Investment Code of the Republic of Belarus

Not official translation 

INVESTMENT CODE OF THE REPUBLIC OF BELARUS
June 22, 2001 № 37–3

The present Code defines general legal conditions of carrying out the investment activity in the Republic of Belarus and is directed at the stimulation of state support as well as at the protection of the investors' rights on the territory of the Republic of Belarus.

GENERAL PART

SECTION 1

GENERAL PROVISIONS

Chapter 1

Basic Concepts, Used in the Sphere of Investment Activity

Article 1. Investments

Investments are any property, including money, securities, equipment and the results of intellectual activity belonging to investor on the right of ownership or any other property rights, which investor puts into investment activity objects in order to get income and\or to obtain other significant result.

Article 2. Investment Activity

Investment activity is considered as actions of legal entity or\and individual or\and state (territorial regions), which are based on investments into manufacture of goods (works, services) or its other using to get income and/or to obtain other significant result.

Article 3. Investor

Investor is any person (legal entities and individuals, state in the name of authorized bodies and its territorial regions in the name of authorized bodies), investing in forms defined by the article 5 of the present Code.

Investor has rights, performs obligations and risks connected with investment.

Investors are considered as national or foreign investors to obtain peculiarities of regulation its activity.

In the Republic of Belarus foreign investors are:

– foreign states and its territorial regions in the name of authorized bodies;

– international organizations;

– foreign legal entities;

– foreign citizens;

–individuals (citizens of the Republic of Belarus and persons without citizenship), living constantly out of the bounds of the Republic of Belarus.

Peculiarities of activity regulations of foreign investors are determined by the present Code, other legislation acts of the Republic of Belarus as well as international agreements of the Republic of Belarus.

Article 4. Investment Activity Objects

Investment activity objects are:

–immovable property, including enterprises as property complex;

–securities;

–intellectual property.

Legislation acts of the Republic of Belarus determine objects owned only by the Republic of Belarus that is not excluded investment activity concerning these objects.

Legislation acts of the Republic of Belarus establish list of objects, in the relation of which it is prohibited to invest for all investors except of the Republic of Belarus.

Article 5. Investment Activity Forms

The forms of the investment activity in the Republic of Belarus are:

• the creation of legal entity;

• taking ownership of property or property rights, precisely:

– share in authorized capital of legal entity;

– immovable property;

• securities;

• intellectual property objects rights;

– concessions;

– equipment;

– other basic assets.

Article 6. Legal Regulation of Investment Activity

Relations connected with the realization of investment activity on the territory of the Republic of Belarus are regulated by the present Code, other acts of legislation of the Republic of Belarus as well as international agreements of the Republic of Belarus and also investment agreement with the Republic of Belarus.

Investment of capital of legal entities and individuals of the Republic of Belarus into the territory of foreign states is regulated by the present Code, other legislation acts of the Republic of Belarus as well as international agreement of the Republic of Belarus and also by state legislation on the territory of which the investment activity has place.

If by the international agreement of the Republic of Belarus that has come into force are established other norms differ from those stipulated by the present Code and other legislative acts of the Republic of Belarus, norms of the international agreement are applied.

Chapter 2

State Regulation of the Investment Activity

Article 7. State Regulation Aims of the Investment Activity

The state regulation of the investment activity are realized to stimulate the investors' activity, to attract foreign investment to the Republic and to defend the investors' rights on the territory of the Republic of Belarus.

Article 8. Forms and Methods of State Regulation of the Investment Activity

State regulation of the investment activity calls for:

1. The direct participation of state in the investment activity by means of:

1. the adoption of state investment programs and its financing at the expense of republic budget funds;

2. providing of the centralized investment recourses out of republic budget funds to finance investment projects on the payment, promptness and repayment base;

3. providing of a guarantee of credit of the authority of the Republic of Belarus, attracting to realize investment projects;

4. making of a state complex examination of the investment projects;

5. granting of a concession to national and foreign investors;

  The creation of propitious conditions for the development of the investment activity by means of:

1. giving state support to investors;

2. the defense of investors' interests;

3. the creation of free economic zones on the territory of the Republic of Belarus;

4. the determination of terms of possession, using and disposal by earth, depths, waters and woods;

5. the adoption of antimonopoly measures and suppression unscrupulous competition;

6. the determination of conditions of the objects privatization which are state property;

7. the assistance to develop the securities market;

8. the pursuance of effective fiscal, tax, monetary and exchange policy;

9. using of other forms and methods of state regulation in accordance with legislation of the Republic of Belarus.

Chapter 3

The Investors' Rights Guarantee and Investment Protection

Article 9. The Investors' Rights Guarantee

The state guarantees to an investor the property right and other property rights as well as property rights have got in a legal way and also defend its rights.

The state guarantees the equality of rights that are given to investors in spite of its property form when investment activity has place, as well as equal without any discrimination rights and legal investors interests defense.

The state guarantees the stability of the investor's rights that are established by the present Code, concerning the realization of the investment activity and its termination.

The investor has the right to determine and to realize independently, in accordance with legislative acts of the Republic of Belarus, all actions concerning a possession, use and disposal by the objects and results of the investment activity.

Article 10. Guarantees of the Use of the Investment Activity Results

Investor has the right to command independently by the income that he has got at the result of the investment activity realization as well as to realize the reinvestment on the territory of the Republic of Belarus in accordance with the legislation acts of the Republic of Belarus.

Reinvestment is considered as investor's investment income into investment activity objects situated on the territory of the Republic of Belarus that he has already got as a result of such activity.

