2013 Kuwait Investment Climate Statement
Openness to Foreign Investment
The State of Kuwait controls eight percent of the world's proven petroleum reserves, Kuwait earned approximately KD 14.7 billion (USD 52.2 billion) from energy exports in the first seven months of the 2012/2013 fiscal year (Kuwait’s fiscal year runs from April 1 to March 30). The country has a population of approximately 3.8 million, including approximately 2.7 million expatriate workers, and a nominal 2011 Gross Domestic Product (GDP) of KD 44 billion (USD 157 billion), representing a 16% increase compared to the previous year. Kuwait's national budget overwhelmingly relies on petroleum revenues (approximately 50% of nominal GDP and 94.4% of the government’s revenues come from oil revenues). Low levels of Foreign Direct Investment (FDI) limit efforts to diversify the economy away from the petroleum sector. In 2011, Kuwait attracted USD 399 million of FDI. According to the World Bank’s 2013 Ease of Doing Business Report, Kuwait ranked 82 out of 185 countries in terms of ease of doing business, which is last among the Gulf nations. Kuwait was also ranked 142 for ease of starting a new business. In the Heritage Foundation’s 2012 Index of Economic Freedom, Kuwait ranked 71 out of 179 countries, with its economy considered "moderately free."
Regulations Governing Foreign Investments
Major barriers to foreign investment remain, including regulations barring direct involvement of foreign entities from the petroleum and real estate sectors, long bureaucratic delays in starting new enterprises, agency and sponsorship requirements, and a local business culture heavily based on clan and family relationships that often preclude foreign participation. On November 26, the Amir enacted a new Commercial Companies Law by emergency decree in order to ease the process of doing business in Kuwait. The decree is currently pending parliamentary approval. The new law replaces the Commercial Companies Law of 1960 and comes after 23 years of discussion and debate. The law includes the following key changes:
Under Kuwait's Direct Foreign Capital Investment Law of 2001, foreign firms are permitted 100 percent foreign ownership in certain industries including: infrastructure (water, power, waste water treatment, and communications); insurance; information technology and software development; hospitals and pharmaceuticals; air, land and sea freight; tourism, hotels, and entertainment; housing projects and urban development; and investment.
Projects involving oil and gas exploration and production are not authorized for foreign investment within Kuwait due to the prevailing interpretation of the Kuwaiti Constitution that limits such activities.
The Direct Foreign Capital Investment Law is designed to promote foreign investment in Kuwait. It authorizes tax holidays of up to ten years for new foreign investors; facilitates the entry of expatriate labor; authorizes land grants and duty-free import of equipment; provides guarantees against expropriation without compensation; ensures the right to repatriate profits; and protects the confidentiality of proprietary information in investment applications, with penalties for government officials who reveal such data to unauthorized persons. New investors are protected against any future changes to the law. Full benefit of these incentives, however, is linked to the percentage of Kuwaiti labor employed by the new venture. The investor is also obliged to preserve the safety of the environment, uphold public order and morals, and comply with instructions regarding security and public health. Although the Direct Foreign Capital Investment Law is on the books, foreign companies still report numerous delays in obtaining approval to operate in Kuwait.
Kuwait Foreign Investment Bureau
The Direct Foreign Capital Investment Law created the Kuwait Foreign Investment Bureau (KFIB) to promote and screen all proposals for FDI in Kuwait. After reviewing an FDI proposal, KFIB submits its recommendations to the Foreign Capital Investment Committee (FCIC), which includes representatives from the Ministry of Finance, the Chamber of Commerce and Industry, the Public Authority for Industry, the Kuwait Investment Authority (KIA), and the Central Bank, and meets monthly to review applications for foreign investment. Foreign companies have reported numerous delays in gaining authorization from the committee, including delays of up to 18 months for approval.
Although KFIB has land to allocate to new foreign investors, most of this land is undeveloped and lacks infrastructure to support new companies. Any request for land under a Build Operate Transfer (BOT) program must be approved by Kuwait’s BOT committee. In addition, once KFIB approves a project, foreign investors must still obtain necessary permits from other Government of Kuwait (GOK) entities to implement their projects. In July 2012 a “One-Stop-Shop” was launched in Kuwait in order to streamline the licensing and permit process and locate all required offices under one umbrella organization. Kuwait’s new Commercial Companies Law mandates the official creation of a permanent one-stop-shop in order to ease the process of doing business in Kuwait and lower administrative wait times associated with the licensing and permit process.
Government Funded Projects
Under the 1964 Public Tenders Law, all bids for government-funded projects (excluding military and security programs) in excess of KD 5,000 (USD 17,500) must be submitted to the Central Tenders Committee (CTC). Foreign companies may not bid on these contracts unless they partner with a Kuwaiti agent, who is responsible for submitting the tender documentation to the CTC. The new Commercial Companies Law does not propose any changes to the local agent requirements for foreign companies to operate in Kuwait. The Parliament’s Financial Committee passed a new CTC bill to the Cabinet in October 2011. The bill includes increasing the existing ceiling for direct contracts that do not require CTC approval from KD 5,000 to KD 20,000 (USD 72,000) and mandating that a single tender not be allowed to be redistributed as sub-tenders.
