Turkey: Memorandum on Foreign Investors and on Trade of Capital Markets Instruments (Part 1 of 2)

LIST OF INDEX

I. SUBJECT MATTER

II. SUMMARY OF THE RELEVANT LEGISLATION

1. Governmental Decree no.

2. Communiqué About Governmental Decree no. 32, of the Treasury Undersecretariat (Communiqué no. 91/32-5)

3. Circular of the Turkish Central Bank

4. Capital Markets Legislation

5. Direct Foreign Investments Law

III. SALE OF SECURITIES IN TURKEY BY THE PERSONS RESIDENT ABROAD

1. Sales to Individual Customers/Private Placements

2. Public Offering of Foreign Capital Market Instruments

3. Public Offering of Foreign Capital Market Instruments by Their Owners

4. Allotment

5. Securities Issued by Foreign States and Local Administrations

6. Foreign Investment Funds

IV. PURCHASE OF CAPITAL MARKET INSTRUMENTS IN TURKEY BY THE PERSONS RESIDENT ABROAD

1. Individual Purchases

2. Ownership of Share Certificates Within the Frame of the Foreign Capital Investments LegislationPURCHASE OF SECURITIES ABROAD BY THE PERSONS RESIDENT IN TURKEY

VI. SALE OF SECURITIES TO ABROAD BY THE PERSONS RESIDENT IN TURKEY

VII. CONCLUSION

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MEMORANDUM ON FOREIGN INVESTORS AND ON TRADE OF CAPITAL MARKET INSTRUMENTS

Globalization (internationalization) of capital markets has increased import and export of securities by countries, and international capital flows have been directed towards various countries also through foreign capital investments, in addition to and beside the direct securities trade.

Therefore, we deemed it useful to review the legislation in respect of sale of the Turkish securities abroad and of purchase of foreign securities or foreign capital shares or stocks convertible into securities by the persons resident in Turkey.

After the governmental decisions taken on January 24, 1980, aimed at applying a more liberal approach in management of the national economy, first of all, some restrictions in the legislation about Protection of Value of Turkish Currency have been repealed, and recently, the rules of import and export of securities have been regulated by the Governmental Decree no. 32 About Protection of Value of Turkish Currency.

Article 15, which is still in force, of the Governmental Decree no. 32 contains the following provisions:

(15-a) It is free to import and export securities and other capital market instruments.

(15-b) Capital market instruments to be issued or offered to public by the legal entities resident in Turkey, except for the public bodies and authorities, may be freely sold within Turkey, subject to the condition of being registered and quoted in the Capital Markets Board in compliance with the current capital markets legislation.

(15-c) Persons resident abroad may issue and offer to public and sell securities and other capital market instruments in Turkey in accordance with the current capital markets legislation.

(15-d) i.Persons resident abroad (including, but not limited to, foreign investment partnerships and investment funds) may freely buy and sell all types of securities and other capital market instruments through banks and intermediary institutions authorized pursuant to and under the current capital markets legislation, and freely transfer the yields and proceeds of sale of these securities and instruments through banks and special financial institutions; and

ii. Persons resident in Turkey may freely buy and sell securities traded in the foreign financial markets through banks, special financial institutions and intermediary institutions authorized pursuant to and under the current capital markets legislation, and freely transfer the purchase price of these securities to abroad through banks and special financial institutions.

(15-e) Banks and intermediary institutions will submit information and reports about these transactions to the Undersecretariat in quarterly periods.

This Article provides that: "Persons resident abroad may freely make investments by founding companies, acquiring capital shares of existing or future companies, and opening branches, and engage in production of all kinds of goods and services, and open liaison bureaus in Turkey, providing that they obtain the required licenses in accordance with the 6224 Code for Encouraging Foreign Capital Investments, and carry out their operations in strict compliance with the licenses granted, and invest the specified capital."

The same Article contains the following two provisions as well. According to the Article:

Parallel to the Governmental Decree no. 32, Article 37 of the Communiqué contains the following provisions:

"Persons resident abroad will be licensed by the Treasury Undersecretariat to deal with commercial operations in Turkey, except for foundation of companies and opening of branches under the foreign capital investments legislation and Petroleum Code."

"Portion of the profit of commercial operations and the proceeds of liquidation and sale remaining after deduction of taxes, duties and similar other fiscal liabilities, of the persons resident abroad, within the frame of licenses received from the Treasury Undersecretariat, will be transferred by and through banks and special financial institutions."

