2008 INVESTMENT CLIMATE STATE FOR NEW ZEALAND

UNCLAS SECTION 01 OF 08 WELLINGTON 000009 SIPDIS SIPDIS EAP/ANP, EEB/IFD/OIA, STATE PASS TO USTR E.O. 12958: N/A TAGS: EFIN EINV ELAB ETRD KTDB PGOV OPIC USTR NZ SUBJECT: 2008 INVESTMENT CLIMATE STATE FOR NEW ZEALAND REF: STATE 158802 ¶1. Following is Post's submission for the 2008 Investment Climate Statement (ICS) regarding New Zealand per request reftel. ¶2. Begin text of ICS submission: 2008 Investment Climate Statement - New Zealand Openness to Foreign Investment -------------- Foreign direct investment in New Zealand is generally welcomed and encouraged without discrimination. New Zealand screens certain types of foreign investment through the Overseas Investment Office (OIO). Amid growing public concern about purchases of coastal properties by foreigners, the New Zealand government enacted legislation in August 2005 that toughened the screening and monitoring of land purchases, but raised the minimum threshold that triggers a review of proposed business purchases. Under the legislation, government approval is required for non-land business investments of NZ $100 million or more, where a foreigner proposes to take ownership or control of 25 percent or more of a business. Government approval also is required for purchases of land larger than 5 hectares (12.35 acres) and land in certain sensitive or protected areas. Any application involving land must meet a national interest test. For land purchases, foreigners who do not intend to live in New Zealand must provide a management proposal covering any historic, heritage, conservation or public access matters and any planned economic development. That proposal would have to be approved and generally made a condition of consent. Overseas purchasers also must demonstrate the necessary experience to manage the investment. In addition, investors would be required to report regularly on their compliance with the terms of the consent. The OIO monitors foreign investments after approval. If foreign investors are found to have included deceptive statements on approval applications, the High Court can order the disposal of their New Zealand holdings. A U.S. citizen in November 2005 became the first person to be convicted of breaching the Overseas Investment Act 1973, for failing to meet the conditions of the government's consent to his purchase of land. In the three years since purchasing the property, he had not developed a chestnut orchard or fir tree plantation as promised. A district court fined him NZ $17,000 and ordered him to pay legal costs of NZ $5,000. As of the 2007 statistical year, the level of total outside investment in New Zealand was valued at US$193.2 billion, an increase of US$14.7 billion over 2006. Australia was the largest source of foreign investment in New Zealand valued at US$60billion and the destination of US$23 billion of New Zealand's investment abroad. The level of New Zealand total investment abroad in 2007 was US$84.5 billion, an increase of US$4.9 billion over 2006. Australia, the United States and the U.K respectively are the three largest sources of foreign direct investment (FDI) in New Zealand. For 2007, the level of U.S. FDI equaled US$1.5 billion amounting to 16% of FDI in New Zealand with Australia at 59% and UK at 6% of FDI respectively. The OIO, part of Land Information New Zealand, took over the functions of the Overseas Investment Commission in August ¶2005. In practice, the government's approval requirements have not been an obstacle for U.S. investors. Very few applications have been turned down (only 46, versus 1,555 granted, from 2000- 2007),and those usually involved land intended for farming purposes, residential subdivision or accommodation. In 2007, 127 applications were approved estimated to be worth US$19billion in contrast to 4 refused applications worth US$1.5million. Very few government-owned enterprises remain to be privatized. The government has not discriminated against WELLINGTON 00000009 002 OF 008 foreign buyers, but has in place limitations on foreign ownership of Air New Zealand and Telecom New Zealand. The New Zealand government offers virtually no incentives for foreign investment, except for a tax rebate for large-scale film and television projects produced in the country. A stable, low inflation environment and relatively open economy are viewed as the strongest incentives for investment. There is no capital gains tax. New Zealand has agreements banning double taxation with 29 countries, including the United States. (Such an agreement between New Zealand and Poland was signed in 2005 but is not yet in force.) The corporate tax rate is 33 percent for all companies, domestic and foreign. The personal tax rate for most foreign investors (from the combined effects of New Zealand's nonresident withholding tax and company tax) also is 33 percent, although the maximum personal tax rate is 39 percent. Under legislation passed in 1995, foreign firms and investors were granted national treatment on corporate taxes; transfer-pricing rules were aligned so that New Zealand adheres to Organization for Economic Cooperation and Development (OECD) practices; and, thin capitalization regulations were tightened to discourage foreign companies from using excessive debt to avoid New Zealand taxes. The rules offer foreign investors greater transparency and predictability. The Overseas Investment Office operates a comprehensive Internet website (www.oio.linz.govt.nz) that explains New Zealand investment policy and walks potential investors through the application process. Investment New Zealand, the government's investment promotion agency, works with offshore investors to facilitate