I r REGISTRANT€¦ · 24/08/2018 · For Invest Barbados Mr. Zagaris participated by phone/webinar in the international Business and Wealth Management Seminar breakfast program

Received by NSD/FARA Registration Unit 08/24/2018 4:55:20 PMOMB No. 1124-0002; Expires May 31,2020

U.S. Department of Justice Supplemental Statement

Washington, dc 2053.0 Pursuant to the Foreign Agents Registration Act of1938, as amended

For Six Month Period Ending 2/28/2018

(Insert date)

I r REGISTRANT

1. (a) Name of Registrant (b) Registration No.

Bruce Zagaris 5299

(c) Business Address(es) of Registrant

Berliner> Corcoran & Rowe LLP 110117th Street NW, Suite 1100 Washington, DC 20036

2. Has there been a change in the information previously furnished in connection with the following?

(a) If an individual:

(1) Residence address(es) Yes □ No □

(2) Citizenship Yes □ No □

(3) Occupation Yes □ No □

(b) If an organization:

(1) Name Yes □ No 0

(2) Ownerehtp o'r control Yes □ No 0

(3) Branch offices Yes □ No 0

(c) Explain fully all changes, if any, indicated in Items (a) and (b) above.

IF THE REGISTRANT IS AN .INDIVIDUAL, OMIT RESPONSE TO ITEMS 3,4, AND 5(a).

3. If you have previously filed Exhibit C* 1, state whether any changes therein have occurred during this 6 month reporting period.

Yes O No E

If yes, have you filed an amendment to the Exhibit C? Yes □ No □

If no, please attach the required amendment.

I The Exhibit C,'for which no printed form is provided, consists of a true copy of the charter, articles of incorporation, association, and by laws of a registrant that is an organization. (A waiver of the requirement to file an Exhibit C may be obtained for good cause upon written application to the Assistant Attorney General. National Security

Division, U.S. Department of Justice, Washington, DC 20530.)

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FORM NSD-2

Revised 05/17

4. (a) Have any persons ceased acting as partners, officers, difectdrs'or similar officials of the registrant during this'6"m6nth~rej5’oTting period?

Yes O No 13

If yes, furnish the following information:Name Position Date Connection Ended


(PAGE 2)

(b) Have any persons become partners, officers, directors or similar officials during this 6 month reporting period?- Yes □ . ' No S

If yes, furnish the following information:Name Residence Address Citizenship Position Date Assumed

5. (a) Has any person named in Item 4(b) rendered services directly in furtherance of the interests of any foreign principal? Yes □ No. 0

If yes, identify each such person and describe the service rendered.

(b) During this six month reporting period, has the registrant hired as employees of in any other capacity, any persons who rendered or will render services to the registrant directly in furtherance of the interests of any foreign pnncipal(s) in other than a clerical or secretarial, or in a related or similar capacity? • Yes □ No S

Name Residence Address Citizenship Position Date Assumed

(c) Have any emplpyees or individuals, who have filed a short form registration statement, terminated their employment or connection with the registrant during this 6 month reporting period? Yes D , No 0

If yes, furnish the following information:

Name Position or Connection Date Terminated

(d) Have any employees or individuals, who have filed a short form registration statement, terminated their connection with any foreign principal during this 6 month reporting period? Yes □ No 0

If yes, furnish the followirig:information: ' -

Name Position or Connection Foreign Principal Date Terminated

6. Have short form registration statements been fiied by all of tHe persons named in Items 5(a) and 5(b) of the supplemental statement?

Yes □ No □

If no, list names of persons who have not filed the required statement.


(PAGE 3)

II - FOREIGN PRINCIPAL

7. Has your connection with any foreign principal ended during this 6 month reporting period? Yes □ . No 0

[f yes, furnish the following information:

Foreign Principal Date of Termination


8. Have you acquired any new foreign principal(s)2 during this 6 month reporting period? Yes □ No ISO

If yes, furnish th following information:

Name and Address of Foreign Principal(s) Date Acquired

9. In addition to those named in Items 7 and 8, if any, list foreign principal(s)2 whom you continued to represent during the 6 month

reporting period.'

invest BarbadosEmbassy of the Principality of Monaco.

10. (a) Have you filed exhibits for the newly acquired foreign principal(s), if any, listed in Item 8?

Exhibit A3 Yes □ No □

Exhibit B4 Yes D No Q

If no, please attach the required exhibit.

(b) Have there been any changes in the Exhibits A and B previously filed for any foreign principal whom you

represented during this six month period? Yes Q ' No [El

If yes, have you filed an amendment to these exhibits? Yes □ No □

If no, please attach the required amendment.

2 Tbe term "foreign principal" includes, in addition to those defined in Section 1(b) of the Act, an individual organization any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major pan by a foreign government, foreign political party, foreign organization of foreign individual. (See Rule 100(a) (9)). A registrant who represents more than one foreign principal is required to list in the statements he flies under the Act only those principals for whom he

is not entitled to claim exemption under Section 3 of the Act. (See Rule 208.)

3 The Exhibit A, which is filed on Form NSD-3, sets forth the information required to be disclosed concerning each foreign principal.

4 The Exhibit B, which is filed on Form NSD-4, sets forth the information concerning the agreement or understanding between the registrant and theforeign principal. . '


III - ACTIVITIES


(PAGE 4)

11. During this 6 month reporting period, have you engaged in any activities for or rendered any services to any foreign principal named in Items 7,8, or 9 of this statement? Yes 0 No □

If yes, identify each foreign principal and describe in lull detail your activities and services:

Yes. For Invest Barbados Mr. Zagaris participated by phone/webinar in the international Business and Wealth Management Seminar breakfast program in Boston organized by Investment Barbados and spoke on the Benefits of Using Investment and Trade Treaties of Barbados.