Parallel to provisions of the Governmental Decree no. 32, the Turkish Central Bank has also stipulated the following provisions in Article 26 of its circular (no. I-M) related thereto:

"Persons resident abroad may freely make investments by founding companies, acquiring capital shares of existing or future companies, and opening branches, and engage in production of all kinds of goods and services, and open liaison bureaus in Turkey, providing that they obtain the required licenses in accordance with the 6224 Code for Encouraging Foreign Capital Investments², and carry out their operations in strict compliance with the licenses granted."

"Profits, dividends and similar revenues of the operations and activities carried out by these persons in Turkey under the licenses granted will be transferred directly by banks or special financial institutions upon demand of them. However, banks or special financial institutions will send the documents received from such persons at the time of fund transfer to the Ministry and the Central Bank, and will also inform the Ministry and the Central Bank about the transfer amount and its equivalent in USD and the date of transfer."

"Persons resident abroad will be licensed by the Treasury Undersecretariat to deal with commercial operations other than the activities under the 6224 Code* and Petroleum Law. The profits of such licensed operations, and the proceeds of liquidation and sale, and profits of ordinary partnerships other than ordinary partnerships and joint ventures founded solely for international tenders and contracts, will be transferred by banks and special financial institutions, providing that it is proven that all taxes, duties and other fiscal liabilities in connection therewith have been fully paid. The amount of transfer and its equivalent in USD and the date of transfer will be reported to the Central Bank."

Article 27 of the same Circular is quoted below:

"Persons resident in Turkey may freely export cash capital up to 5 million USD or its equivalent in any other currency through banks or special financial institutions and export capital in kind up to the same limit in accordance with the customs legislation in order to found companies, acquire shares of existing companies or open branches for investment purposes or other commercial operations abroad or in free trade zones in Turkey, and exportation of capital in cash and/or in kind in excess of 5 million USD is subject to a prior license to be received from the Ministry."

"Requests of persons resident in Turkey to export goods and set off the price of the exported goods from their capital subscriptions in the companies or branches to be founded or opened abroad, rather than directly making cash capital transfers abroad, will be made to, and examined and replied by the Treasury Undersecretariat."

"Obligation of reporting to the Treasury Undersecretariat in respect of capital exports for investments or commercial operations abroad and of foundation of liaison bureaus, representation offices and similar other offices abroad, will be subject to the provisions of Article 13 of the Governmental Decree no. 32 About Protection of Value of Turkish Currency, and obligation of reporting to the Central Bank will be subject to the principles of directives sent and given to banks and special financial institutions."

Article 28 of the Circular is as follows:

"It is free to import and export securities and other capital market instruments into/from Turkey."

"Persons resident abroad (including, but not limited to, foreign investment partnerships and investment funds) may freely buy and sell all types of securities and other capital market instruments through banks and intermediary institutions authorized pursuant to and under the current capital markets legislation, and freely transfer the yields and proceeds of sale of these securities and instruments through banks and special financial institutions. Moreover, persons resident abroad may freely issue, offer to public and sell securities and other capital market instruments in Turkey in compliance with the current capital markets legislation."

"Persons resident in Turkey may freely buy and sell securities traded in the foreign financial markets and transfer the purchase price of these securities to abroad and issue securities and other capital market instruments abroad and offer and sell them in the foreign financial markets."

"Banks, special financial institutions and intermediary institutions will issue and present reports and give information within the frame of the directives of the Central Bank."

Paragraph (m) of Article 22 "Basic Duties and Powers of the Capital Markets Board" of the Capital Markets Law 2499/3794 – 4487:

It is among the duties of the Board "to make, adopt and issue legislative arrangements required for export and public offering of capital market instruments in Turkey by the persons resident abroad, pursuant to and under the relevant legislation".

Paragraph 5 of Article 11 "Provisions About Issuers and Public Joint-Stock Companies" contains the following provisions under the heading "Joint Provisions":

"Bearer (certificates of deposited securities), identical to and giving the same rights with the deposited securities, may be issued for the purpose of facilitating circulation in the national or international markets within the rules and principles to be determined by the Board."

