188253 1/22/2009 10:42 09CHISINAU44 Embassy Chisinau UNCLASSIFIED 08STATE123907 R 221042Z JAN 09 FM AMEMBASSY CHISINAU TO SECSTATE WASHDC 7544 DEPT OF TREASURY WASHINGTON DC DEPT OF COMMERCE WASHINGTON DC CIM NTDB WASHINGTON DC INFO EUROPEAN POLITICAL COLLECTIVE UNCLAS CHISINAU 000044
STATE FOR EB/IFD/OIA AND EUR/UMB BUCHAREST FOR FCS KYIV FOR FCS SOFIA FOR FAS STATE PASS OPIC
E.O. 12958: N/A TAGS: EINV, EFIN, ETRD, PGOV, KTDB, OPIC, USTR, MD SUBJECT: MOLDOVA 2009 INVESTMENT CLIMATE STATEMENT (PART 2 OF 2)
REF: 08 STATE 123907
Protection of Property Rights
44. The legal system protects and facilitates the acquisition and disposition of all property rights. Moldova has adopted laws on property and on mortgages. A system for recording property titles and mortgages is in place; however, the mortgage market is still underdeveloped.
45. Moldova adheres to key international agreements on intellectual property rights. Moldova is a signatory to the International Convention Establishing the World Intellectual Property Organization.
46. Moldova took measures to implement and enforce the WTO TRIPS agreement before its official accession to the WTO, and adopted local laws to protect intellectual property, patents, copyrights, trademarks and trade secrets. The country has an agency for the protection of copyright, the State Agency for Intellectual Property. Although many basic policies are in place and meet international standards in the field, enforcement is sporadic. Also, Moldova still needs to implement changes to its Criminal Code to strengthen copyright protection.
Transparency of the Regulatory System
47. Bureaucratic procedures are not always transparent and red tape often makes processing unnecessarily long, costly and burdensome. Discretionary decisions by state functionaries provide room for corruption. The GOM has taken measures to fight corruption with the implementation of the "guillotine law," which eliminated costly and obsolete regulations and forced the publication of all business-related regulations. All regulations and governmental decisions related to business activity have been published in a special business registry. These steps were intended to raise the awareness of business people about their rights, increase the transparency of business regulations, and help fight corruption. A second "guillotine law," the Law on Basic Principles Regulating Entrepreneurial Activity, was enacted in August 2007. To enhance transparency in the drafting of laws and regulatory acts, the GOM started applying a Regulatory Impact Assessment to all draft laws and acts bearing on business activity. The GOM vetted 100 laws with the goal of reducing payments to regulatory and control bodies and streamlining business-licensing procedures and economic- financial controls.
48. The legal framework for anti-monopoly regulation is the Law on Protection of Competition. The law establishes the fundamental principles, based on EU standards, for regulating the activity of enterprises with a de facto monopoly and for support and development of competition. After several years of delay, the government established a National Competition Agency in 2007. However, the agencyQs targeted actions against major foreign investors right at its outset drew accusations of abuse, lack of experience, and flawed antitrust legislation. While the GOM has taken note of the business community's complaints, it has not taken action to change the law.
49. The government took measures to streamline business registration with the implementation of a "one-window" approach in 2004. Despite the creation of a Licensing Chamber and a significant reduction in the number of regulated business activities requiring licensing, businesses must still provide a great deal of supporting documentation to receive a license. The GOM has made progress in simplifying registration procedures during the startup stage, but still has a long way to go to ease day-to-day business activity and simplify regulation of foreign trade transactions, business licensing, and lending.
50. The government usually publishes significant laws in draft form for public comment. The working group of the State Commission for Regulation of Entrepreneurial Activity, which was established as a filter to eliminate excessive business regulations, meets weekly to vet draft governmental regulations dealing with entrepreneurship. The working groupQs meetings are open to interested businesses. The Foreign Investors Association (FIA) was established in 2004 with the support of the OECD. The FIA engages in a dialogue with the GOM on topics related to the investment climate and publishes an annual White Book of concerns and recommendations for the improvement of the investment climate. In 2006, the American Chamber of Commerce was registered in Moldova, representing another voice for the business community.
51. In 2003, the GOM passed new criminal and civil codes and ratified several important international conventions that, in general, create a better environment for the market system.
52. Moldova introduced its National Accounting Standards (NAS), based on International Accounting Standards (IAS), in 1998. While this meant greater transparency of financial information and compatibility with IAS, the NAS has not been updated since then, leaving it outdated. NAS is not compatible with the International Financial Reporting Standards (IFRS) introduced in 2004. A new law on accounting took effect on January 1, 2008. Moldova is moving toward adoption of IFRS by 2011. Large and publicly listed companies that meet compliance criteria set out in the law must apply the IFRS from January 1, 2009.
