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In exercise of the powers
conferred on the Board of the
Ghana Investment Centre by section
30 of the Investment Code, 1985 (P.N.D.C.L.
116) these Regulations are made
this 9th day of September, 1992.
Regulation 1—Registration of all
Technology Transfer Agreement.
(1) All Technology transfer
agreements entered into under the
code or regulations made under the
code shall be registered with the
Ghana Investments Centre
(hereinafter referred to as the
“Centre”).
(2) Any existing technology
transfer agreement not registered
with the Ghana Investment Centre
shall be registered with the
Centre within six months of the
coming into effect of these
Regulations.
(3) Any enterprise which wishes to
register its technology transfer
agreement shall apply to the Ghana
Investment Centre on the
application form provided for that
purpose by the centre and copies
of the agreement to be registered
shall be attached to the form.
(4) There shall be paid for the
application form such fee as the
centre shall determine.
Regulation 2—Application of
Regulations.
(1) The provisions of these
Regulations shall apply to all
technology transfer agreements
entered into under the code or
regulations under the code.
(2) Where there is a breach of any
of the provisions of these
Regulations, the centre may not
register the agreement, and the
agreement shall be unenforceable.
Regulation 3—No Restriction on
Registration.
Subject to the other provisions of
these Regulations, no restrictions
shall be imposed on the
registration of a technology
transfer agreement.
Regulation 4—Unenforceable Clauses
in Technology Transfer Agreement.
Where a technology transfer
agreement contains any of the
clauses specified in this
paragraph or contains a clause the
effect of which is the same as or
similar to any of the said
clauses, that clause shall be
inapplicable and unenforceable—
(a) clauses transferring
technology which is freely and
easily available in Ghana; or
(b) clauses which restrict the
volume of production or the sale
of the transferee’s products in
the transferee’s country; or
(c) clauses which completely
prohibit the exportation of the
transferee’s products or the right
to export to specific geographical
areas other than to areas where
the transferor has previously
granted exclusive rights to third
parties; or
(d) clauses which require—
(i)
the transferee to export
exclusively through the transferor
or on unfavourable terms; or
(ii) the transferor’s prior
permission before any export
transaction is made; or
(iii) the transferee to a pay
additional royalty on export
sales; or
(e) clauses which impose an
obligation on the transferee to
acquire or procure its inputs
including equipment, tools, parts,
raw materials or intermediate
products exclusively from the
transferor or any other person or
a specific source; except where
such inputs are not commercially
available elsewhere or such inputs
are special to the technology
supplied or are required to meet
the specifications of products to
be produced either under licence
or trademark; or
(f) clauses which impose on the
transferee an obligation to employ
personnel to be appointed by the
transferor whose remunerations
shall be provided by the
transferee, unless in the opinion
of the centre the obligation is
considered indispensable, taking
into account of the transferred
technology; the remuneration for
it compares favourably with what
prevails in the international
market for similar services to be
performed by the personnel and in
any such case the provisions of
the services is supported by a
properly drawn-up Management or
Technical Services Agreement; or
(g) clauses which provide for the
obligatory transfer by the
transferee of improvements or
innovations introduced or
developed, or patents acquired by
the transferee in respect of the
licensed technology to the
transferor, except that such a
clause, excluding patents acquired
by transferee, may be permissible
where they are mutual or
reciprocal; or
(h) clauses which require payment
for patent and other industrial
property rights after their
expiration, termination or
invalidation; or
(i)
clauses which prohibit the
manufacture or sale or both of
products based on the technology
transferred on the expiration of
the agreement, or prohibit the use
of licensed technical know-how
acquired from the use of the
licensed technology after the
expiry of the agreement; or
(j) clauses which are designed to
prevent the transferee from
contesting or assisting in
determining, either
administratively or by means of
judicial proceedings, the validity
of industrial property rights
claimed or secured in Ghana by the
transferor; or
(k) clauses which restrict R & D
(research and development)
activities of the transferee to
improve and adapt the licensed
technology or restrict the
transferee access to continue
improvements in techniques and
processes related to the licensed
technology ; or
(l) clauses which forbid the use
of the transferee of complementary
technologies; prevent the
manufacture of products different
from those covered by the
agreement or prevent the
manufacture of products similar to
those covered by the technology
transfer agreement; or
(m) clauses which require the
consent of the transferor before
any modifications to products,
processes or plants can be
effected by the transferee or
which impose on the transferee
obligations to introduce
unnecessary designs; except where
the licensed technology is used to
manufacture specific products
under a licence or trademark; or
(n) clauses which limit the scope,
volume of production or the sale
or resale prices of the products
manufactured by the transferee; or
(o) clauses which impose on the
transferee an obligation to sell
all its manufactured products to
the transferor at a price fixed by
the latter or to any other person
or enterprise designated by the
transferor; except that this
provision shall not apply where—
(i)
the transferee is engaged
exclusively in the manufacture of
intermediate products, parts or
components for subsequent
transformation, assembly or
finishing by the transferor, and
the transferor is the sole
potential buyer of such
intermediate goods; or
(ii) the requirement is related
exclusively to certain export
markets; or
(iii) the transferor can prove
that it possess an adequate
distribution system or enjoys
sufficient prestige in the trade
to be able to market the products
covered by the agreement more
efficiently than the transferee.
