Finance and Tourism) i.e.: on the types of complaints
Agency Responsible for
Complaints
Types of Complaints
Complaints related contacts
1. ..
(k) List agencies responsible for monitoring/enforcing compliance with foreign investment laws/regulations
and the functions in relation to enforcement for which they are responsible. (Indicative Respondents:
Ministries, agencies and authorities dealing with trade, investment and industry)
Appeals Agency Responsible
for Monitoring/Enforcing
Compliance
1. ..
Monitoring Functions
Enforcement Functions
(l) Describe any opportunities to comment (foreign and domestic) on existing foreign investment regulations, or
for proposed changes to the foreign investment regime, and indicate the nature of these processes. (Indicative
Respondents: Competition Authorities and specific sectors in particular: Ministries, agencies or
authorities the deal with) Telecommunications, Transport, Construction, Mining, Finance and Tourism)
(m) If there is a role for sub national agencies in the approval process, please indicate the agencies including
their contacts and their roles in the approval process (e.g., zoning, approvals of land purchase). (Indicative
Respondents: Competition Authorities and specific sectors in particular: Ministries, agencies or
authorities the deal with) Telecommunications, Transport, Construction, Mining, Finance and Tourism)
Sub National Agency and
Contacts
1. ..
Roles/Functions of Sub National Agency in Approval Process
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C. INVESTMENT LIBERALISATION:
1. Most Favored Nation Treatment/Non-discrimination between Source Economies
(a) List and describe the scope of any exceptions to most favoured nation treatment in relation to the
establishment, expansion and operation of foreign investment (e.g., limits in terms of sector, threshold value or
otherwise). (Indicative Respondents: Ministries, agencies and authorities dealing with trade, investment
and industry and legal aspects of investment as well as international treaties)
Scope of MFN
Exceptions
Establishment
Scope of MFN Exceptions
Expansion
Scope of MFN Exceptions
Operation of Foreign
Investment
1. ..
(b) Identify and describe any international agreements to which your country is party which provides for a
possible exception to MFN treatment. (Indicative Respondents: Ministries, agencies and authorities dealing
with trade, investment and industry and legal aspects of investment as well as international treaties)
International Agreement
Description of the Nature of Exceptions to MFN
Treatment
1. …
3. National Treatment
(a) Identify any sectors which are subject to exceptions to national treatment (NT) for the purpose of foreign
investment and the nature of the exception (e.g., requirements for joint ventures, linkages between export ratios
and equity participation, technology licensing). In your response briefly list laws, regulations and policies which
provide for those exceptions. Sector Nature of Exception (e.g. prohibition, limitation, special conditions and
special screening) (Indicative Respondents: Competition Authorities and specific sectors in particular:
Ministries, agencies or authorities the deal with) Telecommunications, Transport, Construction, Mining,
Finance and Tourism)
Sectors Subject to Laws,
regulations The
Nature
NT Exceptions
and policies which Exceptions to
provide for sector Treatment
exceptions
1. …
of Sector Nature of
NT Exception
(b) Briefly describe the nature and scope of any limitations on foreign firm's access to sources of finance, e.g.,
are there any restrictions on offshore financing, inter-company loans, or issuance of corporate bonds.
(Indicative Respondents: Central Banks, Ministries of finance and access to finance related agencies)
7
Sectors Subject to Nature
of
NT Exceptions
limitations
1. …
2. ..
any Scope of any limitations
4. Repatriation and Convertibility
(a) Identify and describe any regulations which restrict the repatriation of funds related to foreign investment,
such as profits, dividends, royalties, loan payments and liquidation. (Indicative Respondents: Central Banks,
Ministries of finance and access to finance related agencies)
Regulations
Funds
Repatriation
1. …
2. ..
on Summary description of Regulations on Funds Repatriation
(b) Briefly describe the foreign exchange regime. (Indicative Respondents: Central Banks, Ministries of
finance and access to finance related agencies)
(c) Identify and describe any restrictions on the convertibility of currencies for the overseas transfer of funds.
(Indicative Respondents: Central Banks, Ministries of finance and access to finance related agencies)
Regulations on restrictions Summary description of restrictions on the Convertibility
on the Convertibility of of Currencies
Currencies
1. …
2. …
5. Entry and Sojourn of Personnel
(a) Identify any permits/entry visa requirements for non-resident staff of foreign firms and briefly describe the
nature of the entry restriction. (Indicative Respondents: Ministries of labour and employment and ministry
of internal affairs/home affairs and their related agencies and authorities)
Regulations
on
Permits Summary description of nature of entry restrictions
and/or
Entry
Visa
Requirements - non-resident
staff of foreign firms
1. …
2.