After tax and other compulsory payments established by legislation acts of the Republic of Belarus, free transfer of income he has got on the territory of the Republic of Belarus as a result of realization of the investment activity and profits from the investment property, sales proceeds when investment activity is suspended abroad is guaranteed to the investor.

Article 11. Investment Protection

The state guarantees investment protection in accordance with legislative acts of the Republic of Belarus.

Investments shall not be nationalized and be brought into requisition free of charge and also equal measures shall not be taken. Nationalization and requisition is possible only when compensation of value of nationalized and requisitioned investment property and other losses, caused by nationalization and requisition, is prompt and completed. The order and conditions of nationalization and requisition as well as compensatory payments of value of nationalized or requisitioned investment property and other losses, caused by nationalization and requisition, are established by the present Code and laws of the Republic of Belarus.

Article 12. Compensation of Value of Nationalized or Requisitioned Investment Property

Compensation of value of nationalization or requisitioned investment property must be equal to the real value of this property at the moment that is preceded to the nationalization or requisition or its public announcement, depending on what is the first one. Moreover, compensation must include the percent, that is calculated according to the due exchange rate, just the one established by the National Bank of the Republic of Belarus — for the national investor, and the percent established on the London International Market (LIBOR) — for the foreign investor, for the period up the date of actual nationalization or requisition or its public announcement to the date of actual payment of compensation.

Compensation of value of nationalized or requisitioned investment property is paid back to the national investor in monetary units of the Republic of Belarus, and to the foreign investor it is paid back in the currency the investments have been made primary.

The amount of compensation of value of nationalized or requisitioned investment property may be appealed in the court.

Article 13. Guarantees from Illegal Activity (Inactivity) of Public Bodies and Their Officials

Activity (inactivity) of public bodies or its officials, administrative and territorial bodies or its officials, as well as acts of public bodies of the Republic of Belarus or administrative and territorial bodies of the Republic of Belarus, violating investors' rights and (or) causing losses and other kind of damage, may be appealed by the investor in the court.

Damage, including losses, caused in the result of any activity (inactivity) of public bodies or its officials, administrative and territorial bodies or its officials, indicated in the first part of the present article, or in the result of adoption of acts by the public bodies of the Republic of Belarus or administrative and territorial bodies of the Republic of Belarus, are liable to compensate from funds of corresponding treasure according to the award of damages.

The order of compensation for losses, including damages, is determined by the legislative acts of the Republic of Belarus.

SPECIAL PART

SECTION 2

STATE SUPPORT OF AN INVESTMENT ACTIVITY ON THE TERRITORY OF THE REPUBLIC OF BELARUS

Chapter 4

The Aim, Sources and Kinds of State Support of an Investment Activity

Article 14. General Provisions

In the process of realization of an investment activity as well as in the process of realization of the investment projects, investors have the right to get the state support.

The state support is provided to stimulate attraction of investments to the economy of the Republic of Belarus.

According to the present Code investment project is a set of documents, concerning investments and its using as well as practical realization up to the achievement of the predetermined result for the definite period of time.

Article 15. Types of State Support

State support of investment projects is made as arrangement of:

• tax and customs privileges;

• guarantees of the authority of the Republic of Belarus;

• centralized investment funds.

State support of an investment activity as well may be realized with the arrangement of other types and also by the establishment of additional investment guarantees.

Article 16. Sources of State Support

State support of investment projects is realized for the account of republican and\or local funds and other sources.

Funds for the rendering of state support of investment projects in accordance with types, established by the present Code are determined in accordance with the finance act of the Republic of Belarus for the regular finance year.

Local and self–government bodies also can determine other types of support of investment activity in due local budgets.

Article 17. Tax and Customs Privileges

To stimulate investment activity investors are given tax and customs privileges in accordance with tax and customs legislation of the Republic of Belarus.

Article 18. Guarantees of the Government of the Republic of Belarus

The guarantee of the Republic of Belarus is the obligation of the Republic of Belarus, on behalf of the authority of the Republic of Belarus, to be responsible for the meeting of investor's obligation before creditor.

The guarantees of the Republic of Belarus are given to creditors in cases of attraction of foreign credits or bank credits of the Republic of Belarus for the realization of investment projects.

The order of giving guarantees of the authority of the Republic of Belarus is determined by the present Code and other legislative acts of the Republic of Belarus.

Article 19. Centralized Investment Resources

Centralized investment resources are state financial resources, including republic budget means, providing for the rendering of the investment projects state support.

The order of giving centralized investment resources is determined by the present Code and other legislative acts of the Republic of Belarus.

Chapter 5

Complex State Expert Examination of Investment Projects

Article 20. General Provisions

Complex state expert examination is carried out to prepare resolution for the taking of decisions concerning the investment projects state support.

Complex state expert examination is carried out by the Ministry of Economy of the Republic of Belarus in cases of realization of investment projects with attraction of foreign credits or banks credits of the Republic of Belarus under guarantees of the authority of the Republic of Belarus; consumption of centralized investment resources means; state participation in the creation of enterprises, containing foreign investments; granting personal privileges for tax and custom payments.

Authority of the Republic of Belarus can also determine conditions under which investment projects should be examine only by the republican body of state administration (association), that control investor if such submission takes place, or any other authorized body of state administration.

Article 21. Criteria of Investment Projects Examination

The main criteria of investment projects examination under carrying out of state complex examination are:

• the urgency of investment project and its conformance to the strategy of the branch development;

• financial condition of investor–organization;

• technical, technologic, finance possibility and practicability of investment projects realization under planning conditions of implementation of investment activity;

• feasibility of investment outlay according investment project and state participation in this project;

• scientific and technological level of attracted and (or) created technologies;

• competitiveness of manufactured products (works, services) and prospects of marketing outlet, effectiveness of marketing strategy of investor–organization;

• comparative effectiveness and steadiness measures of investment project.