12. During this 6 month reporting period, have you on behalf of any foreign principal engaged in political activity5 * * as defined below?

Yes 0 No □

If yes, identify each such foreign principal and describe in full detail all such political activity, indicating, among other things, the relations, interests and policies sought to be influenced and the means employed to achieve this purpose, If the registrant

arranged, sponsored or delivered speeches, lectures or radio and TV broadcasts, give details as to dates, places of delivery,

names of speakers and subject matter.

Yes. For Invest Barbados Mr. Zagaris participated by phone/webinar in the.Jnterriational Business and Wealth Management Seminar breakfast program in Boston organized by Investment Barbados and spoke on the Benefits of Using Investment arid Trade Treaties of Barbados. He could not see the attendees because he participated only by phone, but understands that between 10-20 professionals (e.g., lawyers, accountants and business persons) attended. He prepared a power point presentation and on the last slide marked it with the.dissemination requirement that it was prepared pursuant to his registration under the Foreign Agents Registration Act.

13. In addition to the above described activities, if any, have you engaged in activity on your own behalf which benefits your

foreign principal(s)? Yes E No □

If yes, describe fully.

See attachment with full explanation.

S "Political activity," as defined in Section l(o) of the Act, means any activity that the person engaging in believes will, or that the person intends to, in any way influence any

agency or official of the Government of the United States or any section of the public within the United States with reference to formulating, adopting or changing the domesticof foreign policies of the United States or with reference to political or public'interests, policies, or relations of a government of a foreign country ora foreign political party.


(PAGE 5)

IV - FINANCIAL INFORMATION

14. (a) RECEIPTS-MONIESDuring this 6 month reporting period, have you received from any foreign principal named in Items 7, 8, or 9 of this statement, or from any other source, for or in the interests of any such foreign principal, any contributions, income or money either as compensation or otherwise? Yes 0 No □

, If no, explain why.-


If yes, set forth below in the required detail and separately for each foreign principal an account of such monies.6

Date10/6/201710/19/201710/03/2017'10/19/2017

From Whom Purpose AmountEmb Princp of Monaco Payment for preparing FARA insert $250.00Emb Princp of Monaco Payment of FARA filing fee $305.00Invest Barbados Payment for preparing FARA insert $195.00Invest Barbados Payment of FARA filing fee $305.00

‘ $1055,00

Total

(b) RECEIPTS - FUNDRAISING CAMPAIGNDuring this 6 month reporting period, have you received, as part of a fundraising campaign7, any money oh behalf of any

foreign principal named in Items 7, 8, or 9 of this statement? Yes □ No 0

If yes, have you filed an Exhibit D8 to your registration? Yes □ No □

I f yes, indicate the date the Exhibit D was filed. Date.

(c) RECEIPTS-THINGS OF VALUEDuring this 6 month reporting period, have you received any thing of value9 other than money from any foreign principal

named in Items 7, 8, or 9 of this statement, or from any other source, for or in the interests of any such foreign principal?

Yes □ - ' No P '


Foreign Principal Date Received Thing of Value Purpose

6,7 A registrant is required to file an Exhibit D if he collects or receives contributions, loans, moneys, or other things of value for a foreign principal, as part of a fundraising

campaign. (See Rule 201(e)). •8- An Exhibit D, for which no printed form is provided, sets forth an account of money collected or received as a result of a fundraising campaign and transmitted for a foreign

principal.9 Things of value include but are not limited to gifts, interest free loans, expense free travel, favored stock purchases, exclusive rights, favored treatment over competitors,

"kickbacks,” and the like.

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(PAGE 6)


15. (a) DISBURSEMENTS-MONIESDuring this 6 month reporting period, have you(1) disbursed or expended monies in connection with activity on behalf of any foreign principal named in Items 7,8, or

9 of this statement? Yes (El No □

(2) transmitted monies to any such foreign principal? Yes □ No IE)

If no, explain in full detail why there were no disbursements made on behalf of any foreign principal.

If yes, set forth below in the required detail and separately for each foreign principal an account of such monies, including

monies transmitted, if any, to each foreign principal.

Date To Whom Purpose Amount

10/19/20.17 EmbPrincp of,Monaco . FARA fee $305.0010/19/2017 Invest Barbados FARAfee $305.00

$610,00

Total


(b) DISBURSEMENTS-THINGS OF VALUEDuring this 6 month reporting period, have you disposed of anything of value10 other than money in furtherance of or in

connection with activities on behalf of any foreign principal named in Items 7, 8, or 9 of this statement?

Yes □ No 0


Date Recipient Foreign Principal Thing of Value Purpose


(PAGE 7)

(c) DISBURSEMENTS-POLITICAL CONTRIBUTIONSDuring this 6 month reporting period, have you from your own funds and on your own behalf either directly or through any other person, made any contributions of. money or other things of value11 in connection with an election to any political

office, or in connection with.any primary election, convention, or caucus held to select candidates for political office?

. Ves D No 0


Date Amount or Thing of Value Political Organization or Candidate Location of Event

10,11 Things of value include but are not limited to gifts, interest free loans, expense free travel, favored stock purchases, exclusive rights; favored treatment over competitors,

"kickbacks," and the like.


V - INFORMATIONAL MATERIALS

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(PAGE 8).

16. (a) During this 6 month reporting period, did you prepare, disseminateor cause to be disseminated any informational materials?12

Yes 0 No □

If Yes, go to Item 17.

•(b) If you answered No to Item 16(a), do you disseminate any material in connection with your registration?

_ . Yes. □ No □ -

If Yes, please forward the materials disseminated during the six month period to die Registration Unit for review.

17. Ideritifyeach such foreign'principal. .......... ■" • ' ..

Invest Barbados

18. During this 6 month reporting period, has any foreign principal, established a budget or allocated a specified sum of money to

finance your activities in preparing or disseminating informational materials? •. Yes D • No lEl

If yes, identify each such foreign principal, specify amount, and indicate, for what period of time..

