Category: Interviews

The COVID-19 pandemic hit Paraguay’s economy very hard and just when the country was recovering after a period of stagnation (-3% year-to-date in the first half of 2019). 2019 wasn’t a good year for employment either, the combined unemployment and underemployment rate reaching 14.5% in the first half of the year and retracting to 12.9% in the second half. This favorable path continued during the first two months of 2020 but with the beginning of COVID in March, began to slow down. Social distancing measures have most severely affected the service sector although informal labor was also badly affected.

The Government and the Paraguayan Central Bank (BCP) adopted a series of exceptional measures to address the economic and financial needs of both individuals and companies. In this regard it’s worth mentioning the BPC’s decision to reduce the policy interest rate by 175 basis points to 2.25% and the temporarily relaxed provisioning rules not to penalize credit restructurings and prolongations as well as the Government’s anti-crisis fiscal package approved by Parliament.

Another measure to alleviate the crisis has been low interest loans granted by the National Development Bank (BNF) to finance MSME’s payroll during the outbreak; in line with this it is worth mentioning that in June credits granted to the private sector grew by 4.1% YtD and loans granted to MSMEs reached USD$217m in July, while in May they totalled USD£130m.

Nevertheless, in 2021-22 growth is expected to return to 4% due inter alia to consistent macroeconomic policies, anchored in inflation targeting and a gradual return towards the FRL ceilings. Another key role in economic recovery will and is being played by public investments particularly in public works.

Legal Updates

The pandemic has represented an opportunity to introduce major and necessary changes that have helped modernize the local legal framework.   

Corporate Law

The Executive Branch enacted Decree 3605/2020 allowing PLCs to hold their board and shareholders meetings through telematic means provided that a series of requirements are met such as, inter-alia:

a) Real time presence and participation of authorized participants is ensured;

b) Meetings are recorded and kept within corporate files for 5 years and;

c) Mechanisms for the accreditation of rights to participate are established.

This provision represents a breakthrough in Paraguayan corporate practice and a clear advantage for foreign investors and shareholders as they can now take part in company decisions avoiding delays and fines especially during the pandemic. This exceptional measure will remain in force until 31 December 2020 and we are confident it will become a definitive practice.

Another important provision enacted is the suspension until 15 September 2020 of the application of fines and sanctions for non-compliance with the mandatory requirement of converting bearer shares into nominative shares.

Labor Law

This may be the field that saw the biggest changes. These sought to help businesses and employees cope with the crisis and reduce the negative impact on employment. Some of the most important decisions adopted by the Government are:

a) Contributions to the Social Security Institute (SSI) may be refinanced without interest for up to 18 months.

b) During the pandemic and whenever the nature of their work allowed, employers are encouraged to implement home and teleworking so as to avoid the spread of the virus; this measure is provisional and will last until the 31 December, nevertheless a draft bill has been presented to Congress in order to make it definitive.

c) A new regulation aimed at simplifying the application process for requesting employees’ job suspension was enacted. The procedure will remain in force during the pandemic and will benefit MSMEs only.

Anti-Trust and Regulatory Law

As a consequence of the COVID-19 crisis a lot of effort was made by the Government as well as the media and citizens in general aimed at controlling the public expenditure and public bidding processes. As a result of this, the National Competition Commission (CONACOM) undertook a series of formal investigations under Paraguayan Competition Law.

a) One was aimed at determining if prohibited agreements practices had been performed; the investigation was focused on public bidding processes for the purchase of medicines and medical related goods.

b) In another, CONACOM’s Investigation Department initiated preliminary investigation proceedings in order to identify possible violations of the Competition Law in connection with the latest operation involving a concentration proceeding between the biggest meat processing company and one of its competitors.

This is the first time CONACOM has used its investigative powers and its power to initiate ex officio proceedings; we believe this will improve the level of transparency of our public system and, at the same time, will force local businesses to strengthen their compliance policies, in particular those businesses in a dominant position.

Tax Law

Along with labor, tax law was the other field to see the greatest number of significant changes. During the crisis the Government enacted a series of important tax relief measures such as, inter alia:

a) Tax Deferrals;

b) Exception of penalties for late filing;

c) Exception of import duties and VAT reductions on all goods qualified as of first need;

d) Deadline extensions for filing and payment of the Withholding Tax on Dividends, Corporate Income Tax, Income Tax on Individuals, Income Tax on Agricultural Activities and Income Tax on Commercial, Industrial and Service Activities.

Procedural Law

The Executive branch enacted the Law by which the Judiciary’s summer recess is suspended thus all judicial activities and deadlines remain.   

Bankruptcy Law

A draft bill to modifying the bankruptcy law is being studied by the Legislative branch. The current law dates back to 1969 thus its modernization is seen as being key to improving the country’s business climate; the new law will allow companies at risk of insolvency to swiftly put their accounts in order and hence re-emerge more stably while also benefiting creditors. This law will be particularly important in the aftermath of the pandemic crisis.

Data Protection Law

Currently Paraguay does not have a general Data Protection Law, however, as a result of the increase in social and commercial activity on the internet due to social distancing measures it became apparent that the country could no longer remain without such an important provision; as a consequence a bill is currently being studied in Congress and is expected to be enacted by the end of 2020 or the beginning of 2021.

Conclusion

We cannot ignore the negative effects produced by COVID-19. However, we believe that Paraguay will re-emerge stronger wherever we can capitalize on the opportunities arising from the crisis aimed at accelerating the modernization process and increasing transparency of institutions.

So far, our country has taken adequate measures and has better coped with the crisis than some of the other countries in the region. In truth, the pandemic’s impact has been less harsh than in those countries whether in respect to fatalities and infections or in economic terms.

As for opportunities for the years ahead these will certainly come from the public sector particularly public works (civil and road) and from telecommunications as both sectors have shown a very dynamic performance over this period. 

---

See more from Vouga Abogados at: www.vouga.com.py

It’s no surprise that the COVID-19 pandemic has forced human coexistence to rethink, revalue and reinvent itself in all aspects. Indacochea Asociados (IA) attorneys were no exception.

During this time, the Bolivian National Government issued a series of regulations in order to mitigate the impacts on our country. Regulations were focused mainly on labor matters, financial and tax compliance extensions, economic reactivations programs, enforcement of technology driven commercial mechanisms and most importantly, regulations regarding public health.