Article 22. The Order of Carrying Out State Integrated Assessment of Investment Projects

State complex examination of investment project is carrying out within not more than 30 days from the day of entering to the Ministry of Economy of the Republic of Belarus materials of this project. In case of necessity to carry out scientific and technological examination or to get add information, state complex examination duration of investment project can be on the increase by the Ministry of Economy of the Republic of Belarus, but no more than up to 60 days. An investor is informed about the prolongation of examination term before 30 days from the day of entering to the Ministry of Economy of the Republic of Belarus materials of investment project ran out.

State complex examination of investment projects is based on the following materials and conclusions:

1. Given by investor writing application with addendum of:

1. business–plan;

2. (for the foreign investor who is not a resident of the Republic of Belarus) — legalized extract from a trade register of a country of origin or other equivalent evidence of legal status of foreign investor in accordance with legislation of the country of his existence or permanent place of residence (legalization must be done before one year up to submission of documents);

3. conclusions of republican body of state administration (association) which subordinate investor (investment project initiator), if such subordination takes place, or within the competence of which is the questions, connected with output of planned goods (works, services);

4. conclusions of auditor, concerning financial condition of investor (investment project initiator).

  Conclusions reclaimed by the Ministry of Economy of the Republic of Belarus:

1. The Ministry of Finance of the Republic of Belarus — concerning existed and predictable indebtedness of investor (investment project initiator); about state support early given to investor; about the volume of shedding budget income, connected with granting of privileges, and its compensation; about examination of practicability of the present investment project state support, and also in cases of attraction of foreign credits on guarantee of the authority of the Republic of Belarus, concerning currency self–repayment of investment project, about conditions of granting credits and about possibility of its using;

2. State committee of science and technologies of the Republic of Belarus — concerning scientific and technological level of used technologies of investment projects, that have pretentions to the state support, established for manufactures based on new and high technologies; of investment projects with attraction of foreign credits under the guarantee of the authority of the Republic of Belarus, as well as of investment projects in cases and on conditions, established by the authority of the Republic of Belarus.

In order to realize the state complex examination of the investment project by the Ministry of Economy of the Republic of Belarus according to its inquiry and investor's agreement, the independent experts including foreign ones can also be invited. The expenses, connected with the realization of independent examination, are made for the cost of investor's funds.

The state complex examination of the investment project is made with obligatory providing of commercial secret concerning the information that contains in the given materials.

The results of state complex examination conclusion is given to the investor before 5 days from the day of its ending.

In case of the negative conclusion of state complex examination, the investment project can be finished and given to the repeated examination.

Cause for negative conclusion of state complex examination may be the negative examination according to criteria, determined in the article 21 of the present Code.

The repeated review of investment project is realized in terms established for new received investment projects in order, which is determined by the present article.

The investment project materials rendered with the offence of requirements, established by the legislation, are not examined and a conclusion of state complex examination is not made. This fact is reported to the investor with the reference of refusal reasons during 14 days from the day the materials connected with this investment project were received.

The term of action of state complex examination conclusion to prepare decisions concerning state support consists of one year.

The Ministry of Economy, the Ministry of Finance, State committee of science and technologies of the Republic of Belarus, other authorized or attracted to examine the investment project bodies of state administration and (or) other juristic and natural persons in accordance with legislation acts of the Republic of Belarus take the responsibility for prompt realization of examination in terms established in the present chapter.

Article 23. Peculiarities of the Realization of State Scientific and Technological Examination

To determine scientific and technological level of technologies that are proposed by an investor to working out, attract and use, the investments projects pretended on the state support established for enterprises that are based on new and high technologies, or pretended on attraction of foreign credits under the guarantees of the authority of the Republic of Belarus, and also other investment projects in cases and under conditions, established by the authority of the Republic of Belarus, within the framework of state complex examination are liable to the state scientific and technological examination.

The State committee of science and technologies of the Republic of Belarus realize state scientific and technological examination of investment projects.

The criteria and order of the realization of state scientific and technological examination are determined be the legislation of the Republic of Belarus. At the same time the State committee of science and technologies of the Republic of Belarus must do state scientific and technological examination of investment projects within 30 days from the day of receiving the materials of these investment projects.

Article 24. Peculiarities of the Realization of State Complex Examination of Investment Projects, Realized with the Attraction of Foreign Credits under the Guarantees of the Authority of the Republic of Belarus

The investment project that has got the positive conclusion of state complex examination, including the conclusion of the Ministry of Finance of the Republic of Belarus shall be introduced to the Ministry of Foreign Affairs of the Republic of Belarus to get investment credit guarantees of the authority of the Republic of Belarus.

The Ministry of Foreign Affairs of the Republic of Belarus realizes the preparation of the investment project materials and the introduction of the materials to the consideration of the authority of the Republic of Belarus within 30 days from the day of its receiving to the Ministry of Foreign Affairs of the Republic of Belarus.

Article 25. Peculiarities of the Realization of the State Investment Projects Examination of the Small Business Entities

The Ministry of Entrepreneurship and Investments of the Republic of Belarus realize the state investment projects examination of the small business entities, pretending to get state support established by the legislation, excepting cases, determined by the second chapter of the article 20 of the present Code, in order determined by the legislation of the Republic of Belarus.

The state investment projects examination of the small business entities is realized within 30 days from the day of the receiving of the materials to the Ministry of Entrepreneurship and Investments of the Republic of Belarus.