8
(b) Identify laws/regulations and briefly describe any restrictions they impose on the entry/sojourn of foreign
technical/managerial personnel. (Indicative Respondents: Ministries of labour and employment and
ministry of internal affairs/home affairs and their related agencies and authorities)
Regulations on restrictions by Summary description of restrictions by law or
law or regulation on the regulation on the entry/sojourn of foreign
entry/sojourn of foreign technical/managerial
technical/managerial
1. …
2. ..
(c) List and describe any regulations relating to personnel management of foreign firms, e.g., minimum wage
laws, minimum requirements for training or employment of local staff. . (Indicative Respondents: Ministries
of labour and employment and ministry of internal affairs/home affairs and their related agencies and
authorities)
Regulations on relating to Summary description of regulations relating to
personnel management of personnel management of foreign firms
foreign firms
1. …
2. ..
(d) List and provide a summary of domestic labour law which apply to foreign firms in the context of labour
disputes/relations in the following order: . (Indicative Respondents: Ministries of labour and employment
and ministry of internal affairs/home affairs and their related agencies and authorities)
Domestic
labour
law Summary description of domestic labour law
applicable to foreign firms in applicable
to
foreign
firms
in
labour
labour disputes/relations
disputes/relations
1. …
2. ..
6. Taxation
(a) Provide a brief summary of all taxation arrangements affecting foreign investment, including corporate
income tax rates, indirect taxes, withholding taxes, double taxation agreements in the following order:
(Indicative Respondents: Central Banks, Ministries of finance and finance related agencies including
revenue authorities)
Taxation Arrangements Summary description of Taxation
Affecting
Foreign Affecting Foreign Investment
Investment
Arrangements
1. Corporate income tax rates
2. Indirect taxes
3. Withholding taxes
4. Double taxation agreements
5. ..
7. Performance Requirements
9
(a) Briefly describe any performance requirements that could impose limits on trade and investment and indicate
any Trade-Related Investment Measures (TRIMS). (Indicative Respondents: Ministries, agencies and
authorities dealing with trade, investment and industry) and specific sectors in particular: Ministries,
agencies or authorities the deal with Telecommunications, Transport, Construction, Mining, Finance and
Tourism)
TRIMS Performance Summary description of TRIMS Performance Requirements
Requirements
1…
2. ..
8. Capital Exports
(a) List and briefly describe any regulations/institutional measures that limit capital exports or the outflow of
foreign investment in the following order:
(Indicative Respondents: Central Banks, Ministries of finance and access to finance related agencies)
Regulations/institutional
measures that limit
capital exports/ outflow
of foreign investment
Summary
description
of
Function
of
Regulatory/Institutional
Measures Limiting capital
exports/ outflow of foreign
investment
Summary description of
Application
of
Regulatory/Institutional
Measures
Limiting
capital exports/ outflow
of foreign investment
1…
2. …
(b) List and briefly describe any regulations/institutional measures that limit technology exports.
(Indicative Respondents: Ministries, agencies and authorities dealing with trade, investment and industry
and legal aspects of investment as well as international treaties)
Regulations/institutional Summary
description
of
measures that limit Function
of
technology export
Regulations/institutional
measures that limit technology
export
Summary description of
Application
of
Regulations/institutional
measures that limit
technology export
1…
2. ..
9. Investor Behavior
(a) Indicate and describe any law, regulation or administrative guideline/policy, of which the observance by
foreign investors is of particular concern to the member economy.
(Indicative Respondents: Investment Authorities and specific sectors in particular: Ministries, agencies or
authorities the deal with Telecommunications, Transport, Construction, Mining, Finance and Tourism)
Law,
regulation
administrative
or Summary description of law, regulation or administrative
guideline/policy - For observance by the Investor
10
guideline/policy - For
observance by the Investor
1…
2. …
10. Other measures
(a) List and briefly describe current intellectual property protection laws that contribute to the security of the
legal environment for foreign investment. (Indicative Respondents: Ministries responsible for intellectual
property and related agencies and offices such as Attorney General and Registrar General Offices,
ministries of health, culture, education and environment
Intellectual
property Summary description of intellectual property protection
protection
laws
that laws that contribute to the security of the legal
contribute to the security environment for foreign investment
of the legal environment
for foreign investment
1…
2. ..