Due to quarantine, commercial and economic activities were practically paralyzed at a general level, which generated major uncertainty in the labor force where, despite the quarantine, employers were forced to take on a social burden while being limited or unable to continue commerce or cover day-to-day expenses. Adding complexity to this situation of uncertainty, Bolivian legislation provides high regulatory protection and labor stability for employees, which was reinforced by new regulations issued during the strict quarantine. Law No. 1309 established the prohibition to dismiss employees during the quarantine, a prohibition that would be applicable for a period of two months after the state of emergency had been concluded.

However, as the quarantine was constantly extended, some activities and restrictions have been partly lifted by the government, allowing the development of essential activities on-site. These measures have been regulated by Supreme Decree No. 4218, which establish guidelines, obligations and conditions for the execution of home office practices at a national level – work practice that has been highly encouraged by well-established companies. The implementation of these measures certainly upgrades labor practices in Bolivia.

Likewise, and as encouragement to taxpayers, the National Government through its National Tax Service issued several regulations aiming to provide payment facilities and extension deadlines for applicable taxes levied over personal and company obligations. These policies were reflected in programs that allow flexibility in the fulfilment of tax obligations, thus avoiding potential applicable sanctions by the National Tax Service. Similarly, these regulations provided various incentives for those taxpayers who complied with tax obligations in a timely manner or who performed donations directed to COVID-19 pandemic relief.

The Bolivian Registry of Commerce has issued a new Manual of Commercial Procedures which intends to reduce bureaucracy in all commercial acts that must be registered before this authority. This manual recognizes the digital signature as a valid way of securing certain commerce acts required by the Bolivian commerce code. Moreover, through new commercial regulations, it is now legally accepted that shareholders meetings may be held via communication technologies (prior to COVID, all shareholders meetings required shareholders to be physically present in the legal domicile of the company). Alongside this, the Bolivian Financial System Authority allowed for certain banking procedures to be executed with digital signatures, thus avoiding the physical presence of the interested party at financial offices.

In regards to welfare programs, the Bolivian Government provided economic support and relief to the general Bolivian population through various bonds. These bonds have been aimed at those whose economic or employment situation has been severely affected by the pandemic.

Taking into account the extended duration of the quarantine applied in Bolivia (In accordance to Supreme Decree No. 4199 strict quarantine started on 19 March and flexible and dynamic quarantine was established starting 1 June), the country’s economy will surely be impacted; experts predict anything from a 3% to 9% contraction in 2020.

In order to reverse these mid-2020 economic growth projections, the Bolivian government, through Supreme Decree No. 4216, Ministerial Resolution No. 159 and Ministerial Resolution No. 160  issued economic programs to support micro, small and medium enterprises, as well as programs to support employment and labor stability. These programs extended bank credits to micro, small and medium businesses bank credits in service of two main objectives: avoiding closure and maintaining jobs.

Additionally, and with the sole objective to reboost the national economy, a loan program was launched to promote the consumption and production of national goods and services. This loan has an historically low interest rate of 3% per year and intends to reactivate consumer buy-ins .

Despite the fact that economic support measures have become a reality, the current political scenario in Bolivia has made it difficult for them to materialize. A continuous struggle between the Executive Branch, which holds office, and the Legislative Branch, which holds a majority has seen the initiatives of one side opposed by obstacles from the other. This situation can be clearly identified with law projects in regards to international loans and sovereignty bonds proposed by the Executive Branch and blocked by Legislative Branch.

Although during the first months of the National Emergency the national economy was affected, as of June an increase in the labor market and in the generation of labor income could be witnessed, according to studies carried out by the National Institute of Statistics. Likewise, as a result of the implementation of virtual registries before the Trade Registry, there was an increase in the creation of small and medium enterprises, which implemented innovative business models and e-commerce in their offer of services and products. Also, because of the recently issued resolutions by the National Tax Service, tax incentive programs were created, implementing a system applicable to individual entrepreneurs and start-ups which offers access to a unique tax, as a replacement to traditional taxes applied to ordinary businesses.

We consider that despite the limitations COVID-19 brought to Bolivia and the world, it has given birth to what we call the Bolivian Legal System 2.0. This version comes with legal technology innovation, debureaucratization of public institutions’ procedures and new opportunities to reinvent business. It is necessary to adapt quickly to the new limitations and obstacles that are found in our reality, and to seek the effectiveness from the offer and customer satisfaction to provide the results that are sought.

The current situation has forced the state to adapt quickly, responding effectively with incentives that promote foreign investments likely to help the country’s continued economic growth. In this matter, new investments can count on a far higher level of legal protection than was offered by previous governments. The Government’s guidelines on new investments are certainly promising, and investors can have every confidence that legal protections are robust and will be enforced.

Thus, even though we are aware that much more needs to be done, COVID-19 certainly changed the rules of the game and government officials must continue to promote Bolivia as a promising emerging market, securing not only local but international investments. They must, they will.

---

See more from Indacochea & Asociados at: www.indacochea.com

The Bayer legal and compliance express centre for LATAM and Canada is changing the way it provides compliance and data privacy services, as well as how it handles compliance investigations.

I started this new role at Bayer in March, just as the COVID-19 pandemic broke. As a result, I had to build a whole team remotely. The entire hiring process occurred virtually as I was not able to travel to regions such as Brazil and Costa Rica.

For me it was a very challenging experience. Building a new team, training new employees and taking them through the on-boarding process remotely is not typically the best way to start a new team. Yet, that was the situation and we all had to cope with. At the same time, we were developing a new digital platform, and I had to interact with developers and people in charge of that project virtually as well.

Additionally, time zones were a challenge as I had to schedule calls with Germany, Brazil, and Costa Rica. Managing my time and my agenda was very difficult, even though I had been working from home. I am based in Colombia and because of the pandemic I do not have the opportunity to travel. Therefore, hiring had to be been done in three different ways. For the first round we planned to hire 12 people, most of them located in Costa Rica and Brazil. I preformed 50 interviews virtually in the first wave. For some key positions I would have preferred to travel to Costa Rica or Brazil, but it was simply impossible. Overall, it was a very demanding process, but I am very happy with the outcome and with the people we were able to hire.

As a leader I like to empower and trust my team. This is not the first time I have had to manage people in other countries, so for me empowerment is key when leading a team.  In this case I have had to trust more as it is impossible for me to have a meeting in person with members of my team. I delegate more, and empower people to adjust and adapt to our new reality. We set up weekly goals, and we have follow-ups to see how tasks and activities are tracking. Although we do not have face to face meetings, we have been able to manage things effectively.