If it is necessary to get the add information, the duration of examination may be increased by the Ministry of Entrepreneurship and Investments of the Republic of Belarus, but no more than up to 60 days. The investor is reported about the extension of the examination term before 30 days from the day the Ministry of Entrepreneurship and Investments of the Republic of Belarus has received the materials concerning this investment project.

Chapter 6. Guarantees of the Government of the Republic of Belarus on the Foreign Credits Drawn

Article 26. General Provisions

Guarantees of the Government of the Republic of Belarus are given to the foreign creditors on the ground of the decision of the Government of the Republic of Belarus under the agreement with the President of the Republic of Belarus.

Foreign creditors are the foreign states and their administrative territorial units, international organizations and foreign legal persons giving to the Republic of Belarus or to the legal persons of the Republic of Belarus (further—investor (debtor) the credits in foreign currency).

Drawing and repayment of the foreign credit is carried out on the conditions determined by the international treaties or/and individual credit agreements.

Article 27. The Order of Taking the Decision on Drawing the Foreign Credits under the Guarantees of the Government of the Republic of Belarus

Offers on drawing the credits under the guarantees of the Government of the Republic of Belarus for consideration of the expediency of their usage are send by the republican body of state management (association) that has received the mentioned offers form the foreign creditors (investor (debtor)) to the Ministry of Economy, Ministry of Finance, Ministry of Foreign Affairs and to the National Bank of the Republic of Belarus. At positive resolutions on the received offers the question on drawing the foreign credits under the guarantees of the Government of the Republic of Belarus is introduced for consideration to the Government of the Republic of Belarus.

Offers of the foreign non–bank credit–financial organization on giving the credits under the guarantees of the Government of the Republic of Belarus are send to the bank authorized by the decision of the Government of the Republic of Belarus for their consideration in order established by the Government of the Republic of Belarus. At positive resolution of the given bank the further consideration of those offers is carried out in accordance with part one of the present article.

On the grounds of the decision of the Government of the Republic of Belarus the negotiations with the representatives of the foreign creditors about signing the relevant contracts mentioned in part three article 26 of the present Code are conducted.

Article 28. The Order of Granting the Guarantee of the Government of the Republic of Belarus on Foreign Credit

The investment project providing the reception of the guarantee of the Government of the Republic of Belarus for the foreign credit and that has received the positive resolution of the state comprehensive expertise is introduced by the Ministry of Foreign Affairs of the Republic of Belarus for consideration of the Government of the Republic of Belarus for consideration of the Government of the Republic of Belarus.

The guarantee of the Government of the Republic of Belarus for the fulfillment of the obligations of the investor (debtor) in front of the foreign creditor is granted by the Government of the Republic of Belarus under the agreement with the President of the Republic of Belarus.

Article 29. The Order of Registration of the Contractual Relations under the Payments for the Foreign Credit

After taking by the Government of the Republic of Belarus the decision on granting the guarantee for the foreign credit and till the registration of this guarantee, and also till the signing the international agreement or/and inter–bank agreement or/and individual credit agreement under the credit the investor (debtor) shall conclude with the Ministry of Finance of the Republic of Belarus and the bank authorized by the decision of the Government of the Republic of Belarus to service the foreign credits (further—the agent bank) and the bank–guarantor the contract on the order of usage and payment of the foreign credit.

The substantial terms of such contract are the securing the fulfillment of the obligations of the investor (debtor) and his responsibility including the granting to the Ministry of Finance of the Republic of Belarus in cases and order established by legislation, the rights to collect the assets subject to payment by the investor (debtor) in unconditional order from the accounts of the investor (debtor).

The agent bank and/or the investor (debtor) have the right to carry out the payments for foreign credits only after signing the contract on the order of its usage and satisfaction.

Financing of the investment project is carried out on condition of conducting by the investor (debtor) of the auction (tenders) on purchases of the goods (works, services) necessary for realization of the project (further—auction (tenders) on purchases) and signing the contract on their delivery under their results.

Article 30. Peculiarities of Conducting the Auction (tenders) on Purchases at the Expense of Foreign Credits

In case of granting the purpose credit the auction (tenders) on purchases are not conducted, but technical and economic motivation of the investment project shall contain the motivation of the expediency of delivery of the processed goods (works, services), comparison of technical and cost characteristics of this goods with the analogs of other national and foreign producers.

Conducting the auction (tenders) on purchases within the investment project is carried out by the investor (debtor) or by the external trade organization authorized by him in accordance with legislation of the Republic of Belarus (except for the cases provided by part four of the present article).

The expenses on organization and conducting the auction (tenders0 on purchases are paid by the investor (debtor).

In case of granting by foreign creditors the credit with the condition to conduct the international auction (tenders) on purchases the conducting such auction (tenders) is carried out by the investor (debtor) in accordance with the requirements of this creditor and is controlled by his representatives and the Ministry of Foreign Affairs of the Republic of Belarus.

Article 31. Control over Usage and Payment of the Foreign Credits

Control over purposeful and timely usage of foreign creditors and also over timely repayment of the debt on foreign creditors is carried out by the agent bank, the Ministry of Finance of the Republic of Belarus and republican body of state management (association) under the account of which the investor (debtor) is, if there is such accountability of the investor (debtor), and also by other bodies of currency control in accordance with legislation of the Republic of Belarus.

Article 32. The Order of Fulfillment of the Guarantees of the Government of the Republic of Belarus for Foreign Credits

In case of non–fulfillment by the investor (debtor) in the established terms the obligations on payments fore foreign credits and impossibility of collecting the assets with the investor (debtor) in the established order these obligations are fulfilled by the bank–guarantor.

