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Viewing cable 07COLOMBO82, INVESTMENT CLIMATE STATEMENT, 2007 - SRI LANKA
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Reference ID | Created | Released | Classification | Origin |
---|---|---|---|---|
07COLOMBO82 | 2007-01-16 12:01 | 2011-08-26 00:00 | UNCLASSIFIED | Embassy Colombo |
VZCZCXRO9966
RR RUEHLMC
DE RUEHLM #0082/01 0161201
ZNR UUUUU ZZH
R 161201Z JAN 07
FM AMEMBASSY COLOMBO
TO RUEHC/SECSTATE WASHDC 5134
RUCPDOC/USDOC WASHDC
RUCPCIM/CIMS NTDB WASHDC
INFO RUEHC/DEPT OF LABOR WASHDC
RUEATRS/DEPT OF TREASURY WASHDC
RUEHNE/AMEMBASSY NEW DELHI 0469
RUEHKA/AMEMBASSY DHAKA 9778
RUEHIL/AMEMBASSY ISLAMABAD 6718
RUEHKT/AMEMBASSY KATHMANDU 4782
RUEHKP/AMCONSUL KARACHI 2106
RUEHCG/AMCONSUL CHENNAI 7283
RUEHGV/USMISSION GENEVA 1689
RUEHLMC/MILLENNIUM CHALLENGE CORP
UNCLAS SECTION 01 OF 25 COLOMBO 000082
SIPDIS
SIPDIS
STATE FOR EB/IFD/OIA AND SCA/INS
STATE PLEASE PASS USTR
MCC FOR S GROFF, D NASSIRY AND E BURKE
E.O 12958: N/A
TAGS: EINV EFIN ETRD ELAB KTDB OPIC PGOV USTR CE
SUBJECT: INVESTMENT CLIMATE STATEMENT, 2007 - SRI LANKA
REF: 2006 State 178303
COLOMBO 00000082 001.2 OF 025
¶1. Per reftel, below is the investment climate
statement for Sri Lanka for 2007.
[Begin text:]
INVESTMENT CLIMATE STATEMENT-SRI LANKA
JANUARY 2007
OPENNESS TO FOREIGN INVESTMENT
--Unpredictability Impedes Investment
Sri Lanka's intractable civil war, erratic policy
environment, and cumbersome bureaucracy make it an
unpredictable investment destination. However, compared
to other South Asian countries, Sri Lanka is relatively
open to foreign investment. It offers a relatively open
financial system, moderately good infrastructure, and
generally capable workers. Some U.S. and other foreign
investors have realized worthwhile returns on investment
in Sri Lanka; others have tried and come away
frustrated.
Sri Lanka is a lower-middle income developing nation
with a gross domestic product of about $27.4 billion in
¶2006. This translates into a per capita income of
$1,375. Sri Lanka's gross domestic product (GDP) grew
by an estimated 7% in 2006. Growth was led by
telecommunications, ports, construction and agriculture.
This rapid growth rate came at the cost of double digit
inflation and the depreciation of the Sri Lankan Rupee,
which together eroded domestic purchasing power.
Despite the resumption of civil war in 2006, the
government predicts GDP growth of 7.5% and single-digit
inflation in 2007.
The Sri Lankan economy is remarkable for its resilience.
Although suffering a brutal civil war that began in
1983, Sri Lanka has seen GDP growth average around 4.5%
in the last ten years. Following a ceasefire in 2002
and subsequent economic reforms, the economy grew by
about 5.7% in 2003-2004. Even the December 2004 Indian
Ocean tsunami -- which killed 32,000 people, displaced
443,000, and caused an estimated $1 billion in damage --
failed to dent GDP growth, which was 6% in 2005; this
was due in part to the damage having been offset by
reconstruction.
Sri Lanka is a stable parliamentary democracy. In 1978,
it shifted away from a socialist orientation and opened
to foreign investment. However, changes in government
have often been accompanied by reversals in economic
policy. Of the two major parties, the more pro-business
United National Party has been in opposition in recent
years. When it last held power, from 2002 to 2004, it
pursued privatization and regulatory reform welcomed by
domestic and foreign investors. Currently, the ruling
Sri Lanka Freedom Party has a more statist economic
approach, guided by President Rajapaksa?s 2005 election
manifesto Mahinda Chintana ("Mahinda?s Thoughts").
Mahinda Chintana seeks to reduce poverty by steering
investment to disadvantaged areas; developing small and
medium enterprises; promoting agriculture; and expanding
the already enormous civil service. The Rajapaksa
government has halted most privatization and advocates
permanent state control of what it deems ?strategic?
enterprises such as state-owned banks, airports, and
electrical utilities. The government has increased
direct and indirect taxation to fund increased
government expenditure.
Sri Lanka?s Board of Investment (BOI) is authorized to
manage a number of export processing zones which feature
business-friendly regulations and improved
infrastructure for foreign investors. BOI incentives
are attractive and real, but the BOI is not the "one
COLOMBO 00000082 002.2 OF 025
stop shop" it aspires to be. Sri Lanka's large,
inefficient, and dated bureaucracy often works at cross-
purposes with BOI authorities and commitments.
Additionally, major investments in Sri Lanka, such as
infrastructure projects, require approval from the full
cabinet, a process which is not transparent and which
can politicize even the most needed investments.
Registration of foreign company branch offices in Sri
Lanka can be cumbersome as well.
The 23-year ethnic conflict between the U.S.-designated
terrorist organization Liberation Tigers of Tamil Eelam
(LTTE) and the Government of Sri Lanka has been a
serious impediment to foreign investment. A Norwegian-
brokered ceasefire between the LTTE and the government,
in effect since February 23, 2002, broke down in 2006.
Resolution of the conflict appears unlikely in the near
future.
Other impediments to investment in Sri Lanka are
workers' declining English language skills, inflexible
labor laws, overburdened infrastructure, and its
unreliable court system. Sri Lanka boasts a 90%
literacy rate in the local Sinhala and Tamil languages,
but English, which was once widely spoken, is now far
less prevalent. Sri Lanka's labor laws include many
model protections, but can make it nearly impossible for
companies to lay off workers even when market conditions
fully warrant doing so. Sri Lanka has not invested in
infrastructure to keep pace with its growth. Its roads
are narrow and congested. Its electricity supply is
generally reliable but can fail to meet peak demand in
years of low rainfall. Delays in commissioning new
power plants could make installed power inadequate to
meet demand within five years. Sri Lanka's courts
cannot be relied upon to uphold the sanctity of
contracts. The courts are not practical for resolving
disputes or obtaining remediation, because their
procedures make it possible for one side in a dispute to
prolong cases indefinitely. Aggrieved investors
(especially those dealing with the government of Sri
Lanka on projects) have frequently pursued out-of-court
settlements, in hopes of speedier resolution.
--Major Sectors
The service sector is the largest component of GDP at
56%. In 2005-6, the service sector continued its strong
expansion, fueled primarily by strong growth in
telecommunications, ports, trading and financial
services. Public administration and defense expenditures
have increased in 2006 and are set to grow further in
¶2007. There also is a growing information technology
sector, especially information technology training and
software development and exports. Sri Lanka has seen
some investment in the business process outsourcing
(BPO) sector, which currently employs about 4,000 people
and has potential to grow further. While beach resorts
have rebuilt after the tsunami, tourism remains well
below potential due to worldwide media coverage of
resumed ethnic conflict.
Manufacturing accounts for about 16% of GDP. The
textile, apparel, and leather products sector is the
largest, accounting for 40% of total industrial output.
The second-largest industrial sector, at 22% of total
manufacturing output, is food, beverages, and tobacco.
The third-largest industrial sector is chemical,
petroleum, rubber, and plastic products. The
construction sector accounts for 7% of GDP and has
posted strong growth rates in 2005-6, largely due to
demand for tsunami reconstruction projects. Mining and
quarrying account for 2% of GDP.
Agriculture has lost its relative importance to the Sri
Lankan economy in recent decades. It employs 33% of the
working population, but accounts for only 17% of GDP.
Rice, the staple cereal, is cultivated extensively. The
plantation sector consists of tea, rubber, and coconut;
COLOMBO 00000082 003.2 OF 025
in recent years, the tea crop has made significant
contributions to export earnings, and increasing global
demand for natural rubber augers well for that sector.
--Trade
According to preliminary data for 2006, Sri Lanka?s
exports (mainly apparel, tea, rubber, gems and jewelry)
were $7 billion and imports (mainly oil, textiles, food,
and machinery) were $10.5 billion. Garment exports face
increased competition following the 2005 expiration of
the worldwide Multifiber Arrangement. The tea industry
is challenged by a shortage of plantation labor and by
growing competition.