19. During diis.6 month reporting period, did your activities in ,preparing, disseminating or causing the dissemination of informational materials include the use of any of the following:

□ Radio or TV broadcasts □ Magazine or newspaper.. □ Motion picture films □ Letters or telegrams

D Advertising campaigns □ Press releases □ Pamphlets or other publications 0 Lectures or speeches.

E Other (specify) PowerPoint presentation on Benefits of Using Investment and Trade Treaties of Barbados ________ .

Electronic Communications

□ Email .

□ Website URL(s): . _____ .______________ .......................................... .................... .. .............. .............. .

D Social media websites URL(s):_______________________________________________ __________

□Other (specify) ;______________________________________________________^.. ___________ • . .

20. During this 6 month’reporting period, did.you disseminate or cause to be disseminated informational materials among any of the following groups:

□ Public officials □ Newspapers □ Libraries

‘ □ Legislators □ Editors □ Educational institutions

•. □ Government agencies □ Civic groups or associations □ Nationality groups

0 Other (specify) Lawyers, Accountants, Business Professionals

21. What language was used in the inforinational materials: •, ’

13 English - □ ..Other (specify) ■ ■

22. Didyoiffilewitlf die Registration Unit,TJiSipep^lrKnt of Justice acopyof each item of such informational materialsdisseminated or caused to be disseminated during thisv6 month reporting period? Yes ^ -.No® '

23. Did you label each item of such informational materials with the statement required by Section 4(b) of the Act?- . . Yes M No □ ' -■........................ - - ‘ . j..

12, The term informational materials includes.any oral, visual, graphic, written, or pictorial information or matter of any kind, including that published by . means of advertising,' books, periodicals, newspapers, lectures, broadcasts, motion pictures, or any means or instrumentality of interstate or.foreign commerce of otherwise! Informational materials

disseminated by ari agent of a foreign principal as part of an activity in itself exempt from registratiori, or an activity which by itself would hot require registration,-need .not be . filed pursuant to Section 4(b) of the Act



(PAGE 9)

VI-EXECUTION

In accordance with 28 U.S.C. § 1746, the undersigned swear(s) or affirm(s) under penalty of perjury that he/she has (they have) read the information set forth in this registration statement and the attached exhibits and dial he/she is (they are) familiar with the contents thereof and that such contents are in their entirety true and accurate to the best of his/her(their) knowledge and belief, except that the undersigned make(s) no representation as to truth or accuracy of the infoirriat ion contained in the attached Short Form Registration

Statement(s), if any, insofar as such information is not within his/her (their) personal knowledge.

(Date of signature) (Print or type name under each signature or provide electronic signature1,3)

August 24,2018 /s/ Bruce Zagaris eSigned

13 This statement shaH be signed by the individual agent, if the registrant is an individual, or by a majority of those partners, officers, directors or persons performing similar

functions, if the registrant is an organization, except that the organization can, by power of attorney, authorize one or more individuals to execute this statement on its behalf.

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Item 13, Page 4: In addition to the above described activities, if any, have you engaged in activity on

your own behalf which benefits your foreign principal(s)?

Answer: Yes.

On Sept. 1 through 3, 2017, Mr. Zagaris participated in the International Fiscal Association Congress in

Riode Janeiro.

On September 14-16,2017, Mr. Zagaris participated in the American Bar Association's Tax Section

meeting in Austin, Texas. On September 16,2017, he moderated a program at the Civil and Criminal Tax

Penalties Committee on Pressure from Foreign Governments and International Oirganizations on U.S.

Tax Practitioners.

On October 13,2017, Mr. Zagaris attended a lunch meeting of the Barbados delegation to the World

Bank.

On October 16-17,2017, Mr. Zagaris participated in a conference of the Association of Certified

Financial Crime Specialists in Boston, On October 17,2018, he moderated a program on tax

Transparency/Enforcement.

On October 25-27,20i7, Mr. Zagaris participated in the American Bar Association's Section of

International Law meeting in Miami. On October 25, he was a panelist in a program on Blacklisting

Offshore Jurisdictions: Elimination of Legitimate tools of Privacy and Corporate Finance or Important

Transparency Efforts. On October 27,2018, he was a panelist in a program on transnational

philanthropy.

On Nov. 6-8, 2017, Mr. Zagaris participated in the STEP Asia Congress. On November 7, 2018, he was a

panelist on Trumponomics: Impact on the World and Private Clients..

On Dec. 6-8,2017, Mr: Zagaris participated in the American Bar Association's National Institute on Tax

Fraud and Tax Controversy in Las Vegas, Nevada. On December 8, 2017, he was a panelist on a panel on

international issues.

On January 22-23,2018, Mr. Zagaris taught a module on corruption-based money laundering for the

International Anti-Corruption Academy at the World Bank.



THE BENEFITS OF USING INVESTMENT

AND TRADE TREATIES TO INVEST IN

BARBADOS! ■

INVEST BARBADOS - Wealth Management Breakfast program, Feb. 27, 2018, Boston, Mass.

Bruce-Zagaris .Berliner Corcoran & Rowe LLP.

1101 Seventeenth St. N.W., Ste. 1100Washington, O.C. 20036 ■ , .

(202)[email protected]

1


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I.

II.

III.

IV.

V.

VI.

VII. Viii

ix.x.

