X
COVID-19: Resource Center. Stay Informed with Updated Information and Support.
Discover more
Fundeu

Foreign Investment Law of the Dominican Republic #16-95 (LAW 16-95)

THE NATIONAL CONGRESS
IN THE NAME OF THE REPUBLIC

WHEREAS: The Dominican State recognizes that foreign investment and technology transfers contribute to the economic growth and social development of the country insofar as they favor the generation of jobs and foreign currency, promote the process of capitalization and provide efficient production, marketing and management methods;

WHEREAS: It is advantageous that investors, whether foreign or national, should have similar rights and obligations in the investment fields;

THE FOLLOWING LAW HAS BEEN GIVEN

Art. 1.- For the purposes of this law on foreign investment, the following shall be understood to be:

a) Direct Foreign Investment:

Contributions originating from abroad, belonging to foreign individuals or corporations or individual nationals residing abroad, to the capital of a company operating in national territory;

b) Foreign Reinvestment:

That foreign investment made in whole or in part from the profits originating from a registered foreign company into the same company that generated them;

c) New Foreign Investment:

Foreign investment made in whole or in part from the profits originating from a duly registered direct foreign investment into a company different from that which generated the profits;

d) Foreign Investor:

The owner of a duly registered foreign investment;

e) National Investment:

That made by the State, municipalities and national corporations domiciled or resident in the National territory, as well as by foreign individuals residing in the national territory that do not meet the conditions for obtaining the certificate of foreign investor;

f) Central Bank:

This is the Central Bank of the Dominican Republic.

Art. 2.- Foreign Investment can assume the following forms:

a) Contributions in freely-convertible currency, exchanged in a banking institution authorized by the Central Bank.

b) Contributions in kind, such as industrial plants, new and re-conditioned machinery, new and re-conditioned equipment, replacements, spare parts and parts, raw material, intermediate products and final goods, as well as intangible technological contributions; and

c) Those financial instruments the Monetary Board relegates to the category of foreign investment, except those that may be the product of contributions or internment of an operation for the re-conversion of the Dominican foreign debt.

PARAGRAPH I: Independently of the investments foreseen in item b) of this article, contracts for technology transfer can be signed with foreign individuals or corporations, such as contracts for the license of technology, for technical assistance, basic and detailed engineering.

PARAGRAPH II: Intangible technological contributions are understood to be funds originating from technology, such as Trademarks, product models or industrial processes or services, technical assistance and technical knowledge, franchise and management assistance. The application regulation of this law shall determine the general framework that will be applied to technology, including those areas in which the capitalization of intangible technological contributions will be allowed.

Art. 3.- Targets of Foreign Investment:

a) Investments in the capital of an existing or new company, as per the provisions contained in the Commercial Code of the Dominican Republic, including the establishment of branch offices, pursuant to the conditions set by the laws.

Foreign Investment in share companies must be represented in nominative shares.

b) Investments in real properties located in the Dominican Republic, with the limitations in effect and applicable to foreigners; and

c) Investments towards the acquisition of financial assets, pursuant to the general norms issued in this area by the monetary authorities.

Art. 4.- Within 90 days of making its investment, any foreign company or investor must register it with the Central Bank of the Dominican Republic. For these purposes, the following documents will be filed:

a) Application for registration, containing all the information relevant to the invested capital and the area in which the investment has been made;

b) Proof of entry into the country of the foreign currency or physical or tangible goods.

c) Formative documents of the commercial corporation or the authorization of the operation of branch offices via the setting of domicile.

PARAGRAPH I: Once the document filing requisites have been met, the Central Bank will issue immediately to the applicant a Registration Certification of Direct Foreign Investment.

PARAGRAPH II: Foreign Re-Investment and New Foreign Investment, described in article 1 of this law, shall also be registered with the Central Bank, meeting the requisites provided by the regulation for applications.

PARAGRAPH III: In the case of companies operating in Industrial Free Zones, the registration and delivery of information shall be made in the National Council of Export Free Zones, which shall have the obligation of communicating this immediately to the Central Bank.