Exports to the United States, Sri Lanka's most important
market, were $2.1 billion in 2005, or 32.8% of total
exports. For many years, the United States has been Sri
Lanka's biggest market for garments, taking almost 60%
of total garment exports. India is Sri Lanka's largest
supplier, with exports of $1.8 billion in 2005. The
United States exported approximately $160 million to Sri
Lanka in 2005 (plus about $20 million of tsunami related
exports), consisting primarily of industrial machinery,
as well as medical instruments, pharmaceuticals and
specialized fabrics and textiles for the garment
industry.
--Board of Investment
The Board of Investment (BOI) (www.boi.lk), an
autonomous statutory agency, is the primary government
authority responsible for investment, with a focus on
foreign investment. The BOI acts as a facilitator for
investment. It is intended to provide "one-stop"
service for foreign investors, with duties including
approving projects, granting incentives, and arranging
services such as water, power, waste treatment and
telecommunications. The BOI is relatively effective in
assisting investors who want to establish operations
within its industrial processing zones; it is less
effective in facilitating and service large investments
outside these zones. It also assists people in
obtaining resident visas for expatriate personnel and
facilitates import and export clearances. The Public-
Private Partnership Unit, a new division of BOI, has
responsibility for coordinating all public-private
infrastructure projects.
Generally, the treatment given to foreign investors is
non-discriminatory. In fact, some local companies have
complained that they are discriminated against, as
qualifying foreign investors can benefit from a wide
range of advantages. Even with incentives and BOI
facilitation, foreign investors face difficulties
operating in Sri Lanka. Problems range from difficulty
clearing equipment and supplies through customs speedily
to difficulty obtaining a factory site. Legal
challenges to environmentally sensitive projects have
been burdensome, even when objections are unfounded.
Slow and indecisive application of bureaucratic
requirements has also obstructed investment. Several
high profile and needed infrastructure projects have
dried up in the past two years, as investors tired of
waiting for approval and action. In part to avoid these
delays, and to overcome land allocation problems, the
BOI encourages investors to locate their operations in
BOI-established industrial processing zones. Investors
locating in industrial zones also get access to
relatively better infrastructure facilities such as
reliable power, telecommunication and water supplies.
--Laws Affecting Investment
The principal law governing foreign investment is Law
No. 4, created in 1978 (known as the BOI Act), as
amended in 1980, 1983 and 1992, along with
implementation regulations established under the Act.
The BOI Act provides for two types of investment
COLOMBO 00000082 004.2 OF 025
approvals. Under section 17 of the Act, the BOI is
empowered to grant concessions (see details below) to
companies satisfying certain eligibility criteria on
minimum investment, exports and in some cases
employment. Investment approval under Section 16 of the
act permits entry for foreign investment to operate
under the "normal" laws of the country and applies to
investments that do not satisfy eligibility criteria for
BOI incentives. Other laws affecting foreign investment
are the Securities and Exchange Commission Act of 1987
as amended in 1991 and 2003, and the Takeovers and
Mergers Code of 1995 revised in 2003. The Companies Act
of 1982 will soon be replaced by a new Companies Act,
which has been passed by Parliament and awaits
certification by the Speaker. Various labor laws and
regulations affect investors also. See sections below.
--Foreign Equity Shares by Sector
The government allows 100% foreign investment in the
following services: banking, finance, insurance, stock-
brokering, construction of residential buildings and
roads, supply of water, mass transportation,
telecommunications, energy production and distribution,
professional services, and the establishment of liaison
offices or local branches of foreign companies. These
services are regulated and subject to approval by
various government agencies. The screening mechanism is
non-discriminatory and, for the most part, routine.
Investment in other sectors is restricted and subject to
screening and approval on a case-by-case basis when
foreign equity exceeds 49%. The affected sectors are:
shipping and travel agencies; freight forwarding;
fishing; timber-based industries; growing and primary
processing of tea, rubber, coconut, rice, cocoa, sugar
and spices; and the production for export of goods
subject to international quota. Foreign investment
restrictions and government regulations also apply to
international air transport; coastal shipping;
lotteries; large-scale mechanized gem mining; and
sensitive industries such as military hardware,
dangerous drugs and currency.
Foreign investment is not permitted in the following
businesses: non-bank money lending; pawn-brokering;
retail trade with a capital investment of less than $1
million (with one notable exception: the BOI permits
retail and wholesale trading by reputed international
brand names and franchises with an initial investment of
not less than $150,000); coastal fishing; and the
awarding of local university degrees. Foreign degree
courses can be offered in Sri Lanka by affiliating with
foreign universities. However, there is no scheme to
monitor the quality assurance or accreditation of the
foreign courses offered in Sri Lanka.
--Privatization Halted
The current Government has halted most privatization.
Government treatment of foreign investors in past
privatization processes has been largely non-
discriminatory. In 2003, however, the government sold
part of the retail operations of state-owned Ceylon
Petroleum Corporation to Indian Oil Corporation without
a formal tender process.
Labor unions in state-owned enterprises are often
opposed to privatization and restructuring and seem
particularly averse to foreign ownership. In the past,
this made the privatization of government entities
problematic for new foreign owners.
CONVERSION AND TRANSFER POLICIES
COLOMBO 00000082 005.2 OF 025
In accordance with its Article VIII obligations as a
member of the International Monetary Fund
(http://www.imf.org/external/pubs/ft/aa/aa08. htm), Sri
Lanka has liberalized exchange controls on current
account transactions. However, in October 2006, the
Central Bank imposed controls on foreign exchange
transactions by requiring importers to keep a 50%
deposit on letters of credit on non-essential imports.
The requirement affected over 40 categories of consumer
items including confectionary, liquor, personal care
products, footwear and tableware and seemed designed to
mitigate downward pressure on the Sri Lankan Rupee.
There are no surrender requirements on export receipts,
but exporters need to repatriate export proceeds within
120 days to settle export credit facilities. Other
export proceeds can be retained abroad. Currently,
contracts for forward bookings of foreign exchange are
permitted for a maximum period of 360 days for the
purposes of payments in trade and 720 days for the
repayment of loans.
There are no barriers, legal or otherwise, to the
expeditious remitting of corporate profits and dividends
for foreign enterprises doing business in Sri Lanka.
Remittance of business fees (management fees, royalties
and licensing fees) is also freely permitted for
companies with majority foreign investment approved
under Section 17 of the BOI Act. Other companies
require Central Bank approval. Repatriation of funds
for debt service and capital gains of companies exempted
by the BOI from exchange control regulations is
permitted. Other foreign companies remitting funds for
debt service and capital gains require Central Bank
approval.
The average delay period for remitting investment
returns such as dividends, return of capital, interest
and principal on private foreign debt, lease payments,
royalties and management fees through normal, legal
channels is in the range of 1 to 4 weeks. All stock
market investments can be remitted without prior
approval of the Central Bank through a special bank
account. Investment returns can be remitted in any
convertible currency at the legal market rate.
While controls on capital account (investment)
transactions usually prohibit foreigners from investing
in Sri Lankan debt and fixed income securities, the
government has recently allowed limited access to
foreigners to invest in government rupee bonds. The
Central Bank?s dollar denominated bond issues in the
local market are also open to foreign investors. Local
companies require Central Bank approval to invest
abroad. The process of granting approval for such
investments was streamlined in 2002, resulting in a
substantial increase in approvals.
EXPROPRIATION AND COMPENSATION
Since economic liberalization policies began in 1978,
the Sri Lankan Government has not expropriated a foreign
investment. The last expropriation dispute was resolved
in 1998.
DISPUTE SETTLEMENT
--Legal System
Sri Lanka's legal system reflects diverse cultural
influences. Criminal law is fundamentally British.
Basic civil law is Roman-Dutch. Laws pertaining to
marriage, divorce, and inheritance are communal. Sri
Lankan commercial law is almost entirely statutory. The
law was codified before independence in 1948 and
reflects the letter and spirit of British law of that
era. Its amendments have, by and large, kept pace with
subsequent legal changes in the U.K. Several important
COLOMBO 00000082 006.2 OF 025
legislative enactments regulate commercial matters: the
Board of Investment Law, the Intellectual Property Act,
the Companies Act, the Securities and Exchange
Commission Act, the Banking Act, the Industrial
Promotion Act and Consumer Affairs Authority Act. Most
of these laws were revised recently.
Sri Lanka?s court system consists of the Supreme Court,
the Court of Appeal, Provincial High Courts and the
Courts of First Instance viz. district courts (with
general civil jurisdiction) and magistrate courts (with
criminal jurisdiction). The provincial high courts have
original, appellate and reversionary criminal
jurisdiction. The Court of Appeal sits as the
intermediate appellate court with a limited right of
appeal to the Supreme Court. The Supreme Court
exercises final appellate jurisdiction for all criminal
and civil cases.
All commercial matters exceeding the value of Rs 3
million (approximately $28,000) fall within the
jurisdiction of the Commercial High Court of Colombo.
There are also a number of tribunals which exercise
judicial functions, such as the Labor Tribunals to hear
cases brought by workers against their employers. Until
recently, the court system was largely free from
government interference. There are allegations that the
judiciary is sometimes subject to political influence,
but this has not been evident in commercial litigation
so far. Litigation can be slow and unproductive,
though. Monetary judgments are usually made in local
currency. Procedures exist for enforcing foreign
judgments.