In case of non–fulfillment of the obligations on the payments for foreign credits by the investor (debtor) and the bank–guarantor and presentation of foreign creditors in accordance with the guarantee of the Government of the Republic of Belarus of payment requirements to the Government of the Republic of Belarus the Ministry of Finance of the Republic of Belarus under the decision of the Government of the Republic of Belarus conducts the payment from the assets provided in the law of the Republic of Belarus on the budget for the next financial (budget) year.

The order of restructuring the debt on the foreign credit and compensation by the investors (debtor) of the assets to the republican budget on the basis of payment, time and return is determined by the Government of the Republic of Belarus.

Chapter 7. Conditions and Order of Granting the Guarantee of the Government of the Republic of Belarus for the Drawn Credits of Banks of the Republic of Belarus

Article 33. General Provisions

Guarantees of the Government of the Republic of Belarus can be granted to the banks of the Republic of Belarus under the obligations of the investors (debtors) for the credits received by them for realization of the investment projects.

Article 34. Conditions of Granting the Guarantee of the Government of the Republic of Belarus

Condition of granting the guarantee of the Government of the Republic of Belarus for the credits of the banks of the republic of Belarus is the presence of the investment project that has received the positive resolution of the state comprehensive expertise. The draft of the decision on granting the guarantee after agreeing it with the Ministry of Economy and the Ministry of Finance of the Republic of Belarus is introduced for consideration of the Government of the Republic of Belarus by the republican body of state management (association) in accountability of which the investor (debtor) is, if there is such accountability of the investor, or by the Ministry of Entrepreneurship and Investments of the Republic of Belarus.

Article 35. The Order of Granting and Fulfillment of the Guarantee of the Government of the Republic of Belarus

After taking the decision on granting the guarantee for the credits of the bank of the Republic of Belarus by the Government of the Republic of Belarus the Ministry of Finance of the Republic of Belarus registers the guarantee of the Government of the Republic of Belarus and determines the order of fulfillment by the Government of the Republic of Belarus the obligations under this guarantee.

In case of not purposeful usage by the investor (debtor) of the bank credits received under the guarantee of the Government of the Republic of Belarus the Ministry of Finance of the Republic of Belarus has the right to suspend the fulfillment of the obligations under the guarantee of the Government of the Republic of Belarus.

The decision on suspending the fulfillment of the obligation under the guarantee of the Government of the Republic of Belarus in accordance with the Civil Code of the Republic of Belarus.

Article 36. Control over Usage and Payment of the Credits of the Banks of the Republic of Belarus

Control over purposeful and timely usage of the credits and also over timely payment of the debt under the credits of the banks of the Republic of Belarus and republican body of state management (association) by which the question on granting the guarantee has been introduced for consideration of the Government of the Republic of Belarus in accordance with legislation of the Republic of Belarus.

Chapter 8. State Support of the Productions Based on New and High Technologies

Article 37. General Provisions

For the purposes of creation and development on the territory of the Republic of Belarus of the productions based on new and high technologies the legislative acts of the Republic of Belarus establish the privileges for tax and customs payments and also other kinds of state support are provided for organizations introducing such technologies.

Kind, size and terms of the state support for every organization introducing new and high technologies are established by the decision of the President of the Republic of Belarus.

Article 38. The Order of Rendering the State Support to the Productions and Organizations Based on New and High Technologies

The state supports can be rendered to the investment projects of those organizations that are included into the list of productions and organization based on new and high technologies approved by the Government of the Republic of Belarus.

Consideration of the materials of the investment projects and also preparation of the list of the productions and organization based on new and high technologies containing the kind, size and terms of effect of the state support is carried out and is introduced for approval of the Government of the Republic of Belarus by the Ministry of Economy of the Republic of Belarus in order determined by the Government of the Republic of Belarus.

Article 39. Estimation of the Effectiveness of Usage of the State Support

Estimation of the effectiveness of usage of the state support of organizations introducing new and high technologies is carried out by the republican body of state management (association) in accountability of which the investor is (if there is such accountability of the investor), or by the body authorized by the Government of the Republic of Belarus and also by the Ministry of Economy of the Republic of Belarus.

Chapter 9. Centralized Investment Resources

Article 40. General Provisions

Centralized investment resources from the assets of the republican budget are provided in annually formed State investment program at the amount not less than 10 percent from the total amount of state capital deposits established by the law on budget of the Republic of Belarus for the next financial (budget) year, and are granted on the basis of payment, time and return in the form of:

assets for financing the investment projects;

guarantees of the Government of the Republic of Belarus for the drawn credits of the banks of the Republic of Belarus in order determined by chapter 7 of the present Code.

The state support in the form of assets at the expense of the centralized investment resources is rendered to the investors on the condition that the own assets at the amount not less than 20 person from total amount of investments of the given project are contributed to realization of the investment project.

Article 41. The Order of Granting the State Support at the Expense of the Centralized Investment Resources

The size of the state support provided in the form of assets at the expense of the centralized investment resources is determined depending on the category of the investment project and is established by the decision of the Government of the Republic of Belarus. The criteria of classification of the investment projects under the categories are determined by the Government of the Republic of Belarus.

Consideration and selection of the investment projects that have received the positive resolution of the state comprehensive expertise for rendering the state support in the form of assets at the expense of the centralized investment resources is carried out by the Ministry of Economy of the Republic of Belarus.

In accordance with the results of consideration of the investment projects the Ministry of Economy of the Republic of Belarus forms the list of investment projects realized with drawing the assets from the centralized investment resources and introduces it within the frameworks of the annually formed State investment programs for the approval of the Government of the Republic of Belarus.

The state support of the investment projects with drawing new and high technologies is carried out in priority order.