investment in New Zealand. Information about the agency and contact details for its offices in the United States can be obtained from its website http://www.investnewzealand.govt.nz. Conversion and Transfer Policies -------------- There are no restrictions on the inflow or outflow of capital, and the currency is freely convertible. Full remittance of profits and capital is permitted through normal banking channels. Expropriation and Compensation -------------- Expropriation has not been an issue in New Zealand, and there are no outstanding cases. Dispute Settlement -------------- Investment disputes are extremely rare, and there have been no major disputes in recent years. The mechanism for handling disputes is the judicial system. New Zealand is a party to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States and to the New York Convention of 1958. Property and contractual rights are enforced by a British-style legal system. The highest appeals court is a domestic Supreme Court, which replaced the Privy Council in London and began hearing cases July 1, 2004. Performance Requirements and Incentives -------------- There are no performance requirements or incentives associated with foreign investment, although the government may require foreign buyers of land to report periodically on their compliance with the terms of the government's consent to their purchase. Right to Private Ownership -------------- There are no restrictions on the right to establish, own and operate business enterprises, aside from the requirement for WELLINGTON 00000009 003 OF 008 government approval of foreign investments over NZ $100 million where a foreigner proposes to take ownership or control of 25 percent or more of a business, investments in commercial fishing and certain land purchases, and limits on investments in Air New Zealand and Telecom New Zealand. A number of government entities have been transformed into state owned enterprises (SOEs),and a number of SOEs have been privatized. Aside from the government equity holdings established at the time of formation, SOEs are provided no special advantages in their competition with private entities. In general, there has been no restriction on foreign purchasers in the privatization of assets. There is no limit on foreigners buying into any sector or acquiring 100 percent ownership of any firm, except for the ceilings on foreign ownership stakes in Air New Zealand and Telecom New Zealand. To preserve landing rights, no more than 49 percent of Air New Zealand, the national flagship carrier, can be owned by foreigners. A single foreign investor can hold a maximum of 49.9 percent of the total voting shares of Telecom New Zealand. In addition, under the Fisheries Act 1983, foreigners can only lease New Zealand fishing rights. Protection of Property Rights -------------- New Zealand is a member of the World Intellectual Property Organization, the Paris Convention for the Protection of Industrial Property, the Berne Convention and the Universal Copyright Convention. It fulfilled its TRIPS Agreement obligations in most respects with the passage of the Copyright Act 1994; Layout Designs Act 1994; and 1994 amendments to the Patents Act 1953, the Trade Marks Amendment Act 1953 and the Plant Variety Rights Act 1987. Amendments made to existing intellectual property statutes came into force January 1, 1995. The Trade Marks Act 2002 created new criminal offenses for counterfeiting trademarks and increased the penalties for pirating copyright goods. The Ministry of Economic Development released for public comment in December 2004 the draft Patents Bill intended to replace the Patents Act 1953 and to bring New Zealand's patent law into closer conformity with international standards. This draft would keep the maximum patent term at 20 years, but would tighten the criteria for granting a patent, from a patentable invention being new in New Zealand, to being new anywhere in the world and involving an inventive step. The bill is expected to be introduced into Parliament by mid 2008 and expected to be in force by end of 2008. The stated purpose of the Bill is to ensure that New Zealand's patent regime takes account of international developments. One such development is the international trend for countries to strengthen intellectual property protection through patent term restoration. On average, the patent and regulatory approval processes for new drugs in New Zealand take about twelve years. As a result, many drugs have very few years of patent protection remaining after the regulatory authority grants marketing approval. Many countries, including the U.S. and EU, have established mechanisms to restore patent terms for pharmaceutical products to recover time lost due to regulatory delays. The research-based industry has urged the New Zealand legislature to amend the current bill to include patent term restoration in keeping with international best practices. The New Zealand government introduced the Copyright Amendments Bill at the end of 2006 which passed its first reading. In 2007 the legislation was sent to Select Committee for a comment period. The Bill was again taken up by Parliament in November 2007 for a second reading but it is uncertain whether the Bill in its current form has sufficient votes to pass. If the current Bill does not pass the second reading before the end of this year's legislative term, then it is unlikely to be dealt with again until after the election period, i.e., 2009. In March 2007, during the comment period to the Select Committee, industry agreed that the draft legislation would put New Zealand at odds with the growing international consensus with respect to protection of