--Bankruptcy Laws
The Companies Act and the Insolvency Ordinance provide
for dissolution of insolvent companies, but there is no
mechanism to facilitate the re-organization of
financially-troubled companies. Other laws make it
difficult to keep a struggling company solvent. The
Termination of Employment of Workmen Act, for example,
prohibits employers from dismissing workers even on the
grounds of inefficiency. The Termination Act was
recently revised to facilitate downsizing. Under the
revised act, a compensation formula for laid-off workers
has been published. But employers have protested that
it is excessive compared to similar formulae in the
Asian region, with terms in Sri Lanka about twice as
generous as the East Asian average. (Please see section
on ?Labor? for details.)
In the absence of proper bankruptcy laws, extra-judicial
powers granted by law to financial institutions protect
the rights of creditors. When a company cannot meet the
demands of a creditor for a sum exceeding Rs 50,000, the
creditor may petition for company to be dissolved by the
court. Lenders are also able to enforce financial
contracts through powers that allow them to foreclose on
loan collateral without the intervention of courts.
Recently, however, the government brought in legislation
to exclude loans below Rs 5 million ($467,000) from the
application of the law. Additionally, a recent judgment
ruled that these powers would not apply with respect to
collateral provided by guarantors to a loan. These two
moves have weakened creditors? rights. Financial
institutions also face other legal challenges as
defaulters obtain restraining orders on frivolous
grounds due to technical defects in the recovery laws.
Also, for default cases filed in courts, the judicial
process is extremely slow.
The Companies Act and the new Companies Bill do not
provide for the revival of struggling companies.
However, the courts take a fairly liberal attitude
COLOMBO 00000082 007.2 OF 025
towards any restructuring plans that may be of benefit
to the company.
--Investment Protection
In principle, foreign investments are guaranteed
protection by the Constitution of Sri Lanka. The
government has entered into 24 investment protection
agreements with foreign governments (including the
United States) and is a founding member of the
Multilateral Investment Guarantee Agency (MIGA) of the
World Bank. Under Article 157 of the Constitution of
Sri Lanka, investment protection agreements enjoy the
force of law and no legislative, executive or
administrative action can be taken to contravene them.
The government has ratified the Convention on Settlement
of Investment Disputes, which provides the mechanism and
facilities for international arbitration through the
World Bank?s International Center for the Settlement of
Investment Disputes (ICSID).
The U.S.-Sri Lanka Bilateral Investment Treaty (BIT) was
ratified by both governments in 1993
(http://www.state.gov/
Documents/organization/43588.pdf).
--Arbitration
The Arbitration Act of 1995 gives recognition to the New
York Convention on recognition and enforcement of
foreign arbitral awards. Arbitral awards made abroad
are now enforceable in Sri Lanka. Similarly, awards
made in Sri Lanka are enforceable abroad. A center for
arbitration known as the Institute for the Development
of Commercial Law and Practice (ICLP)
(www.iclparbitrationcentre.com) has been established in
Colombo for the expeditious, economical, and private
settlement of commercial disputes. However, the ICLP
appears unlikely to become involved in disputes
involving the Sri Lankan Government, which is often a
party to disputes involving foreign investors.
Sri Lanka's first commercial mediation center was
established in 2000 and became operational in mid 2001.
Commercial mediation is conducted under the Commercial
Mediation Act. Interest in mediation is still low.
The Labor Department has a process involving labor
tribunals for settling industrial disputes with laborers
or unions, and arbitration is required when attempts to
reconcile industrial disputes fail. The Labor
Commissioner typically becomes involved in labor-
management mediation. Other senior officials, including
the Labor Minister, and the President, have intervened
in particularly difficult cases.
The government record in handling investment disputes is
problematic. Disputes often become politicized, causing
the government to put political interests ahead of its
respect for the sanctity of contracts. For example, in
2006, Indian Oil Corporation's petroleum retailing
subsidiary in Sri Lanka temporarily closed its
operations when the government failed to honor its
commitment to reimburse the company for fuel sold at the
government-controlled price.
--Investment Disputes Involving U.S. Companies
U.S. companies have experienced problems with payment of
valid contracts; implementation of agreements with the
government; and inexplicable failure to secure
contracts, despite demonstrated superior performance,
high value, and competitive bids.
A U.S. power company producing electricity in Colombo
COLOMBO 00000082 008.2 OF 025
has been unable to obtain payment since 2004 for power
that it produced under a temporary, more costly,
operating mode following a fire in its plant. The
company had intended to suspend operations to conduct
repairs following the fire, but agreed to the
government's request that it keep producing power even
at a higher cost. However, the government has withheld
payment on the basis of a questionable Attorney General
finding that the higher than usual electricity price was
imposed on the government "under duress."
In 2000, the Sri Lankan Supreme Court effectively
blocked an investment agreement between the Government
of Sri Lanka and a U.S. mining company. Although the
agreement was already initialed and approved by the Sri
Lankan cabinet, work on the project had not yet begun.
A group of citizens filed a fundamental rights case
under a Sri Lankan law that allows any person to seek
Supreme Court protection if a government or
administrative act impedes their rights. In this case,
the plaintiffs alleged that their rights would be
violated if the project was implemented, and the court
upheld their complaint. Without any technical argument,
a partial bench of three judges ruled that the project
could not proceed before completion of a new series of
comprehensive and expensive studies, some of which
appeared to be technically impractical. The Supreme
Court decision has never been reversed.
In another case, a U.S. firm with a substantial
investment in an export manufacturing company has faced
lengthy delays in a court case over a large insurance
claim. The company instituted legal action in June 1999
and court proceedings are ongoing. The company withdrew
its operations from Sri Lanka in 2004.
PERFORMANCE REQUIREMENTS AND INCENTIVES
--Performance Requirements
The Board of Investment specifies certain minimum
investment amounts for both local and foreign investors
to qualify for incentives. Firms enjoying preferential
incentives in the manufacturing sector in most cases are
required to export 80% of production, while those in the
service sector must export at least 70% of production.
Sri Lanka complies with WTO Trade Related Investment
Measures (TRIMS) obligations.
Sri Lanka encourages foreign investment in information
technology, electronics assembly, light engineering,
automobile parts and accessories manufacturing,
industrial and information technology parks, rubber
based industries, information and communication
services, tourism and leisure related activities,
agriculture and agro processing, port-related services,
regional operating headquarters, and infrastructure
projects. Foreign investors are generally not expected
to reduce their equity over time, nor are they expected
to transfer technology within a specified period of
time, except for build-own-transfer or other such
projects in which the terms are specified within
pertinent contracts.
In some BOI-approved enterprises, businesses are
required to maintain certain levels of employment to
enjoy incentives. In addition, privatization agreements
generally prohibit new owners from dismissing workers,
although the owners are free to offer voluntary
retirement packages to reduce their workforce. Some
foreign investors have received political pressure to
hire workers from a particular constituency or a given
list, but have successfully resisted such pressure with
no apparent adverse effects.
COLOMBO 00000082 009.2 OF 025
Foreign investors who remit at least $250,000 can
qualify for a one-year resident visa, which can be
renewed. Employment of foreign personnel is permitted
when there is a demonstrated shortage of qualified local
labor. Technical and managerial personnel are in short
supply, and this shortage is likely to continue in the
near future. Foreign employees attached to BOI-approved
companies usually receive preferential tax treatment for
an initial period and do not experience significant
problems in obtaining work or residence permits.
--Investment Incentives
The Board of Investment (www.boi.lk) has various
incentives, with such investments typically requiring
prior approval by various ministries:
Incentive Program I:
Qualifying industries:
-Non-traditional manufacturing exports and companies
supplying to exporting companies. Minimum investment of
$500,000(a);
-Export oriented services. Minimum investment of
$500,000;
-Manufacture of industrial tools and/or machinery.
Minimum investment of $500,000;
-Small-scale infrastructure. Minimum investment of
$500,000;
-Research and development. Minimum investment of
$100,000;
-Agriculture and agro processing industries. Minimum
investment of $150,000;
-Export trading houses of rural sector. Minimum
investment of $150,000
Incentives: The above industries qualify for a five-
year tax holiday initially. A preferential tax of 10%
in the 6th and 7th years follows the tax holiday for
some industries. In addition, some of these industries
qualify for duty-free imports (generally, during the
life of the project for export-oriented projects, and
during the project implementation period for others).
Exporting companies and export-oriented services will be
exempted from exchange control regulations. They will
also qualify for free repatriation of profits and
dividends and free transferability of shares. A two-
year tax holiday is available for investments with an
investment less than $500,000. A recently introduced
Economic Service Charge (ESC) at 0.25% of income applies
to BOI-approved companies with tax holidays. The tax
applies even to existing companies -- there is no
grandfather clause. ESC will apply to BOI approved
manufacturing companies from the fourth year of
operation.