Introduction a'aa aaaaaVVaa taVaaa aaaaaa • • aâa'a.aaVaa • • aVa '•••.•a.aaaaa if fig *aa a a • a a a a a aji a a aaaaaa'a a 3 1Investment Agreements...;......Û....................i....................M-4'

Trade Agreements a ■ • m«i a a a a'a aaaa a imii aVaa'a a a * a a • i ana a a a'aji a a a «m a'aaa a a mmd a'jpaa aa_a a a aji’ a ■ 36

43

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High-Tech Services. ................ 53Developments (H.FL 4939) a'a aVaY a aWa a aVa •'a a a'aVaa’a aVa aiit a’a aVa im tVaa aVa" aaa VaVaâ 62

Potential Services Cooperation........ ...... 64

............................65

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I. INTRODUCTION

• A benefit to doing business in Barbados is the opportunity to take advantage of its investment and trade agreements. This presentation ; will cover: .- investment treaties

- trade agreements

- trade preference arrangements

— Caribbean Single Market Economy (CSME) •

• Barbados has served as an excellent jurisdiction from which to invest in the 9 countries with which ft has a BIT, such as China and Venezuela.

• The agreements provide better and stable investment and trade mechanisms and the long friendship between the two countries provides for a good political environment within which to invest and trade.• The CSME and trade preferential agreements Barbados has provide additional unique benefits.

3

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• A. Types of Useful Investment Agreements

- 1. Bilateral Investment Treatiesj ^ 2. Free Trade Agreements (i.e./NAFTA)

; - 3. World Trade Organizationa forum for establishing investmenti ' rules : •

- 4. Broad Coverage

- 5. Right of National and Most-Favored Nat ion Treatment - found in BITS

- 6. Resolution of Tax Disputes - submitted to ad hoc tribunals

li. INVESTMENT AGREEMENTS

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4-

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II. INVESTMENT AGREEMENTS

* BITS

• The investment provisions useful to international investors include

Ones in bilateral and multilateral investment treaties and the

investment chapters of free trade agreements.

, • Investment agreements broadly define investment.

- includes company or enterprise; financial instruments, such as shares of stock and other forms of equity, or bonds, debentures and other forms of debt; tangible property, including real property; intangible property, including intellectual property and rights such as leases, mortgages, liens, and pledges; contractual rights, including j profit-sharing rights, or rights conferred by law, having economic jvalue; and interests that are "owned and controlled, directly or indirectly."


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• Investment agreements have an expansive definition of investor. For this discussion I will use the Cuba-Barbados BIT as my example.

• This includes:

— anational of a State that is a party to the agreement (in the case of a Cuba-Barbados BIT);

- ah entity organized in a State that is party to the agreement (e.g., enterprise organized or constituted in Barbados, or established and recognized in Cuba, in the case of the Cuba-Barbados BIT).


i


6



• A covered investment is an investment in the territory of aninvestor of the other party, whether made before or after the date of entry into force of the. Agree ment \

• An investment means every asset that an investor owns, including,, though not exclusively,

•— Moveable and immovable property and any other property rights such as

, mortgages, liens or pledges;

— Shares in and stock and debentures of a company and any other form of

participation in a company;- Claims to money or to any performance under contract having a financial

value

Intellectual property rights, goodwill, technical processes and know-how

Business concessions.

7

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• The national treatment article of a BIT requires each party to accord to investors of the other party treatment no less favorable than that it accords, in like circumstances, to

investments or returns Of its own nationals or companies or to investments or returns of nationals or companies of any third

state.

• Neither party may in its territory subject nationals or companies Of the other party, as regards their management, maintenance, use, enjoyment or disposal of their investments, to treatment less favorable than that which it accords to its own nationals or

companies or to nationals or companies of any third State.

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8


• The Minimum Standard of Treatment provisions require each party to accord to covered investments treatment in accordance with customary international law, including fair and equitable

treatment and full protection and security.

• The concepts of "fair and equitable treatment" and "full protection and security" do not require treatment beyond that required by that standard, and do not create additional substantive rights.


• Other BITS (e.g., Art. 5 of the US Model BIT) explain that "fair and equitable treatment" includes "the obligation not to deny justice in criminal, civil, Or administrative adjudicatory proceedings in accordance with the principle of due process

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• Expropriation and Compensation

° Article 5(1) of the Barbados-Cuba.BIT precludes either party from expropriating or nationalizing a covered investment either directly or indirectly through measures equivalent to expropriation or nationalization with the following exceptions:

— for a public purpose related to the internal needs of a party;

— in a nondiscriminatory manner; and

— on payment of prompt, adequate, and effective compensation.


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)(. INVESTMENT AGREEMENTS

• The compensation must:

- Amount to the real value of the investment expropriated immediately before the expropriation ;

— Made without delay, andbe fully realizable and freely transferable.

• The national Or company affected must have a right, under the law of the host country, to prompt review, by a judicial or other independent authority of that party, of his or her case and of the

valuation of his or its investment.

i

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B. Corporate Nationality and BITS• The requirement of effective management of the

I f investingGompanyin the plaeeofincorpOratiqn was I primarily included in the 1987 ASEAN Agreement toI T avoid "protection shopping", i.e., the adoption of a 5 local corporate form without any real economic

cooperation to bring a foreign investment within the scope of treaty protection

• Yaung Chi Oo Trading Pte Ltd v. Myanmar, No. ARB/01/1 (ASEAN 2003), reprinted in 42 IL.M. 540; see 1987 MEAN Agreement, art 1(1) (requiring "effective management" in the home state)

. i

12

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• With respect to whether an entity should have

the protection of a BIT, the predominant

factor which must guide the Tribunal's

exercise of its functions is the terms in which

the parties to the BIT have agreed to establish

the Tribunal's jurisdiction and defined

"investor." The parties had complete freedom

of choice in this matter. Saluka v. Czech

Republic H241 (UNCITRAL 2005).


Heceived>byNSI>/FARARegistration Unit;. 08/24/2018' 4:55:20.PM

That agreed definition required only that the claimant-investor should be constituted under -the laws Of (in the present case) The Netherlands, and it iSndt topen to the tribunal to add other requirements, which the parties could themselves have added but which they omitted

II. /INVESTMENtAQREIMENTS

to add. :-,.s ■ • " ■;$ee;NetherlandsrCzech -BIT; art. l(b)(ji) ("investors" defined as "legal persons constituted under the law of one of the Contracting parties").