Travelling to other jurisdictions is one of the things that is going to be reviewed after the pandemic, because we have been able to prove that we do not have to travel to other countries to make things happen. I believe that every company is going to cut on their travel expenses. For example, I have not had to travel to Costa Rica or Brazil. I am managing teams in both countries and everything has been going well. Yet, if we have a serious or sensitive case to investigate we may need to travel thereto perform the investigation in person. Overall, companies realise that it is not necessary to be present in the country to make things happen.

External firms may need to reevaluate the way they deliver services as a result of the pandemic. Even before the pandemic, law firms in Latin America did not understand the necessities of clients and companies. They approach things in an ‘old school’ way. For example, if there is a new law  I need to know whether I am able to do something or not. External firms will prepare a 100 page legal opinion, citing all the articles of law, including any decisions from the Supreme Court that may pertain to that matter. This is very old school – maybe as legal counsel or as a lawyer that is something that I need to know and review – but the business does not need that volume of information. They just need to know if they can do something or not, and if they can, what would be the best way to do this, outlining the risks and consequences of the issue.

I am fed up with long legal opinions that do not say if our request is possible or not until the very end of the document. However, I think after this pandemic external firms will need to reinvent the way they provide services, and the way they interact with clients and think they will need to be faster in delivering services when providing advice to their clients. The world has changed, and the way firms interact with and provide services to clients will also need to evolve.

Another important aspect of changing times is managing the mental health of employees. At Bayer we have virtual actives for employees to relax and forget about the current situation. For example, we have yoga classes every week, we offer webinars with specialists in psychology, COVID-19 and a range of other topics. That is a very good way to offer employees alternatives to help them relax, and to think about something beyond work.

I have noticed that on team calls people ask how their peers are doing in their personal life, or about their family. This is useful to check in and talk about something that is not related to work, it is good to just check in, and see how people are and if they need anything from the company. One of the main things we need to be aware of is the ‘speak up’ mindset. Now everyone is at home, it is not possible to know what they are doing or be present at all times and we may miss some potential compliance infringements. We need to be closer to people because of this situation so they can raise any concerns. That is something important to keep in mind, especially in the legal and compliance teams. In the past, it was easier to interact directly with people, and preform training face to face, but now as you know that is not possible.

As a result, digital alternatives to interact with people are becoming more important. At Bayer, we are developing a digital platform to start a teaching the people to move from emails or phone calls to a more digitized solution. I think that is going to be the future. We are setting up teams and solutions in shared service centres around the world, for example in Costa Rica and Brazil. Overall, I think we are going to have to change our mindset on how we provide our services. We need to be more agile and we need to be more straight to the point.

This article contains an overview on Costa Rica, taking into account the impact of the Covid-19 pandemic in certain areas, coupled with the acceleration of trends that were already in motion before this pandemic started, all amid a ‘new normal’ stage that continuously triggers game-changing and challenging transformations.

Costa Rica, with its long-standing democratic tradition – having abolished its army in 1948; ranking at the top of the list of nations of the American continent in literacy, health and life expectancy; its wide-array of trade and commercial agreements with its major trading partners; and its long-standing and attractive investment programmes (such as the Free Trade Zone Regime) – now has to embrace and facilitate this period of transformation. It must redouble efforts to continue being a leader in the region, as a major hub for technological development, highly specialized shared services and manufacturing operations, while promoting a stable environment that enables the development of technological transformation and innovation.

Currently, Costa Rica is a major centre for the aforementioned added-value operations – headquartering subsidiaries for the Latin American operations of major transnational Fortune 500 corporations and other high-profile regional companies – and it is expected that these operations continue to increase as many companies recalibrate the supply chain seeking competitive nearshoring options in a new ‘decoupling’ setting.

To continue this path, the country has taken two major steps in the last two years to improve its finances and regulatory framework, the second taking place during Covid-19 times:

The first step consisted of a major and long-overdue overhaul of the tax legislation, albeit maintaining the tax territoriality principle. On 4 December 2018, Costa Rica enacted a major tax reform through the ‘Law for the Strengthening of Public Finances’, incorporating new rules regarding income tax, fiscal periods, permanent establishments and taxable events, taxation of capital income and capital gains and losses, and the Value-Added Tax (VAT) at a rate of 13%, excluding certain goods and services.

As will be the case in most countries in the world, further tax legislation is expected to improve the state’s finances, aggravated by the Covid-19 pandemic, all of which will increase the scope of reporting and compliance of tax and related regulatory obligations.

The second step was the culmination of the long process for being unanimously admitted into the Organization for Economic Cooperation and Development (OECD) on May 2020. For admittance, Costa Rica had to revamp its regulatory framework by approving specific legislation in areas such as investment, anti-corruption, corporate governance, financial markets, private insurance, competition, tax, public governance, statistics, economics and development, education, employment, health, trade and export credits, agriculture, fishing, scientific and technological policies, digital economy and consumer protection. It is expected that all the approved legislation required to become a member, in addition to future commitments, will pave the way for strengthening Costa Rica’s position in the global markets as a regional leader in many of these areas, pursuant to international practices and standards.

Even before being admitted to the OECD, Costa Rica had adopted the European Union’s General Data Protection Regulations (GDPR) as the basis for its legislation regulating protection of personal data and information under the self-determination, confidentiality, consent and use and protection of data principles.

The recent amendments to the competition law also follow OECD principles and practices, and in certain aspects, new rules are even more stringent for merger control and anti-competitive practices.

Moreover, as part of the public governance policies, the government is promoting and implementing through Mideplan-MEIC Guideline 085 a ‘digital government plan’ procuring the simplification of administrative procedures (in part to counter the increase of regulation), support to SMEs and business ventures, employability and investment in public infrastructure. This type of plan, along with strong public/private partnerships, is crucial for developing the necessary infrastructure to achieve digital transformation and maintain Costa Rica’s standing in the region.

In the labor law and practices realm, Covid-19 has reshaped the workplace, and the new trends in relation thereto are here to stay. As in other countries, the ‘new normal’ in Costa Rica will be working remotely on a permanent basis or, at least, applying a hybrid model that allows certain employees to work remotely, whilst others continue to work in the office. Setting rotating shifts as part of this hybrid model will allow using smaller office spaces, which will generate savings, not only in office space, but also on supplies, transportation, food and other costs related to physical work in the office.