Incentive Program II:
Qualifying Industries:
-Information technology (IT) or information technology
enabled services. Minimum investment of $150,000.
Minimum employment levels apply;
-Information technology training institutes. Minimum
number of students applies;
-Business Process Outsourcing (BPO). Minimum investment
of $150,000. Minimum employment levels apply;
-Regional operating headquarters providing the following
services to related businesses outside Sri Lanka:
administration, business planning, sourcing raw
materials, research and Development, technical support,
financial and treasury management, marketing and sales
promotion. Minimum investment of $250,000.
Incentives: IT services, IT training institutes, and
BPO firms will qualify for tax holidays of 5-12 years
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provided they meet minimum employment and student
levels. Otherwise, a preferential tax of 10% will apply
for 2 years. Regional operating headquarters will
qualify for a tax holiday of 3 years. A preferential
tax of 10% will apply in the 4th and 5th years. From
the 6th year onwards, a preferential tax of 15% will
apply. In addition, capital goods will be exempted from
import duty for above investments. A recently
introduced Economic Service Charge at 0.25% of income
applies to BOI- approved companies enjoying tax
holidays, from the fourth year of operation. The new
tax applies even to those companies already operating in
Sri Lanka.
Incentives for Regional Development:
The BOI has launched a new incentive program to promote
regional development with the aim of establishing 300
new factories or service companies (such as hotels,
hospitals, or training institutes) in the regions
outside the capital Colombo. The incentives include 2-
10 year tax holidays depending on the location and
number of employees, with investments located in the
most difficult areas eligible for a 10-year tax holiday.
In addition, imports of machinery and equipment would be
exempted from both customs duty and the value-added tax.
A minimum investment of approximately $280,000 is
required.
Incentives for Infrastructure Development:
Companies acquiring existing companies in petroleum,
power generation, transmission, development of highways,
seaports, airports, railways, water services, public
transport, agriculture and agro processing and other
infrastructure projects approved by the BOI will qualify
for tax holidays ranging from 5 to 8 years depending on
the magnitude of investment. A preferential tax of 15%
will follow after the tax holiday period. These
companies will also qualify for duty free imports of
capital goods. A minimum investment of $12.5 million is
required.
Large-scale new infrastructure projects in power
generation, transmission and distribution; development
of highways, seaports, airports, public transport and
water services; establishment of industrial parks, and
other infrastructure projects approved by the BOI will
qualify for tax holidays ranging from 6 to 12 years
depending on the size of the investment. A preferential
tax of 15% will follow the tax holiday. They will also
qualify for duty free imports of capital goods. A
minimum investment of $12.5 million is required.
Incentives for Other Investments:
-Industrial estates. Minimum investment of $500,000 to
$10 million; tax holidays ranging from 3 to 15 years;
-Textile fabric manufacturing, processing. Minimum
investment of $500,000 to $10 million; tax holidays
ranging from 5 to 15 years.
For further information on investment incentives and
other investment-related issues, potential investors are
encouraged to contact the Board of Investment directly.
The BOI can be found at www.boi.lk, or reached via e-
mail at info@boi.lk. The BOI has introduced an investor
matchmaking service via the BOI website. Information
regarding this service can be found at
www.boi.lk/partnership.
--Trade Agreements Enhance Market Access to South Asia
and Europe
A preferential trade agreement, the Indo-Lanka Free
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Trade Agreement (ILFTA) (www.doc.gov.lk) between Sri
Lanka and India, is now in effect. Under this
agreement, most products manufactured in Sri Lanka with
at least 35% domestic value addition (if raw materials
are imported from India, domestic value addition
required is only 25%), qualify for duty free entry to
the Indian market. Tariff concessions for Sri Lankan
products include zero tariffs on 4,150 items; 50 to 75%
reduction for tea and garments under quota; 25%
reduction for 528 textile items; and no reduction for
429 items on India's "negative list." Discussions are
underway to reduce the negative lists of both countries.
The two countries are also discussing services sector
liberalization, under a proposed Comprehensive Economic
Partnership Agreement (CEPA). Other areas potentially
covered by the CEPA are investment and economic
cooperation. Because production constitutes a portion
of value addition, ILFTA and the proposed CEPA enables
foreign firms operating in Sri Lanka to gain
preferential entry into the Indian market.
Some U.S. companies currently avail themselves of the
ILFTA by adding at least 35% value in Sri Lanka and
getting import duties into India reduced from as much as
15% to as little as zero. The American Chamber of
Commerce in Sri Lanka, in a study on the ILFTA,
identified agro processing, food preparation, tea,
rubber products, coconut products, spices, furniture,
ceramic and confectionary as having growth potential in
India. The study also found vehicles and vehicle parts,
aircraft parts and motorcycles to be possible attractive
sectors for U.S. manufacturers under the Indo-Lanka
Agreement.
Sri Lanka's Board of Investment promotes the following
product sectors under ILFTA: confectionary and cocoa
products, rubber products, plastics, footwear, ceramics,
jewelry, machinery and mechanical appliances,
electronics and electrical products, automobiles and
spare parts, medical instruments, furniture, and doors.
The 2005 Sri Lanka-Pakistan Free Trade Agreement
(SLPKFTA) (www.doc.gov.lk) provides Sri Lanka with duty-
free entry into Pakistan for 206 items. Pakistan?s
negative list contains 541 items with no duty
concessions. Pakistan will phase out tariffs on the
balance of approximately 4,000 items over a 3 year
period, meaning Pakistan would offer duty free entry to
almost all Sri Lankan exports by June 2008. Sri Lanka's
Board of Investment promotes the following product
sectors under SLPKFTA: rubber products, ceramics,
machinery and mechanical appliances, electronics and
electrical appliances, medical instruments, and
automobiles and spare parts.
Sri Lanka and six other South Asian nations belonging to
the South Asian Association for Regional Cooperation
(SAARC) agreed in 2004 to establish a South Asian Free
Trade Area (SAFTA) (http://www.saarc-sec.org/main.php),
which began operation on July 1, 2006. SAFTA offers
regionalized tariff reductions for imports from member
countries. Stated goals of SAARC members under SAFTA
are to reduce duties for imports from member countries
to between zero and 5% over a period of 7-10 years.
These agreements help make Sri Lanka a gateway to South
Asia for foreign investors.
Sri Lankan exports to the European Union (EU) are also
duty free under the ?GSP-Plus? incentive agreement,
which came into force on July 1, 2005. Under this
program, 7,200 Sri Lankan products meeting rules-of-
origin criteria can enter the EU duty free.
RIGHT TO PRIVATE OWNERSHIP AND ESTABLISHMENT
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Private entities are free to establish, acquire, and
dispose of interests in business enterprises. Private
enterprises enjoy benefits similar to those granted to
public enterprises, and there are no known limitations
to access to markets, credit, or licenses. Foreign
ownership is allowed in most sectors. Private land
ownership is limited to fifty acres per person. The
government owns about 80% of the land in Sri Lanka,
including the land housing most tea, rubber, and coconut
plantations. The government has leased most of these
plantations to the private sector on 50-year terms.
Although state land for industrial use is usually
allotted on a 50-year lease, 99-year leases may also be
approved on a case-by-case basis, depending on the
nature of the project.
While foreign investors can purchase land from private
sellers, the government has imposed a 100% tax on land
transfers to foreigners. For this purpose, Sri Lanka
has defined foreign investment to involve as little as
25% foreign ownership ? a definition that can be
particularly difficult for companies listed on the
Colombo Stock Exchange since on any particular day,
their ownership characteristics may vary. Apartments
above the third floor of condominium buildings, land for
the development of large housing schemes, hospitals and
hotels with a minimum investment of $10 million,
exporting companies with a minimum investment of $1
million, and large infrastructure projects with a
minimum investment of $50 million are exempted from the
tax. Regulations regarding these exceptions have been
published in Gazette No 1386/18 dated March 30, 2005.
PROTECTION OF PROPERTY RIGHTS
--Property Rights
Secured interests in property are recognized and
enforced. The legal system is nondiscriminatory and
protects and facilitates acquisition and disposition of
property rights by foreigners, although it has recently
become subject to political influence. A fairly reliable
registration system exists for recording private
property including land, buildings and mortgages.
However, there have been problems due to fraud and
forged documents. The Government has begun to address
these issues under a World Bank-sponsored judicial
reforms project.
--Intellectual Property Rights Protection
Sri Lanka is a party to major intellectual property
agreements including the Berne Convention for the
Protection of Literary and Artistic Works, the Paris
Convention for the Protection of Industrial Property,
the Madrid Agreement for the Repression of False or
Deceptive Indication of Source on Goods, the Nairobi
Treaty, the Patent Co-operation Treaty, the Universal
Copyright Convention, and the Convention establishing
the World Intellectual Property Organization (WIPO).