Foreign firms are excluded from investing in the upstream petroleum sector (based on the prevailing interpretation of constitutional provisions that make all natural resources the property of the Kuwaiti people), although they are permitted to participate in some downstream activities. Dow Chemical Company of Michigan and the Petrochemical Industries Company (PIC), a subsidiary of Kuwait Petroleum Corporation (KPC), each own 42.5% of the Equate Petrochemical Company joint venture, established in 1995. Dow and PIC also agreed in November 2008 to establish a 50-50, USD 17.4 billion joint venture firm, called K-Dow Petrochemicals. On December 28, 2008, however, the GOK instructed Kuwait’s Supreme Petroleum Council to cancel the joint venture in light of the 2008 economic downturn. The deal had attracted sharp criticism by some members of Parliament and Dow filed a USD 2.5 billion lawsuit against PIC. In March 2012, a UK arbitration court awarded Dow USD 2.16 billion in damages for the canceled contract. Dow is still awaiting payment and the case has been referred to local courts. The deal has since served as a negative example for foreign companies seeking to do business in Kuwait.
The nationalized oil industry continues to dominate Kuwait's economy, despite some diversification efforts by the government. The government acquired major holdings in private Kuwaiti firms, particularly banks and insurance companies, following stock market crashes in 1979 and 1982. After Kuwait’s liberation from Iraq in 1991, the government passed a debt settlement law, and purchased outstanding debt arising from the stock market crashes and the Gulf War. Between 1995 and 1998, the government successfully divested over 50 percent of its equity holdings in private firms, by selling off its full holdings in 28 firms and portions of its holdings in 17 other firms, earning around USD 3.2 billion. In September 2012, the GOK increased the amount of a deducted percentage of state oil revenues for a “Future Generations” reserve fund from 10 to 25 percent effective from the fiscal year 2012-2013 to be managed by the Kuwait Investment Authority.
Kuwait Stock Exchange
Established after the 1982 stock market crash, the KSE is the fourth largest stock exchange in the GCC (after Saudi Arabia, Qatar, and the UAE’s combined stock markets), with a market capitalization of KD 28.3 billion (USD 101 billion) as of December 31, 2012. In February 2010, the Kuwaiti Parliament passed legislation to establish the first ever Capital Markets Authority (CMA) to oversee the KSE's operations and procedures. Five commissioners were appointed to the CMA's Board of Directors in September 2010 and its bylaws went into effect beginning in March 2012. As companies seek to restructure their debts following the Global Financial Crisis, some have faced difficulties in meeting new CMA regulations and have either been delisted or suspended from trading on the bourse. Currently, 200 companies are listed on the KSE (12 of which are non-Kuwaiti companies), and 14 companies were delisted from the exchange in the last year for violating KSE and CMA financial reporting requirements. The CMA has faced challenges as it transitions itself into a new market regulator.
The privatization of the bourse has also been on hold for three years, now slated for March 2013, to allow the CMA to settle in as a regulatory body. In December 2012, press reported that the Kuwait Stock Exchange faced additional legal obstacles to privatization. Mahdi Al-Jazzaf, Vice-Chairman of Kuwait's Capital Market Authority, said selling the bourse risked being stymied by a clause in Kuwaiti law forbidding the CMA from carrying out commercial activities, meaning it could not operate the stock market as a company before selling it, forcing it to sell its stake prematurely. Any changes to the law would require passage through parliament, likely to further delay the privatization process. The GOK hired HSBC Bank to oversee the KSE privatization process.
The banking sector was opened to foreign investment under the Direct Foreign Capital Investment Law. The Central Bank has granted licenses to ten foreign banks thus far: BNP Paribas and HSBC, both of which began operations in 2005; Citibank and the National Bank of Abu Dhabi, which commenced operations in 2006; Qatar National Bank, which began operations in 2007; Doha Bank, which opened an office in 2008; Dubai-based Mashreq Bank, which commenced operations in 2009; and the Bank of Muscat and the Riyadh-based Al Rajhi Bank (the largest Sharia-compliant bank in the world) in 2010. The Bank of Bahrain and Kuwait (BBK) has operated in Kuwait since 1977. In June 2012, the Industrial and Commercial Bank of China (ICBC) received preliminary approval from the CBK to open a branch as the eleventh foreign bank to operate in Kuwait.
While foreign banks operate in Kuwait, they are restricted to opening only one branch, offering only investment banking services, and are prohibited from competing in the retail banking sector. Foreign banks are also subject to a maximum credit concentration equivalent to less than half the limit of the largest local bank, and are expressly prohibited from directing clients to borrow from external branches of their bank or taking any other measures to facilitate such borrowing.
Kuwait Airways Privatization
A law to privatize Kuwait Airways, which continues to operate at a significant loss and faces increasing competition from regional rivals, was approved by the Parliament in January 2008. Under the law, the company was scheduled to be transformed into a private company within two years, after two independent international auditors valued the company's assets. Under the law, thirty-five percent of Kuwait Airways will be sold to a core investor, either local or foreign, with the highest bid. Forty percent will be sold to Kuwaiti citizens through an initial public offering, while government institutions will retain twenty percent of the company. Five percent will be distributed to existing Kuwaiti employees. As part of the privatization, forty-two percent of the new company's employees must be Kuwaiti, whose minimum salaries will be set by the government. The government-owned corporation will be re-organized as a company owned by the KIA. After four years of delay in the privatization process, the Amir enacted an emergency decree to transfer KAC into a shareholding company. The parliament ratified the decree in January 2013. The new company will retain many of its current advantages such as fuel discounts and exemption from customs duties. The decree appointed a new board to oversee the KAC privatization process over a three year timeline.