copyright in the online environment. The international standards for protection of copyrightable material are currently set by the WIPO Internet Treaties (the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty) of which New Zealand is not a WELLINGTON 00000009 004 OF 008 signatory. In May 1998, the Copyright Act and the Medicines Act were amended to remove a prohibition on parallel importing. This amendment allows importation of legitimate goods into New Zealand without the permission of the holder of the intellectual property rights. Enacted by the government to expand discounted prices for consumers, it also has resulted in an increase in "gray market" goods entering New Zealand. Manufacturers have expressed concern that parallel imports will result in damage to their reputation due to imports of dated products, products not suitable for New Zealand conditions, and after-market servicing problems. In addition, parallel importing limits returns to the holders of intellectual property by not allowing control over market targeting, such as timing of releases. In October 2003, the government enacted a ban on the parallel importation of films, videos and DVDs for the initial nine months after a film's international release. Transparency of Regulatory System -------------- The Commerce Commission administers the Commerce Act 1986, which governs restrictive trade practices. In general, price fixing and contracts, arrangements or understandings that have the purpose or effect of substantially lessening competition in a market are prohibited, unless authorized by the Commerce Commission. Before granting such authorization, the commission must be satisfied that the public benefit would outweigh the reduction of competition. The Commerce Commission also can block a merger or takeover that would result in the new company gaining a dominant position in the market. The use of a dominant market position to lessen or prevent various specified types of competition is contrary to the Act's provisions. However, the enforcement or attempted enforcement of any right under any copyright, patent, protected plant variety, registered design or trademark do not necessarily constitute abuses of a dominant position. Suppliers' use of resale price maintenance, in which suppliers of goods set and enforce sale prices to be charged by re-sellers, is prohibited. Advice should be obtained on the application of the Act before the establishment of exclusive distribution, selling and franchising arrangements in New Zealand. Reforms adopted since 1984 have included deregulation as a primary objective. The most salient examples are the financial and telecommunications sectors, although the effort has been broad based. To ensure competition in "natural monopolies," such as telecommunications and electricity, the government has considered increased oversight. Motivated largely by the power industry's failure to provide adequate electricity reserve capacity, the government set up an Electricity Commission, which started supervising the electricity industry and markets on March 1, 2004. Under the 1997 WTO Basic Telecommunications Services Agreement, New Zealand has been committed to the maintenance of an open competitive environment in the telecommunications sector. Key reforms of the sector, through legislation enacted in December 2001, included appointment of a commissioner responsible for resolving commercial disputes. After an almost year-long review of the Telecommunications Act 2001, the Minister of Communications on August 9, 2005, announced changes to the act aimed at improving the monitoring and enforcement of agreements involving regulated services which entered into force on December 18, 2006. Efficient Capital Markets and Portfolio Investment -------------- -------------- Since the removal of financial-sector controls in the mid-1980s, money market activity has grown rapidly, particularly foreign exchange trading and a sizable secondary market in government securities. A range of financial instruments, including forward contracts, options and exchange rate futures, and the use of hedging devices to WELLINGTON 00000009 005 OF 008 reduce interest rate and exchange rate risks have been introduced. The New Zealand banking system consists of 16 registered banks with more than 90 percent of their combined assets under the ownership of foreign banks (Australian banks account for 85 percent of the total). There are only two New Zealand-based banking institutions, the Kiwibank, introduced in 2001 by the Labour-Alliance government and operated out of the NZ Post Shops and the Taranaki Savings Bank (TSB). Aggregate banking system capital adequacy has been above minimum requirements since the introduction of Basel based reporting in 1989. Access to the credit system is unrestricted. The Securities Commission, under the Securities Act 1978 and amendments, regulates the issuance of securities. The Act requires prospectuses for public offerings of new securities and prescribes the information that must be disclosed. An amendment in 1988 provides civil remedies for loss or damages resulting from insider trading. The Securities Markets and Institutions Bill, resulting in three amendments that took effect in December 2002, gave the Securities Commission additional powers to increase its effectiveness in monitoring and enforcement, including enforcement of laws against insider trading. Stocks in a number of New Zealand listed firms also are traded in Australia and in the United States. A takeovers code that took effect July 1, 2001, requires any person who tenders an offer for 20 percent or more of a publicly traded company to make that same offer to all