Thailand: Meeting Of The GMS Business Forum Plus

Last Updated: 14 June 2001
Article by David Lyman

Session IV. Enhancing Investment Attractiveness In GMS* Countries: Private Sector Point Of View

Mr. Chairman, fellow panelists, participants, ladies and gentlemen:

Few of you in this audience are new to the GMS. But all of you have faith in its future, otherwise you would not be here. What then can I advise you that you do not already know? What value added can I leave with you? While asking myself these and similar questions, the idea came to me as to how to prepare my presentation for today.

As a lawyer, I have learned that before I can advise clients, I have to ask a lot of questions, really a lot of questions; and do a lot of listening, really a lot of listening. Since I am being asked today as a private sector observer for my advice on enhancing investment attractiveness in the GMS countries, then true to my profession, I must first pose a cornucopia of questions. What follows are examples of the many more questions prospective investors often ask me and to most of which they expect me to have the answers. Maybe the advice I have been asked to give today will fall out from the many questions I am about to pose.

A little scene setting is in order so that the relevancy of my queries becomes clear.

I continue to find it astounding. For decades, all developing countries in this region have trumpeted that as a national priority, they want businesses to invest in their countries. Yet, with isolated exceptions, the officials and legislators of these countries do precious little to put themselves in the place of the very investors they wish to attract. Hence, they fail to adopt or implement those policies that would entice either a wide variety or targeted categories of businesses to come and stay.

Though obvious and often repeated, a platitude concerning business investors, whether domestic or foreign, is still not yet understood or accepted by those charged with investor responsibility. A business investor invests where he is welcomed, where his risks are predictable and quantified, and where he can make and keep a fair return on his investment. Anything less and he is not interested in investing there.

That's a very simple and straightforward proposition to which countries pay lip service but then when they act, they thwart. So, countries in the GMS need people like me. I make a living threading would-be investors through the morass and minefields of legislative, bureaucratic and judicial impediments and disincentives in order to provide the countries what they say they want and need for national economic and social development.

Being a second generation American, of European extraction, to be domiciled in Asia, my family having first settled in East Asia in 1945, 55 years ago, I have learned several lessons as to my own role in this geography:

  1. The countries and peoples of the GMS are extremely diverse in their culture, history, customs, moralities, religions, resources, political systems, legal traditions, economies and economic objectives, state of technological development, social goals, educational levels, life rhythms and commitment to building a sustainable society. This diversity exists not just between countries but also within regions of each member country. Hence, any advice must be specific and tailored, not general. No one fix fits all.
  2. Despite my long-term residence and dedication to Southeast Asia, I am still a foreigner, educated and steeped in the ways of western orientation though tempered with some of the wisdom of eastern philosophies . Hence, some may deem my advice suspect as harboring a hidden agenda or lacking in appreciation that my ways are not the ways of Asia.
  3. For a variety of reasons, government officials, businesspersons, academics, members of civil society and other people sometimes don't like to hear my analysis and the advice that I give. When I am right, the truth almost always helps, while its disclosure may hurt. I am criticized for being blunt, forthright, critical, insensitive and opinionated. When I am wrong, they don't listen anyway. But in my 64 years on this planet, I have been proven right far more often than I have been found to be wrong.

Enough scene setting. Now to the questions.

To preface, though it may sound as if I am lecturing, really I am not trying to be pedantic or difficult. My purpose in asking the probing questions which follow is to force interested persons to identify what they really want; and consistent therewith, what they can realistically expect to get; and finally, what the consequences are of getting what they seek.

Let's start off with some fundamental inquiries:

What is the purpose of "investment"? Why have it? What constitutes "Investment Attractiveness"?

First, what is "investment"? Is it money - capital? loans? financing? stock market/securities acquisitions/trading? insurance? industrial hardscape? equipment? buildings? Does it depend on whether it is long term, medium term or short term? From domestic sources? From foreign sources? By governments? From private sources? If other than money - do services, education, scholarship, training, software, multilateral assistance, advice and consultation equate to investment? If not money or services, is it the time of people - voluntary or paid? What is investment?

"Attractiveness" to whom and from whose point of view - to governments? To politicians? bureaucrats? technocrats? military? police? From the top down? From the bottom up? Attractiveness to the domestic private sector? To the foreign private sector? To labor? NGOs? farmers? rural communities? urban communities? To the regional neighbors? And attractiveness compared to what or to whom ? Each of the countries in the GMS has its own policies, emphasis and interpretations towards what they consider attractive for them, so much so that even the same words used can have different meanings from one country to another. This is not unusual, for in the law we say that reasonable men can differ.

What are the measures of attractiveness? The measures are as varied as the persons who judge attractiveness. What may be a desired goal by one could be deemed an impediment by another. Beauty, it is said, is in the eye of the beholder.

More to the point, what does business look for before making a financial or people commitment to a country in the GMS? A starting postulate is that, like flowers which can bloom in the desert, business, generically, can function in almost any environment provided certain conditions exist. The ground rules for the conduct of business, i.e. the rules of the game, whatever they may be, must be clear and be consistently applied. They must be understood and observed by all concerned with the conduct, regulation and control of business. These ground rules can not be changed easily at someone's whim. Changes in the rules of the game generate concern and consternation among investors.

Stability of government is required, though political systems or policies may differ and change. Predictability, transparency, efficiency, tolerance and honesty by those governing, firmness yet fairness in treatment, strict but even-handed application and enforcement of the rules for the benefit of society and not of interest groups or personalities, are all characteristics which are scrutinized.