Sri Lanka and the United States in 1991 signed a
Bilateral Agreement for the Protection of Intellectual
Property Rights. Sri Lanka is also a party to the Trade
Related Intellectual Property Rights (TRIPS) agreement
in the World Trade Organization. Sri Lanka has not
acceded to the WIPO Performances and Phonograms Treaty
(WPPT); the WIPO Copyright Treaty (WCT); or the WTO
Information Technology Agreement.
In November 2003, a new intellectual property law came
into force that was intended to meet both U.S.-Sri Lanka
bilateral IPR agreement and TRIPS obligations to a great
extent. The law governs copyrights and related rights,
industrial designs, patents, trademarks and service
COLOMBO 00000082 013.2 OF 025
marks, trade names, layout designs of integrated
circuits, geographical indications, unfair competition,
databases, computer programs, and undisclosed
information. All trademarks, designs, industrial
designs and patents must be registered with the Director
General of Intellectual Property. Sri Lanka recently
introduced regulations to regulate the commercial use of
local creations.
Infringement of intellectual property rights (IPR) is a
punishable offense under the law. Intellectual property
rights come under both criminal and civil jurisdiction.
Recourse available to owners includes injunctive relief,
seizure and destruction of infringing goods and plates
or implements used for the making of infringing copies,
and prohibition of imports and exports. Penalties for
the first offence include a prison sentence of 6 months
or a fine of up to $5,000. Penalties can be doubled for
a second offense. Aggrieved parties can seek redress
for any IPR violations through the courts, though this
can be a frustrating and time-consuming process.
Sri Lanka enforced its IPR laws sporadically between
2004 and 2006. The Police occasionally raided
counterfeit CD/VCD stores as well as counterfeit garment
sellers in 2005 and 2006. Several offenders have been
charged or convicted by courts. But the minimal damages
and suspended sentences imposed suggest that the court
system still fails to recognize the significance of
intellectual property rights.
Counterfeit goods continue to be widely available in Sri
Lanka. Local agents of well-known U.S. and other
international companies representing recording,
software, movie, clothing and consumer product
industries continue to complain that lack of IPR
protection is damaging their businesses. Piracy of
sound recordings and software is widespread, making it
difficult for the legitimate industries to protect their
market and realize their potential in Sri Lanka.
Software companies complain of the lack of IPR
enforcement within government institutions and even some
larger corporations, including several banks. An IPR
working group of adversely affected industries, led by
the American Chamber of Commerce of Sri Lanka, is
working to pursue more aggressive enforcement and
enhance public awareness.
--Patents, Copyrights and Trademarks
Patents are valid for 20 years from the date of
application but must be renewed annually.
Patents are granted for inventions, with the following
exceptions: discoveries, scientific theories and
mathematical methods, plant or animal varieties (other
than micro biological processes) and essential
biological processes for the production of plants and
animals (other than non-biological and microbiological
processes), business rules and methods, methods of
treatment by surgery or therapy, and diagnostic methods
practiced on a human or animal body. The law also
permits compulsory licensing and parallel imports of
pharmaceutical products. Compulsory licensing will
allow the government to grant licenses to manufacture
certain patented drugs, overruling patent licenses in a
national emergency. The parallel imports will allow the
import of a branded drug from an alternative source.
Copyrights are not registered. A work is protected
automatically by operation of law. Original literary,
artistic, and scientific works including computer
programs and databases are protected under the new law.
There are enforcement limitations applying to
copyrights, including software.
COLOMBO 00000082 014.2 OF 025
Sri Lanka recognizes both trademarks and service marks.
The exclusive right to a mark is acquired by
registration. A mark may consist of words, slogans,
designs, etc. Protection also is available to well
known marks not registered in Sri Lanka. Registered
trademarks are valid for ten years and renewable. The
law also recognizes both certification marks and
collective marks.
TRANSPARENCY OF REGULATORY SYSTEM
The Board of Investment strives to inform potential
investors about laws and regulations that may affect
operations in Sri Lanka. Laws are in place pertaining
to tax, labor and labor standards, exchange controls,
customs, environmental norms, and building and
construction standards. However, some of the laws and
regulations are difficult to access.
Foreign and domestic investors often complain that the
regulatory system is unpredictable due to outdated
regulations, rigid administrative procedures, and
excessive leeway for bureaucratic discretion. Effective
enforcement mechanisms are sometimes lacking, and
coordination problems between the BOI and relevant line
agencies frequently emerge. Lethargy and indifference
on the part of mid- and lower-level public servants
compound transparency problems. Lack of sufficient
technical capacity within the government to review
financial proposals for private infrastructure projects
also creates problems during tendering. An example of
weakness in regulations occurred in mid-2006, when
police and government agencies closed two satellite
television broadcasting stations for not possessing
required licenses. The two stations remained closed for
over five months, before various government agencies
reauthorized their operations.
In late 2005, the Government awarded several key
infrastructure projects to Chinese companies, outside
the tender process. They include a 300 megawatt coal
power project and a fuel bunkering project. In
addition, the Government has promised oil exploration
rights to India and China outside the tender process.
Although many foreign investors, including U.S. firms,
have had positive experiences in Sri Lanka, some have
encountered significant problems with government
practices and regulations. Some multinational firms
have experienced extensive unexplained delays in trying
to reach agreement on investment projects. Others have
had contracts arbitrarily canceled without compensation,
even though the Sri Lankan Cabinet had approved those
contracts.
Proposed laws and regulations are generally made
available for public comment. However, occasionally
they are published without public discussion.
EFFICIENT CAPITAL MARKETS AND PORTFOLIO INVESTMENT
--Availability of Financial Resources
Retained profits finance about 70% of private
investment, with short term borrowing financing a
further 20% of investment. The stock market and
corporate securities market have not been significantly
used to raise capital. Foreign direct investment (FDI)
finances about 4% of overall investment. Foreign
investors are allowed to access credit on the local
market. They are also free to raise foreign currency
loans.
The state consumes over 50% of the country's domestic
financial resources and has a virtual monopoly on the
COLOMBO 00000082 015.3 OF 025
management and use of long-term savings in the country.
This inhibits the free flow of financial resources to
product and factor markets. For 2007, the government?s
net borrowing from the local market is forecast to be Rs
156 billion ($1.4 billion). The Central Bank is
currently maintaining negative real interest rates,
which have contributed to increased lending and domestic
investment as well as inflation. Towards the end of
2006, the government attempted several measures to curb
credit expansion including margin requirements for
import of non-essential goods.
--Credit Instruments
Commercial banks and two development finance
institutions, the National Development Bank (NDB) and
the Development Finance Corporation of Ceylon Bank
(DFCC), are the principal source of bank finance. Bank
loans are the most widely used credit instrument for the
private sector. Financial institutions also raise
syndicated bank loans to fund large-scale investment
projects undertaken by the private sector.
The domestic debt market in Sri Lanka is still at a
nascent stage. The first credit rating agency in Sri
Lanka was Fitch Rating Lanka (www.fitchratings.lk),
which opened an office in Colombo in 1999. Fitch
Ratings Lanka is joint venture between Fitch Ratings
Inc, International Finance Corporation, (IFC), Central
Bank of Sri Lanka, and several leading local financial
institutions. Credit ratings are now mandatory for all
deposit-taking institutions and for all varieties of
debt instruments and have helped numerous Sri Lankan
companies raise funds through debt markets.
Sri Lanka received its first sovereign credit ratings in
December 2005, with a ?BB-minus? from Fitch Ratings and
a ?B-Plus? from Standard and Poor?s. These sub-
investment grade ratings reflect the high level of
government indebtedness and weak revenue mobilization,
together with political and security concerns. The two
agencies changed their rating outlook, but not the
ratings, from stable to negative in April 2006 following
escalating violence. Consequently, the Government has
delayed plans to borrow from the international markets
and instead continued to borrow domestically.
--Accounting Standards
There is an active and fairly competent accounting
profession, based on the British model. The source of
accounting standards is the Institute of Chartered
Accountants of Sri Lanka (ICASL), and standards are
constantly updated to reflect current international
accounting and audit standards adopted by the
International Accounting Standards Board (IASB). Due to
the lack of an adequate enforcement mechanism, however,
problems with the quality and reliability of financial
statements still exist.
Sri Lankan accounting standards are applicable for all
banks, stock exchange listed companies and all other
large and medium-sized companies in Sri Lanka. Accounts
of such business enterprises are required to be audited
by professionally qualified auditors holding ICASL
membership. ICASL has published accounting standards
for small companies as well. The Accounting Standards
and Monitoring Board (ASMB) is responsible for
monitoring compliance with Sri Lankan accounting and
auditing standards. British professional accounting
bodies are quite active in Sri Lanka. The Chartered
Institute of Management Accountants (CIMA), a leading
professional accounting body based in the UK and spread
over the Commonwealth, has its largest overseas presence
in Sri Lanka.