Efficient Capital Markets and Portfolio Investment
53. Laws, governmental decisions, securities regulations, National Bank regulations, and Stock Exchange regulations provide the framework for capital markets and portfolio investment in Moldova. The GOM began regulatory reform in this area in 2007 with a view to spurring the development of the weak non-banking financial market. In particular, only two bodies Q the National Bank and the National Commission on the Financial Market Q regulate financial and capital markets starting in 2008.
54. Credit is allocated on market terms with banks being the only reliable source of business financing. The GOM regulates credit policy via credits from the National Bank, auctions through commercial banks, compulsory reserves, credits secured through collateral, open market operations, and T-bill auctions on the primary market. Foreign investors may obtain credit on the local market. However, local commercial banks loan funds at prohibitively high interest rates, and mostly short term, which reflect the countryQs perceived high economic risk and inflation. The situation has been further aggravated by the uncertainty about the fallout from the global credit crunch. Also, large deals rarely can be financed through a single bank and require a bank consortium. Recent years have seen a growth in leasing and micro-financing. In 2007, Raiffeisen Leasing was the first international leasing company to open a representative office in Moldova.
55. The private sector's access to credit instruments is difficult because of the insufficiency of long-term funding and excessively high interest rates. Financing through local private investment funds is virtually non- existent. A few U.S. investment funds have been active on the Moldovan market, notably NCH Advisors, Western NIS Enterprise Fund, and Emerging Europe Growth Fund, the latter two managed by Horizon Capital equity fund managers.
56. In 2007, a "mega-regulator," the National Commission on the Financial Market (NCFM), replaced the National Securities Commission. The NCFM supervises the securities market, insurance sector and non-bank financing. The NCFM is operationally independent. Starting October 1, 2008, it acquired the right to issue and withdraw licenses for all non-bank financial sectors it supervises. The Commission adopted a Corporate Governance Code and passed new regulations intended to simplify the issuance of corporate securities and increase the transparency of transactions at the Moldovan Stock Exchange. The GOM is interested in transforming Moldova into a regional hub for capital market services by becoming a center of distribution of international venture capital. The GOM wants to attract investment fund management companies to relocate their regional headquarters to Moldova.
57. Moldovan banks are the main source of business financing, with non-bank financing, albeit growing, poorly developed. The banking system has two levels: the National Bank of Moldova (NBM) and 16 commercial banks. The NBM supervises the commercial banks and reports to the Parliament. The GOM holds a controlling stake in one bank, Banca de Economii (a savings bank). As of November 30, 2008, foreign investors' share in Moldovan banks' capital was more than 73 percent.
58. As of September 2008, total bank assets were USD 3.8 billion (equal to 83.5 percent of GDP). Moldova's five largest commercial banks account for about 62 percent of the total bank assets, as follows (as of September 30, 2008): Moldova Agroindbank: MDL 7,839 million (USD 757 million) in assets; Victoriabank: MDL 5,189 million (USD 501 million); Moldindconbank: MDL 4,868 million (USD 470 million); Mobiasbanca: MDL 3,744 million (USD 362 million); Banca de Economii: MDL 3,626 million (USD 350 million).
59. Unofficial "cross-shareholding" and "stable shareholders" agreements are used mostly by investment funds to restrict other companies' participation, but are not specifically aimed against foreign investment.
60. Measures to prevent hostile takeovers are typically designed to protect against all potential takeovers, not just foreign takeovers.
61. No laws or regulations authorize private firms to adopt articles of incorporation or association which limit or prohibit foreign investment.
62. The U.S. Embassy has no reports about private sector or government efforts to restrict foreign participation in industry standards-setting consortia or organizations. However, private enterprises' internal regulations may include such restrictions.
63. The U.S. Embassy has received no reports over the past ten years involving politically motivated damage to projects or installations in Moldova. Such civil disturbances are unlikely in the near future.
64. Separatists control the Transnistrian region of Moldova along the eastern border with Ukraine. Although a brief armed conflict took place in 1991-1992, the cease-fire of July 1992 has generally been observed. Local authorities in Transnistria maintain a separate monetary unit, the Transnistrian ruble (current market exchange rate is approximately 8.5 rubles per one USD), and a separate customs system. Despite the political separation, economic cooperation takes place in various sectors. In recent years, the GOM has implemented measures requiring businesses in Transnistria to register with Moldovan authorities (see paragraph 26). A settlement is still being negotiated with the Organization for Security and Cooperation in Europe (OSCE), Russia, and Ukraine acting as guarantors/mediators and the U.S. and EU as observers (the "five plus two"). After a stalling of the settlement talks since 2006, negotiations resumed in 2008 following several confidence-building initiatives announced by the Moldovan President earlier in 2007. Any progress in talks has been piecemeal at best.