Costa Rica has been ready to properly apply remote work or ‘work from home’ by timely approving legislation in September 2019. This legislation is quite flexible, as it allows the parties to negotiate the terms and conditions for each specific case, but seeking a proper balance by mandating employers to follow proper practices in its internal procedures to ensure the employee’s right to disconnect and avoid ‘burnout’ as a work-derived sickness. Employers must take a hands-on approach to ensure that employees have a proper office environment in their homes.

New labour legislation allows flexible work schedules and provides that an employee’s performance is measured based on the fulfilment of objectives and not just in the completion of daily shifts. The outsourcing of all tasks that are not related to the company’s core-business will become more common. Specialized and technical experience will be more relevant when selecting a service provider.

We also expect an increasing number of labour disputes to be solved through mediation and alternative dispute resolution centres.

Technology, as a major disruptive force on employment through artificial intelligence, is also continuously transforming the way standardized legal work is delivered, and we expect clients to seek solutions that improve the effectiveness of the contracting process and the contract life cycle management, the assistance and support to clients and GCs in the development of responses to regulatory events and business changes, regulatory response and compliance. We understand that GCs need to focus more on strategic matters, and providing the technological tools for such standardized legal work will be expected to be part of value proposals to clients. That is why at EY Law, we have spearheaded the legal managed services industry.

Other notable trends have been the increase in debt restructuring matters as the expected scope and duration of the Covid-19 emergency remain unclear, intensifying economic implications for many industries. This situation has increased the work related to debt restructuring, insolvency strategies and other ‘hibernation’ measures, the preservation of business continuity, along with liquidity and funding.

We have also been instrumental in advising retail clients on the implementation of e-commerce platforms as the region is experiencing a surge in online shopping.

---

See more from EY at: www.ey.com

I have been a lawyer for 24 years, originally specialising in tax law. I became an in-house lawyer by chance. I began my corporate career as legal manager for Central America and the Caribbean at British American Tobacco. It was an incredible experience, but one day I received an offer I could not turn down. So, I went to work for Colgate-Palmolive. This is a really interesting company that deals with consumer goods and products that focus on oral health, personal care and home care. We also have a division that manufactures and sells pet food. It is a very diverse and interesting company.

I manage six countries: Guatemala, El Salvador, Honduras, Nicaragua, Costa Rica and Panama. I oversee all the legal issues including tax, environmental law, government relations and advertising law. One of the most important things that has set Central America apart from the rest of the world when it comes to COVID-19 is the implementation of curfews. We have been under lockdown and had strict controls placed on our movements over the last five months.

Despite this, Colgate-Palmolive has not had to shut down  its operations. We sell our products throughout Central America, Dominican Republic, some parts of Europe, Mexico and the United States. We have not stopped even for one day. The goods we sell have been considered essential by every government in the region. Ensuring our people are able to do their job in a safe manner has been key. While this work has involved many departments, the legal team has made sure everything is done in a fully legal and compliant way.

The truth is, in-house legal work is usually done behind the scenes. I am fine with that, [because it] means when we do our work in the best way, everything goes smoothly. For example, in order for our employees to travel during curfew times we had to apply for special legal permits. In the end, nobody raised any issues. This means we did our job well.

This is a consumer goods company, it is a company whose main area of focus is to manufacture, sell and market products. We as legal are a support function, and our main goal is to operate in such a way that people do not know what we are doing behind the scenes. [Our lack of visibility] is a measure that the legal function, not only in Central America but worldwide is working effectively. Colgate-Palmolive has done a terrific job as we continue to manufacture and sell products safely.

Another, major change in my role is I am working from home all day. Apart from a quick visit into the office, I have not seen my leadership and management team for the past five months. This means we have had to change how we deal with everyday issues.  Previously, I would spend some time of the year in each country, making at least two visits per country a year. If something was urgent I would just hop on to a plane. These days I have to handle everything over the telephone or over a computer screen.

One of the biggest challenges during this pandemic has been brand protection, and I believe we have been doing a great job. We pursue and take action against imitation of products, counterfeiting and smuggling of products that do not conform to our requirements. During this pandemic, right from the beginning, we have had to deal with people trying to sell products and mislead consumers into believing products are from our company, when they are not. In the past, we would send our brand protection team, comprised of lawyers and private investigations to looking into to these kinds of issues. We would run an investigation, submit a case for breach of intellectual property and prosecute the case. As many of the countries in our regional cluster are now closed we have had to come up with creative ideas to deal with such issues. For example, gel alcohol (sanitizer) which is advertised using one of our brands on Facebook marketplace, is not a product we manufactured. We let Facebook know the product is not ours, and they need to shut the account down. We also sent a cease and desist letter [to the manufacturer of this product].

We have had to find a lot of creative ways to protect the company’s trademark, as well as protecting consumer rights. In the past, we would go into a street and look for the product, collect samples and just gather as much information as possible to prosecute those cases. Now, we have had to be more creative, and find other ways to have the product removed from the market without us involving private investigators.

My personal opinion is that we have managed our resources very efficiently. We can respond to matters effectively, whether we are sitting in an office or at our homes, and provide the same results. I believe the legal profession will become more flexible as we look for smart and creative solutions, whilst respecting the processes of the law. The reason people are hesitant to approach lawyers is that we can sometimes take too long to address issues.

Overall, we as lawyers want the legal profession to advance. When I was at school, there was a philosophical discussion regarding the law and whether the legal profession was a science or just a body of dead knowledge  that continued to follow the same statutes and cases over and over again. This pandemic has made us stop for a moment to take a look at our profession from a scientific standpoint. As in-house lawyers we have to reinvent ourselves, and find alternative answers to make things easier. The law can evolve, and the legal profession can evolve just as other sciences do. 

Regardless of the fact that Ecuador’s economy is the eighth largest in Latin America and the Caribbean (among 33 countries), Ecuador has amazing potential of business activities in the mining, energy, tourism and agriculture industries. With large natural mineral reserves (in gold, cooper and iron), amazing conditions for the development of energy projects, especially photovoltaic and hydroelectric energy, incredible tourism locations such as the Galapagos Islands, beautiful highlands, and considered to be one of the most bio-diverse countries in the world, Ecuador is also one of the top exporters worldwide of bananas, shrimp, flowers and cacao.