Provided always that the
transferee shall at all times not
be coerced into any such
transaction.
Regulation 5—Provision of Training
by Transferor.
Every technology transfer
agreement made under the code or
regulations made under the code
shall include a clause for the
provision by the transferor of
requisite training for the
transferee and its personnel in
the effective utilization of
licensed technology and there
shall be attached to the agreement
a detailed training schedule which
shall guide and be adhered to by
the transferor in the provision of
the training.
Regulation 6—Taxes on Royalties.
Every technology transfer
agreement shall provide that taxes
due on royalties shall be paid by
the transferor.
Regulation 7—Other Obligations of
Transferor.
(1) It is the duty of the
transferor to give full
description of the technology and
to supply all necessary
documentation and information in
the English language.
(2) The transferor shall guarantee
the efficient performance of the
technology and the continuous
availability of essential spare
parts during the tenure of the
agreement.
(3) The transferor shall inform
the transferee of improvements and
innovations relating to the
technology and shall supply them
on terms mutually acceptable to
the parties.
Regulation 8—Confidentiality
Obligation of Transferee.
(1) The transferee shall keep the
licensed know-how confidential and
use it only for its own production
during and after the expiration of
the agreement.
(2) The transferee shall not,
except with the consent of the
transferor and on terms
acceptable to both parties,
sub-license the licensed know-how.
Regulation 9—Duration of
Agreement.
The duration of a technology
transfer agreement shall be for a
period not exceeding ten years,
but an agreement may be renewed
where it is considered desirable
by the parties for subsequent
terms each not exceeding five
years.
Regulation 10—Applicable Law.
Technology transfer agreement made
under the code or regulations made
thereunder shall be governed by
the laws of Ghana.
Regulation 11—Dispute.
(1) Where any dispute arises
between the transferor and
transferee in respect of any
technology transfer transaction,
all effort shall be made through
mutual discussions to reach an
amicable settlement.
(2) Any dispute between the
transferor and transferee in
respect of any technology transfer
transaction which is not amicably
settled through mutual discussions
may be submitted to arbitration:
(a) in accordance with the rules
of procedure for arbitration of
the United Nations Commission on
International Trade Law; or
(b) within the framework of any
bilateral and multilateral
agreement on investment protection
to which the Governments of the
transferor and transferee are
parties; or
(c) in accordance with any other
international machinery for the
settlement of investment disputes
agreed to by the parties.
Regulation 12—Effective Date of
Agreement.
Unless otherwise provided in the
agreement, a technology transfer
agreement made under the code
shall come into force on the date
it is registered by the centre.
Regulation 13—Performance
Guarantee.
Process performance warranties
shall be provided in agreements
covering large projects which
involve considerable technical
complexity not explained to the
transferee at the time of
negotiations or before the
transferee makes front-end
payments.
Regulation 14—Payment for
Technology.
Royalty in respect of know-how
patents and other industrial
property rights shall range from
0% to 6% of net sales of the
technology recipient.
Regulation 15—
(1) Fee for Technical
Service/Assistance (including
know-how) shall range between 0%
to 5% of net sales.
(2) Fee for know-how shall not
exceed 2% of net sales.
(3) The parties shall have the
option of allowing "running" or "
lump sum" fee considering the
nature of the technical service,
its duration and dependance of the
transferee on continued foreign
technical expertise. Where
continuing service is deemed to be
required "running" fees will be
favoured.
Regulation 16—Management Service
Fees.
(1) Management fees shall range
between 0% and 2% of profit before
tax.
(2) Management services of
projects for which profit is not
anticipated during the early years
shall attract a fee ranging from
0% and 2% of net sales during the
first 3 to 5 years.
(3) the level of payments provided
under sub-paragraphs (1) and (2)
of this paragraph shall be reduced
pro rata if the transferor has 60%
or more of the equity share
capital of the transferee company.
Regulation 17—Provision of
Management and Technical Services.
Where a transferor provides
management/ technical services, in
addition to patent know-how and
trademarks, the total fee shall
not exceed 8% of net sales.
Regulation 18—Fees Higher than
Specified.
Any request for fees higher than
the upper levels specified in
sections 14, 15, 16 and 17 shall
be subject to the approval of the
centre.
Regulation 19—Incentive Royalties.
Incentives royalties shall be
available for sale of licensed
products in overseas territories
if marketed under the trademarks
of the transferor; any such
approvals shall extend to
subsidiaries of overseas firms.
Regulation 20—Interpretation.
In these Regulations unless the
context otherwise requires:
"agreement" means a technology
transfer agreement made under the
code or regulations under the
code;
"Centre" means the Ghana
Investment Centre;
"code" means the Investment Code,
1985 (P.N.D.C.L. 116);
"net sales" means ex-factory
selling price of the product
exclusive of sales tax and excise
duties levied by Government or the
net income accruing from a
service, minus the landed cost or
payment for any component,
materials and supplies imported
from the technology supplier other
than initial capital equipment and
the first round of components,
materials and supplies imported
therefrom.
P.V. OBENG
Chairman of the Board, Ghana
Investments Centre
Date of Gazette Notification: 18th
December, 1992. |