C. INVESTMENT PROTECTION
1. Expropriation and Compensation
(a) Provide a list of and a summary of all laws and regulations relating to expropriation. (Indicative
Respondents: Ministries, sectors and authorities responsible to international law, investment , industry
and relevant sectors such as Telecommunications, Transport, Construction, Mining, Finance and
Tourism, and attorney general offices
Laws and regulations
relating
to
expropriation of foreign
investment
1. Investment
Promotion Act
(2004)
2. Constitution of
Kenya (2010)
Summary
description
of
Function of laws and regulations
relating to expropriation of
foreign investment
Summary description of
Application of laws and
regulations relating to
expropriation of foreign
investment
Promotion of investments
in Kenya
The Constitution of Kenya
provides guarantees against
expropriation of private property,
which may occur for reasons of
security or public interest. In such
a case, fair and prompt
compensation is guaranteed.
Pursuant to the provision of
Protection of rights to
article 65, foreigners may only
property
own land on the basis of leasehold
tenure, which does not exceed
ninety-nine years. Any freehold
interest held by a non-citizen
automatically reverted back to the
Republic of Kenya and state was
11
bound to grant the affected
persons a ninety nine year lease
(b) Provide a list or and a summary of all laws relating to compensation of foreign investment. Briefly
summarise the application and function of these laws/regulations. (Indicative Respondents: Ministries,
sectors and authorities responsible to international law, investment, industry and relevant sectors such as
Telecommunications, Transport, Construction, Mining, Finance and Tourism, and attorney general
offices
Laws and regulations
relating
to
compensation of foreign
investment
1. Constitution of
Kenya (2010)
2. Investment
Promotion Act
(2004)
Summary
description
of
Function of laws and regulations
relating to compensation of
foreign investment
Summary description of
Application of laws and
regulations relating to
compensation of foreign
investment
Provide the guidelines
regarding laws and
regulations on the
compensation of foreign
investment
It calls for prompt and fair
compensation. The Kenyan
government may revoke a foreign
investment license if an untrue
statement is made while applying
for the license, the provision of
the Investment Promotion Act or
of any other law under which the
license is granted or breached or
if there is a breach of the terms
and conditions of the general
authority.
Provides for revocation of the
Provides the protection for
license in instances of fraudulent
investors and promotion
representation to Ken Invest by
of investors
giving written notice to the
investor granting 30 days from the
date of notice to justify
maintaining the license.
2. Settlement of Disputes
(a) List agencies responsible for dispute settlement and provide their contacts. List existing laws, regulations
and administrative procedures to which foreign investors have recourse and describe all means of dispute
settlement and processing of grievances under these instruments: (Indicative Respondents: Ministries, sectors
and authorities responsible to international law, investment , industry and relevant sectors such as
Telecommunications, Transport, Construction, Mining, Finance and Tourism, and attorney general
offices
List
of
agencies
responsible for dispute
settlement
and
Contacts
Judiciary of Kenya
Tel.
List existing laws, regulations Summary description of all
and
administrative means of dispute settlement
procedures
and processing of grievances
Alternative Dispute Resolution
(ADR)
ADR refers to all decisionmaking processes other than
litigation, including but not
12
0730
181600/1700/1800
info@judiciary.go.ke
www.judiciary.go.ke
Kenya Revenue
Authority (KRA)Alternative Dispute
Resolution (ADR)
+254 20 4 999 999 or
+254 711 099 999;
Alternative Dispute Resolution
(ADR)
Email us on
callcentre@kra.go.ke
Nairobi Centre for
Internal Arbitration
(NCIA)
+254 115 008170
+254 771 293055
Email: info@ncia.or.ke
Alternative Dispute Resolution
(ADR)
limited to negotiation, enquiry,
mediation, conciliation, expert
determination and arbitration.
Article 33 of the Charter
enjoins parties to an
international dispute, to first
seek a solution to their
dispute by negotiation,
enquiry, mediation,
conciliation, arbitration,
judicial settlement, resort to
regional agencies or
arrangements, or other
peaceful means of their own
choice. Essentially, the
Charter provides a legal basis
for the use of ADR in dispute
resolution at the international
level.
Overall, ADR seeks to enrich
the entire dispute resolution
process by providing
flexibility and timely/early
dispute management without
the limitations imposed by
judicial and quasi-judicial
processes as regards technical
procedures, untimely decisions
and the rising costs of
litigation. Today, ADR is
widely favored over litigation
and applied in a number of
Tax Revenue Administrations
globally with great success.
This Framework has been
benchmarked against the
experiences of these Tax
Revenue Administrations.
Offers a neutral venue for the
conduct of international
arbitration with a commitment
to providing institutional
support to the arbitral process.
In addition, the NCIA caters
for domestic arbitration and
other forms of dispute
resolution such as mediation.