Due to all these interesting factors and many others like a dollarized economy, the government’s current policy has been focused in promoting attractive conditions for foreign investors and working on improving the benefits that were already granted in the Organic Code of Production, Commerce and Investment (COPCI) published in December 2010, but had little or none effect during the previous government (aligned to Hugo Chavez ideology).

The Law of Productive Development, Attraction of Investment, Employment Generation and Fiscal Stability (Investment Law) enacted in august 2018, offers to investors the possibility of obtaining interesting benefits such as: tax exemptions (income tax and currency remittance tax), reduction of custom tariffs, legal stability and entering into arbitration agreements while entering into Investment Agreements with the State, which has given law firms a new scope of work that involves project finance, tax, regulatory matters and contracts.

Furthermore, Ecuador offers investors a dollarized economy and a much more transparent State which has promoted transparency and the implementation of ISO 37001 anti-bribery among its government institutions and companies. These benefits have caused almost a 130% increase in foreign direct investment in comparison to the former government as per studies of the Central Bank of Ecuador.

However, despite the new foreign investors that came in different industries due the favorable conditions of the Investment Law and the effort of the current government to solve the extremely high debt left by the former government (which in addition to other matters caused a division among the elected political party, some in favor of the previous government and some in favor of the actual government), the economy of Ecuador was affected again by a combination of different factors.  These are the social unrest events that occurred not only in the country but also in the Latin American region around October 2019, followed by the oil crisis (price-drop), the damages in the local oil pipelines due to massive landslides and COVID-19.

COVID-19 impact not only revealed the deficit in the country’s health system but also caused the lockdown of the country and the suspension of most economic activities for a couple of weeks. As a consequence, certain small businesses have faced bankruptcy or many other, have had to reduce their production capacity and employment force, generating many opportunities for law firms in debt restructuring, ADR and labor advice, that had to innovate their services to provide legal assistance while working from home.

In addition, Ecuador has upcoming presidential elections on February 2021, and the political scenario is uncertain due to the fact that most of the high public official (President, Vice President and some ministries) of the former government have been prosecuted in relation to corruption allegations, and there is low probability that they can run for a public position. As such, after 14 years of having the same political party in government, there is a high probability of having a different political party achieving the presidency.

Some of the key aspects take into account while deciding to invest in Ecuador are the following:

Key Indicators for 2020 and forecast

Current Business Environment

Tax Regulation

Bellow a brief description of the main taxes applicable to commercial activities in Ecuador:

a) Income Tax

Income tax taxes the rent obtained by persons and local and foreign companies. Under the Ecuadorian law, income refers to:

Income from Ecuadorian source obtained free of charge of from work or capital.

Income obtained from abroad by persons domiciled in Ecuador or by Ecuadorian companies.

The tax basis is the total taxable income, less returns, discounts, costs and expenses deductible and attributable to such income. In general terms, the rate for companies is of 25%.

b) Value Added Tax

Tax on the value of transfer of ownership or import of goods, services, copyrights, industrial property and related rights. A 12% rate is applied over the price of goods and services. Some exceptions may apply to certain goods and services that will be taxed with a 0% rate.

c) Currency Remittance Tax (ISD)

The Currency Remittance Tax (ISD) taxes transfers in cash, through money orders, bank transfers, shipment, withdrawals or any payment of any kind, of currencies sent abroad, with the exception of an account clearing made with or without the intermediation of financial institutions.

The tax rate of 5% is applied over the value of the currency transfer. This tax is declared and paid by the financial institution by which the financial operation is carried out.

d) Capital Gains Tax or Property Transfer Tax

The tax rate for Capital Gains Tax and Property Transfer Tax ranges from 2% to 10%.

Labor – Profit sharing

15% of the net earnings of a company are distributed to all employees in the payroll. It can also apply to employees of companies that provide the company complementary services such as catering, security, cleaning and courier services. From the 15%, 10% is divided and distributed to all employees. The remaining 5% is distributed in accordance with the employee’s household.

Profit Sharing in mining, oil, and hydroelectric companies: as an exception to the general profit sharing rule, that the 15% of the annual profit must be distributed to all employees, in the case of mining, oil and hydroelectric companies it is only distributed 3% to all employees in the payroll, and 12% is distributed to the state.

Public Private Partnerships

The government has promoted Public Private Partnerships (PPP) which can be established for the provision of goods, building infrastructure, or services. All terms and conditions of PPPs are set out in a contract that must be signed with the public entity.

The PPPs have, among others that might be agreed upon the contractual parties, the following incentives:

a) Legal stability.

b) Income tax Exemption: Income tax exemption for ten years in projects in the prioritized sectors determined by an inter-institutional committee, period which starts from the first fiscal year in which the company generates operating income.

c) Currency Tax Remittance Exemption:  All companies that participate in an PPP will be exonerated from ISD in the following scenarios:

• In the importation of goods for the execution of the public project, whatever the import regime used.
• In the acquisition of services for the execution of the public project.
• The payments made by the company to the financiers of the public project, including capital, interest and commissions, provided that the agreed interest rate does not exceed the reference rate at the date of registration of the credit. The benefit extends to subordinate loans, provided that the borrowing company is not in a situation of undercapitalization in accordance with the general regime.
• The payments made by the company for distribution of dividends or profits to its beneficiaries, notwithstanding where they have their fiscal domicile.
• Payments made by any person or company due to the acquisition of shares, rights or participations of the structured company for the execution of a public project in the PPPs modality or for transactions that fall on securities representing obligations issued for the financing of the public project.

d) Reduction of tariffs: Customs tariffs that are related to the PPP projects will also be exonerated

e) International or domestic arbitration agreements

The incentives mentioned above may be enjoyed for the term agreed upon in the contract, with the exception of the income tax exemption, which can only be 10 years.

Investment Contracts

The Investment Law and COPCI benefits are directed to those new investments (either made by foreign or local investors) that meet the criteria of new productive investments in prioritized sectors of the economy that increases production and generates new employment.

The benefits granted by the government will depend on the investment project, its location, its industry, whether is a new company or an existing one, amongst other criteria, as shown bellow:

a) Total or partial income tax reduction from 8 to 15 years.

b) Currency Remittance Tax (“ISD”) exemption for the payment of imported machinery and raw materials, and for the payment of profits to foreign shareholders.

c) Tax stability for up to 15 years of the current applicable income tax rate. This provision does not provide stability for municipal, customs nor VAT Taxes.

d) Temporary exemption of custom tariff.

e) International or domestic arbitration is available for investors.

