Privatisation of the Ninoy Aquino International Airport

The privatisation of the Ninoy Aquino International Airport (NAIA) in Manila will be launched soon. The investment sum is estimated at 2 – 3 billion USD so far. It is hoped that this will result in a considerable modernisation boost. This is particularly necessary after the entire airport was without power for a day at the turn of the year due to a faulty circuit. Due to the power failure around 300 flights had to be cancelled and arriving flights were diverted. In addition to the upgrade for a more stable infrastructure of the facilities, an increase in capacity is also hoped for. Where up to now, only 40-45 take-offs and landings per hour are been possible, this number is to be increased to 50-55 aircraft movements.

The expansion is to take place in a private-public partnership, so that private investors can also be admitted. What is interesting here is that until recently there were still considerable restrictions in this regard. Foreign investors were allowed to hold only a maximum of 40 % of the shares in the “public utility” and at least 60 % had to be held by Philippine nationals in any case. A recent change in the law means that some sectors of the economy are no longer defined as “public utilities”. These no longer include telecommunications, inland waterways, railways and subways, airlines, motorways and toll roads, and the aforementioned airports. Foreign ownership participation can now go up to 100 %.

The awarding of contracts is to take place swiftly and any disputes are to be decided by arbitration tribunals rather than in the courts.

The responsible Ministry of Transport hopes that the newly acquired capacities will be able to meet demand and, of course, will also have a positive impact on the increasing tourism.

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Your point of contact in the Philippines: Lutz Kaiser

Villanueva Gabionza & Dy Law Offices

20th/F Corporate Center
139 Valero St., Salcedo Village
Makati City 1227, Philippines

CELL: +63 995 985 4957
TEL: +63 2 8813 3351
FAX: +63 2 8816 6741

www.vgdlaw.ph
manila@adwa-law.com

General Meetings in India Can Still be Held Online

Towards the end of 2022, the Indian Ministry of Corporate Affairs clarified that Indian companies may continue to hold their general meetings online, that is, via video conference or other audio visual means. This extension of the COVID-19 rules applies until 30th September 2023. At the same time, the Ministry emphasized that the annual general meeting of 2023 must be held no later than 30th September 2023, as by law – this deadline has not been extended.

Hence, meetings may be held virtually, as long as they are on time!

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Your point of contact in India: Dr. Jörg Schendel

Suman Khaitan & Co.

W-13, West Wing, Greater Kailash Part-II
Delhi 110048, India

CELL: +91 97 11 08 04 03
TEL:  +91 11 49 50 15 00
FAX: +91 11 49 50 15 99

www.sumankhaitanco.in
germandesk@sumankhaitanco.in
schendel@adwa-law.com

Investments in renewable energies

Japan continues to be an interesting market for investments in renewable energies. This applies both to suppliers in the plant construction sector from Germany and to investors.

At the beginning of the year, we would like to provide a status update.

Foreign investors are not subject to any special restrictions on the use of land. Plant construction is possible both on leased land and on land owned by the investor or a project company. There are no restrictions on land acquisition. This, as well as the establishment of project companies, is possible without Japanese partners (shareholders). Foreign investors however, require the approval of the Minister of Finance for an equity investment in companies that are or plan to be involved in power generation.

Note the approval procedures for building a renewable energy power plant on agricultural land. Here, a permit is required for rezoning, and the same applies to the development of forest land. Furthermore, an environmental impact assessment and notification of major projects are required.

For plant construction, however, a Japanese construction license is required. This hurdle is high, which is why contracting out to construction companies is required for one-off projects. On own land however, the requirements are not as high when building own plants.

The decisive factor is still the project-specific certificate from the Japanese Ministry of Economy, Trade and Industry (METI) for participation in the Feed-in Tariff (FIT) programme or the Feed-in Premium (FIP) programme. The FIT programme sets a binding fixed electricity price. Not only the prices at the time of application but also the deadlines for the grid connection to be made must be taken into account. The FIP programme offers a premium in addition to the market price for the electricity generated. There are different focuses here depending on the type of energy, which are continually adjusted according to the achievement of targets. In the area of solar power generation, no new FIT applications will be accepted in the future. For solar power, the FIT programme has been partially replaced by the FIP programme with effect from 1 April 2022. The same is planned for wind power (onshore installations) with effect from 1 April 2023 and for offshore installations with effect from 1 April 2024.