The "Communiqué About Principles of Quotation of Foreign Capital Markets Instruments", no. III/20, has been published in the Official Gazette on 20.03.1996, regulating the issues listed below:

The 6224 Law For Encouraging Foreign Capital Investments, together with the amendments made from time to time by various different laws, has been superseded and repealed by the Direct Foreign Investments Law published in the Official Gazette on 17.06.2003, containing provisions:

- for encouraging direct foreign investments;

- for protecting rights and interests of foreign investors;

- for compliance with the international standards in the "investment" and "investor" definitions;

- for replacing the "licensing and approval" system by the "information" system applicable on the direct foreign investments;

- for inclusion of the Turkish nationals resident abroad to the scope of "direct foreign investors";

- stating that the "direct foreign investments" term means capital in cash in the form of a convertible currency brought by the foreign investor from abroad and traded by the Turkish Central Bank; and

- stipulating that the foreign and local investors will be subject to "equal treatment" as also provided in the repealed Law.

At this point, it may be stated that the direct foreign investments can be realized only with foreign currencies included in the list of convertible currencies traded by the Central Bank pursuant to the special law provision, and TL, even if brought from a foreign country, is not usable as a means of payment, contrary to the Governmental Decree no. 32, and cannot, therefore, be used for a direct foreign investment.

Unless otherwise specified and ordered by (i) international agreements or (ii) special law provisions, the foreign investors are free to make direct foreign investments in Turkey.

The Law clearly and incontestably stipulates that unless it is absolutely necessary for public interests and unless a fair expropriation price is paid pursuant to the applicable laws and regulations, the direct foreign investments cannot be expropriated or nationalized.

According to the Law:

• net profits,
• dividends,
• proceeds of sale,
• proceeds of liquidation,
• indemnities,
• royalties payable under license, management and similar other agreements, and
• foreign credit principal and interest payments

relating to and arising out of the activities and dealings of foreign investors in Turkey may be "freely" transferred abroad through banks or special financial institutions.

Foreign capital companies can acquire and own ownership or limited rights in kind of real properties in the areas and zones where the Turkish nationals are allowed to acquire and own real properties.

Without prejudice to the right of reference of disputes to independent juridical courts, the national or international arbitration clauses for resolution of disputes may be incorporated in the agreements.

Non-cash capital will be assessed in accordance with the pertinent provisions of the Turkish Commercial Code. Foreign securities will be assessed on the basis of assessments made by the international assessment agencies or the concerned authorities of the country of origin.

Foreign "key" personnel may be recruited and employed with a prior consent of the Ministry of Labor and Social Security.

Foreign companies may be allowed to open a liaison bureau in Turkey, providing that such bureau does not directly engage in commercial operations.

The Law 4046 Regulating Privatization Practices and Amending Some Certain Laws and Governmental Decrees in Force of Law (published in the Official Gazette on 27.11.1994) does, as a matter of principle, not make any discrimination between local and foreign investors in purchase of shares offered for sale by way of privatization. Anyway, the law maker could not take a different action in terms of purpose of the privatization.

However, though the Law does not make any discrimination between local and foreign investors, Article 16 aiming at protecting competition as a result of privatization contains prohibition on distortion of market competition for certain reasons depicted and listed in the Law relating to the protection of consumer health and safety, economic interests and public interests, economic market requirements and operations in the markets of goods and services, including also a prohibition on monopolies, within the borders of the Republic of Turkey. In such cases, generally, sale of shares to foreign "monopolies" can be prohibited, just like the sale of shares to local monopolies.

No discrimination is made between the local and foreign investors in privatization, as also evidenced by a special provision incorporated in the "privatization methods" in Article 18 of the Law.

The sole provision of the Privatization Law which may indirectly dissuade purchase of shares by the foreigners is the provision added to paragraph (a) of Article 37 by the Law 4015 published in the Official Gazette on 2.5.1995. As per the said provision, the provisions of the "Law About Right of Coast Trading (Cabotage) in Coasts of Turkey and Business and Commercial Activities Within Territorial Waters and Ports of Turkey", no. 815, dated 19.4.1926, and the provisions of Article 823 of the Turkish Commercial Code no. 6762, dated 29.6.1956, are reserved. That law provision stipulates that the ports cannot be privatized by transfer of ownership, and that the ports can be privatized by any method, other than transfer of ownership, to the Turkish natural or legal persons and that if the buyer entity is a foreign capital company, the capital share of foreigners must not exceed 49% and the majority of votes therein must be held by the Turkish nationals, according to the company articles of association.

Though this provision does not directly prevent purchase of shares by the foreigners, it contains a certain dissuasive clause for foreign capital investments.