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--Securities and Exchange Commission
The Securities and Exchange Commission (SEC) regulates
the securities market in Sri Lanka. The SEC law was
revised in 2003, enhancing the SEC's coverage and
investigative powers. The SEC now covers stock
exchanges, unit trusts, stock brokers, listed public
companies, margin traders, underwriters, investment
managers, credit rating agencies and securities
depositories.
Foreign investors can purchase up to 100% of equity in
Sri Lankan companies in numerous permitted sectors. In
order to facilitate portfolio investments, country funds
and regional funds may obtain Ministry of Finance
approval to invest in Sri Lanka's stock market. These
funds make transactions through share investment
external Rupee accounts maintained in commercial banks.
--Colombo Stock Exchange
The Colombo Stock Exchange (CSE), while small by "big
emerging market" standards, is one of the most
technologically sophisticated in the region. The CSE
has fully automated trading, clearing and settlement
systems. The CSE has a rolling settlement period of
five days for buyers and six days for sellers. Fifteen
local and foreign joint venture brokers currently
operate at the CSE. Foreign stockbrokers are permitted
to hold up to 100% equity in stock brokerage firms
operating at the CSE. The SEC has a settlement
guarantee fund with an initial capital of Rs 100 million
($93,000), which aims to guarantee the settlement of
trades between clearing members of the exchange.
There are 242 companies listed on the stock exchange
with the top ten positions by market capitalization held
by banks and food and beverage companies. The CSE has
become one of the best performing markets in the region.
The market gained 28% in 2005 and 42% in 2006. While
the market is sensitive to the security situation,
strong corporate performance and negative real interest
rates encourage stock purchases in an environment with
few other attractive opportunities.
Stock market development, though progressing, has been
slowed by the long term impact of the civil war on
investor confidence. Other issues include lack of
liquidity and limited market size. Improvements are
also needed in corporate governance, accountability, and
public disclosure. The Accounting and Auditing
Standards Monitoring Board, the Ceylon Chamber of
Commerce, the Colombo Stock Exchange, and professional
accounting bodies are taking initiatives in these areas.
Acquisition of companies through mergers and
acquisitions is governed by the Takeovers and Mergers
Code of 1995 made under the Securities and Exchange
Commission of Sri Lanka Act. This law applies only to
companies listed on the Colombo Stock Exchange. It is
modeled on the lines of the London City Code on
Takeovers and Mergers. Acquisition of more than a 30%
stake of a listed company requires the buyer to make an
offer to all other shareholders. The articles of
association of a few listed companies restrict foreign
equity to certain levels.
--Banking System
Sri Lanka has a fairly well diversified banking system.
There are 23 commercial banks ? eleven local and twelve
foreign. In addition, there are thirteen local
specialized banks. Citibank NA is the only U.S. bank
operating in Sri Lanka and has expanded its operations
COLOMBO 00000082 017.2 OF 025
recently. ICICI Bank of India is the newest foreign
bank in Sri Lanka and commenced operations in January
¶2006. In 2001-2003, Mashreq Bank, American Express
Bank, Nova Scotia Bank and ABN Amro Bank all sold their
banking operations in Colombo to existing banks. Sri
Lanka experienced its first bank failure in December
2002 when the Central Bank took action to revoke the
license of a small licensed specialized bank as it
approached insolvency. There was no fallout for other
banks from this incident. Two other small troubled
banks were restructured under Central Bank guidance.
The Central Bank is responsible for supervision of all
banking institutions. It has driven improvements in
banking regulations, provisioning, and public disclosure
of banking sector performance. Since 2004, credit
ratings have been mandatory for all banks operating in
Sri Lanka. In 2006, the Central Bank introduced higher
capital requirements for commercial banks to further
stabilize the banking system, promote consolidation, and
facilitate entry of larger banks. Nevertheless, the
Central Bank still suffers from lack of autonomous
authority, especially with regard to the large state
owned banks.
Sri Lanka has enacted laws to deal with money laundering
and terrorist financing. The Bank Supervision
Department of the Central Bank supervises and examines
financial institutions for compliance with anti-money
laundering and terrorist financing regulations. A
Financial Intelligence Unit (FIU) was created in 2006
and has authority to establish requirements and issue
instructions to banks regarding these anti-money
laundering and terrorist financing regulations.
State Owned Banks
Total assets of commercial banks stood at Rs 1,412
billion ($13.1 billion) as of December 31, 2005. The
two state-owned commercial banks, Bank of Ceylon and
People?s Bank, with assets of Rs 266 billion ($2.5
billion) and Rs 224 billion ($2.1 billion) respectively
in 2004, still dominate banking, accounting for about
45% of all assets.
The two state banks are inefficient and have accumulated
extensive bad debt. However, as these banks are
implicitly guaranteed by the state, their problems have
not harmed the credibility of the rest of the banking
system. Progress has been made in restructuring the two
banks ? their nonperforming loan ratios have declined
from 18% in 2003 to 8% in June 2006, while provisioning
and profitability have improved. Capital adequacy
ratios have also improved. However, fast credit growth
(especially to the state owned Ceylon Electricity Board
and the Ceylon Petroleum Corporation) is once again
raising concerns about credit quality.
Private Commercial Banks and Foreign Banks
Private commercial banks and foreign banks operating in
Sri Lanka generally follow more prudent credit policies
and, as a group, are in better financial shape. The
average rate of non performing loans to total loans in
domestic private banks was 8.5% and in foreign banks was
2.0% in 2005. According to the World Bank, the banks
continue to make high provisions for the nonperforming
loans and risk management of the banks has significantly
improved. Foreign banks tend to make provisions in line
with international best practices, as most foreign bank
branches are subject to host country supervision in
addition to that of the Central Bank of Sri Lanka.
There are concerns regarding credit acceleration in the
housing sector and high spreads which are almost double
those in other countries in the region.
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Capital Adequacy
Sri Lanka adopted capital adequacy standards set by the
Basel Committee on banking regulations and supervisory
practices in 1993. The minimum capital adequacy ratio
required by the Central Bank is 5% for core capital
(Tier I) and 10% for risk weighted assets (Tier I and
Tier II). The Central Bank has decided to adopt Basel
II standards for all banks in 2008.
Risk based capital adequacy at domestic private banks
was 10.9% and foreign banks was 20.4% in 2005. The Bank
of Ceylon?s capital adequacy ratio has increased to 12
percent. People?s Bank currently does not meet capital
adequacy requirements, but it has a Ministry of Finance
guarantee for funds required to meet its obligations.
The Asian Development Bank plans to provide a capital
infusion to enable the bank to meet its minimum capital
requirements.
POLITICAL VIOLENCE
In 2006, fighting between the ethnic separatist
Liberation Tigers of Tamil Eelam (LTTE) and the Sri
Lankan military intensified in northern and eastern Sri
Lanka; other parts of the country, including Colombo,
suffered sporadic terrorist attacks. In August 2006
suspected LTTE snipers shot and killed the deputy chief
of the government Peace Secretariat, a Tamil, at his
Colombo residence. In November 2006 a Sri Lanka Navy
bus was struck by an LTTE truck bomb, killing 100
soldiers ? the highest number of casualties in a single
incident since the beginning of the cease-fire in 2002.
Direct military engagement in Jaffna and in the east has
also been troubling. The government and the LTTE met in
Geneva in February and October 2006 to discuss ways to
strengthen cease-fire implementation, but neither round
of talks bore fruit.
Prior to 2006, LTTE terrorist activities had declined
after the LTTE and the government signed a formal open-
ended Cease-Fire Agreement in February 2002. Between
2002 and 2005, there was a marked improvement in the
business climate due to the relatively peaceful
atmosphere prevailing in the country.
In 1997, the United States designated the LTTE as a
Foreign Terrorist Organization (FTO). During two
decades of war, tourists and foreign business
representatives have not been terrorist targets, but
they have been injured in attacks on other targets. In
2001, the LTTE attacked Colombo's international airport
and destroyed commercial and military aircraft. Several
military personnel were killed in the attack, airport
employees were injured, and Sri Lankan civilians were
caught in the crossfire. Sri Lankan Airlines, jointly
owned by the Government of Sri Lanka and Emirates
Airlines of Dubai, lost several commercial aircraft in
the attack. The LTTE prior to 2001 attacked several
foreign-flagged commercial ships in the waters off the
north and east of the country. In response to these
attacks, insurers imposed war risk insurance surcharges
on aircraft and ships using Sri Lankan seaports and
airports. These surcharges have been lifted since the
cease-fire went into effect. The LTTE has also in the
past bombed Colombo?s financial and business districts,
causing numerous casualties and extensive damage to
property.
CORRUPTION
Sri Lanka has generally adequate laws and regulations to
combat corruption, but they are unevenly enforced. U.S.
firms identify corruption as a constraint on foreign
investment, but, by and large, it is not a major threat
COLOMBO 00000082 019.2 OF 025
to operating in Sri Lanka ? at least once a contract has
been won. Corruption appears to have the greatest
effect on investors in large projects and on those
pursuing government procurement contracts.