shareholders. Legal, regulatory, and accounting systems are transparent. Financial accounting standards are issued by the Accounting Standards Review Board, an independent body set up under the provisions of the Financial Reporting Act 1993. The Act makes the adoption of financial accounting standards mandatory for registered companies and issuers of securities, including entities listed on the New Zealand Stock Exchange. The standards generally are adopted by other entities as well. The Board's accounting standards are based largely on international accounting standards, and by 2007 the use of international accounting standards will be universal. Smaller companies (except issuers of securities and overseas companies) that meet proscribed criteria face less stringent reporting requirements. Entities listed on the stock exchange are required to produce annual financial reports for shareholders together with abbreviated semi-annual reports. Small, publicly held companies not listed on the New Zealand Stock Exchange (NZX) may include in their constitution measures to restrict hostile takeovers by outside interests, domestic or foreign. However, NZSE rules prohibit such "poison pill" measures by its listed companies. Foreign-owned or controlled companies are not foreclosed from participation in domestic industry standards setting organizations. Political Violence -------------- New Zealand is a stable western democracy. There has been no significant political violence since the Maori wars in the mid 1800s. Corruption -------------- New Zealand is renowned for its efforts to ensure a transparent, competitive, and corruption-free government procurement system. It is government policy to give local producers a fair chance to compete, but departments are responsible for limiting costs and seeking the best value for the money. Stiff penalties against bribery of government officials as well as those accepting bribes are strictly enforced. New Zealand ranked number one with a score of 9.4 (e.g., U.S. ranked number 20 with score of 7.2) in Transparency International's 2007 "Corruption Perceptions Index," which looks at perceptions of public sector corruption in 180 countries and territories. The highest possible score (i.e., least corrupt) is ten. This is the second year New Zealand was ranked least corrupt. New WELLINGTON 00000009 006 OF 008 Zealand has ratified the OECD Anti-Bribery Convention. New Zealand has opted not to join the GATT/WTO Government Procurement Agreement because the benefits would not justify the compliance costs amid New Zealand's totally deregulated government procurement system, according to the government. Nonetheless, New Zealand supports multilateral efforts to increase transparency of government procurement regimes. Bilateral Investment Agreements -------------- New Zealand in 1988 signed an agreement with China on the promotion and protection of investment and in 1992 signed a Trade and Investment Framework Agreement (TIFA) with the United States. New Zealand's Closer Economic Partnership (CEP) with Singapore (2002) and Thailand (2004) include investment chapters. New Zealand concluded a Strategic Economic Partnership Agreement with Brunei, Chile and Singapore in June 2005. New Zealand is currently negotiating separate Free Trade Agreements with China, Malaysia and Hong Kong. New Zealand adheres to the OECD Code of Liberalization of Capital Movements and the OECD Code on Current Invisible Operations. OPIC and Other Investment Insurance Programs -------------- As an OECD member country and developed nation-state, New Zealand is not eligible for OPIC programs. New Zealand does not intend to become a member of the Multilateral Investment Guarantee Agency. The New Zealand Government does not provide a comparable program like OPIC to its investors. It has a small export credit program that has so far not attracted great commercial interest. Labor -------------- The overall unemployment rate decreased to 3.5 percent in the 2007 statistical year. The number of unemployed decreased to 79,000 persons. There were 2,150,000 persons employed in the workforce (out of a population of 4.24 million) yielding a labor force participation rate of 68.3 percent. The demand for labor has been strong, and shortages of skilled labor remain a problem throughout the economy. Several factors have caused the shortages, including lower wages compared to those in Australia, where any New Zealander can legally work; lack of training; and, falling immigration numbers. Labor shortages are especially pronounced in the construction industry. Employees are entitled to a minimum three-week paid annual leave after the first year of employment. The mandatory minimum will be increased to four weeks' annual leave beginning April 1, 2007. Paid leave also can be taken for illness, bereavement or parenthood. The New Zealand Parliament passed into law the Employment Relations (Flexible Working Arrangements) Amendment Bill on November 26, 2007, which changes the Employment Relations Act to provide employees who care for others with the statutory right to request part-time or flexible hours. The changes aren't limited to hours of work but can also include the place of work, such as working from home, compressing the work week into fewer days, flexi-time, staggered hours, shift swapping and job sharing. The law applies to people employed for six months or longer. If benefit is initially granted then employees must wait at least 12 months before they are entitled to make another request. Employers have grounds for refusing requests due to: -Inability to reorganize work among existing staff. -Inability to recruit additional staff. -Detrimental impact on quality or