Under the FIT programme, the project owner and METI certificate holder has the right to require a grid operator to enter into long-term (i.e. 10, 15 or 20 years, depending on the type of renewable energy source) power purchase agreement at the binding fixed price. Even if the FIT programme expires, it may be interesting for investors to buy ongoing projects that hold a METI certificate for binding high feed-in tariff.

It is essential to note that in the event of a purchase or sale of approved projects, the relevant permits and authorisations are effectively transferred together with the METI certificate. It is therefore always advisable to incorporate power plant projects into individual project companies. The comparatively uncomplicated legal form of the Godo Kaisha (GK or Japanese Limited Liability Company) is suitable for this.

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Your point of contact in Japan: Michael Müller

Mueller Foreign Law Office

Shin-Kasumigaseki Building
3-3-2 Kasumigaseki, Chiyoda-ku
Tokyo 100-0013, Japan

TEL:       +81 3 6805 5161
FAX:       +81 3 6805 5162

www.mueller-law.jp
info@mueller-law.jp

Ease of hiring foreigners in Malaysia

Since its inception, the new government has regularly spoken of the importance of foreign investment and promised facilitation for foreign investors. Now the first important step has been taken: As Malay Mail reported, previously existing conditions are being dropped; hiring of foreign workers is now possible on the basis of actual need.

This step is important and necessary: Although very low salaries continue to be paid in Malaysia, the labour shortage is increasingly being felt here as well. This is especially true for low-skilled workers employed in factories, on plantations, etc. The liberalisation of the labour market now makes it possible to hire workers on the basis of actual need and allows the uncomplicated hiring of thousands of low-skilled foreign workers. It is therefore not surprising that the facilitations are expected to lead to additional economic growth of one percent of GDP.

The details of the relevant laws are therefore eagerly awaited – we will update you accordingly.

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Your point of contact in Malaysia: Dr. Harald Sippel

Skrine

Level 8, Wisma UOA Damansara
50 Jalan Dungun, Damansara Heights
Kuala Lumpur, Malaysia

TEL:       +60 1 8211 4958
FAX:       +60 3 2081 3999

www.skrine.com

Can I stay? Do I have to leave? Taiwan – its skilled workers and residence regulations

Taiwan has made great efforts to attract foreign professionals in recent years. In particular, the amendments to the Foreign Professional Act and the introduction of the Gold Card have significantly improved conditions for foreign professionals. Nevertheless, there are areas where conditions need to be improved.

One problem in certain cases has been the issue of family members’ residence. This issue has now been addressed by the Cabinet, which approved 52 adjustments to the Immigration Act on 13 January.

There will be facilitations in applying for Permanent Alien Residence Certificates, among others, for persons who have rendered special services, who have made investments or who fall under the requirements of the Act on the Recruitment and Employment of Foreign Skilled Workers. These are also to apply to spouses, minor children and children with disabilities.

Another point is the streamlining of bureaucracy when applying for permanent residence permits for the above-mentioned group of persons and for persons engaged in teaching and research.

The extension of the deadline for applying for a residence permit from currently 15 days to 30 days after arrival should also be emphasized.

At the same time, the amendments also bring about tighter penalties if approved by parliament. This concerns, among other things, the overstaying of visas. Currently, overstaying the authorised length of stay by a few days is subject to a fine of TWD 2,000 to TWD 10,000 (approx. EUR 60 to 100) and a possible entry ban of up to 3 years. With the new regulation, the fine will be TWD 30,000 to TWD 150,000 (approx. EUR 900 to EUR 4,550) and an entry ban of up to 10 years will be possible. This is intended to make illegal stays more difficult and improve national security.

The regulation needs to be improved on this point, as it can also include foreign professionals who overstay through no fault of their own, especially professionals who are in Taiwan on short-term visas. When extending visa applications, it is important to note that the extension does not occur until the visa is approved. Extensions submitted to the Department of Immigration (NIA) are approved on the application date if the requirements for the extensions are met. Extensions for which the Ministry of Foreign Affairs is responsible must generally be submitted up to 5 working days before expiry for extensions up to 180 days, and up to 3 working days before for express applications. Extensions for visas with 180 days or more must be submitted at least 8 working days before expiry, 5 working days for express processing. A uniform regulation of the deadlines for processing visa applications would be desirable.

