Yes. The actual ability to develop and direct the enterprise must be established, not inferred solely from a headline ownership percentage. Read the scope and duration of the seller’s retained rights.
Separate protective rights from operating authority
Identify who can hire, set prices, commit to contracts and approve the operating budget. Explain the buyer’s authority under the complete agreement rather than isolating one ownership clause. Treaty nationality, at least 50% relevant national enterprise ownership, substantial at-risk investment and nonmarginality remain separate conditions. If rights change after an instalment is paid, use the arrangement that will actually apply, not the hoped-for final structure.
Nonmarginality concerns capacity beyond a minimal living for the investor and family or significant economic contribution; projected capacity should generally be realized within five years of normal business activity. Direction is not defeated merely because an agreement contains ordinary brand standards, a reservation system or a fleet program; the question is whether the actual agreement leaves the investor with operational control. Provisions that concern consular officers include requirements for unanimous consent on operating decisions, a minority veto over hiring or spending within normal ranges, a deadlock mechanism that hands control to the minority, or a management agreement placing operations with someone else.