Part VI of the Investment Promotion Act 1992 consists of a single section. It provides an appeal to the Minister — not to a court.
Section 40(1) — the five appellable decisions
(a) is refused a certificate; or
(b) is issued a certificate on terms and conditions objectionable to it; or
(c) is refused a variation of a term or condition of a certificate; or
(d) has received a notice of suspension or cancellation; or
(e) has applied for a certificate but has not received a written notice of the grant or refusal,
may appeal to the Minister.
Section 28(5) requires written notice of the grant or refusal within 35 working days of a complete and correct application, and section 36D(3) imposes the same period for Part IVA.
Paragraph (e) makes the failure to give that notice appellable in its own right. An applicant left waiting is not without remedy.
The list is exhaustive, and two decisions are conspicuously absent:
- A declaration under section 25A that an enterprise is a foreign enterprise;
- A refusal of an exemption under section 26.
Neither is a decision of the five kinds listed. For those, the remedy is judicial review in the National Court.
The 20-working-day deadline
An appeal must be made within 20 working days of —
- Receipt of the certificate, where the terms are objectionable;
- Receipt of the notice of refusal, suspension or cancellation; or
- The expiration of the period within which written notice of a grant or refusal was required to be given.
| Decision | Time runs from |
|---|---|
| Refusal of a certificate | Receipt of the notice of refusal |
| Objectionable terms | Receipt of the certificate |
| Refusal of a variation | Receipt of the notice |
| Suspension or cancellation | Receipt of the notice |
| No decision | Expiry of the 35 working days |
The section contains no power to extend. Where a certificate has been suspended, the position is pressing: suspension takes effect on and from the date of the notice, and section 36(2)(c) makes a ministerial decision under section 40(3) one of only three ways a suspension can end.
Where a certificate has been cancelled, cancellation takes effect no earlier than 14 days from the notice — so an appeal can be lodged before it bites, though lodging an appeal does not of itself stay the cancellation.
Section 40(2) — what the appeal must contain
(a) be in writing; and
(b) specify the grounds of the appeal; and
(c) be accompanied by the prescribed fee.
The grounds should engage directly with the reasons given. Section 28(6) and section 36D(4) require the Authority to state the grounds of a refusal or of a grant in other terms, so the appellant knows the case to meet.
Where the refusal rests on section 28(4A), the grounds should address the specific limb:
- (a) incorrect or misleading — correct the record and explain any error;
- (b) unlikely to achieve the purposes — demonstrate which of the nine benefits in section 1(e) the activity delivers;
- (c) inability to finance or operate — supply the financial and operational evidence;
- (d) character — show the matter does not exist, or has been cured, for example by satisfying a judgment.
Sections 40(3) and (4) — the decision
The Minister shall obtain the recommendation of the Authority in respect of the appeal, consider the merits, and within 35 working days of receipt of the appeal —
(a) decide whether to grant or refuse the appeal; and
(b) advise the enterprise and the Authority in writing of the decision and of the reasons for it; and
(c) when granting an appeal, give such direction to the Authority as is appropriate.
(4) The Authority shall comply with a direction given to it by the Minister.
The Authority is consulted, not the decision-maker. The Minister must obtain its recommendation but is not bound by it.
A merits appeal, not a review. The Minister must consider the merits — the whole decision is reopened, not merely its legality.
Reasons are mandatory. That matters for any subsequent judicial review.
Directions bind. Section 40(4) makes compliance mandatory, so a successful appellant obtains an effective remedy rather than a remittal.
After the appeal
The Minister’s decision is a decision of a public officer under statutory power, and is amenable to judicial review in the National Court under Order 16 of the National Court Rules on ordinary administrative law grounds — illegality, procedural unfairness, unreasonableness, taking irrelevant considerations into account.
Judicial review is not a rehearing on the merits. It examines how the decision was reached. Two features of the Act assist: the mandatory reasons under sections 28(6), 36D(4) and 40(3)(b), and the fact that most grounds of refusal turn on the opinion of the Authority, which must be one reasonably open on the material.
Note that section 44A(2) requires actions under the Act to be heard by the National Court, and section 44A(3) permits costs to be awarded against any party other than the Authority.
Where the dispute is with the State rather than the Authority, a foreign investor should also consider the guarantees in section 37 and the ICSID route preserved by section 39.
Sources
- Investment Promotion Act 1992 — ss 1, 25A, 26, 28, 33, 36, 36D, 37, 39, 40, 44A
- Constitution — ss 155(4), 57
Before relying on anything here, read the current text of the Companies Act 1997 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.