Another issue that is not addressed is visa-free entry and post-entry visa applications. This concerns skilled workers who are not employed by a company in Taiwan and have been granted a work permit of up to one year. This option is used especially for assembly projects, e.g. offshore wind projects. Currently, it is not possible for these skilled workers to apply for a visa in Taiwan. For this, the person has to leave the country and apply for a visa abroad and then re-enter the country, which leads to increased costs and time. This limits Taiwan’s attractiveness for professionals for short and medium-term stays of up to one year.

Most of the announced measures are another step in the right direction to make Taiwan more attractive for foreign professionals. However, the blanket tightening of punitive measures and the failure to take into account the situation of professionals who are only in Taiwan for the short and medium term is a point that can have a detrimental effect in the competition for talent.

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Your point of contact in Taiwan: Michael Werner

Eiger Law

Bldg. A, 2F, 25-2 Ren Ai Rd, Sec. 4
Taipei 10685
Taiwan

CELL  nbsp]   +886 9 8726 1326
TEL      +886 2 2771 0086
FAX      +886 2 2771 0186

www.eiger.law
info@eiger. law

Thailand’s BOI releases new investment promotion strategy for 2023-2027

Thailand’s Board of Investment (BOI) has published a new investment promotion strategy for the next five years (2023-2027). The strategy was detailes in Announcements No. 8/2565 and No. 9/2565 dated December 8 2022 and will take effect in January 2023. It replaces the BOI’s current eight-year program (2015-2022) and will apply to all applications for investment funding submitted on or after January 3 2023, at 8:30 a.m.

Under the new program, BOI will shift its focus to three core concepts considered critical to the nation’s future economy:

1. Technology, innovation and creativity;
2. competitivesness and adaptability; and
3. inclusiveness (particularly with regard to environmental and social sustainability)

This is completed by a new set of investment promotion policy objetives, including, for example, strengthening supply chains, shifting to smart and sustainable industry, and promoting Thai SMEs with global connections.

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Your point of contact in Thailand: Dr. Andreas Respondek

Respondek & Fan Ltd

United Center, 39th Floor, Suite 3904 B
323 Silom Road
Bangkok 10500, Thailand

CELL:     +66 89 896 4048
TEL:       +66 2 635 5498
FAX:       +66 2 635 5499

www.rflegal.com
respondek@rflegal.com

Vietnam’s love for data collection – Reporting obligations for foreign invested enterprises

According to international and local media, Vietnam is the fast-growing economy in South East Asia.

Notwithstanding this dynamic development, it should be noted that Vietnam is still following “planned-economy principles”. Thus, local legal regulations contain a rather large number of reporting obligations, which should be complied with.

Foreign invested enterprises had “always” been subject to increased reporting obligations with regard to their activities but compliance with such obligations had rarely been checked in the past.

The current management of the Department of Planning and Investment (DPI) in Ho Chi Minh City is nowadays demanding submission of proof of all reports during any procedure related to changes of the Investment Registration Certificate (IRC) of a foreign invested enterprise. If, for example, a foreign invested enterprise established in 2010 intends to change its registered address, it would be required to submit proof of all report filings starting from 2010 up to the moment such application for an address changed is lodged. Report filings to be proven: 6 months as well as 12 months Supervision and Assessment report (hard copy submissions to DPI) as well as the quarterly and yearly online-report submissions. Fines for delayed reporting submissions are not (yet) imposed.

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Your point of contact in Vietnam: Christian A. Brendel

Brendel & Associates Law Co., Ltd.

D&D Tower, 10th Floor
458 Nguyen Thi Minh Khai Ward 2, District 3
Ho-Chi-Minh-Stadt, Vietnam

CELL:    +84 98 978 4791
TEL:      +84 28 3911 2008
FAX:      +84 28 3911 2010

www.brendel-associates.com
info@brendel-associates.com