If a business acts responsibly in the community, and not all do, then will it be left alone to conduct itself to meet its stated and approved objectives, make and keep its profits from its successes, or suffer its losses for its failures? Is the administration of justice in a country such that the sanctity of contracts is honored, contracts are enforced in the courts and the rights of investors and individuals are protected in a reasonably expeditious and fair manner free from prejudice?

Will a business, which does not act responsibly, be disciplined promptly, appropriately yet fairly consistent with the measure of its wrongdoing? Will business be able to rely on government to govern wisely and to intervene only when absolutely necessary? Is a balance between force and reason exercised? Will government, business and civil society be able to work and live in harmony? Will each be able to call upon the others for help, support and guidance when such would benefit the community, however limited or extended that might be?

These, among others, are indices of attractiveness from the point of view of business.

To attract business investment, if that is a priority objective of a country within the GMS, then are the desires, limitations, restrictions and expectations of that country clearly defined, stated, underscored and understood at all levels of government? Are they consistently applied to both the domestic as well as foreign communities without discrimination? Has that country set in place, or is it genuinely in the process of doing so, the governing, and social, financial, political, bureaucratic and legal frameworks to meet its objectives? Are overlapping or conflicting jurisdictions of government agencies identified and coordinated to minimize the friction of turf battles and working at cross-purposes?

How much hypocrisy and corruption can one expect to encounter? What is being done to expose and punish the corrupt? Are economic or ecological nationalism, xenophobia, criminal activities, social tensions and injustices, labor unrest or racial intolerance, political vacuums, complacency, self-indulgence, incompetence and ecological irresponsibility present or prevalent?

How much support is there for cultural preservation and openness and tolerance to individual expression in the arts, music, theater, the media and the press? What is the level of acceptance, absorption and adaptation of new ideas, outside influences, change, new and different procedures and methods? Are officials of government as well as businesspersons held accountable for their infractions, actions and inaction? What is the commitment to the Rule of Law? To social responsibility?

Compare political will to political posturing. To what extent are the individual countries of the GMS willing to acknowledge and accept that they have problems of one kind or another? How do they identify and tackle those problems to find practical, realistic and cost effective solutions or compromises within a reasonable timeframe? Asian solutions perhaps? No one has a monopoly on good ideas, and as I said in the beginning of this analysis, no one fix fits all.

The questions potential investors ask me can continue endlessly. For instance, what are individual national policies, practices, atmospheres and attitudes towards globalization, free and fair trade, decentralization, privatization, entrepreneurship, social welfare, wealth creation, income disparity, taxation? What encouragement exists for promotion of tourism, public health, general healthcare and disease control, population planning; information technology, e-commerce and the New Economy? What is the inducement for and availability of access to the flow of information, to compel formal education and support the drive for knowledge acquisition and its application?

There are more questions. What resources have been committed to fighting against air, water, ground, waste and noise pollution, to reducing energy demand, to protecting the environment, to reforestation, to ocean, fresh water and natural resources conservation and management? How committed is the country to industrialization, agricultural and infrastructure enhancements? What is being done to curb organized crime, money laundering, extortion, bribery and cronyism? Is the correction of social, racial and religious intolerance being stressed and monitored? What is the state of relations with neighbors, and of personal, national and regional security? Are minds and dialogues kept open and active between all participants of the social experiment called modern civilization?

Businesses exist to make and keep a profit. Is this principle acceptable to the countries of the GMS? In that light, are the countries of the GMS responsive to the needs of investors as seen through the eyes of an investor? Do investors entertain only realistic goals and expectations and have they done their homework about the countries in which they are interested? Are those businesses committed to being good corporate citizens? Is the GMS and its peoples worth all the effort from the viewpoint of the investor? Are the demands of business worth sacrifices and concessions from the viewpoint of the countries of the GMS? Is this line of inquiry leading to an unrealizable Utopia?

In the parlance of today, what is the level of care and commitment in the GMS by the public and private sectors to do what has to be done for as long as it takes to achieve "attractiveness" for investment or other legitimate objectives of society? Is there genuine belief in the openness, transparency, accountability, stability and good governance of both the public and private sectors? Does the mindset exist to allow the enjoyment of the rewards of work, involvement, investment, leisure, of preserving from the past and creating for the future that which is good and comforting?

If you find the recitation of all these questions overwhelming or tedious, then you are not a believer in attracting investment. Answer these questions honestly and you will begin to see the value the subject of this session, "Enhancing Investment Attractiveness in GMS Countries".

Unless they dropped out from my list of questions, I don't have all the answers. But I hope that by posing some probing questions, I might have triggered some creative thoughts or sparked challenging insights among those charged with discovering the answers or making plans happen.

To further assist those interested, I have attached to this paper two checklists of selected general items which most businesses doing due diligence will want or need to know about doing business in any given country. One is prepared by Lex Mundi, the world's largest association of independent law firms of which my law firm, Tilleke & Gibbins, is the member for Thailand, Cambodia and Vietnam. The second is the product of my law firm prepared to respond to the dreaded investor question, "What should I have asked you which I haven't asked you?" And worse yet, " What should I have asked you before I invested?" Now, if you still want my advice……………Well, maybe I've said enough for one afternoon

* "GMS" means "Greater Mekong Subregion" of Southeast Asia which encompasses those countries bordering on the Mekong River -Yunnan Province of southern China, Laos, Thailand, Cambodia and Vietnam.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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