Initially, the aforementioned benefits apply for those investments made up to August 2020, but the President has recently extended the benefit for 2 years more, until 2022.

---

See more from Paz Horowitz at: www.pazhorowitz.com

I am from Venezuela and for most of my career I was based there. I moved to Panama five years ago when 3M relocated me to takeover legal responsibilities for countries across Central America and the Caribbean. After two and a half years I relocated to Mexico to become general counsel there. In 2020, I moved back to Panama as general counsel for Latin America, overseeing legal operations in the health care, transportation and electronics sectors.

I started this new role during the pandemic and have overseen the company’s involvement in a range of initiatives during this period. 3M has been very focused on increasing production of respirators. As a company are working together to get things where they need to be, utilising our own distribution channels. It is important to note the company has not increased the price of respirators. In fact, 3M has been fighting against price gouging and many other types of fraud in both the United States and Latin America. There have been fewer cases in Latin American than in the US.

Legally, we have taken a global approach, rather than a local one. Legal departments across the company have aligned their goals for Latin America, USAC (United States and Canada) and Europe.

One of the biggest challenges that I have experienced in recent months has been dealing with the speed of change. Governments have generally relaxed their rules to allow healthcare products to come into countries easier,  while some jurisdictions have made it harder to export products deemed necessary during the pandemic. Dealing with different jurisdictions and trying to standardise the way in which we work has been our biggest goal. It is a challenge when deciding how to balance multiple jurisdictions – you cannot work with 15 countries in 15 different ways. We need to find a midpoint that works across varying countries.

For example, if I am drafting an agreement that I would like to be used as a template for both Mexico and Argentina, I cannot put into that agreement the initial part of the document, as the format will be different for each country. If I insist on having that part of the document done in one single way for Latin America it would simply fail. If I focused on the little things, I would lose sight of the bigger picture.

No matter what jurisdiction we are dealing with, general counsel need to be more business minded  than external counsel. Being part of a company is very different to being part of a law firm. Your state of mind needs to be focused on what the company needs, and on how the company’s goals  can be achieved through different tools. That is where the IT team here at 3M steps in and integrates those tools, sometimes even delivering new tools on demand. When I was in Venezuela I asked the IT team to develop a tool for my internal client agreements. I was tired of people coming to my office to request an agreement with a range of stipulations, without giving me the details that I would need in order to draft the agreement.  The IT team developed technology that would make it easier to extract the relevant information I would need to draft that agreement. However, as things evolved, that particular technology is not efficient enough anymore.

At the moment, there are a number of tools on the market that companies can purchase. They can then adapt those tools to the company’s needs. That is exactly the case for 3M. We have been working with management tools for agreements as well as repository tools to be more efficient. We as a legal department are very much like a sponges. We need to be aware of and absorb a lot, whilst always adapting to the needs of the business. Our goal is to serve the business – there is no question ever about that. We then have to be innovative, and we need to be fast. We aim to help business teams do what they need to do – which in the end is to sell our products.

To that extent, it is really important to adapt to the needs of the business and to take advantage of all the tools we have to make work easier. But I have to admit that the legal department does complain in order to get the technologies that help us become more streamlined. That is the nature of being human, if we did not complain we would not be able to improve things.

I miss being able to go into to work and see people in our Panama office. Looking to the future, I think this moment of time has accelerated things within the industry. We definitely need to move towards becoming more efficient, and to find a balance between being compliant with the law and doing the right thing. I know doing the right thing is a subjective concept, but it is important to try and do what is right at a particular moment when you are faced with a particular situation. As a lawyer, the personal values you have and believe in, are a big part of it.

Of course, you also need support from the business. In a company like 3M, when a lawyer says something is not right, the issue will be heard and observed. Legal departments do not only report to their businesses, but also to a wider legal code. Everybody knows the opinions of lawyers matter – and although lawyers can sometimes get it wrong – companies trust their legal departments. 

As a macroeconomic preamble, Guatemala is a developing country highly dependent on agricultural products, textile manufacturing, remittances sent by expats and a strong informal economy (which represents 22% of the overall GDP). The country enjoys a stable currency without drastic inflation, even with the COVID-19 crisis, the cumulative inflation rate is at 2.16% and has inflationary rhythm of 2.39%. This strong currency has had a negative impact on exports’ revenue, another extremely relevant economic sector.

Interestingly, on May 2020, Guatemala reported a 2.2% increase in exports compared to May 2019. Guatemala’s main export products are: i) textiles and apparel (10%); ii) cardamom (8.2%); iii) coffee (8.1%); iv) sugar (7.7%); and v) bananas (7.6%). These five products accrue for 41.6% of overall exports. On the import side, on May 2020 Guatemala reported a -9.5% decrease on imports compared to May 2019. This is mainly due to a -35% decrease on the imports of fuel and lubricants and a -17.3% decrease on consumer products. Although exports play a critical role, from 2018 to 2020 Guatemala has maintained a trade deficit of an averaged US$3,93bn. From a trade in services perspective, Guatemala’s balance of payments reflects an overall reversion of the trade deficit with a significant increase in the export of manufacturing services. However, this trade surplus rhythm went from 2013 until 2018 and was interrupted in 2019, when Guatemala reported a trade deficit of US$46.8m.

Despite these not so negative numbers, due to the current COVID-19 economic crisis, the Guatemalan Central Bank has adjusted its economic yearly growth projection from 3.5% to 0.5%-1.5% for 2020. From a microeconomic perspective, both social distancing and transit limitation dispositions rendered by the government have significantly impacted the services sector. For example, projections show a negative impact in hotels and restaurants with an estimated reduction of -24.3%, transportation with -14.7%, basic services (water, electricity and gas) with -9.4% and real estate services with -8.4%. Even though it may seem that the supply chains have not been substantially strained, they reported a turnover decrease of 20%-40% in March 2020. Depending on the length of the crisis, Guatemala could be facing a loss of 97,000 to 177,000 formal jobs.