Arbitration is administered
through a process by providing
13
clear procedural guidelines on
Arbitration with timelines, and
a case counsel to assist the
tribunal in the collation of
documents and assist parties in
complying with the tribunal’s
directions. The mediation
process is administer on beh
alf of the parties and mediator,
ensuring that we provide a
serene environment to
facilitate the mediation
process.
(b) Identify international treaties to which your country is party and describe key features of their dispute
settlement mechanisms? (Indicative Respondents: Ministries, sectors and authorities responsible to
international law, and attorney general offices)
List of International Summary description of key features of dispute settlement
Treaties
mechanisms
1. …
2. …
D. INVESTMENT PROMOTION AND INCENTIVES
1. Identify any investment promotion programs offered at both the national and sub- level (eg. tax incentives,
grants) provided to foreign investors. Provide a descriptive summary of these programs including the nature of
incentives offered. (Indicative Respondents: Ministries, agencies or authorities the deal with)
Telecommunications, Transport, Construction, Mining, Finance, environment and Tourism)
List
investment Summary description of investment promotion programs
promotion programs at at national and sub-national Level
national
and
subnational Level
1…
2. ..
2. Identify and briefly describe any fiscal, financial, tax or other incentives offered at both the national subnational level (e.g., tax incentives, grants) provided to foreign investors. Provide a summary of these programs
including the nature of incentives offered. (Indicative Respondents: Ministry of finance, investment and
industry and their related agencies and authorities as well as specific target sectors namely:
Telecommunications, Transport, Construction, Mining, Finance, environment and Tourism)
List fiscal, financial, tax Summary description of fiscal, financial, tax or other
or
other
incentives incentives offered and their nature
offered
14
1…
2. …
3. If there is a one-stop-facility for foreign investors identify and describe its main features. (Indicative
Respondents: Ministries, agencies and authorities dealing with trade, investment and industry)
List features of one stop Summary description of features of one stop facility
facility
1…
E. SUMMARY OF INTERNATIONAL INVESTMENT AGREEMENTS
OR CODES TO WHICH EAC PARTNER STATE IS A PARTY
1. Identify Non-African International Investment Agreements and/or codes (e.g.: Multilateral Investment
Treaties, Bilateral Investment Treaties, Investment Codes) to which your country is a party and briefly describe
their substantive provisions. (Indicative Respondents: Ministries, agencies and authorities dealing with
trade, investment and industry including ministries of justice, foreign affairs and attorney general’s
offices)
List of international Summary description of substantive provisions
investment Agreements
and/or codes
1…
2. …
2. Identify African International Investment Agreements and/or Codes that have entered into force and ratified
by your country and briefly describe them. (Indicative Respondents: Ministries, agencies and authorities
dealing with trade, investment and industry including ministries of justice, foreign affairs and attorney
general’s offices)
List
of
African Summary description of African
International Investment Investment Agreements and/or Codes
Agreements
and/or
Codes
International
1…
2. ..
3. Identify substantive provisions of interest from African International Investment Agreements and/or Codes
your country negotiated but have either not entered into force or been ratified. Referring to the substantive
provisions of these Agreements and/or Codes provide reasons for their non-ratification where it is the case for
your country. (Indicative Respondents: Ministries, agencies and authorities dealing with trade, investment
and industry including ministries of justice, foreign affairs and attorney general’s offices)
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List substantive provisions Summary description of substantive provisions of
of African International interest and perceived implications to non-ratification
Investment
Agreements
and/or Codes (Not entered
into force)
1…
2. ..
F. SUSTAINABLE DEVELOPMENT PROVISIONS IN INVESTMENT
AGREEMENTS
1. Identify International Investment Agreements and Codes (African and Non-African) your country is affiliated
with that cover sustainable development. (Indicative Respondents: Ministries, agencies and authorities
dealing with trade, investment and industry as well as sustainable development including environment
matters, the ministries of justice, foreign affairs and attorney general’s offices)
No.
International Investment Agreements and Codes Covering Sustainable Investment
1.
2.
3.