performance. -Insufficiency of work during the period the employee proposes to work. -Planned structural changes. -Burden of additional costs. -Detrimental effect on ability to meet customer demand. -Undermining the terms of a collective agreement. Unions have the right to organize and collectively bargain. WELLINGTON 00000009 007 OF 008 About 21 percent of New Zealand's wage and salary workers are union members. The Employment Contracts Act 1991 (ECA) ended compulsory unionism and prohibited certain strikes. Overall, the law spurred a reduction in union membership, although some unions grew, particularly through mergers. In 2000, the Labour-led government replaced the ECA with the Employment Relations Act (ERA),contending the change was necessary to restore balance in the powers of employers and employees. The ERA promotes collective bargaining, strengthens unions and places strong emphasis on good faith bargaining. Employment relationships are based on contracts, and workers may negotiate an employment contract with their employer individually or collectively. Despite the business sector's initial fears about the ERA, workdays lost to strikes have continued an overall steady decline since a peak in the late 1970s. From annual levels of over 400 in the late 1970s, the number of work stoppages has declined to relatively steady levels of under 100 since the 1990s. Thirty-five (35) work stoppages occurred in the 2007 statistical year, much fewer than the 60 stoppages recorded in 2006. The 35 work stoppages that occurred in 2007 consisted of 28 complete strikes and seven partial strikes. They involved 6,474 employees, and a loss of 21,015 person-days of work and US$2.7 million in wages and salaries. In comparison, the 60 stoppages that occurred in 2006 involved 16,628 employees, and a loss of 27,536 person-days of work and US$4 million in wages and salaries. The manufacturing industry had the highest number of stoppages in 2007, with 13 of the 35 stoppages (37 percent). However, the health and community services industry had the highest number of employees involved (contributing 36 percent of the total). A 2004 revision of the ERA strengthened its collective bargaining and good faith provisions. It provides additional protections for workers in the event of company ownership changes. It also allows unions to charge bargaining fees for non-union workers who enjoy the same wages and conditions negotiated by unions for their members, although workers can opt out of paying the fee if they negotiate their own contracts. The government made a number of changes to initial drafts of the bill to address business concerns. Prospective entrants to the New Zealand market are encouraged to examine the details of the labor legislation. (Information on New Zealand's employment law is available on the Department of Labour's website, http://www.ers.dol.govt.nz). Minimum wage and workplace safety regulations are incorporated under other laws. An Employment Relations Authority handles disputes, and its decisions may be appealed in an Employment Court. Foreign Trade Zones/Free Ports -------------- New Zealand does not have any foreign trade zones or free ports. Foreign Direct Investment Statistics -------------- As of the 2007 statistical year, the level of total outside investment in New Zealand was valued at US$193.2 billion, an increase of US$14.7 billion over 2006. Australia was the largest source of foreign investment in New Zealand valued at US$60billion and the destination of US$23 billion of New Zealand's investment abroad. The level of New Zealand total investment abroad in 2007 was US$84.5 billion, an increase of US$4.9 billion over 2006. Australia, the United States and the U.K respectively are the three largest sources of foreign direct investment (FDI) in New Zealand. For 2007, the level of U.S. FDI equaled US$1.5 billion amounting to 16% of FDI in New Zealand with Australia at 59% and UK at 6% of FDI respectively. Australia continues to be New Zealand's predominant investment partner, both as a destination for New Zealand investment abroad, and as a source for foreign investment into New Zealand. Australia's significance as an investment partner has increased over recent years. By contrast, in WELLINGTON 00000009 008 OF 008 2002, Australia was the destination for 19.8 percent of New Zealand's total level of investment abroad, and was the source of 19.3 percent of the total level of foreign investment in New Zealand. In 2007, the U.S. and the UK, together with Australia, were the destination for 59.1 percent of the level of New Zealand investment abroad, and the largest source of foreign investment in New Zealand. Portfolio investment (stocks and bonds) is the most significant form of New Zealand investment in the U.S. and the UK. The privatization of many state-owned enterprises and monopolies in the 1990s brought a flood of U.S. investment into New Zealand over a five-year period, 1994-1998. U.S. investment approvals amounted to NZ $8.7 billion during the period, or the second-largest share at 24.8 percent of total foreign investment approved, with Australia taking a 27.5 percent share. U.S. investment is concentrated in the telecommunications, forestry, transportation, food processing and electronic data processing sectors. Increased U.S. investments are being directed into petroleum refining and distribution, financial services, information technology and biotechnology. Web Resources -------------- Commerce Commission: http://www.comcom.govt.nz Department of Labour: http://www.ers.dol.govt.nz Investment New Zealand: http://www.investnewzealand.govt.nz The Overseas Investment Office: http://www.oio.linz.govt.nz End text. Keegan