* smka 11 241, ■ ' ■

s

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14

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• Each investment or dispute resolution agreement defines eligibility, E.g., Article VII of the Algiers Accord, Claims Settlement Decl. states: "national" of Iran or of the US., as the case may be, means

• (a) a natural person who is a citizen of Iran or the U.S.; and

• (b) a corporation or other legal entity which is organized under the laws of Iran or the U.S. or any of its states or territories, D.C., Or the Commonwealth of Puerto Rico, if, collectively, national persons who are citizens of such country hold, directly or indirectly, an interest in such corporation or entity equivalent to 50% of more of its capital stock.



15

* Timing - "the critical date is the one on which the State adopts the disputed measure, even when the measure represents the culmination of a process or sequence of events which may have started years earlier. It is not uncommon that divergences or disagreements develop over a period of time before they finally 'crystallize' in an actual measure affecting the investor's treaty rights '' Levy v. Peru No. ARB/ll/17, Awards 149 (ICSID 2015); accord Philip Morris Asia Ltd. v. Australia, Award on Jurisdiction & Admissibility^ 532 (UNCITRAL 2015).

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• "Foreseeability" - The Tribunal first considers the point in time when a change of nationality can become an abuse of process..."the dividing-line occurs when the relevant party can see an actual dispute or can foresee a specific future dispute as a very high probability and not merely as a possible controversy...[Bjefore that dividing-line is reached, there will be ordinarily no abuse of process; but after that dividing-line is passed, there ordinarily will be." Pac Rim Cayman LLC v.El Salvador, No. ARB/09/12 Decision on Jurisdiction HH 2.96-2.99 (ICSID 2012).

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17

• Corporate restructuring even to attain BIT protection is "perfectly legitimate...as far as it

| concerned future disputes."! • But, "[w]ith respect to pre-existing disputes, the

situation is different" a restructuring "only in ; order to gain jurisdiction under a BIT for such

disputes would constitute.,.an abusive manipulation of the system of international investment protection under the ICSID Convention and the BITS." (quoting Phoenix Action v. Czech Republic (ICSID 2008).



18

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• The Chavez Government expropriation decree of May 2009 was not foreseeable in

; February/March 2009 when Barbadian nationality was established.

' • See Tidewater, Inc. v. Venezuela, No. ARB/10/5.Decision on Jurisdiction Till 197-98 (ICSID 2013) (Tidewater Barbados's claims, "insofar as they relate to causes of action that arose after its acquisition of the shares of Tidewater Caribe are subject to ICSID jurisdiction")

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• In Philip Morris Asia Ltd. v. Australia, Award on Jurisdiction and Admissibility U 585 (UNCITRAL 2015), the Tribunal concluded that the start of treaty based investor-State arbitration constituted an abuse of right (or abuse of process) when an investor has changed its corporate structure to gain the protection of an investment treaty at a point in time where a dispute was foreseeable.

• A dispute is foreseeable when there exists a reasonable prospect that; a measure may give rise to a treaty claim will materialize. Tribunal found the claim "inadmissible" because dispute was foreseeable at the time of transfer. Id. H 586.



C. Application of BITs to Taxation

• The ability of an investor to resort to the dispute resolution provisions of a BIT or investment rules of a free trade agreement can be enormously important in resolving many cross-border tax-related disputes. This section discusses in detail one case and in less detail a few others.

• Overlaps in legislation of BITS arid DTAs could lead to conflicting

laws. It is possible that a conflict between the rules of BITs and DTAs concluded by same countries can arise, esp. when tax matters are not excluded from the MFN clause of BIT.



• That conflict can be addressed using general rules for the resolution of conflicts of norms. BITs require nationality to be granted benefits, and DTAs require residency. If those requirements overlap, the investor could argue that it should receive the more favorable treatment of a third- party DTA by applying the BITs MFN clause.

• Hence, depending on the wording of the MFN clause, the BIT wouId extend the scope of a tax treaty.

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• Another issue is whether a misapplication or, or a

failure to apply, a DJA could be a violation of a BIT and whether an investment tribunal can apply a

| DTAto resolve an investment dispute.

• The wording of the jurisdictional clause of a BIT

may be decisive.

• When the phrase "disputes arising out of any

investment" is used, it can be argued that tax disputes are covered by a BIT.


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II, INVESTMENT AGREEMENTS

• The Yukos cases, which concerned the bankruptcy of Yu kps Oil Co. and the interests of its foreign i nvestors, illustrate some issues that arise when a tax case is arbitrated under an investment tribunal._ 'i

° The dispute was arbitrated under the energy charter. j

8 The tribunal found that the taxes imposed on Yukos had an effect equivalent to nationalization or expropriation, saying Russia's primary objective was to bankrupt Yukos and appropriate its valuable assets.

i


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• the tribunal found the tax assessments against Yukos were not considered bona fide treatment by Russia, and the various measures it took were meant to deprive Yukos of its assets.

| • Hulley Enterprises Ltd. (Cyprus) v. RussianFederation, No. AA 226 (PCA 2014); Veteran Petroleum Ltd. (Cyprus) v. Russian Federation, No. - AA 228 (PCA 2014); and Yukos Universal Ltd. (Isle j of Man) v. Russian Federation, No. AA 227 (PCA j

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D. Dispute Resolution

• Disputes between a national or company of one party (e.g,,Barbados) and the other party (e.g., Cuba) Concerning an obligation of the latter, after a period of 3 months from written notice Of a claim, must be submitted to international arbitration

if the investor so wishes.• The national or company and host country may agree to refer

the dispute to the Court of Arbitration of the ICC or an international arbitrator or an hoc arbitration tribunal to be appointed by a special agreement Or established under the Arbitration Rules of UN Commission on International Trade Laws as then in force.