In 2004, the Kuwaiti Government ended Kuwait Airways' de facto air transportation monopoly with the passage of an Amiri Decree, and granted a license to Jazeera Airways, a low-cost airline that began operations in late 2005 and now owns eleven aircraft. In October 2011, Jazeera Airways obtained USD 200 million in financing to purchase four additional aircraft over the next three years. Another private airline, Wataniya, was licensed and formed in 2005, and began operations as a premium class, regional airline in January 2009 with seven aircraft. However, Wataniya declared bankruptcy and halted operations in March 2011. A third license was granted to LoadAir Company, a Kuwaiti-based international cargo airline company, which is not yet operational due to lack of financing.
Three private mobile telephone companies now operate in Kuwait, with the government maintaining significant minority interests in all, while foreign companies own major stakes in two. The three companies are Mobile Telecommunications Company (known as Zain), National Telecommunications Company (known as Wataniya), and VIVA, which launched operations in December 2008 after an initial public offering to the Kuwaiti public raised KD 25.6 million (USD 89.6 million). Wataniya's majority owner is foreign-owned Qatar Telecommunications Company, while 26 percent of VIVA is foreign-owned by Saudi Telecom. In October 2012 the Kuwait Investment Authority sold its entire 24 percent stake in Wataniya to Qatar Telecom (Q-Tel), increasing Qatar’s stake in the corporation from 52.5 percent to 92.1 percent. Qatar Telecom reported that their total stake in Wataniya amounted to KD 519.1 million (USD 1.8 billion). Zain had been in talks to sell a controlling stake of the company, worth USD 12 billion, to UAE’s Etisalat, but negotiations were terminated in March 2011 when a deal could not be reached. None of the other communication services are privatized, though privatizing landlines has been discussed for several years.
The energy and power sector has seen limited progress in privatization. Eighty of the 120 government-owned gas stations were privatized between 2004 and 2005. One public and two private competing gas station companies now operate in Kuwait. Privatized petrol stations in Kuwait have equal access to subsidized gasoline as the remaining state-owned stations. The government-owned lubrication plant was privatized in 2004, as were coke smelter operations.
In May 2008, Kuwait Petroleum Corporation (KPC) announced that it had awarded contracts worth USD 8.3 billion to one Japanese and four South Korean engineering and construction companies to build a new oil refinery, known as the Fourth Refinery, following repeated delays over the past decade. However, this project was canceled in March 2009. Upon political pressure, the tendering process was reviewed and found illegitimate, as it was not awarded under the CTC bidding process. On December 4, 2012, the Kuwait National Petroleum Company, KPC subsidiary, signed consultancy services contracts with UK company AMEC and U.S. company Foster Wheeler, respectively, to upgrade existing refineries and to build a fourth refinery. The Engineering, Procurement Constructiont (EPC) contracts for these projects are expected to be tendered in January 2013.
In November 2010, KPC announced its intention to spend USD 90 billion over the next five years, as part of its strategy to boost oil production capacity to four million barrels per day by 2020. This also includes expenditure on oil investments abroad, including refineries in Vietnam and China, upgrading the current oil tanker fleet, and launching major petrochemical projects.
In 2012, Kuwait Oil Company (KOC), a KPC subsidiary, awarded approximately USD 2 billion in contracts in the first three quarters of the year, its lowest amount in the past four years. In 2011, KOC concluded USD 2.6 billion in contracts, which represented an 80 percent decrease from the 2010 total of USD 11 billion. The awarded contracts for 2012 are as follows:
Opportunities for Investment in BOT Projects
Build, Operate and Transfer (BOT) projects are gaining some acceptance in Kuwait, with BOT projects proposed in the power, waste water, real estate development, and transport sectors. The largest BOT project to date is the Sulaibiya Waste Water Treatment contract, signed in May 2001. The winning consortium, which included U.S. firm General Electric, projected revenues of USD 390 million over 10 years. The project, which was commissioned in 2004, now processes 50 million gallons of wastewater per day for irrigation uses. In January 2012, the Cabinet approved a plan to expand the plant from current capacity of 425,000 to 600,000 cubic meters a day, in order to meet projected demand.
A new BOT law was approved by the Parliament in January 2008 after BOT projects came under intense scrutiny by the State Audit Bureau in late 2006 for alleged violations, with several contracts being cancelled. The new law establishes a high commission for state properties, and bans any government institution from allocating state land to any project without the approval of the new commission. It also stipulates that new companies will be established to implement major projects on state land with a 40 percent share sold in an auction to an investor (presumably a local holding company), 50 percent sold to Kuwaiti citizens in an IPO, and the remaining 10 percent sold to a local or foreign company implementing the project. The law limits the term of BOT contracts to 30 years, with the exception of "special" projects that can continue for up to 40 years. Special projects may not exceed a value of USD 900 million, but are not specifically defined by category. Kuwaiti and foreign investors have commented that the time frame for BOT projects is too short for companies to recoup their investments, and have called for amendments to the law.
In February 2010, the GOK passed a major development plan comprising 1,100 projects totaling KD 30.8 billion (USD 107.8 billion), which includes the creation of a Silk City, a planned financial and commercial hub and free trade zone with 700,000 residents. The Silk City program (and other associated projects) is expected to be undertaken on a BOT basis, according to the Minister of State for Housing and Development Affairs.
Corporate Taxation in Kuwait
Foreign-owned firms and the foreign-owned portions of joint ventures are the only businesses subject to corporate income tax, which applies to both domestic and offshore income. No corporate tax is currently applied on entities incorporated in the GCC which are 100% owned by GCC nationals. In February 2008, a new tax law to reduce the tax rate on foreign companies from 55 percent to 15 percent went into effect. This amendment created a flat tax on the annual profit of foreign companies. Capital gains arising from trading in securities listed on Kuwait’s stock market are exempt from tax. However, dividend income is subject to 15% withholding tax. Foreign principals selling goods through Kuwaiti distributors are not subject to tax. However, foreign principals selling goods through local agents are taxable as are franchisors of foreign brands. Under the new Direct Foreign Capital Investment Law, new foreign investors may be exempted from all taxes for up to 10 years if approved by the Foreign Capital Investment Committee.