There is a consensus that corruption is increasing in
Sri Lanka. Both the Transparency International
Corruption Perception and the World Bank's Control of
Corruption indices for Sri Lanka show a decline in
recent years. The World Bank Control of Corruption Index
has shown a decline from -0.17 in 2004 to -0.31 in 2005.
Transparency International's Corruption Perception Index
shows a decline from 67th place in 2004 to 84th in the
2006 ranking. During the 2006 USAID Democracy and
Governance assessment, anecdotal evidence from the
private sector indicated that the percentage of a public
sector contract paid in bribes has nearly tripled.
According to Transparency International, corruption is
perceived as most pervasive in political appointments to
government institutions and in government procurement
awards, as well as in high frequency/low value
transactions. The police force and the judiciary are
perceived to be the most corrupt public institutions.
Corruption is also a persistent problem in customs
clearance and enables wide smuggling of certain consumer
items, to the detriment of legitimate manufacturers and
importers.
Sri Lanka ratified the UN Anti-corruption Convention in
¶2004. Sri Lanka has signed but not ratified the UN
Convention against Transnational Organized Crime. Sri
Lanka became a signatory to the OECD-ADB Anti-Corruption
Regional Plan in May 2006.
--Bribery Commission is Not Effective.
The Bribery Commission is the main body responsible for
investigating allegations of bribery and corruption.
The function of the Commission, under Act No 19 of 1994,
is to investigate allegations brought to its attention
and to institute proceedings against responsible
individuals in the appropriate court. The law states
that a public official?s offer or acceptance of a bribe
constitutes a criminal offense and carries a maximum
sentence of seven years imprisonment and a fine at the
discretion of the courts. A bribe by a local company to
a foreign official is not covered by the Bribery Act.
Several other government entities try to address
corruption, the most important being the Auditor
General's Department and the National Procurement
Agency. However, there is a confusion of mandates and
these institutions frequently interpret their mandates
narrowly, inhibiting their effectiveness.
Few Sri Lankans have been found guilty of corruption in
recent years. Although highly publicized, efforts to
investigate bribery and corruption have failed, damaging
public confidence in such processes. While corruption
charges have been leveled against politicians and top
officials in charge of key government corporations, none
of the accused has been convicted.
BILATERAL INVESTMENT AGREEMENTS
The Government of Sri Lanka has signed investment
protection agreements with the United States (which came
into force in May 1993) and with the following
countries:
¶1. Belgium
¶2. People?s Republic of China
¶3. Denmark
¶4. Egypt
¶5. Finland
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¶6. France
¶7. Germany
¶8. Indonesia
¶9. India
¶10. Iran
¶11. Italy
¶12. Japan
¶13. Korea
¶14. Luxembourg
¶15. Malaysia
¶16. Netherlands
¶17. Norway
¶18. Romania
¶19. Singapore
¶20. Sweden
¶21. Switzerland
¶22. Thailand
¶23. United Kingdom
--Taxation
A bilateral treaty between Sri Lanka and the United
States to avoid double taxation was ratified and entered
into force on June 12, 2004.
Foreign investors not qualifying for Board of Investment
incentives such as tax and exchange control exemptions
or concessions are liable to pay taxes on corporate
profits, dividends, and remittances of profits. They
are also liable to pay a Value Added Tax on goods and
services. The government has also imposed a tax of 0.1%
on debits to any current or savings account maintained
at any bank in Sri Lanka. Debits made to accounts of
government and international organizations are excluded.
Accounts maintained at Foreign Currency Banking Units,
accounts maintained for stock exchange transactions
(SIERA), and resident and non-resident foreign currency
accounts are exempted from the tax. The Embassy
encourages prospective U.S. investors to contact an
international auditing firm operating in Sri Lanka to
assess their tax liability.
OPIC AND OTHER INVESTMENT INSURANCE PROGRAMS
The United States and Sri Lanka concluded in 1966 (and
renewed in 1993) an agreement that allows the Overseas
Private Investment Corporation (OPIC) to provide
investment insurance guarantees for U.S. investors.
OPIC currently provides coverage to banking and power
sector investments in Sri Lanka. Sri Lanka's membership
in the Multilateral Investment Guarantee Agency (MIGA)
offers the opportunity for insurance against
non-commercial risks.
The U.S. Embassy and other U.S. Government institutions
spend over $25 million annually in Sri Lanka. This
amount can potentially be utilized by OPIC to honor an
inconvertibility claim; however, no such claims have
been made to date in Sri Lanka. The Embassy purchases
local currency at the financial rate.
LABOR
--Labor Force
Sri Lanka's labor force is literate (particularly in
local languages) and trainable, although weak in certain
technical skills and the English language. The average
worker has eight years of schooling. Two thirds of the
labor force is male.
The unemployment rate has declined in recent years to
around 6.7%. The rate of unemployment among women and
high school and college graduates, however, has been
proportionally higher than the rate for less-educated
workers. Youth and entry-level unemployment and
underemployment remain a problem. A significant
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proportion of unemployed people seek "white collar"
jobs. However, most sectors seeking employees offer
manual or semi-skilled jobs or require technical or
professional skills such as management, marketing,
information technology, accountancy and finance, and
English language proficiency. The construction,
plantation and apparel industries have reported
shortages of workers. Some investors have faced
problems in finding sufficient employees with the
requisite skills.
The government has initiated educational reforms it
hopes will lead to better preparation of students and
better matches between graduates and jobs. More
computer, accounting and business skills training
programs and English language programs are becoming
available. But the demand for these skills still
outpaces supply.
--Migrant Workers Abroad
There are an estimated 970,000 Sri Lankan workers
abroad. Remittances from migrant workers, at around $2
billion, are one of Sri Lanka?s largest sources of
foreign exchange. The majority of this labor force is
unskilled (housemaids and factory laborers) and located
primarily in the Middle East, but Sri Lanka is also
losing many of its technically and professionally
qualified workers to more lucrative jobs abroad.
--Wages and Holidays
Labor is available at relatively low cost, though it is
priced higher than in some other South Asian countries.
Productivity lags behind other countries in Asia.
Child labor is prohibited and is virtually nonexistent
in the organized sector, although child labor occurs in
informal sectors. The minimum legal age for employment
is set at 14. Most permanent full-time workers are
covered by laws pertaining to maximum hours of work,
minimum wage, leave, the right of association, and
safety and health standards.
There is widespread belief that Sri Lanka?s labor laws
and its numerous official holidays dampen productivity.
The full moon day of each month (sacred in the Buddhist
faith), if it falls on a weekday, is a paid holiday.
There are also eight other public holidays. The public
sector and banks enjoy additional holidays. These
statutory holidays are in addition to 21 days of
annual/casual leave and approximately 21 days of sick
leave (the number of days for sick leave is at the
discretion of the management). Further, female
employees are entitled to 84 days fully paid maternity
leave for the first two pregnancies. Female workers
are permitted 60 hours of overtime work per month.
The Government continues to interfere with private
sector wage setting. In October 2005, the Government
through an act of Parliament took steps to mandate a
wage increase (of approximately Rs 1,000 per month) to
private sector workers. The private sector is concerned
about such interference in wage setting, which could
damage competitiveness in certain sectors.
--Termination Laws
The Termination of Employment of Workmen Act (TEA) makes
it difficult to fire or lay off workers who have been
employed more than six months for any reason other than
serious, well-documented disciplinary problems.
Disputes over dismissals can be brought to a labor
tribunal administered by the Ministry of Justice. The
labor tribunals have large backlogs of unresolved cases.
Certain labor disputes founded upon fundamental rights
COLOMBO 00000082 022.3 OF 025
(allegations of termination/transfers based upon
discrimination, etc.) can be brought directly to the
Supreme Court.
The government has introduced a standard compensation
formula under the TEA which is expected to facilitate
termination. An unemployment benefit scheme is yet to
be formulated. Recent amendments to the Industrial
Disputes Act (IDA) include labor dispute resolution
rules to expedite the dispute process.
The compensation formula takes into account the number
of years of service and offers 2.5 months salary as
compensation for 1 year of service, 12.5 months salary
for 5 years of service; 38 months for 20 years and up to
a maximum of 48 months salary for 34 years service.
This assumes that the government will approve such a
termination, which frequently is not the case. The
proposed unemployment benefit insurance scheme to
provide an additional payment has not yet come into
effect. According to a recent IMF report, Sri Lanka?s
firing cost for 20 years of service, at 38 months, is
among the highest in Asia compared with Pakistan and
Nepal?s 22.5 months, India?s 19.6 months, Malaysia?s
18.5 months, China?s 13.2 months and Bangladesh?s 11.7
months. Under the new arrangements, the Labor
Commissioner?s approval or the affected employee?s
consent is required to fire workers. Employers complain
that the package is excessive, especially compared to
international norms. They have also pointed out that
higher compensation could adversely affect companies
requiring restructuring, and discourage investment.