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1. Occidental v. Ecuador

• An example of the use of a BIT to resolve a tax dispute is the case between Occidental Exploration and Production Co. (OEPC) and Ecuador.

• On July 1, 2004, an arbitral panel of the London Court of International Arbitration issued a final award in favor of OEPC, a U.S. company registered in California, in a dispute over VAT and other taxes against Ecuador.



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• The UNCITRAL tribunal held that Ecuador must pay OEPC

$71,533,649 plus interest.

• The tribunal's final award is an example whereby investors making transnational investments that encounter tax disputes can access a unique and sophisticated mechanism to resolve

those disputes. The case also shows how complex and involved resolving domestic tax issues can be. Here OEPC tried a consulta (Ecuadorian administrative proceeding) / litigation in Ecuadorian tax courts, and, ultimately, arbitration pursuant to the BIT.

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2. Other BIT Cases on Tax-Related Disputes

• In Encana v. Ecuador, an investor brought a claim under the Canada-Ecuador BIT, The tribunal noted that under the fair and equitable treatment standard, "the State must act with reasonable consistency and without arbitrariness in its treatment of investments."

• In this regard, one agency of the state cannot affirm what another agency denies to the detriment of the investor. The tribunal found that consistency is an element of the fair and equitable treatment standard. However, because Encana had not made that argument, the tribunal did not discuss it further.

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• In Continental Casualty v. Argentina, one of the many cases brought under the Argentina-U.S. BIT, Argentina developed a policy that converted dollar-denominated assets into pesos at a rate of ARS 1.4 to the dollar, as opposed to the prior rate of 1 to

1, even though the real value of the assets in fact decreased, Even with the decreased value, Argentina still imposed a capital gains tax on the increase in nominal value.

• The ICSID tribunal held that the tax was consistent with common tax accounting principles and hence was not arbitrary and did not violate the fair and equitable treatment standard.

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• In MCI Power v. Ecuador>■ a case was brought urider the Ecuador- U.S. Bit. The tribunal found that the conduct of the host state (Ecuador) toward the claim, which included threatening a tax audit, investigating its legal representative) and instituting litigation against it; consisted of legitimate regulatory acts rather than harassment. The MCI Power case illustrates how the investor may invoke the BIT to resolve tax and other nontax disputes simultaneously.

• The ability to demand both national and most favored nation treatment as well as fair and equitable treatment and treatment in accordance with international law provides considerable protection to investors.

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E. Business Planning Opportunities

• The BIT may enable a foreign entity to obtain the right to use

personnel of its choice and overcome difficult labor and immigration laws of a country.

• Article III of the Panama-U.S. BIT enables nationals and companies of a treaty party to hire professional, technical, and managerial personnel of their choice, regardless of nationality, to render technical and managerial assistance necessary for the planning and operation of their investment,

° Under existing U.S. law an alien must be a national of a foreign country to obtain a treaty trade or treaty investor classification under 8 U.S.G. section 1101(a)(15)(3).

° Hence, the BIT may help a company from a country with a favorable BIT to secure additional employment rights.

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• Another sector in which the BIT has potential use is defense procurement contracts. Since some countries are exempt from the Buy America Act, which restricts in government procurement the use of unmanufactured articles, material, and supplies not produced in the U.S., BIT partners through national or most favored nation treatment may also secure an exemption from the act.

• Such an exemption may permit BIT companies and foreign investors who engage in a joint venture with a company based in a BIT country the right to participate in bids on some lucrative federal contracts.


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it. i ' '•

X.

F. Barbados BITS

• Barbados has bilateral investment treaties (BITS) with the following countries in force: Canada, Cuba, Germany, Italy, the Mauritius, P.R.C Switzerland, Venezuela, and the U.K,

• Barbados has BITs with Ghana and Belgium-Netherlands-

Luxembourg that await ratification.• In recent years foreign investors have especially used the BITS

with the RR.C. and Venezuela.° Fora number of years Barbados was used as an intermediary to

invest in PRC commercial real estate. In that regard the BIT was

quite useful. •

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• In connection with foreign investment in Venezuela, foreigners have used Barbados because of its BIT and the ability to use the

BIT in the event of confiscation or investment disputes in Venezuela.

• In both the case of Venezuela and the P.R.C. the BIT was an excellent complement to the double tax treaty.

• As Cuba continues to liberalize, foreign investors are likely to use Barbados to invest in Cuba, both because of the BIT and DTA between Barbados and Cuba.



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III. TRADE AGREEMENTS

• Potential opportunities to do business in Barbados arise out of the potential ability to use provisions in the CARIFORUM-EC Economic Partnership Agreement ("EPA")and the Caribbean

Single Market and Economy (CSME).rI • '

The EPA

• The EPA is between the 28 EU members and the 15 members of CARIFORUM (Antigua 8t Barbuda, the Bahamas, Barbados, Belize, Dominica, the Dominican Republic, Grenada, Guyana, Haiti, Jamaica, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Suriname, and Trinidad & Tobago.

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• Although the IPA does not cover reduction of double taxation and tax information exchange policy, investors can take advantage of some double tax treaties.

• E.g., Barbados has treaties with several EU countries, such as Austria, Finland, Malta, the Netherlands, Norway, Sweden,

Switzerland, and the UK.

• The 1994 CARIGOM DTA may be useful.

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• The EPA enables an EC investor to establish a base in one of the CARICOM members and take advantage of the DTA.

• Hence EU investors may use of the Barbados DTAs with the EC countries to invest in the CARIFORUM countries.

• Similarly, investors in the CARIFORUM Countries can useBarbados and one of the aforementioned DTAs to undertake tax planning for the investments in the EU, esp. under the EPA.