Kuwaiti shareholding companies listed on the KSE are required to contribute 2.5% of annual profits to the National Labor Support Tax, which supports employment of Kuwaitis in the non-government sectors. All Kuwaiti shareholding companies are subject to "zakat," (a religious tithe) at one percent of profits. In addition, all Kuwaiti shareholding entities are required to contribute one percent of their earnings directly to the Kuwait Foundation for the Advancement of Science (KFAS).
There is no personal income, property, inheritance, or sales tax in Kuwait for Kuwaitis or non-Kuwaitis. As part of a region-wide GCC plan, the GOK announced its intention to harmonize with the GCC VAT law, with the original deadline set for 2015; however, GCC action to implement VAT has been delayed.
Tax exclusions for foreign business expenses, besides those offered under the Direct Foreign Capital Investment Law, are limited, and Kuwait's tax code is often ambiguous. For example, tax deductions are only two percent for agent commissions and a maximum of 1.5 percent for head office overhead expenses. The most significant tax ambiguity exists in terms of defining foreign companies' taxable presence in Kuwait, and several foreign firms are engaged in ongoing disputes over their tax liabilities. Kuwait has tax treaties with over 45 countries but not currently with the United States.
Kuwaiti Offset Program
In 1992, the Cabinet established the Counter-Trade Offset Program, whereby foreign contractors receiving large government contracts are required to undertake investments in the local economy. In April 2006, Kuwait established the National Offset Company to manage, enforce, and review all offset proposals. Offset obligations are applied to military contracts of a value equal to or above KD 3 million (USD 11 million), civil/government contracts of a value equal to or above KD 10 million (USD 36.5 million), and all downstream oil/gas contracts. Oil and gas exploration and production (upstream) contracts are excluded from the offset program. Offset obligations amount to 35 percent of contract value with varying offset multipliers to target investment into specific sectors of Kuwait’s economy. A bank guarantee of six percent of the contract value is expected to be provided to the NOC until the offset obligation is fulfilled. The National Offset Company is currently revising its guidelines on specific types of offset projects and several foreign companies have voiced their challenges in finding projects that are approvable by the NOC due to seemingly opaque guidelines on how to re-invest the offset amount.
The current offset guidelines have a number of challenges.
Conversion and Transfer Policies
Since May 2007, the Kuwaiti dinar has been linked to an undisclosed basket of major world currencies. There are no restrictions on current or capital account transactions in Kuwait, beyond the requirement that all foreign exchange purchases be made through a bank or licensed foreign exchange dealer. Equity, loan capital, interest, dividends, profits, royalties, fees and personal savings can all be transferred in or out of Kuwait without hindrance. Under the Direct Foreign Capital Investment Law, investors are also permitted to transfer all or part of their investment to another foreign or domestic investor and there are no restrictions on cash transfers.
Expropriation and Compensation
There have been no recent cases of expropriation or nationalization involving foreign investments in Kuwait. As a safeguard, the Direct Foreign Capital Investment Law guarantees against expropriation or nationalization, except for the public benefit, in accordance with existing laws; in this case, compensation will be provided without delay for the real economic value of the project at the time of expropriation. The last case of nationalization occurred in 1974, when Kuwait’s oil industry was nationalized, and the GOK negotiated with BP and American Gulf Oil Company to purchase the 40% share owned by the two companies.
The Direct Foreign Capital Investment Law stipulates that Kuwaiti courts alone are responsible for adjudicating any disputes involving a foreign investor and other parties, although arbitration is permitted. Few contracts in Kuwait contain clauses specifying recourse to traditional commercial arbitration. According to the Central Bank of Kuwait, the Kuwaiti judicial system recognizes and enforces foreign judgments only when reciprocal arrangements are in place. Kuwait is a signatory to the International Center for the Settlement of Investment Disputes (ICSID, i.e., the Washington Convention) and to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Under Kuwaiti law, selling securities without a local license nullifies the transaction.
Kuwaiti Legal System
Kuwait has a developed legal system and a strong trading history that is influenced by Islamic law. As a traditional trading nation, Kuwait's judiciary is familiar with international commercial laws. Kuwait has been a member of GATT since 1963 and joined the WTO in January 1995. Kuwait, however, is not a signatory to the WTO Government Procurement Code.
Kuwaitis and non-Kuwaitis, including U.S. citizens, who have been charged with criminal offenses, placed under investigation, or involved in unresolved financial disputes with local business partners, are subject to travel bans. These bans, which are rigidly enforced, prevent the individual from leaving Kuwait for any reason until the matter is resolved. Travel bans can be initiated by any person for almost any reason and may remain in place for a substantial period of time while the case is being investigated.
In order to protect their interests, U.S. firms are advised to consult with a Kuwaiti or locally-based foreign law firm when executing contracts with local parties. Contracts between local and foreign parties serve as the basis for resolving any future commercial disputes. The process of resolving disputes in the Kuwaiti legal system can take years depending on the complexities and parties involved.
Performance Requirements and Incentives
Law No. 37 of 1964 (Articles 43 and 44) specifies the use of local products when available and prescribes a ten percent price advantage for local firms in government tenders.