Article 42. Peculiarities of Financing the Investment Projects At the expense of the Centralized Investment Resources

Financing of the investment project is carried out on the condition of conducting the auction (tenders) on purchases of the goods (works, services) necessary for realization of the project by the investor and signing under the results the contract(s) on delivery.

Expenses on organization and conducting the auction (tender) on purchases are paid by investor.

At the results of the auction (tenders) on purchases the schedule of payments is elaborated and agreed with the Ministry of Finance of the Republic of Belarus.

Article 43. Control over Purposeful Usage of the Assets of the State Support

Control over purposeful usage of the assets of the state support at the expense of the centralized investment resources is carried out by the Ministry of Finance of the Republic of Belarus, republican body of state management (association) in accountability of which the investor is (if there is such accountability of investor) or the body authorized by the Government of the Republic of Belarus.

Chapter 10. Investment Agreement with the Republic of Belarus

Article 44. General Provisions

For the purposes of rendering the state support at realization of the certain investment projects having the significant importance for the economy of the Republic of Belarus the investment agreement can be concluded with the investor.

Article 45. Parties of the Investment agreement

Parties of the investment agreement can be the following:

from one side—the Republic of Belarus in the person of the Government of the Republic of Belarus or authorized republican body of state management of the Republic of Belarus;

from the other side—the national and/or foreign investors.

Article 46. Terms of the Investment Agreement

Investment agreement shall contain the following as obligatory terms:

the time period of validity of the investment agreement;

the object and amount of the investment activity;

rights and duties of the investor including on observance of legislation in the sphere of protection of environment and rational usage of natural resources, and also labor legislation and safety measures;

additional legal guarantees of the Republic of Belarus on the given project agreed for the period of validity of the agreement and concerning the tax and customs regimes, ecology rules and other terms being essential for the investor and being in effect at the moment of concluding the given investment agreement and also the obligations on issue of the permissive documents necessary for realization of the investment project to the investor;

responsibility of the parties for non–observance of the terms of investment agreement;

the order and body of consideration of disputes (including the international arbitration for foreign investor) deriving from the investment agreement;

the right of investor to export from the Republic of Belarus the production manufactured as the result of fulfillment of the agreement, belonging to him and of the profit (income) received;

the obligation of the foreign invest to hire and train the employees from the number of natural persons of the Republic of Belarus, terms of usage of technologies and also the obligations of the investor to train the employees of the created organization after ending the realization of the investment project;

other terms depending on the specific character of the project.

In the investment agreement with the foreign investor the refusal of the state from the judicial immunity, immunity in relation of preliminary securing the writ and enforcement of the judicial and (or) arbitrary decision is provided.

Article 47. The Order of Concluding the Investment Agreement

Offers of the investor on composition and terms of the investment agreement are considered by the Government of the Republic of Belarus or by the republican body of state management authorized by it in order established by the Government of the Republic of Belarus.

Investment project is signed on the basis of the decision of the Government of the Republic of Belarus at the agreement with the President of the Republic of Belarus.

Investment agreement is registered in the state register of investment agreements. The order of conducting the mentioned register is determined by the Government of the Republic of Belarus.

Article 48. Stability of the Terms of the Investment Agreement

The terms of the investment agreements preserve their force within all period of time of validity of such agreements. Change of the terms is allowed only with the mutual consent of the parties, if otherwise is not provided by the investment agreement.

Section III. Peculiarities of Carrying out the Investment Activity on the Basis of Concessions

Chapter 11. General Provisions of Concession

Article 49. General Provisions

Investment activity in relation to the bowels, waters, forests, lands and objects being only in the ownership of the state or the activity, to which the exclusive right of state is distributed, can be carried out on the basis of concessions.

Article 50. Concept of Concession

The concession is the contract concluded by the Republic of Belarus with the person mentioned in the article 52 of the present code on assignment on the onerous basis and for the definite term of the right to carry out on the territory of the Republic of Belarus of the certain kind of activity to which the exclusive right of state is distributed, or the right to use the property being under the ownership of the state.

Article 51. Concession Objects

Objects of concession can be the following:

right to carry out the certain kinds of activity to which in accordance with legislative acts of the Republic of Belarus the exclusive right of the state is assigned—under the decision of the President of the Republic of Belarus;

bowels, waters, forests, lands, and also the objects that are in accordance with legislative acts of the Republic of Belarus can be only at ownership of the state—in accordance with the list approved by the President of the Republic of Belarus.

Under one concession contract at the same time several different objects can be transferred to the concessionaire.

Article 52. Parties to Concession Contract

Parties to the concession contract are the following:

from one side—the Republic of Belarus in the person of the Government of the Republic of Belarus or the republican body of state management of the Republic of Belarus authorized by it;

from the other side—the national investors including the legal persons of the private form of ownership or (and) the legal persons in the property of which the share of the Republic of Belarus or its administrative territorial units and also of the state organization is not more than 25 percent or (and) foreign investors (concessionaires).

Article 53. Kinds of Concession contracts

The following are the concession contracts applicably to the present Code:

the full concession contract;

concession contract on division of production;

concession contract on rendering services (carrying out of works).

Article 55. Concession Contract on Division of Production

The concession contract on division of production is the concession contract according to the terms of which the production manufactured in accordance with the contract is divided between the concessionaire and the Republic of Belarus in order and amounts determined by concession contract.

At that the concessionaire in accordance with the terms of the contract is fully or partly freed from payment of taxes and other obligatory payments established by legislative acts of the Republic of Belarus in connection with assignment of the right of ownership on the part of the production manufactured by him to the Republic of Belarus.