2. Of the International Investment Agreements and Codes identified in 1. above, in the table below tick where
appropriate the measures covered therein. (Indicative Respondents: Ministries, agencies and authorities
dealing with trade, investment and industry as well as sustainable development including environment
matters, the ministries of justice, foreign affairs and attorney general’s offices)
Main
Sustainable Sub- Sustainable Development Measures/Provisions
Yes
No
Development
Measures/Provisions
1. General sustainable
a. Declaration of the pursuit of sustainable development
development provisions
(DEC)
(GENs)
2. Anti-corruption provision
(ATC)
a.Declaration of the pursuit of sustainable development
(DEC)
b. Anti-corruption obligations on states (AOS)
c. Anti-corruption obligations on foreign investors (AOI)
3. Environmental provision
(ENV)
a. Non-derogation of sustainable development standards
(NDG)
b. Confirmation of sustainable development obligations
(CON)
c. Exceptions that exempt states from the responsibilities
(EXP)
4. Labour rights and human
rights provision (LHR)
a. Reference to external sustainable development standards
(REF)
b. Non-derogation of sustainable development standards
(NDG)
c. Confirmation of sustainable development obligations
(CON)
d. Exceptions that exempt states from the responsibilities
(EXP)
5. Substantive transparency
provision (TRL)
a. Publication of laws and regulations or arbitral documents
(PUB)
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b. Requirements of communication for law-making and
policy-making (COM)
c. Engagement of stakeholders (ENG)
6. Procedural transparency
provision (TRA)
a. Publication of laws and regulations or arbitral documents
(PUB)
b. Transparency of arbitral hearings (HER)
c. Third party participation in investment dispute settlement
proceedings (TPB)
d. Reference to UNCITRAL Transparency Rules (UTR)
7. National security
provision (NES)
a. Exceptions that exempt states from the responsibilities
(EXP)
8. Responsible business
practices (RBPs)
a. Reference to external sustainable development standards
(REF)
b. Obligations on states for ensuring or supervising
responsible business practices (ROS)
c. Obligations on investors for engaging in responsible
business practices (ROI)
G. STATE REGULATORY SPACE (SRS) PROVISIONS IN
INVESTMENT AGREEMENTS
1. Inscribe against the below-tabulated dimensions and categories of state regulatory space, a reference of an
International Investment agreement (Bilateral and Non-African Agreements) and specific provisions on SRS of
international investment agreement to which your country is party. Inscribe N/A (i.e: Not Applicable) where no
such SRS exists. (Indicative Respondents: Ministries, agencies and authorities dealing with trade,
investment and industry, the ministries of justice, foreign affairs and attorney general’s offices)
Dimension
Category
I. Preamble
1. Preamble
II. Scope and Definitions
1. Definition of Investment
2. Definition of Investor
3. Limiting Substantive Scope
III. Non Discrimination and
other Standards of Treatment
1. Most Favoured Nation
Reference of international
investment agreement and
specific provisions on SRS
2. National Treatment
3. Fair and Equitable Treatment
4. Full Protection and Security
5. Prohibition on Unreasonable,
Arbitrary and Discriminatory
Measures
IV. Expropriation and other
Substantive Obligations
1. Expropriation
2. Compensation
3. Prohibition on Performance
Requirements
4. Umbrella Clause
5. Entry and Sojourn of Personnel
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6. Senior Management and/or
Boards Mandatory Clause
7. Free Transfers
8. Subrogation Clause
9. Non-Derogation Clause
V. Good Governance
1. Good Governance
VI. Flexibility
1. Denial of Benefits
2. Scheduling & Reservations
3. Essential Security Exception
4. Public Policy Exceptions
5. Prudential Carve-Outs
6. Right to Regulate
VII. Institutional Issues and Final
Provisions
1. Mechanism for Consultations
between State Parties
2. Institutional Framework
3. Limiting Temporal Scope of
IIA
4. Pre-existing Disputes Covered
5. Treaty Duration
6. Automatic Renewal
7. Modalities for Denunciation
8. Length of Survival Clause
VIII. Procedural Provisions
1. Alternatives to Arbitration
2. Scope of Claims
3. Limitation on Provisions
Subject to ISDS
4. Limitation on Scope of ISDS
5. Type of Consent to Arbitration
6. ISDS Rules: Domestic Courts
Forum Selection
7. Particular Features of ISDS
8. Interpretation
9. Transparency of Arbitral
Proceedings
H. ADDITIONAL INFORMATION
a.
What is your greatest concern (s) about your country’s investment regime and its ability to meet its
investment objectives going forward? (Indicative Respondents: Ministries, agencies and authorities
dealing with trade, investment, and industry)
There is a lack of full implementation of the Kenya Investment Policy (KIP), County Investment
(CIH) to the Investment Promotion Act.
b.
Are there any significant issues/areas that should be emphasized by EAC Partner States when negotiating
the AfCFTA investment Protocol? (Indicative Respondents: Ministries, agencies and authorities
dealing with trade, investment and industry)
c. Please explain any other issues you feel are important to address for a bespoke investment regime.
(Indicative Respondents: Ministries, agencies and authorities dealing with trade, investment and
industry)
i.
Facilitation of Investment Promotion Agencies
ii.
Harmonization of Investment procedures, codes and possibly tax regime
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