There are no specific restrictions on foreign participation, public or private, in government-financed or subsidized research and development. The Kuwait Institute for Scientific Research (KISR) has expressed interest in working with foreign firms and national laboratories in establishing new programs and buildings for renewable energy and energy efficiency programs. Currently, various U.S. governmental and non-governmental entities are engaged in scientific cooperation in Kuwait.
Visa requirements for citizens of thirty-four nations, including the U.S., were relaxed in 2004, allowing for visa applications upon arrival at the airport. However, since 2006, persons entering on tourist visas will no longer be able to convert to work permits without first leaving the country. Any problems experienced by potential U.S. visitors should be referred to the U.S. Embassy in Kuwait or to the Bureau of Consular Affairs, U.S. Department of State.
In 1993, Kuwait publicly announced its decision to end enforcement of the secondary and tertiary Arab League boycotts of Israel. Although there are occasional reports that some tender requests contain boycott clauses reportable under U.S. anti-boycott laws, these usually result from clerical errors or the use of outdated forms. Kuwait maintains an open boycott office in its Customs Department, and has stated that it will wait for Arab League action before eliminating the primary boycott of Israeli-owned companies and goods produced in Israel.
Right to Private Ownership and Establishment
Rights to private ownership and establishment are respected in Kuwait, although foreigners face selected restrictions. Licenses from the Ministry of Commerce and Industry and appropriate municipality are required for the establishment of all new companies, and government authorization is required for any incentives offered by the Direct Foreign Capital Investment Law. The new Commercial Companies Law, currently pending parliamentary approval, is intended to simplify the process for registering new companies in Kuwait and reduce wait-times associated with starting a new business, but a law mandating that a Kuwaiti national own at least 51 percent of all local companies remains in place. As stated above, foreign ownership is restricted or prohibited in some sectors of the economy, and non-GCC citizens may not own land in Kuwait. Some foreign investors cite this latter restriction as a major disincentive to foreign direct investment and launching new businesses in Kuwait.
Kuwaiti law severely restricts the types of collateral to which creditors may have recourse in the event of default by a borrower. Banks may not foreclose on residential real estate property or personal possessions in the event of default, although they may sue the borrower for the balance due under the loan contract. Borrowers typically pledge a portion of their future severance benefits as collateral for a bank loan.
Protection of Intellectual Property Rights
Intellectual property rights in Kuwait are currently protected by a series of patent and trademark laws passed or updated in 1999 and 2001. Kuwait is a member of the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO), having become a signatory to the WIPO Convention in 1998. Kuwait has also been a member of, and signatory to, the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement since 1995, though Kuwait's 1999 and 2001 IPR laws and associate amendments did not bring Kuwait into full compliance with TRIPS.
Kuwait remains on the Watch List in the 2012 Special 301 Report. The United States welcomes continued progress on enforcement against copyright piracy and trademark counterfeiting. However, weaknesses in the GOK’s IPR protection and enforcement continue to represent barriers to U.S. exports and investment. According to the International Intellectual Property Alliance (IIPA), software piracy in Kuwait amounted to a loss of USD 39 million in 2011. Key issues cited in the report include the lack of deterrent criminal penalties and excessive delays in the enactment of key pieces of IPR related legislation, which have been pending for years. Draft IPR legislation is currently under review within the legal committee of the Cabinet. The United States provided comments on the draft law in June 2012 and continues to encourage Kuwait to pass WTO-compliant IPR legislation. While draft legislation remains stalled, the GOK has exerted efforts to improve enforcement and bring greater public awareness to the issue. Officials from the Ministry of Justice (MOJ) and the MOCI participated in USG-sponsored IPR training in May 2012 and requested additional embassy assistance in conducting workshops and trainings related to IPR issues. Several members of the MOCI, MOJ, and Customs Authority have also traveled to the United States for USG-led IPR-related training courses.
Transparency of the Regulatory System
While Kuwait's open economy has generally promoted a competitive market, Kuwait has not developed effective antitrust laws to foster competition, and its bureaucracy often resembles that of a developing country. When government intervention occurs, however, it is usually to the benefit of Kuwaiti citizens and Kuwaiti-owned firms.
Efficient Capital Markets and Portfolio Investment
Kuwait has a free, but inefficient, capital market where credit is allocated on market terms. Foreign investors can obtain credit through local banks and terms are determined by the foreign investor’s collateral level and the intended use of the financing. With the help of government subsidies, the financial markets, and particularly the commercial banks, operated throughout the 1980s primarily to collect funds to re-lend to favored customers. Payment discipline was lax and real economic losses common. Under a bank stabilization program introduced in 1992, the Central Bank of Kuwait purchased all of the outstanding domestic credits of Kuwait's commercial banks, while eliminating all guarantees for profits, equity, and liabilities other than the banks' deposit liabilities. Henceforth, all losses would stay with the banks, which would be responsible for the management of all their assets and liabilities. In January 2010, the National Assembly passed a law requiring banks to write off interest on personal and consumer loans for Kuwaiti citizens, and to reschedule the principal debt over a minimum of 10 years, in exchange for government deposits. The government vetoed the law because of its technical, constitutional and procedural shortcomings. Kuwait’s government and the newest parliament, seated on December 16, 2012, have discussed a new proposal to write off interest on personal and consumer loans for all Kuwaiti citizens.