Article 56. Concession Contract on Rendering Services (Carrying out of Works)

The concession contract on rendering services (carrying out of works) is the concession contract by virtue of which the right of ownership on the production manufactured in accordance with the contract is assigned to the Republic of Belarus. The concessionaire received the reward for the services rendered by him (works carried out).

At concluding the concession contract on rendering services (carrying out of works) with a risk the reward to the concessionaire is paid only on the condition of achieving by the concessionaire the result provided in the concession contract.

At concluding the concession contract on rendering services (carrying out of works) without risk the reward to the concessionaire is paid for the services rendered by him (works carried out) regardless of the result achieved.

Article 57. Legislation of the Republic of Belarus Regulating the Relations Connected with Conclusion and Fulfillment of the Concession Contract

Conclusion and fulfillment of the concession contracts is regulated by the present Code, terms of concession contracts, other acts of legislation of the Republic of Belarus and also by international treaties of the Republic of Belarus.

The rules contained in the legislation on lease are applied to the concession contract only as far otherwise is not provided by the present Code and other acts of legislation regulating the relations on using the property on the basis of concession.

If the objects of the concession are the bowels and other natural resources, their usage is carried out in accordance with the acts of legislation of the Republic of Belarus on bowels and other natural resources with the consideration of the provisions of the present Code. At that the special permission on usage of bowels and also granting the right to use other natural resources by state for the period of validity of the concession contract is not required.

Chapter 12. Order of Concluding the Concession Contract

Article 58. Preparation of the Concession Offers

On the ground of the decision of the President of the Republic of Belarus on the necessity of the concession in relation to certain kind of activity or property being in the ownership of the Republic of Belarus, the Government of the Republic of Belarus and (or) authorized republican body of state management prepares the concession offers and organizes the conclusion of the concession contracts.

Article 59. General Provisions on Order of Determination of the Concessionaire

The concessionaire is determined by conducting the competitions or auctions except for the cases mentioned in part four of the present article.

If the concession offer does not provide otherwise, the competitions and auctions are conducted openly and publicly. All participants of competitions and auctions are provided with equal rights and possibilities.

Under the decision of the Government of the Republic of Belarus the competitions and auctions for concluding the concession contracts in relation to certain objects can be held only among national or only among foreign investors.

Conclusion of the concession contracts without conducting the competition or auction is allowed only:

in cases, when there is only one application;

under the decision of the President of the Republic of Belarus, when for the purposes of state safety or defense interests of the Republic of Belarus conclusion of the concession contract by direct negotiations with the definite investor is required.

Article 60. Body Conducting the Competition or Auction

Competition or auction for concluding the concession contract is conducted by the republican body of state management of the Republic of Belarus authorized by the Government of the Republic of Belarus (further—concession body).

Article 61. Competition and Auction Commission. Regulations of Competition or Auction

Concession body creates the competition or auction commission. In the composition of the competition and auction commissions shall be the representatives of the republican bodies of state management and independent experts (the participation of the foreign experts is possible).

The composition and regulations of the work of the competition or auction commission are approved by the concession body in order determined by the Government of the Republic of Belarus.

Regulations of competition or auction and also the fee for participation in competition or auction are determined by the concession body in accordance with the decision of the Government of the Republic of Belarus.

Article 62. Announcing the Competition and Auction

Announcing the competition or auction is published in the republican press and (or) for attracting to participation in the competition or auction of foreign investors—in foreign periodicals not later than 6 months till the established term of submitting the applications for participation in the competition or auction.

In the mentioned announcements there shall be brief information on the terms of competition or auction and about the objects offered for concession and also necessary information about the body or organization having additional information. In the given body (organization) there shall be the project of the basic terms of the concession contract approved by the Government of the Republic of Belarus.

Article 63. Application to Participation in the Competition or Auction

For participation in the competition or auction the application containing the following basic information is presented to concession body:

name of the investor (for the natural person—name and citizenship), and also name(s) of the participants (for the open joint stock companies—of the auctioneers having 5 and more percents of shares of the company) or the owners (founders) of the legal person–investor;

name of the state in accordance with legislation of which the legal person–investor is founded and its participants (for the joint stock company—auctioneers having 5 or more percent of the shares of the company) or the owner (founders) being legal persons and also the name of the state of the permanent place of location (place of residence) of the investor and its owners (founders);

place of location of the legal person–investor (place of residence of natural person) and its participants (for the open joint stock companies—auctioneers having 5 or more percent of the shares of the company) or the owners (participants);

information confirming the experience and capabilities of the investor on technical and organizational provision of fulfillment of the concession contract;

information confirming the experience and capabilities of investor on the needed financial guarantee of the concession contract;

confirmation of the payment of the fee for participation in the competition or auction.

Depending on the specific character of the concession object including the kind of activity, under the decision of the concession body from all its participants the additional information can be requested, it is indicated in the announcement on competition or auction.

In case of participation in the competition or auction of several investors having the intention to act as one participant, the application shall contain the information mentioned in the present article about every member of such group and also on distributing the functions among them on fulfillment of the terms of the competition or auction.

Information received about the participants of the competition or auction is the commercial secret.

Application is considered accepted in case of fulfillment of the requirements provided by the present article. At that the investor has the right till the moment of expiration of the term of submitting the applications to introduce changes into it.

Expenses of the investor connected with participation in the competition and auction are not compensated.

Article 64. Taking the Decision Under the Results of Competition or Auction

The decision on the winner of the competition or auction is taken by the concession body in accordance with the resolution of the competition or auction commission.

Concession body publishes the information on the results of the competition or auction in the press not later than 30 days from the moment of approving the results by the competition or auction commission.

Article 65. Appealing, Contestation and Recognition Invalid of the Results of Competitions or Auctions

Results of competition or auction can be appealed by its participant by appealing to court.