65. Moldova is making efforts to adopt European and broader international standards to combat corruption and organized crime. However, significant governance challenges remain as government commitment to fighting corruption has not been successful. The GOM's failure to reduce corruption is reflected by the deteriorating country ranking on the Transparency International corruption index, placing Moldova at 109th place in 2008 (down from 79 in 2006).
66. In 2007, Moldova ratified the United Nations Convention against Corruption, subsequently adopting amendments to its domestic anti- corruption legislation. As a consequence, the Parliament has adopted the new Law on Preventing and Combating Corruption. In 2008, the GOM also developed several companion draft laws designed to address current legislative gaps.
67. Moldova's Criminal Code came into effect on June 12, 2003 but there is no evidence that it has contributed to the effort to combat corruption. It includes articles on public and private sector corruption, combating economic crimes, criminal responsibility of public officials, active and passive corruption, and trade of influence. These additions put the legislation more in line with international anti-bribery standards by criminalizing the act of offering a bribe. Under this definition, the act of promising, offering or giving a bribe to a "person of responsibility," i.e., a public official, is a crime.
68. Both offering and accepting a bribe are criminal acts. A bribe - whether to a foreign official or not - is a criminal act and is not deductible for tax purposes.
69. The penalties for offering and accepting a bribe are included in two articles of the Criminal Code. Offering a bribe is punishable by up to three years imprisonment or by a fine of 10,000- 20,000 lei (approximately USD 1,000-2,000); if repeated, the penalty is up to five years imprisonment or a fine of 20,000-40,000 lei (USD 2,000-4,000); and offering a large bribe for the benefit of a criminal organization is punishable by 5-10 years imprisonment.
70. Accepting a bribe is punishable by up to five years imprisonment or by a fine of 10,000-30,000 lei (USD 1,000 3,000); if the offense is repeated, the penalty is 5-10 years imprisonment or a fine of 20,000-60,000 lei (USD 2,000-6,000); and for accepting a large bribe in the interest of a criminal organization, the punishment is 7-15 years imprisonment.
71. Several international and local organizations in Moldova work on combating corruption. In December 2006, the Republic of Moldova and the United States signed a USD 24.7 million Millennium Challenge Corporation (MCC) Threshold Country Program (TCP) agreement aimed at reducing corruption. Moldova's MCC TCP program focuses on persistent corruption in the judiciary, the health care system, and the tax, customs and police agencies.
72. The Project against Corruption, Money Laundering, and Terrorism Financing in the Republic of Moldova (MOLICO) - was signed in July 2006 between the Council of Europe, the European Commission, and the Swedish International Development Cooperation Agency. The MOLICO project is aimed at ensuring the implementation of Moldova's anti-corruption strategy on the basis of annual action plans and strengthening the anti- money laundering/counter- terrorist financing system of Moldova. While the MOLICO project has been active in conducting training and supporting anti-corruption legislation, concrete results in the fight against corruption are not apparent.
73. Moldova is not a signatory of the Organization for Economic Cooperation and Development (OECD) Convention on Combating Bribery. However, Moldova is part of two regional anti-corruption initiatives: the Stability Pact Anti-Corruption Initiative for South East Europe (SPAI) and the Group of States against Corruption (GRECO) of the Council of Europe. Moldova cooperates closely with the OECD through SPAI, and with GRECO, especially on country evaluations. In 1999, Moldova signed the Council of Europe's Criminal Law Convention on Corruption and Civil Law Convention on Corruption. Moldova ratified both conventions in 2003.
74. The U.S. Embassy has received reports that corruption and bribery are serious problems for foreign investors. For example, when a foreign investor discovered that he had under-paid his taxes and wished to remedy the situation, the individual tax inspector assigned to the company attempted to extort money. However, when the investor informed the tax administration of his error, the tax service lauded his self-reporting and negotiated a reduced payment. In other situations, however, a foreign investor may be faced with the choice of either paying a bribe or leaving. The Embassy has received reports of "informal" hostile takeovers of profitable businesses. In these cases, business owners are approached by politically connected individuals who wish to acquire part of the business. If business owners refuse, they may face harassment by tax, fire, sanitary and health inspectors.
75. According to Transparency International and an assessment of closed court cases, corruption is most pervasive in the following areas: law enforcement, customs, taxation and regulatory system; the judicial system; the health care system; the educational system; government procurement and procurement in general; agricultural subsidies and social assistance.