To mitigate this crisis, the Guatemalan government has increased the national budget on Q19bn quetzales (around US$2.5bn) in order to create public funds for social and economic purposes that will inject liquidity to the economy. 80% of the Q19bn was financed by the emission of treasury bonds and the remaining 20% was covered via institutional loans. These measures have increased the fiscal deficit by 5.7% in comparison with 2019. Surely, this will have an impact on the macroeconomic indicators of the country. Furthermore, the government has also suspended: i) certain tax obligations reducing collection by 3.3% (which will intensify this fiscal deficit); ii) the payment of Bono 14, a yearly mandatory bonus that employers pay to employees. Such provisions, along with the social distancing and transit limitations guidelines, have impacted the conducting of business of our clients; influencing their business projections in a short- and long-term perspective. They turn to their trusted legal advisors and appreciate a holistic approach in their everyday challenges.

Within this context, the Guatemalan legal market is going through a very pressing and critical time. COVID-19 has, not only disrupted the way legal services are rendered, but also drastically shaped our clients’ current needs. The new reality has forced law firms to migrate to a full home office model, challenging the in-office stereotype enshrined in the legal profession.

As many law firms have moved to a mandatory home office, it is important to closely monitor the working culture of their employees and substantially rely on their technological platforms to enable a smooth transition. Before the COVID-19 outbreak, the home office standard had a limited and informal presence within the law practice. Many law firms allowed lawyers to work half a day from home, but it was not formally stated as an internal policy. At EY, employees have always enjoyed a mandatory policy requiring them to work from home at least once a week. This has nourished the home office culture and facilitated the migration to a full home office model overnight without compromising efficiency.

Our clients have constantly relied on our services in order to help them better understand the impact changing COVID regulations could have on their daily operations. We have created multidisciplinary service packages where EY’s legal division works closely with other service lines within our multidisciplinary teams, advising our clients to tackle most of their COVID necessities from a legal, financial and tax perspective. Within the legal element of this full package, we have detected a strong need for advice in the labor, contractual, tax and regulatory areas.

The M&A market has also been impacted by the current situation. The buy side M&A practice has observed dynamism triggered by big companies. Certain groups are using this crisis as an opportunity to expand their operations by acquiring smaller companies in distress for a better price. This has generated several opportunities for our transactional practice.

The COVID-19 crisis has brought uncertainty. It is an ongoing crisis with unpredictable effects continuously unfolding without a clear projection, affecting all sectors of the economy – and the legal market is no exception. However, with change as the only constant, organizations are forced to keep up with this roller coaster by rapidly evolving their internal administration and the manner in which they are addressing their clients’ needs. Survival depends on resiliency and the ability to adapt.

---

See more from EY at: www.ey.com

Fraudsters, money launderers, and corrupt government officials in Latin America (LATAM) have been running rampant, capitalizing on the coronavirus emergency. COVID-19 is posing unprecedented challenges to compliance professionals in LATAM, both in-house and external, for preventing, detecting, and reacting appropriately to compliance risks, especially in a remote working environment replete with financial strains, and massive surges in alerts caused by changes in the behavior of clients, employees and third parties.

Against this unprecedented backdrop, we present the following summary of recent compliance trends for organizations doing business in LATAM.

Additional corruption risks

With governments in the region allocating significant resources via expedited public procurement processes, the risk of corruption has dramatically increased in LATAM. Further, as pressures grow on sales representatives, consultants, and distributors to keep businesses afloat, individuals are tempted to bribe government officials. Not surprisingly, law enforcement agencies in Mexico, Guatemala, Honduras, Panama, Colombia, Ecuador, Bolivia, Argentina and Brazil are conducting criminal investigations against a number of senior officials for participating in schemes to misappropriate emergency COVID-19 funds, or for engaging in the fraudulent purchase of ventilators, masks and other medical supplies.

Critically, multinationals face heightened exposure to corruption allegations, because such enterprises can potentially, in the course of regular business operations, inadvertently assist, sponsor, or provide financial, material or technological support for forms of corruption such as the misappropriation of public funds, collusion, opaque contracts, and overpricing. The risk is even higher when organizations interact with government officials, especially in situations involving government procurement and inspections, customs clearance, licensing and permitting and donations.

Ramifications for multinationals operating in LATAM of being involved in, or associated with, corrupt practices is significant. For example, they can be the target of US enforcement actions, including criminal investigations under the Foreign Corrupt Practices Act (FCPA) for suspected involvement with bribery of foreign officials, and/or under the US Money Laundering Control Act for engaging in monetary transactions in corruption proceeds. Additionally, foreign companies believed to be involved in corruption can have their assets blocked under the Global Magnitsky Human Rights Accountability Act.

In fact, the US Government has continued to aggressively fight corruption in LATAM this year through criminal and civil penalties, in addition to economic sanctions. Notably, the Department of Justice (DOJ) has criminally charged individuals and corporations for FCPA violations in connection with the bribery of foreign officials in or from countries such as Uruguay, Brazil, Panama and Venezuela.

The US Government also recently released new compliance guidance to enhance its FCPA-related enforcement efforts globally. On 1 June 2020, the DOJ released its revised Guidance on Evaluation of Corporate Compliance Programs to further explain its assessments of the design, implementation, and effective operation of corporate compliance programs in criminal cases. And, a month later, the DOJ and the Securities and Exchange Commission (SEC) released a new edition of their FCPA Resource Guide, which advises on prosecutorial guidelines in FCPA matters.

Also, the US Government has expanded its economic sanctions related to countries that are believed to be under corrupt regimes, such as Venezuela. Specifically, the US Government has sanctioned several individuals, entities, and vessels for operating in designated sectors of the Venezuelan economy, or for their attempts to evade US sanctions related to Venezuela.

Coronavirus-Related Fraud

Law enforcement agencies from Panama to Argentina are investigating criminals impersonating government agencies, international organizations, and healthcare facilities to solicit donations, steal personal information, or distribute malware (imposter scams); fraudsters misrepresenting that the products or services of publicly traded companies can prevent, detect, or cure the coronavirus (investment scams); companies selling unapproved or misbranded products that make false claims pertaining to COVID-19 or fraudulently marketing COVID-19-related supplies (product scams); individuals and entities stockpiling items in high demand to sell them at extremely high prices online and in person (price gouging); and insiders conducting transactions based on, or tipping others with, material non-public information about the negative impacts of COVID-19 on the financial performance of shares (insider trading). Business email, telework, and social media scams, ransomware attacks, and phishing email schemes have also proliferated in regions such as Puerto Rico, Guatemala and Mexico.