Recognition of the results of competition or auction invalid is the ground for refusal to conclude the contract with participant, declared a winner.

If the results of competition or auction are recognized invalid, and the concession contract has been already concluded, the recognition it invalid is conducted in accordance with legislation of the Republic of Belarus.

Article 66. The Order of Preparation and Conclusion of the Concession Contracts

Concession body within not more than 15 days after announcing the results of the competition or auction notifies the winner on the procedure and place of conducting the negotiations on preparation of the draft of the concession contract. The parties start to coordinate the provisions of the concession contract that shall be based on the equal terms of concession contract established by the present Code and other legislation of the Republic of Belarus and also on the draft of the basic terms of concession contracts established by the Government of the Republic of Belarus or at its instruction by the concession body, and sign it within not more than 3 months after publishing the results of the relevant competition or auction. In case of non–signing the concession contract in the term mentioned in the present part the investor has the right to settle the dispute in judicial order.

Signing the concession contract on behalf of the Republic of Belarus is carried out by the Government of the Republic of Belarus or by the concession body at its instruction.

Concession contract is registered in the state register of concession contracts. The order of conducting the mentioned register is determined by the Government of the Republic of Belarus.

Chapter 13. Terms of the Concession Contract and Its Fulfillment

Article 67. Terms Included into the Concession Contract

The concession contract as the obligatory terms shall include the indication on the following:

term of validity of the concession contract;

kinds of the activity carried out in accordance with the contract or the description of the property being the concession object;

rights of the parties to take the decisions connected with the fulfillment of the contract;

duties of the concession body in front of the concessionaire to issue the permissive documents to him necessary to carry out the activity provided by the contract;

right of ownership on the production manufactured and profit (income) obtained in accordance with the requirements of the present Code;

territory of the Republic of Belarus or its part, where the concessionaire has the right including the exclusive right to carry out the certain kinds of activity (if the concession object is the right to carry out the certain kinds of activity) and also the program and schedule of works carried out in accordance with the contract;

duty of the concessionaire to observe the labor legislation of the Republic of Belarus and rules of safety measures;

duty of the concessionaire to observe the legislation of the Republic of Belarus in the sphere of protection of the environment and rational usage of the natural resources;

the order of the check of the activity of the concessionaire;

responsibility of the parties to contract;

the order and body that settles the disputes (including international arbitration for foreign investor) arising from the concession contract.

Besides for the mentioned obligatory terms the concession contract can also include:

the duties of the concessionaire to provide the financing of the activity provided by the contract;

forms and order of state participation in the concession contract;

duties of the concessionaire to use new and high technologies;

mutual duties of the parties to develop the industrial and social infrastructure of the region;

the order of changing the concession contract;

right of the concessionaire to export from the Republic of Belarus the products manufactured as the result of fulfillment of the contract and belonging to him and of the profit (income) obtained;

duty of the concessionaire to use at fulfillment of contract the goods (works, services) manufactured in the Republic of Belarus on the condition of the compliance with the requirements of competition;

duties of the concessionaire–foreign investor to hire and train the employees from the number of the natural persons of the Republic of Belarus;

other terms depending on the kind of the concession contract and specific character of the concrete concession object.

Article 68. Special Terms Subject to Inclusion to the Full Concession Contract

Also the order of payments for the right to use the concession object and at necessity, if it complies with the draft of basic terms of concession contract, the duty of the concessionaire to sale at the internal market of the Republic of Belarus the part of the production manufacture by him in accordance with the concession contract shall be provided in the full concession contract.

Article 69. Special Terms Subject to Inclusion to the Concession Contract on Division of Production

Into the Concession contract on division of the production the provisions providing the following shall be obligatory included:

the order of determination of the total amount of the manufactured production;

the order of determination of the part of the manufactured production remaining the in the ownership of the concessionaire as the compensation for the investments made and compensation of the expenses of production and also the order of their estimation;

the order of division between the parties the manufactured production and also the procedure of assignment to the disposal of the concession body the production being the state property.

Article 70. Special Terms Subject to Inclusion to the Concession Contract on Rendering Services (Carrying out Works)

Into the concession contract on rendering services (carrying out the works) the provisions providing the following shall be obligatory included:

the size and order of payment of the reward to the concessionaire in accordance with the terms of the contract;

procedure of assignment to the concession body or the person determined by this body the production received in accordance with the terms of the contract.

In concession contract on rendering services (carrying out of works) the provision on buying out by the concessionaire of the part of the production manufactured by him or on reception of the reward directly in the kind of this production can be included.

Article 71. Payments of the Concessionaire

If the concession contract provides the payments for the concession objects, they can be established in the total for all objects or separately for every object according to this contract.

The payments for the concession objects are introduced to the income of the republican budget.

Article 72. Period of Concession

The concession contract can be concluded on the term up to 99 years. At the expiration of the term of the contract the concessionaire who has bona fide carried out the basic terms of this contract, enjoys the priority right to its re–conclusion. At that the President of the Republic of Belarus or at his instruction the Government of the Republic of Belarus can take the decision on prolongation of the validity of the contract to the same period without holding the competition or the auction at presence of the application of the concessionaire.

The written application on prolongation of the contract is submitted by the concessionaire to the concession body not later than one year before expiration of the term of validity of the concession contract.

Article 73. The Right of Concessionaire to Information

The concessionaire has the right to use at the expense of the own assets all information necessary to him for carrying out the activity provided by the contract of economic, industrial, scientific technical and other character about the object being the property of the Republic of Belarus and to receive it in order determined by the acts of legislation of the Republic of Belarus.

Article 74.