In December 2011, the Central Bank reported that the total assets for the banking sector equaled KD 48.5 billion (USD 173.2 billion). Twenty-one banks currently operate in Kuwait: five (conventional) banks, five Islamic banks, ten foreign banks, and one specialized bank. Conventional banks include: market leader National Bank of Kuwait (NBK), Commercial Bank of Kuwait (CBK), Gulf Bank, Al-Ahli Bank of Kuwait, and Burgan Bank. Sharia-compliant banks include Kuwait Finance House (KFH), Boubyan Bank, Kuwait International Bank (formerly Kuwait Real Estate Bank), Al-Ahli United Bank (formerly Bank of Kuwait Middle East), and the newly established Warba Bank. In addition, the Industrial Bank of Kuwait, a government-owned bank, provides medium and long-term financing to industrial companies and Kuwaiti citizens through customized financing packages.
Confidence in the local banking sector was affected by the global financial crisis and Gulf Bank's announcement in October 2008 that it had incurred large losses. Following this announcement, the Council of Ministers and Parliament promulgated legislation guaranteeing deposits at local banks in an effort to rebuild confidence in Kuwaiti banks. The Central Bank worked with Gulf Bank and key shareholders to orchestrate a USD 1.4 billion recapitalization subscription, with the KIA acting as the buyer of last resort. Since 2008, the banking sector, including Gulf Bank, has seen a steady recovery and regained liquidity.
The Kuwaiti banking sector first opened to foreign competition in 2001, under Kuwait’s Foreign Direct Investment Law. In January 2004, the National Assembly expanded the legislation to permit 100 percent foreign ownership of banks. Foreign-owned bank branches, however, are not allowed to compete in the retail banking sector and are restricted to having one branch office in Kuwait. The Central Bank has granted licenses to ten foreign banks.
Regulatory Norms for Banking Sector
The quality of local banks varies from internationally recognized to weak. Some bank assets have been non-performing in the past. The balance sheets of some local banks are heavily weighted towards lower-yielding government bonds. Legal, regulatory, and accounting systems are opaque, but are generally consistent with international norms. The Central Bank of Kuwait requires annual reports from local banks to meet international accounting standards. U.S. businesses are advised to seek local legal and financial advice for complicated investments and transactions.
2011/2012 Financial Statements from the Banking Sector
The profit/losses and assets of Kuwait's largest conventional and Shariah-compliant banks as of June 30, 2012, were:
(USD 1 equaled KD 0.280 as of December 31, 2012)
Competition from State Owned Enterprises
Kuwait’s economic policy remains oil based and state dominated. There are few fully state owned enterprises outside the upstream oil sector, with the exception of Kuwait Airways. The government does own shares in Kuwaiti shareholding companies across the spectrum of the economy, either through KIA or Kuwait’s Public Institution for Social Security
In July 2001, the Kuwaiti government announced an ambitious five-year privatization program. However, the plan, which called for privatizing gas station outlets, part or all of Kuwait Airways, postal services, certain telecommunications services, the Ports Authority, the Public Transport Company, and the power and water sectors, was, for the most part, not implemented.
In May 2010, the Parliament passed a new privatization law, creating a higher privatization council to be headed by the Prime Minister. The law stipulates that a public shareholding company should be established before privatizing any public service. Under the law, forty percent of any such company’s shares will be sold to citizens in an initial public offering. Twenty percent of the shares will be held by the government, with five percent distributed to existing Kuwaiti employees. The remaining thirty five percent will be sold at an auction to a local or foreign investor. Kuwaiti employees will have the right to retain their jobs in the privatized service for at least five years with the same salary and benefits.
With the exception of the oil sector, where private ownership is prohibited, state-owned enterprises do not appear to have material advantages in business operations. Arguably, the state-owned enterprises, which are subject to strict government tendering rules and the oversight of the State Audit Bureau and Kuwait’s Parliament, are far less nimble than their private sector competitors.
The Kuwait Petroleum Corporation (KPC), the umbrella for all of Kuwait’s state-owned oil companies, is governed by a Board of Directors, with the Minister of Oil as the chairman. It also reports to a policymaking and oversight body, the Supreme Petroleum Council, headed by the Prime Minister, with participation from both private sector and government officials. The operating budget for KAC and its subsidiaries are subject to parliamentary approval.
Kuwait Investment Authority
Kuwait’s Sovereign Wealth Fund, the Kuwait Investment Authority, manages the Kuwait General Reserve Fund and the Kuwait Future Generations Fund. In March 2012, the Amir enacted a budgetary decree to increase the portion of state oil revenues allocated to the Future Generations Fund from 10 to 25 percent. KIA’s management reports to a Board of Directors, the members of which are appointed by the Council of Ministers. The Board is chaired by the Minister of Finance and includes seats allocated to the Minister of Oil, the Central Bank Governor, the Undersecretary of the Ministry of Finance, and five Kuwaitis who represent the private sector, three of whom are not allowed to hold any other public office. The five-member Executive Committee, of whom at least three are private sector appointees, is formed by the Board. The Chairman of the Executive Committee is the Managing Director, who is appointed by the Board. The primary role of the Executive Committee is to assist the Board of Directors in setting strategic goals and objectives for KIA.
KIA maintains both an internal audit office (which reports directly to the Board of Directors) and an external audit team. Additionally, KIA is overseen by a Board Audit Committee comprising two private sector Board members and chaired by the Minister of Finance. The Managing Director participates in Board Audit Committee meetings as an observer. The external auditor, the State Audit Bureau (SAB), audits KIA on a continuous basis and issues an annual report to the National Assembly. Various committees in the National Assembly, such as the Finance and Economic Committee, the Budget Committee, and the Closing Accounts Committee, review the comments of the SAB audits.
