The President’s Ruling on investment treaties sets forth the basic framework for the cooperation between investors and Belarus and lists a range of benefits which may be granted to an investor working on an investment project. Neither the President’s Ruling, nor the Government’s Ruling differentiate between foreign and domestic investors or set any requirements for investment projects. Thus technically, any investment project irrespective of its scale, character or any other characteristics is entitled to the said benefits. However, the acts stipulate other requirements to be fulfilled to receive the investment benefits. The basic requirement is to conclude an investment treaty with a state authority and have a company or any other form of business entity established in Belarus. Only an entity incorporated in Belarus, already existing or newly established, is entitled to receive the benefits. The Government’s Ruling does not set any particular requirements for such entity except that the investor must fully or partially participate in its capital.

According to the Ruling, an investment treaty stipulating the benefits to the investor is subject to the Government’s approval. If an investor intends to receive the benefits which are not provided for in Belarusian legislation, the treaty is subject both to the Government’s and President’s approval.

An application to conclude an investment treaty shall be filed with a local authority (if an investment project involves the questions of local economy) or with a state institution operating in the sphere most relevant to the investment project. The application shall contain information about the investor and a draft investment treaty. A local authority or state institution shall consider an application within 30 days following the date of filing. Upon invitation of a local authority/state institution an investor may take part in their final collective meetings where a decision on the application has to be adopted. Having approved an application, a local authority/state institution submits it to the Ministry of Economy. The Ministry of Economy shall consider an application within 15 days and, if approved, submit it to the Government within the following 3 days. Upon consideration of an application, the Government may decide to approve it and adopt a ruling on conclusion of an investment treaty or reject the application. The Ruling does not set any limits within which the Government shall consider an application.

If an investor applies for the benefits which may be granted only by an individual decision of the President, the application may be filed directly with the Ministry of Economy. In addition to other documents, an application shall include the auditor’s conclusion on the investor’s financial state and the business-plan of the investment project. The Ministry of Economy shall consider an application within 30 days and submit it to the Government within 3 days. Having reached a positive decision on the conclusion of a treaty, the Government shall submit the application to the President for his/her consideration. The Ruling does not limit either the Government’s or the President’s time for consideration of an application.

Among other important provisions of the Ruling, the following should be mentioned. An investment treaty is subject to compulsory legal expertise by legal departments of local authorities/state institutions or the Ministry of Economy. The legal expertise cannot be conducted by any other legal expert (private law firm, advocates, etc.). An investment treaty shall be drafted in Russian or Belarusian languages. An investment treaty may be amended according to the rules set forth for its conclusion. The Government is entitled to terminate a treaty unilaterally in case the investor fails to fulfill or does not duly fulfill its obligations under the treaty. However, the Ruling does not define what actions may be considered to be undue fulfillment of investment treaty provisions.

Detailed Rules on Granting the Status of an Investment Agent of Belarus

In order to enhance cooperation with potential investors, the President of Belarus adopted and the Government implemented the regulations providing natural persons and legal entities (“investment agents”) with a possibility to represent Belarus in relations with investors. According to the Government Regulations No. 1448, as of 8 November 2009 the following entities may receive the status of an investment agent subject to agreement with the Government:

• legal entities and natural persons incorporated in Belarus;
• foreign legal entities having a representative office or a subsidiary in Belarus; and
• foreign natural persons registered in Belarus as individual entrepreneurs.

Such agreements with the Government shall be drafted in accordance with a Sample provided for in the Ruling No. 1448. The agreement can grant an investor representative powers only in relation with a specific investment project(s), but does not entitle an investment agent to sign documents on behalf of Belarus. The services of an investment agent under the agreement with Belarus are free of charge. According to the Sample, the compulsory obligations of investment agents are as follows:

• to promote attraction of investors for an investment project in the interests of Belarus;
• to prepare and fulfill investment projects on behalf of Belarus and provide necessary consulting (legal, marketing, etc.)
  services.

A potential investment agent shall file an application for the conclusion of the agreement to a local authority or state institution responsible for the realization of a particular investment project. An application shall contain the basic information on the candidate, a draft agreement according to the Sample, the proof of the relevant candidate’s experience and a list of measures that the candidate is proposing to take upon the particular investment project as a representative of Belarus. Within 15 days the local authority/state institutions shall decide on the approval/disapproval of a candidate’s application. In case of a positive decision an application shall be submitted to the Government. The Ruling does not set any limits within which the Government shall consider such applications. If the Government approves an application, it sings the agreement and adopts the ruling on granting the investment agent the powers to represent Belarus. An agreement enters into force at the date of signing of the Government’s Ruling.