Art. 5.- Foreign Investment will not be allowed in the following categories:

a) Disposal and remains of toxic, dangerous or radioactive garbage not produced in the country;

b) Activities affecting the public health and the environmental equilibrium of the country, pursuant to the norms that apply in this regard; and

c) Production of materials and equipment directly linked to national defense and security, except for an express authorization from the Chief Executive.

PARAGRAPH I: When the Foreign Investment affects the eco-system in its area of influence, the investor must present a proposal with the provisions for recovering the ecological damage it may cause.

PARAGRAPH II: The competent authorities related to the area in question shall have the responsibility for compliance with the provisions contained in this article.

PARAGRAPH III: Foreign investments shall be made in each area of the national economy, pursuant to the conditions and limitations imposed by the laws and regulations governing each one of said areas.

Art. 6.- Investors and the companies or corporations in which foreign investors may participate or be owners, shall have the same rights and obligations that the laws confer upon national investors, save the exceptions foreseen in this law or in special laws.

Art. 7.- The individuals or corporations that make investments defined in article 1 of this law, shall have the right to remit abroad, in freely-convertible currencies, without the need for prior authorization, the total amount of invested capital and the dividends declared during each fiscal period, up to the total amount of the net current profits of the period, upon payment of income tax, including the capital gains made and registered in the books of the company according to generally accepted accounting practices.

They can also repatriate, under the same conditions, the obligations resulting from technical service contracts where fees are established for the purposes of technology transfers and/or contracts for the local manufacture of foreign brands, which include clauses for the payment of royalties (“regalías”) as long as said contracts and the amounts or procedures for the payments involved have been previously approved by the Central Bank of the Dominican Republic or an official agency subsequently designated to coordinate, facilitate and supervise everything related to foreign investment.

Art. 8.- Within the following 60 days, the foreign investor must convey to the Central Bank the following:

a) Statement of profits contained in the fiscal year, duly certified by a Certified Public Accountant (“Contador Público Autorizado”), specifying the percentage of said profits that were subject to remittance;

b) Documentary proof of settlement of tax commitments.

Art. 9.- Non-compliance with this obligation will carry the applicable sanctions contained in the law that governs the obligation of supplying information to the Central Bank of the Republic.

The Central Bank must inform the National Congress annually of everything related to the flows of foreign investment in the country.

Art. 10.- Article 12, added to Law 622, of 28 December 1973 to Law 173, of 6 April 1966, is modified, so that hereinafter it reads in the following manner:

“Art. 10.- Foreign individuals and corporations, as well as nationals, can engage in the Dominican Republic in the promotion or handling of the importation, sale, rental or any other kind of marketing or operations of merchandise and products of foreign origin that may be produced abroad or in the country, whether acting as agent, representative, receiver of commissions, exclusive distributor, licensee or under any denomination. However, if the individual or corporation that is to engage in this activity has maintained a commercial relationship with local licensees, he or it must agree to and deliver beforehand and in writing the fair and complete indemnities for the losses and damages produced by such cause, on the basis of the factors and in the manner described in article 3 of this law.”

Art. 11.- This law repeals Law Number 861, dated 22 July 1978, and Law No. 138 dated 24 June 1983. In like manner, it repeals item d) of article 3 of Law No. 251 of 11 May 1964 on International Fund Transfers.

Art. 12.- (Transitional). In the case of accumulated profits from previous periods retained as a consequence of the limitations on remittances established by Law No. 861, each company shall have the right to request the approval of a program for gradual repatriation, with a minimum of 5 years for fully effecting it.

The reassessment surpluses registered in the capital accounts of companies that have reassessed their assets will not be regarded as foreign investment for the purposes of repatriation of capital, except when said revaluation profits have been converted into liquid assets for the sale to third parties or parties related to the company.

Art. 13.- This law repeals any other express legal provision contrary to it.

