FDI Scan/American Chamber: Draft could create uncertainty and discourage investors

2026-01-07 15:09:49, Ekonomi CNA

FDI Scan/American Chamber: Draft could create uncertainty and discourage

The American Chamber of Commerce has praised the government's approach to establishing a "filtering" mechanism on Foreign Direct Investment (FDI) in critical sectors, but according to them, the draft in the consultation phase presents a series of problems.

AmCham estimates that in the current model offered by this draft, it could create uncertainty, but also discourage serious investors.

“AmCham appreciates the strategic importance of the Foreign Direct Investment Screening (FDI Screening) mechanism as an indispensable instrument for protecting national security and public order, while maintaining a stable, predictable and encouraging climate for foreign direct investment, which constitutes a key engine of the country's economic development. In this sense, the initiative to establish a national investment screening mechanism constitutes an important step towards the approximation of the Albanian legal framework with the acquis of the European Union, in accordance with Regulation (EU) 2019/452.

However, the legal and institutional analysis of the draft decision shows that, in its current form, it presents a number of fundamental problems, which risk creating legal uncertainty, violating the principle of proportionality and discouraging serious foreign investors," the reaction states.

The American Chamber of Commerce has also outlined areas that may need improvement to make the investment screening process less complex, more transparent, and clearer.

1. Normative level of the act The process of screening foreign investments is complex, delicate and has a direct impact on the rights of investors and the national economy. In this context, AmCham assesses that the adoption of a regulation by Decision of the Council of Ministers does not constitute a sufficient legal basis. Such a mechanism requires a special law, which comprehensively and consistently addresses all elements of the screening process, reducing the scope for subjective interpretations and non-unified approaches.

2. Compliance with European Union legislation and the negotiation process Although the draft formally reflects the structure of Regulation (EU) 2019/452, it does not fully reflect the interpretative and balancing dimension of its Recitals, which are essential for a proportionate, reasoned and predictable implementation of the mechanism. A fragmented by-law risks not ensuring real convergence with European standards and best practices, especially in the context of Albania's accession negotiations to the European Union.

3. Clarity, transparency and legal certainty In its current form, the draft decision appears unclear in its entirety and does not guarantee sufficient transparency in the investment screening process. The use of general and vague terminology, such as “due diligence”, creates room for different interpretations and potentially for subjective treatment of investment applications. The risk assessment criteria should be clearly defined, objective and predictable, so that the foreign investor has legal certainty and can assess the regulatory risk in an informed manner.

4. Institutional architecture of decision-making A significant risk is related to the institutional architecture of decision-making. The draft concentrates very broad powers in an Inter-Ministerial Committee, without providing detailed rules for its functioning, including quorum, voting methods and handling of conflicts of interest. This lack of procedural regulation creates space for discretionary decision-making and makes it difficult to legally protect decisions.

5. Procedural deadlines and proportionality The 5-day deadline for the completion of documentation by the foreign investor, with the consequence of the cancellation of the procedure in case of non-compliance, is considered disproportionate. Also, the provision of automatic approval of the investment in the absence of a decision within the deadline links the outcome of the procedure to the formal flow of deadlines and not to the substantive assessment of the risk, creating structural weaknesses in the mechanism.

6. Procedural approach to the foreign investor The provision of “summoning the foreign investor to a hearing” creates the perception of an investigative or punitive procedure, which is not in line with the encouraging and welcoming spirit that should characterize the legal framework for foreign investments.

7. The need for a new approach: Special Law on FDI Screening In this context, AmCham assesses that the current draft decision should be reworked in its entirety and suggests drafting a special law on the screening of foreign investments, which would address in a clear and coherent manner, among others: the areas and sectors subject to screening; the profile and origin of investors; investment thresholds; risk assessment criteria; institutional structure; procedures and procedural guarantees; sanctions; as well as full compliance with European Union legislation. /Monitor