KIA is prohibited by law from publicly discussing the size of its holdings and avoids any but the most general discussions of asset allocation. KIA holds closed-door presentations on the full details of all funds under its management, including its strategic asset allocation, benchmarks and rates of return, for the Council of Ministers and the National Assembly.
Corporate Social Responsibility
Corporate social responsibility (CSR) in Kuwait is largely manifested through contributions to local charities. Kuwait National Petroleum Company won the Arabia Networld Award for CSR champions from MENA region in 2012, while Kuwait’s EQUATE Petrochemical Company won the top Middle East CSR award for 2012. Companies and the general public are aware of corporate responsibility as it pertains to contributions to local charities and consumers hold charitable giving in high regard.
Spontaneous and planned demonstrations take place in Kuwait from time to time in response to world events or local developments. At times, even demonstrations intended to be peaceful can turn confrontational and possibly escalate into violence. Potential investors and U.S. citizens are encouraged to remain in contact with the Embassy for up-to-date information.
Contentious relations between the government and opposition in Kuwait resulted in numerous public rallies during the year, with street protests occasionally turning violent. Anti-government demonstrations took place in Autumn 2012 and in the run-up to the December 2012 parliamentary elections in protest of an Amiri decree to amend Kuwait’s electoral laws. The protests brought out some of Kuwait’s largest crowds to date, and police officers used tear gas and other non-lethal means to disperse illegal gatherings and marches. While protests continue in Kuwait from time to time, they have considerably de-escalated following the completion of the Parliamentary elections.
The often lengthy procurement process in Kuwait occasionally results in accusations of attempted bribery or the offering of other inducements by bidders. This is a crime in Kuwait and there are currently several investigations and trials underway involving current or former government officials accused of malfeasance. In 1996, the government passed Law No. 25, which requires all companies securing contracts with the government valued at KD 100,000 (USD 364,931) or more to report all payments made to Kuwaiti agents or advisors while securing the contract. The law similarly requires entities and individuals in Kuwait to report any payments they received as compensation for securing government contracts.
Transparency International's 2012 Corruption Perceptions Index (CPI) ranked Kuwait 66 out of 176 countries. Kuwait was ranked sixth in the Arab region out of 18 countries and the fifth among the Gulf Nations after Qatar, UAE, Bahrain and Oman. Kuwait's CPI score of 4.4 (out of 10) indicates it has a "serious corruption problem," according to Transparency International.
Bilateral Investment Agreements
Kuwait has signed bilateral investment agreements with 45 nations, but not with the U.S. Kuwait signed a Trade and Investment Framework Agreement (TIFA) with the U.S. in February 2004. The TIFA is the first step in developing economic reform and trade liberalization criteria to strengthen the U.S.-Kuwait economic relationship. At the first bilateral TIFA Council meeting, held in May 2004 in Washington, D.C., it was agreed that the TIFA process would provide for periodic technical discussions on issues including intellectual property rights, standards- related issues, taxation, and service and investment requirements. The last TIFA Council meeting took place in 2008. In October 2009, Kuwait expressed interest in a Bilateral Investment Treaty with the U.S. The U.S. and the Government of Kuwait continue to be engaged in exploring discussions on the topic. In January 2013, Kuwait’s Ministry of Finance provided the U.S. with a draft treaty entitled “Agreement for the Encouragement and Reciprocal Protection of Investments” and proposed bilateral discussions.
On October 2012, the U.S. signed a TIFA with the Gulf Cooperation Council, comprised of Kuwait, Saudi Arabia, the United Arab Emirates, Qatar, Bahrain, and Oman. The Framework Agreement is intended to supplement and build upon the US’s engagement with individual member states on bilateral issues.
OPIC and Other Investment Insurance Programs
In 1989, Kuwait concluded an agreement with the U.S. on investment guarantee programs, which facilitated the extension of programs from the Overseas Private Investment Corporation (OPIC) to Kuwait. Kuwait is also a member of the Multilateral Investment Guarantee Agency (MIGA). Currently there are no OPIC programs in Kuwait.
Kuwait has a diverse labor force, with expatriate laborers accounting for approximately 65% of Kuwait's resident population and approximately 85% of all employees. Kuwaiti nationals occupy most of the top management positions in the private and public sectors. Due to a welfare system that includes guarantees for government jobs, unemployment among Kuwaitis is less than five percent, but it is rising as a result of a growing influx of young Kuwaitis entering the labor force (20,000 to 25,000 annually). The new entrants are reluctant to enter the private sector and cannot be absorbed by the government, where underemployment remains a serious problem. The GOK currently employs approximately 80% of the Kuwaiti workforce.
A number of white-collar workers from OECD countries in Kuwait occupy primarily high-skilled positions and many middle management positions are occupied by Egyptian, Lebanese, and South Asian nationals. The vast majority of expatriate workers are low-paid laborers from other Middle Eastern countries, South Asia, and the Philippines. Since liberation, the GOK has adopted inconsistent policies intended to limit and discourage growth of the resident expatriate population. The government has instituted a quota system on work permits designed to protect workers by preventing Kuwaitis from importing unnecessary workers and then leaving those workers in the street. Unskilled foreign workers are restricted from transferring from one sponsor to another within the private sector for a minimum of two years, but college graduates may transfer after one year. The government has also levied new fees on expatriate workers and their families in order to raise the cost of employing foreign workers. At the same time, the government has reduced the minimum salary required for expatriates in some business categories to be eligible to bring their family members to Kuwait. The minimum salary was lowered from KD 400 (USD 1,400) per month to KD 250 (USD 875) per month. However, these and other regulations have not stemmed widespread abuse of the sponsorship system. The Ministry of Information estimates that as many as 70,000 foreign laborers are in Kuwait on illicit residency permits.