--Trade Unions
More than 20% of the 7.5 million-strong work force is
unionized, but union membership is declining. There are
more than 1,650 registered trade unions (many of which
have 50 or fewer members), and 19 federations. About
15% of labor in the industry and service sector is
unionized. Most of the major trade unions are
affiliated with political parties, creating a highly
politicized labor environment. Several trade unions
with affiliations to major political parties have formed
themselves into an organized group, the National
Association for Trade Union Research and Education
(NATURE), to promote education and training among trade
unionists. Labor in free trade zone enterprises tends
to be represented by non-union worker councils.
Unions have complained that the Board of Investment and
some employers, especially in the BOI-run export
processing zones, prohibit union access and do not
register unions on a timely basis. Employers allege
that the JVP, a Marxist political party opposed to
private enterprise, could provoke labor to strike under
the pretense of trade union activity. Due to the JVP?s
violent past, employers are generally not in favor of it
or its trade union arm, the Inter-Company Trade Union.
In BOI enterprises, including those in the export
processing zones, worker councils composed of employees
generally engage in labor and management negotiations.
These worker councils have functioned well in some
companies in providing for worker welfare. The BOI has
requested that companies recognize trade unions and
accept the right to collective bargaining. According to
the BOI, where both a recognized trade union with
bargaining power and a non-union worker council exist in
an enterprise, the trade union will represent the
employees in collective bargaining.
The International Labor Organization's (ILO) Freedom of
Association Committee has observed that Sri Lankan trade
unions and employee councils can co-exist, but advises
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that there should not be any discrimination against
those employees choosing to join a union. The right of
employee councils to engage in collective bargaining has
been held as valid by the ILO. The ILO has, however,
noted weaknesses in rules governing operation of
employee councils and low prevalence of collective
bargaining agreements and requested that the Government
address these issues.
In response to these observations, the BOI revised its
labor manual in March 2004, requesting that companies
located in export processing zones allow union access to
zones and provide official time off to union members to
attend meetings. Along with this revision, the BOI also
issued new guidelines for the formation and operation of
employee councils, giving powers to employee councils to
negotiate binding collective agreements.
In 2002, the American Federation of Labor and Congress
of Industrial Organizations (AFL-CIO) submitted a
petition to the United States Trade Representative
seeking suspension of Generalized System of Preferences
(GSP) benefits for Sri Lanka due to labor rights
violations in some factories in the export processing
zones. USTR did not act on this petition. A Sri Lanka
trade union made a similar case with the European Union
(EU) when Sri Lanka applied for benefits under the
special incentive arrangements of the GSP. After an
audit, the EU, in January 2004, granted significant
benefits to Sri Lanka under EU GSP in recognition of the
country?s efforts to implement core labor standards.
The EU, however, urged improvements in freedom of
association.
Key public sector entities such as the Ceylon
Electricity Board and the Sri Lanka Ports Authority also
have large unions which have protested anticipated moves
towards privatization or restructuring. In July 2006,
the Supreme Court broke a port slowdown which had
disrupted shipping through the Colombo Port for over a
week. The Brussels based International Textile and
Garment Workers Federation (ITGWF) lodged a complaint
with the ILO on this ruling.
--Collective Bargaining
Collective bargaining is not yet popular. While more
than half of the Employers? Federation of Ceylon?s
(EFC?s) 435-strong membership is unionized, currently
only about 50 of these companies (including a number of
foreign-owned firms) have collective agreements and use
them to conduct negotiations on their behalf. Civil
servants other than officers in the police, armed
forces, and prison service, also have a right to strike.
--Labor-Management Relations
Formerly confrontational labor-management relations have
improved in the last few years as employers have worked
harder to motivate and care for workers. Work stoppages
and strikes in the private sector are on the decline.
While labor-management relations vary from organization
to organization, managers who emphasize communication
with workers and offer training opportunities generally
experience fewer difficulties. U.S. investors in Sri
Lanka (including U.S. garment buyers) generally promote
good labor management relations and labor conditions
that exceed local standards.
--ILO conventions
Sri Lanka is a member of the International Labor
Organization (ILO) and has ratified 39 international
labor conventions. The labor laws of Sri Lanka are laid
out in almost 50 different statutes. The Ministry of
COLOMBO 00000082 024.2 OF 025
Labor has published a Labor Code, consolidating
important labor legislation. Sri Lanka has ratified all
eight of the core labor conventions included in the 1998
ILO Declaration on Fundamental Principles and Rights at
Work. ILO Convention 138 on minimum age for admission
to employment and Convention 182 on worst forms of child
labor were ratified during 2000-2001. Sri Lanka
ratified ILO convention 105 on Forced Labor in 2003.
The ILO, EFC and the AFL-CIO-sponsored American Center
for International Labor Solidarity are working to
improve awareness of core labor standards. The ILO also
promotes its Decent Work Agenda program in Sri Lanka.
FOREIGN TRADE ZONES/FREE PORTS
Sri Lanka has 10 free trade zones, also called export-
processing zones, administered by the BOI. The oldest,
the Katunayake and Biyagama Zones, located north of
Colombo near the Bandaranaike International Airport, are
fully occupied. The third zone is located at Koggala on
the southern coast. Several new mini export-processing
zones were opened in the provinces during the last few
years. There are nearly 200 foreign export processing
enterprises operating in these zones. There are also
two industrial parks that have both export-oriented and
non-export oriented factories. They are located in
Pallekelle, near Kandy in central Sri Lanka, and in
Seethawaka in Avissawela about 60 kilometers from
Colombo.
In the past, firms preferred to locate their factories
near Colombo harbor or airport to reduce transport time
and cost. However, excessive concentration of
industries around Colombo has caused heavy traffic,
higher real estate prices, environmental pollution, and
scarcity of labor. The BOI now encourages export-
oriented factories to set up in newly developed
industrial zones farther from Colombo. However, Sri
Lanka's poor roads make these outlying zones less
appealing.
FOREIGN DIRECT INVESTMENT STATISTICS
--Investment Trends
From 1998-2001, foreign direct investment (FDI) flows to
Sri Lanka averaged only about $150 million per year
(excluding privatization receipts). Since the 2002
ceasefire improved investor confidence, annual FDI flows
have averaged about $200 million. 2006 FDI is expected
to total about $400 million, centered on
telecommunications and construction.
--U.S. Investments
Total cumulative U.S. investment in Sri Lanka is
estimated to be in the range of $200 million. Major
U.S. investors include: Energizer Battery, Mast
Industries, Smart Shirts (a subsidiary of Kellwood
Industries), Chevron, Citibank, Caterpillar, 3M,
Cargill, Coca Cola, Tandon Corporation, Paxar
Corporation, Pepsi Co, Sportif, Worldquest, Fitch IBCR,
AES Corporation, American International Group (AIG),
American Premium Water, Virtusa, Avery Denison, North
Sails, Amsafe Bridport, and RR Donnelly (through Office
Tiger). In addition, IBM, Lanier, NCR, GTE, Motorola,
Procter & Gamble, Liz Claiborne, Tommy Hilfiger, J.C.
Penney, the Gap, Sun Microsystems, Microsoft, Bates
Strategic Alliance, McCann-Erickson, Pricewaterhouse
Coopers, Ernst and Young, and KPMG all have branches,
affiliated offices or local
distributors/representatives. Kentucky Fried Chicken,
Pizza Hut, Federal Express, UPS, and McDonald?s are
represented in Sri Lanka through franchises. Numerous
other American brands and products are represented by
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local agents.
--Non-U.S. Investments
Leading sources of foreign direct investment in Sri
Lanka are Singapore, the United Kingdom, Japan, South
Korea, Hong Kong, Australia and Malaysia. Major non-
U.S. investors include: Unilever, Nestle, British
American Tobacco Company, Mitsui, Pacific Dunlop/Ansell,
Prima, FDK, Telekom Malaysia Bhd, S.P. Tao and HSBC.
Leading U.S. and foreign investors that have acquired
significant stakes in privatized companies include
Chevron, Norsk Hydro of Norway, Hanjung Steel of Korea,
Nippon Telephone and Telegraph, Mitsubishi Corporation
and C. Itoh (A.K.A. Itochu) of Japan, Emirates Airlines
of United Arab Emirates, Shell Oil of the UK, P&O
Netherlands, and the Indian Oil Corporation.
Web Resources:
Board of Investment of Sri Lanka: www.boi.lk
Article VIII obligations of the International Monetary
Fund: www.imf.org/external/pubs/ft/aa/aa08.htm
U.S.-Sri Lanka Bilateral Investment Treaty:
www.state.gov/documents/ organization/43588.pdf
Institute for the Development of Commercial Law and
Practice: www.iclparbitrationcentre.com
Indo-Lanka Free Trade Agreement: www.doc.gov.lk
South Asian Free Trade Area: www.saarc-sec.org/main.php
Fitch Ratings Lanka: www.fitchratings.lk
Development Assistance Database: www.dad.tafren.gov.lk
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