The Dominican Republic and International Trade

The Dominican Republic at a Glance

Geographically located at the center of the Caribbean, with privileged market access to the United States, Europe, and Central America, an abundant work force, a domestic market of more than ten million people, and a decades-old policy of great openness to foreign investment and international trade, the Dominican Republic has become the largest economy in the Caribbean and Central America, the number one recipient of direct foreign investment in the region (2. 3 billion dollars in 2015), and its most-visited tourist destination (5.6 million tourists in 2015). From 1993 to 2015, gross domestic product (GDP) growth of the Dominican economy averaged 5.4% annually; in 2014 and 2015, it reached 7.3 and 7.0%, respectively, the highest by far in the Western Hemisphere.

Market Size

In 2015, the Dominican Republic bought $16.9 billion dollars’ worth of imported products and exported 9.7 billion dollars in local products. The top four countries for Dominican exports in 2014 were the United States (49%), Haiti (14%), Canada (9%), and Switzerland (2.5%). Imports came mainly from the Unites States ($7.3 billion in 2014), China ($2.1 billion), and Mexico ($1.1 billion).

In the Western Hemisphere, the Dominican Republic is the seventh largest trading partner of the United States, after Canada, Mexico, Brazil, Venezuela, Colombia, and Chile.

Participation in the International Community

The Dominican Republic maintains diplomatic relations with 129 countries and is a member of many regional and international organizations, including the United Nations, the Organization of American States, the Central American Integration System, the World Trade Organization, the International Monetary Fund, the World Bank, the International Centre for Settlement of Investment Disputes, the International Finance Corporation, the Inter-American Development Bank, the Inter-American Investment Corporation, the Central American Bank for Economic Integration, the Caribbean Development Bank, the Multilateral Investment Guaranty Agency, and the Caribbean Forum of African, Caribbean and Pacific States.

Memmbership in the World Trade Organization

The Dominican Republic has been a member of the World Trade Organization (WTO), the world-wide regulator of international trade, since its founding in 1995. The main objective of the WTO is to foster international trade by eliminating trade barriers and enforcing the multiple commercial agreements reached by its members over the decades.

As a developing country, the Dominican Republic is allowed to receive preferential, non-reciprocal treatment from other member states.

Free Trade Agreements

The Dominican Republic enjoys advantageous trade with the United States, the European Union, and countries in the Caribbean and Central America region. Two important agreements are the free trade agreement with the United States and Central America (DR-CAFTA) and the Economic Association Agreement with the European Union (AAE). Both encourage the free flow of trade among the member states by significantly reducing tariffs, opening new markets, and promoting regional integration. Furthermore, the country has initiated discussions to liberalize trade with Canada, Mexico, Mercosur, and Taiwan.

Dominican Republic and  Central American Free Trade Agreement (DR-CAFTA)

Signed August 5, 2004, and effective in the Dominican Republic on March 1, 2007, DR-CAFTA facilitates trade and investment between its member states and promotes regional integration by eliminating tariffs, opening markets, reducing barriers to services, promoting competition, protecting intellectual property rights, and advancing transparency. Parties to the agreement are the United States, the Dominican Republic, Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua. These last six countries represent the third largest export market for U.S. goods in Latin America after Brazil and Mexico.

DR-CAFTA permanently guarantees the Dominican Republic the ability to export most of its products and services to the member states without customs duties. Service sectors with open access to all signatories of DR-CAFTA include financing, insurance, investments, tourism, energy, transport, construction and engineering, government contracts, telecommunications, express delivery, electronic commerce, entertainment, professional services, computer and related services, and environmental industries. Importantly, laws that protect domestic dealers by locking companies into distributorship arrangements have been loosened.

DR-CAFTA also requires member states to effectively enforce local labor and environmental regulations,  and eliminate corruption, in order to ensure fair competition and a level playing field for all.

Certain obstacles to free trade remain under the treaty. Member states have kept tariffs on specific agricultural products up to a certain limit, and have prohibited the importation of certain goods. For instance, the Dominican Republic does not allow the entry of used clothes, used electric household appliances, or cars older than five years.

The administrative structure of DR-CAFTA is headed by the Free Trade Commission, consisting of cabinet-level representatives of the seven parties to the agreement. The Commission is responsible for supervising the implementation of the agreement and resolving disputes regarding its interpretation and application.