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1. Services Liberalization

° The Agreement includes a Title on Services, Investment and E- commerce and the related schedules of commitments.

• The EU has made important new commitments in the areas of movement of service providers involving, for instance, sellers of goods, investors, shortterm business visitors, graduate trainees,

entertainers, artists> cooks, and fashion models.

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• the EPA grants persons in signatory States national treatment as

well as MFN treatment for services and investments.

• Investors of both CARIFORUM and the EU will be able to take advantage of these provisions.

• The EU opened more than 90% of the sectors in the W120 list used as basis for negotiations under the GATS.

• These include business services, communications, construction, distribution, environmental, financial, transport, tourism, and recreational services.

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2. Liberalization of Entertainment Sector

• 25 EU members will liberalize entertainment services.

• An Innovative protocol on cultural cooperation further provides

opportunity to export services.*r . .

• In the EPA the activities subject to liberalization include the

while range of artists arid cultural practitioners in music, dance, theater, and visual arts, as well as sculptors, authors, and poets.

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3. Investment

° EU has liberalized almost all investment sectors for CARIFORUM

persons.

- Gives temporary access for CARIFORUM professionals in 29 sectors. — It precludes signatories from limiting the participation of foreign

capital in terms of maximum percentage limits On foreign shareholding.

- Signatories cannot limit the total value of individual or aggregate foreign investment.EU cannot put quotas on the number of service suppliers that can enter the EU market.

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IV. CARICOM INVESTMENT AGREEMENTS

• CARICOM has bilateral, investment agreements with a number of countries in the Western Hemisphere, including Colombia, Costa

Rica, Cuba, the Dominican Republic, and Venezuela.

• They can be accessed cit

http://www.crnm org/index.php?optipn=com_content&view=ca tegory&id=44&ltemid=79

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• CARICOM countries also benefit from the Caribbean Basic Economic Recovery Act and CARIBCAN (Canadian Trade

i Preferences for the Caribbean).

| • Canada and CARICOM have held discussions with respect to3

extending the preferences.


V. CARIBBEAN TRADE PREFERENCES

ii

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VI. CARIBBEAN SINGLE MARKET ECONOMY (CSME)

• Key elements of the Single Market and Economy include:>

— Free movement of goods and services - through measures such as eliminating all barriers to intra-regional movement and harmonizing standards to ensure acceptability of goods and services traded;

- Right of Establishment - to permit the establishment of CARICOM owned businesses in any Member State without restrictions;

- A Common External tariff - a fate of duty applied by all Members of the Market to a product imported from a country which is hot a member of the market;

- Free circulation - free movement of goods imported from extra regional sources which would require collection of taxes at first point of entry into the Region and the provision for sharing of collected customs revenue;

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VI. CSME* • " * ’ ' • ' •

• Free movement of capital - through measures such as eliminating foreign exchange controls, convertibility of

j currencies (or a common currency) and integrated capital

market, such as a regional stock exchange)f ' .

I • A common trade policy - agreement among the members on! matters related to internal and international trade and aj

coordinated external trade policy negotiated on a joint basis;

• Free movement of labor ^ through measures such as removing all obstacles to intra-regional movement of skilis> labor and

travel, harmonizing social services (education, health, etc.), providing for the transfer of social security benefits and establishing common standards and measures for accreditation and equivalency.

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VI. CSME

• Other measures:- • ■

— Harmonization of Laws: such as the harmonization of company, intellectual property and other laws..

5 — There are also a number of economic, fiscal arid monetary| measures and policies which are also important to support theI proper functioning of the CSME. These include:

- Ecoriornic Policy measures: coordinating arid converging macro- econorhic policies arid performance; harrhohizirig foreigri investment policy and adopting measures to acquire, develop and transfer appropriate technology;

- Monetary Policy measures: coordinating exchange rate and interest rate policies as well as the commercial banking market;

Fiscal Policy measures: including coordinating indirect taxes and national budget deficits.



VI. CSMEt

• Caribbean Community, especially the Council on Trade and Economic Development (COTED) and the Council for Finance and Planning (CORAP), play an important role in regulating financial services within CSME.

• Some examples of accomplishing some of the goals of the CSME, such as free movement of capital, are discussed below.

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. VI.CSME

• Article 38 of the Revised Treaty calls for the removal of discriminatory restrictions on Banking, Insurance and other financial services.

• Article 39 requires CARICQM members not to introduce new restrictions on the movement of capital and payments connected with such movements.

• Under Article 42(1) of the Revised Treaty Member States must adopt measures to coordinate their foreign exchange policies in respect of the movement of capital between them and third States.

• The above-mentioned provisions of the Revised treaty are to facilitate the easy movement of capital from one Member State to another.

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VI. CSM

• Article 44 requires, among other things, that the Council on Trade and Economic Development (COTED) and the Council for Finance and Planning (COFAP) act to abolish exchange control in the Community, and facilitate the free convertibility of the currencies of the Member States; the establishment of an integrated capital market in the Community and convergence of macro-economic performance and policies through the coordination arid harmonization of monetary and fiscal policies, including, in particular, policies concerning interest rates, exchange rates, tax structures and national budget deficits.

• The Revised Treaty proposes to help harmonize economic policy through the integration of the financial and regulatory environments in which Member States are to operate.

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VI. CSM

• Within the CSME the dominant enterprises in the banking and financial service sectors are external (e.g., Canadian).

° The removal of financial barriers within the CSME will not only facilitate greater investment across the region, but also increase the Community's attractiveness as an area for investment by both regional and non-regional organizations.

* Financial integration will also increase the availability of capital to the entire region, which Would promote development at both

the national and regional level by increasing investment andimproving resource allocation-

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VI.CSME

• While CARICOM have proposed a Financial Institutions Bill and CARICOM Financial Services Agreement (CFSA) and the latter is

expected to play a crucial role by supporting the formation of a harmonized financial services market in which all economic entities will be governed by similar regulations, standards and conditions across the Community, neither the Bill or Agreement ard yet in place.