Kuwaiti Labor Laws
Kuwaiti workers have the right to organize and bargain collectively, but Kuwaiti law restricts the right of freedom of association to only one union per occupational trade and permits only one federation, the Kuwait Trade Union Federation (KTUF), which comprises 15 of the 47 licensed unions. Foreign workers, who constitute the vast majority of the work force, are permitted by law to join unions only as non-voting members after five years of work in the particular sector the union represents. The right to strike is also recognized for private sector workers, although provisions calling for compulsory negotiation and arbitration in the case of disputes limit that right. Kuwaiti labor law prohibits anti-union discrimination.
Separate Kuwaiti labor laws establish work conditions in the public and private sectors, with the exception of the oil sector. Forced labor is prohibited and the minimum age for employment is 18 years in industrial or dangerous jobs. Some youth under the age of 18 may be allowed to work part-time in some non-industrial positions. A two-tiered labor market ensures high wages for Kuwaiti employees while foreign workers, particularly unskilled laborers, receive substantially lower wages. In the private sector, the minimum wage is KD 60 (USD 210) per month. In the public sector; the current minimum wage is KD 250 (USD 875) per month for Kuwaiti bachelors and KD 325 (USD 1137.5) per month for married Kuwaitis, plus KD 50 (USD 175) for each child, compared to a standard minimum wage of KD 90 (USD 315) for non-Kuwaitis in the public sector. Kuwaitis employed in both the private and public sectors also receive substantial government subsidies on top of their base salaries. The amended labor law of February 2010 did not change the previous work week limitation from 48 hours, but extended annual leave to 30 days after 6 months of employment. However, the law is not consistently enforced and disputes over the payment of salaries and contract-switching are common, especially among unskilled workers. Current labor laws do not apply to domestic servants.
The International Labor Organization's (ILO) Committee of Experts has reiterated its longstanding criticisms of the discrepancies between the Kuwaiti Labor Code and ILO Conventions 1, 30 and 87 regarding work hours and freedom of association. Areas criticized by the ILO include the prohibition of more than one trade union for a given field; the requirement that a new union have at least 100 workers; the regulation that workers must reside in Kuwait for five years before joining a trade union; the denial of the right to vote and to be elected for foreign trade unions; the prohibition against trade unions engaging in any political or religious activity; and the reversion of trade union assets to the Ministry of Social Affairs and Labor in the event of dissolution.
Human Rights and Trafficking
The State Department's annual Trafficking in Persons Report highlights the vulnerability of domestic servants to exploitation. Partly on account of the plight of domestic servants and other workers in Kuwait, the State Department's 2012 Trafficking in Persons Report listed Kuwait as a "Tier 3" country of concern. In February 2010, Parliament enacted a private sector labor law, updating the antiquated 1964 law. The new law provides private-sector workers with longer leave, higher severance pay, and maternity leave. It requires payment of salaries to bank accounts, rather than cash transfers. It also contains a provision for the establishment of a state-owned recruitment company to oversee the importation of foreign labor, a move intended to eliminate visa trading and illicit recruitment of foreign workers, which has not yet been established. However, the new law’s provisions do not apply to domestic workers.
In June 2007, Parliament ratified a law that bans all women from working from 8:00 p.m. to 7:00 a.m., except for those working in the medical sector and other sectors approved by the Minister of Social Affairs and Labor. The law also bans all women from working in jobs that are hazardous, rough and damaging to health, as well as in "immoral jobs that abuse women's femininity" and in places that exclusively serve men.
Foreign Trade Zones/Free Trade Zones
In July 1995, Parliament passed Law No. 26 authorizing the Ministry of Commerce and Industry to establish free trade zones in Kuwait. In May 1998, the privately-owned National Real Estate Company (NREC) signed a contract with the Ministry to operate, manage, and market the 50 square-kilometer Kuwait Free Trade Zone (KFTZ) at Shuwaikh port, which was inaugurated in November 1999. Many restrictions faced by foreign firms, such as corporate taxes, technically do not apply to offices or plants within the KFTZ. Some 90 percent of space within the KFTZ has been leased and the majority of firms operating in the zone are Kuwaiti. However, both Kuwaiti and foreign businesses report that the Shuwaikh Free Trade Zone is subject to a wide array of regulations by both the central and municipal governments.
In November 2006, the Cabinet Council issued Resolution No. 507/2006 terminating the NREC's contract and suspending all its activities at the FTZ area, due to accusations that the NREC was mismanaging the FTZ. The NREC appealed this decision in the Kuwaiti courts, but the matter has not been resolved. No licenses have been issued since that time.
Foreign Direct Investment Statistics
Kuwaiti public investment abroad consists of portfolio investment by KIA, direct investment by other government entities, as well as investment by private Kuwaiti citizens. According to Fitch Ratings, Kuwait's foreign assets are estimated to be worth more than USD 32 billion, equivalent to nearly double the nation’s GDP. Details about the composition of both KIA and non-KIA investment portfolios, such as Kuwait Petroleum Corporation's reserve fund, are not publicly available.
According to the 2012 World Investment Report (published by the secretariat of the United Nations Conference on Trade and Development (UNCTAD)), Kuwait attracted USD 399 million in FDI in 2011, compared with FDI outflows of USD 8.7 billion, making Kuwait the highest overseas investor in the GCC.