Economic Partnership Agreement (EPA)

The Economic Partnership Agreement (EPA) is a free trade treaty with financing and investment aspects signed in 2007 between the European Union (EU) and CARIFORUM, an organization of Caribbean nations, whose members are Antigua and Barbuda, the Bahamas, Barbados, Belize, Dominica, Granada, Guyana, Haiti, Jamaica, Saint Lucia, Saint Kitts and Nevis St. Vincent and the Grenadines, Suriname, Trinidad and Tobago, and Dominican Republic. The EPA allows duty-free access to Caribbean products to the 28 countries of the EU and provides economic assistance to Caribbean countries with the stated purpose of reducing poverty, promoting regional integration, and encouraging regional consolidation into the world economy. It also promotes free trade within the Caribbean region. The Dominican Republic entered the EPA on October 15, 2008.

Under the terms of the EPA, access to markets is asymmetrical. Provisions for exports from Caribbean countries to the countries of the EU are generous for eligible products. In contrast, provisions for similar imports from the EU are subject to restrictions for up to 25 years, with safeguards to protect local employment and sensitive industries. This asymmetry protects certain products and sectors in the less-developed Caribbean countries from the potential unequal effect of trade with the EU while affording the less-developed member states access to EU products.

The EPA, together with DR-CAFTA, offers international investors and local producers in the Dominican Republic unprecedented free-trade access to the two largest markets in the world: The EU and the United States. Few other countries benefit from such a privileged situation.

Free Trade Agreement with CARICOM

Signed in 1998 and ratified by the Dominican Republic in February 2001, this agreement involves the Dominican Republic and 14 Caribbean nations (CARICOM), and establishes free trade zones in the region along WTO guidelines. Trade between the Dominican Republic takes place on an equal or reciprocal basis with other more developed Caribbean states, but may be differentiated with those less-developed, such as Antigua y Barbuda, Belize, Dominica, Granada, Montserrat, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, and Haiti.

The free trade agreement between the Dominican Republic and CARICOM coexists with free trade agreement between the Caribbean nations and the European Union (EPA). A provision in the EPA stipulates that in case of a conflict in the handling of a product or sector between the two agreements, the agreement with the less restrictive treatment will prevail.

Free Trade Agreement with Central America

A free trade agreement between the Dominican Republic and the Central American countries of Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua was signed in 1998 and came into effect in 2001. Although a regional treaty, it is, in fact, a bilateral agreement between each Central American country and the Dominican Republic. The agreement provides for free trade in all products originating in the region except those registered in a “negative list.”

This agreement coexists with DR-CAFTA, which incorporates several of the provisions of the former, including the negative lists. In case of a conflict in the handling of a product or sector between the two agreements, the agreement with the less restrictive treatment will prevail.

Partial Free Trade Agreement with Panama

This agreement was signed in 1985, but discrepancies over its application delayed implementation until 2003. Four lists of products benefit from liberalized trade, subject to rules of origin: (a) “two-way products,” which consists of those that enjoy free access to the markets of both countries; (b) Dominican products than can be freely exported to Panama; (c) Panamanian products that can be freely exported to the Dominican Republic; and (d) products manufactured in free trade zones.

A Permanent Mixed Commission consisting of representatives from both countries may add new products to the lists.


GUZMÁN ARIZA’S SERVICE IN INTERNATIONAL TRADE

Involvement exemplifies Guzmán Ariza’s experience in trade agreements. We dedicate a large part of our practice to helping international corporations meet their operational and strategic business objectives in the country. We have actively participated in the negotiation of the most important international trade agreements, giving us intimate knowledge of the local impact of their contents on your business. When DR-CAFTA was enacted, we pioneered the field of public procurement law in the Dominican Republic to meet the objectives of that trade agreement.

Our presence in and attention to trade issues enable us to monitor provisions that impact your business, such as technical barriers to commerce, rules of origin, domestic components, and tariff. Armed with timely information, we can anticipate legal changes and guide your business for the long term.