76. Moldova's ranking in Transparency International's Corruption Perception Index steadily worsened from 2001, when it was ranked 63 out of 91 countries, to 2004, when it ranked 116 out of 145 countries. In 2006, Moldova ranked 81 out of 163 countries surveyed, but slipped in 2007, dropping to 113 out of 80 countries. In 2008, Moldova ranked 109, behind such countries as Belize, Armenia, Tanzania and Rwanda. According to surveys conducted in 2006, about one third of Moldovan firms admit that they frequently pay bribes.
Bilateral Investment Agreements
77. Moldova has signed bilateral investment protection and promotion agreements with 35 countries, including Albania, Austria, Azerbaijan, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, China, Croatia, the Czech Republic, Finland, France, Georgia, Germany, Greece, Hungary, Israel, Italy, Kuwait, Kyrgyzstan, Latvia, Lithuania, the Netherlands, Poland, Romania, Russia, Slovenia, Spain, Switzerland, Tajikistan, Turkey, Ukraine, the United Kingdom, the United States, and Uzbekistan.
78. Moldova has a bilateral treaty with the United States on the Encouragement and Reciprocal Protection of Investment, but does not have a bilateral taxation treaty with the United States.
OPIC and Other Investment Insurance Programs
79. In 1992, the Moldovan and U.S. governments signed an investment incentive agreement that exempts OPIC from Moldovan taxes on loan interests and fees. The Overseas Private Investment Corporation (OPIC) became active in Moldova in September 1997, providing political-risk insurance to an American company investing in an agribusiness. In 2002, OPIC provided nearly USD 1 million in political-risk insurance to two U.S. companies operating in the telecommunications and agricultural sectors. In 2004, OPIC extended a USD 150,000 loan to a New York-based small telecommunications business. In 2005, OPIC closed on a USD 3.0 million loan to Procredit, a microfinance institution providing loans to small businesses in Moldova. In 2007, OPIC committed USD 10 million in financing to a U.S. company to support the expansion of its agribusiness operations.
80. The U.S. Export-Import Bank (Ex-Im) provides U.S. companies investing in Moldova short- and medium-term financing in the private sector under its insurance, loan and guarantee programs. In 2000, the Ex-Im Bank and Moldova signed a Framework Guarantee Agreement setting the terms for the GOM to issue sovereign guarantees to facilitate Ex-Im Bank financing of U.S. exports to Moldova. Also in 2000, the Ex-Im Bank and Moldova signed a Project Incentive Agreement that enabled the Bank to consider financing of U.S. exports for credit-worthy private sector projects in Moldova on a non-sovereign risk basis, but which required host-government support in project-related activities such as permit and license approvals. Under the agreement, repayment of Ex-Im Bank financing is based on the capture of financed projects' revenue streams in special escrow accounts held in banks approved by the Ex-Im Bank.
81. In 2002, the Ex-Im Bank signed a memorandum of cooperation with the Black Sea Trade and Development Bank. Under the memorandum, the Ex-Im Bank's financing products can be used to support exports of U.S. goods and services to any country located in the Black Sea region, including -- standing next to Mitchell. Similarly, Al-Hayat Al-Jadida combines coverage on Mitchell's appointment with the "pressing situation in Gaza," declaring, "Obama calls for opening the Gaza crossings, and will send Mitchell to the region soon as Middle East envoy."
The largest circulating daily, Al-Quds, carried a front-page feature by its Washington-based correspondent under the headline, "Will the new Middle East Envoy Mitchell pick up from where the 'Mitchell Report' ended?" The article leads with an upbeat paragraph stating that the appointment of Mitchell indicates the American administration's strong intent to, "get involved [regionally] in an effective manner," to rQolve the Israeli-Arab conflict. The article takes note of the former Senator's success in brokering a peace agreement in Northern Ireland and his draft of the "Mitchell Report" on the Middle East in April 2001, which included recommendations that Israel stop its settlement activities and remove its checkpoints in the West Bank.
In separate front-page coverage, the dailies quoted remarks made by a Hamas' member in Lebanon, Osama Hamdan, regarding Mitchell's appointment. According to Hamdan, "some" Palestinians were optimistic over Mitchell's appointment as Middle East envoy. However, given Obama's unwillingness to deal directly with Hamas, "it seems that, even before appointing [Mitchell] officially, [Obama] has tried to put a stick in the spokes of the wheel, perhaps to ensure that (Mitchell) does not succeed."
Palestinian online news agencies highlighted coverage of Mitchell's appointment. The lead story on the largest Palestinian news website, Ma'an News Agency, featured an article entitled, "Obama appoints former Ireland negotiator as America's top envoy." The article, referring to remarks by Mitchell, states that the envoy, "does not underestimate the difficulty of this assignment," acknowledging the "danger" of getting involved in the Palestinian struggle for self-determination. Another Palestinian online service, the Palestine News Network (PNN), carried a Reuters report featuring a biography of Mitchell on its homepage. WALLES