• As the Financial Institutions Bill, CFSA, and other mechanisms

become operational, stakeholders will undoubtedly challenge certain regulations and the CD will need to interplay and apply whether the mechanisms and regulations are legal under the

Revised Treaty.

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VII. HIGH-TECH SERVICES

• As the Trump Administration has tightened the ability of U.S. companies to bring H-1B workers, companies may want to look for new jurisdictions where they can locate highly skilled immigrants.

• The main industry which utilizes the Hl-B program is the high-tech sector, which

requires certain types of infrastructure to function effectively.

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• The H-1B visa allows foreign professionals to work in the U.S. for up to six years. The fast- track processing option has been utilized to fill positions for new projects on short notice.

• These visas are frequently used at large technology companies to bring top engineering talent to their U.S. offices. The U.S. allows only 85,000 people per year to enter the U.S. on H-1B visas.

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• On Feb. 22, 2018, the USCIS published a policy memorandum, clarifying that USCIS may request detailed documentation to ensure a legitimate employer-employee relationship is maintained while an emp oyee is working at a third-party worksite.

• The updated policy guidance aligns with President Trump's Buy American and Hire American Executive Order and the directive to protect the interests of U.S. workers.

• The guidance is the latest targeting Hl-B workers.

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° The inability of high-tech companies to quickly obtain H-1B applications for high-tech workers in the U.S. will mean that many of them will want to place the persons in a nearby jurisdiction where they can work with U.S. high-tech companies.

• The high-tech companies will want to continue to quickly bring persons from jurisdictions, such as India, so that they can work with them.

• To continue to work with them means that the U.S. high- tech companies will want to place these workers in a jurisdiction in the same time-zone, and one which has a good infrastructure, good living conditions, and is safe.

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• Barbados is relatively well-equipped to meet those needs. It is exceptionally well-connected

regarding telecommunications,

| • Barbados was ranked by the International

Telecommunications Union in 2007 as the

14th most wired country per capita in the

world.

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• In 1982, it became the first Caribbean nation

with fiber optic telecommunications cables.\ • i - 'I * Barbados has strong broadband internet access, with

| widely available Asymmetric digital Subscriber line

(ADSL) services, Frame Relay services, and additional,

more advanced services, including an advanced cloud

computing platform available to businesses throughout

the nation and provided by Digicel.

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• Barbados has invested heavily in terms of both resources and planning to create an infrastructure for ICT.

• Community Technology Programs have succeeded in placing computers in community centers across the country to establish nationwide access, and the government has invested millions in the Education Sector Enhancement Programme (ESEP, and previously known as EDUTECH), which succeeded in integrating information technology into Barbados' public and private schools.

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• Additionally, the government's multimillion dollar investment in ICT infrastructure has allowed them to fully utilize the infrastructure to provide additional services in many sectors, such as banking, insurance, and customs enforcement.

• One success story of the Barbadian investment in ICT infrastructure is that of AC/? Business Solutions.

• Founded by Barbadian husband and wife team Anthony and Celeste Foster, ACR has developed into an internationally recognized and utilized business services and data analysis firm.

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• AGR was one of the first companies in the Caribbean to enter the medical transcription business, and is now transitioning into the IT-intensive field of medical data coding.

• This work requires a qualified and skilled labor force, one which ACR has been able to find in Barbados and the greater Caribbean.

• ACR's success demonstrates the effectiveness with which the Barbadian investment in ICT education has been able to create conditions suitable for the development of a high-tech economy.


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VIII. Developments (H.R. 4939)

• On Dec. 16,2017, Congress enacted the United States-Caribbean Strategic Engagement Act of 2016.

• The Secretary of State, in coordination with USAID, must submit to the appropriate congressional committees a multi-year strategy for U.S. engagement to support the efforts of interested nations in the Caribbean region that:

• (1) identifies State & USAID priorities for US policy towards the Caribbean;

• (2) outlines an approach to partner with Caribbean governments to improve citizen security, reduce the trafficking of illicit drugs, strengthen the rule of law, and improve the effectiveness & longevity of the Caribbean Basin Security Initiative.


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viii. R.

• (3) establishes a comprehensive, integrated, multi-year strategy to encourage efforts of the Caribbean region to implement regional and national strategies that improve energy security;

• (4) outlines an approach to improve diplomatic engagement with the governments of the Caribbean region, including w respect to human rights and democracy;

• (5) describes how the U.S. can develop an approach to supporting Caribbean Countries in efforts to diversifytheir economies; and

• (6) describes ways to ensure the active participation of citizens of the Caribbean in existing program and initiatives administered by State's Bureau of Education and Cultural Affairs;

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IX. Potential Services Cooperation

• One potential area of new cooperation between Barbados and the Southeast U.S. region is tourism.

• Tourists in Northern Europe and Asia like to take long vacations (3-4 weeks).

• By having customized tourism joint ventures, Barbados and states in the Southeast can develop packages for heritage, sports, and cultural tours.

• The private sector can participate by offering discounts.

• The joint ventures can be formalized through tourism agreements; similar to the one between California and Mexico and the MOU betvyeen California and Israel.

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X. Conclusion and FARA Disclosure

• Barbados has a good mixture of investment and tradeagreements to accommodate direct investment in Barbados as well as the use of Barbados as an intermediary to invest in third

countries.

• This material is distributed by Berliner CorcOran & Rowe LLP on behalf of invest Barbados. Additional information is available at the Department of Justice, Washington, DC.

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Documents

I r REGISTRANT€¦ · 24/08/2018 · For Invest Barbados Mr. Zagaris participated by phone/webinar in the international Business and Wealth Management Seminar breakfast program