Organizations should take great care to familiarize themselves with emerging trends associated with coronavirus-related fraud identified by regional law enforcement agencies, in order to promptly detect and report criminal activity. In addition, businesses applying for relief programs offered by governments in LATAM should track and understand the eligibility requirements under local statutes, to prevent future civil and/or criminal liability for sanctioning benefits fraud.

Increase in Money Laundering (ML) And Financing of Terrorism (FT)

On April 8, 2020, the Financial Action Task Force of Latin America (GAFILAT) issued its ‘Statement on COVID-19 and its associated Money Laundering ML and FT risks.’ In it, GAFILAT cautioned that controls aimed at preventing and combating ML and FT in the region have been compromised by the pandemic, due to a decrease in compliance staff at reporting entities. GAFILAT also warned that criminal organizations are stepping up recruitment to support ML-related activities, and that pawn shop services, lenders, as well as informal financing are being used for ML and FT in the region now more than ever.

In fact, a number of law enforcement agencies in LATAM are witnessing an increase in the recruitment of people, sometimes under the pretext of legitimate employment, to receive deposits of illegal money into personal bank accounts; as well as an increase in illicit financial flows, including trade misinvoicing, tax evasion and the criminal smuggling of cash, gold, diamonds, and illicit goods across borders.

There is also a growing concern among Governments in LATAM of criminals using cryptocurrency in the midst of the pandemic to hide the illicit origin of funds stemming from blackmail, extortions, imposter and investment scams, and charities fraud.

Recommendations

While most government agencies in the region have granted some measure of regulatory relief to organizations upon considering the current circumstances, there is no ‘pandemic defense’ for violating applicable laws. Organizations should make every effort to meet their compliance obligations, such as filing suspicious activity reports and conducting comprehensive, risk-based, and integrated customer and third-party due diligence.

Given the additional risks caused by COVID-19 in LATAM, organizations should also update their risk profile to determine where vulnerabilities exist and enhance their controls, including customer and third-party due diligence procedures, around those vulnerabilities. For example, organizations should design and implement digital identity systems under the on-point guidance issued by the Financial Action Task Force (FATF) on 6 March 2020. In it, the FATF explains several factors for assessing whether a digital identity system is sufficiently reliable and independent to conduct customer due diligence.

Lastly, organizations should make the best of technological resources to provide employees, customers, and third parties with training programs, together with mentoring and capacity building support, so all stakeholders are familiar with the red flags of fraud, corruption, and money laundering, and can take timely and appropriate remedial action.

---

See more from Diaz Reus at: diazreus.com

The following article contains an overview on Honduras and the impact that COVID-19 has had in different regions country-wide.

Honduras has a population of approximately nine million, and, like most countries, is struggling in many areas due to the pandemic. Honduras has one of the highest rates of COVID-19 infections in the Central American region.

The Honduran government has approved a set of measures that benefit the many affected industries, for example by granting limited economic relief to employees in the tourism and ground transportation sectors.

Regarding tax matters, an extension was granted for the deadline for filing the Annual Transfer Pricing Information Affidavit for the fiscal year 2019, which must be filed no later than 31 July 2020.

All calendar days are declared as non-working days for the period in which the declaration of emergency originated by the COVID-19, except those days that are necessary in order to comply with the obligations.

The deadlines for filing returns and paying sales tax for the months affected by the emergency decreed by the COVID-19 are extended to all taxpayers who have not carried out operations within the same period of the emergency. These will now be filed no later than ten working days after the end of the state of emergency.

Taxpayers who keep all their employees within the period from the declaration of the state of emergency arising from COVID-19 until December 2020, in respect the payment of wages and labor rights and who have not suspended or terminated their employment contracts, will be granted an additional special deduction from their gross income. Such deduction is equivalent to 10% calculated on the payment of wages and salaries in the months during which the state of emergency is decreed, which may be accounted for as a deductible expense for income tax purposes in the 2020 fiscal period. This benefit will not apply in cases where the employer terminates or suspends employment contracts.

On the labor law practices, COVID-19 has changed the normal operations from the government and private entities. As in other regions, ‘the new normal’ is the work from home solution, known as ‘Home Office’. Even though Honduras has no specific laws for Home Office, unlike many other countries, the Honduran Government issued an emergency decree which authorizes Home Office as a possibility to deliver work. This not only applies to private companies, but also to public employees. Honduran Law defines Home Office as the activity that is developed outside the facilities of the employer, using the information and communication technologies for the development of the work. Employees of any public or private entity can perform their work totally or partially at a distance from their workplace.

The obligations of employers and employees remain the same according to the Honduran Labor Code.

The return to work in Honduras has been very slow. An economic and labor reactivation has been established for specific periods of time of 45, 60 and up to 75 days divided into three regions distributed according to the amount of contagion by COVID-19. However, this may vary depending on the amount of contagion in such areas. Every Sunday since mid-March 2020, the Honduran government has issued curfews for one or two weeks, allowing only specific companies to operate normally with the now customary protocols.

Soon, Honduras will – on a provisional basis – apply a model that allows a percentage of employees to work from home and others to continue working from the office to protect the general population and promote savings in the operating expenses of employees, such as office supplies and utilities.

We also expect an increasing number of labor disputes in the Labor Administrative Offices due to the loss of jobs, which will likely generate direct intervention by the Supreme Court. Also, an increasing number of civil procedures is expected in relation to contractual breaches, especially in the real estate sector.

Even though this will be the biggest recession in Honduran history and it will definitely have strong effects on private entities, this will be an opportunity for the country and for foreign investors to navigate into more modern and improved industries and technologies such as telecommunications, digital marketplaces, cybersecurity, programming and technology, education, medical services, product distribution, convenience stores/supermarkets and a more modern agro-business sector. With local or foreign companies investing in these areas, Honduras will generate more job opportunities, and government incentives are expected to this effect.

Work related to debt restructuring has also increased in Honduras due to the resulting economic implications of the current situation. We expect a substantial number of companies to file insolvency and liquidation procedures. We have been advising clients in strategies that can support business continuity at all levels, on an integrated basis, with our other service lines covering all aspects of a business operation.

EY Law has not stopped working amid the devastating impact of the pandemic in Honduras. Our firm has applied Home Office for many years in this country and our timely implementation of the best technology has been a key issue to the success of our business and our clients in this difficult time.

---

See more from EY at: www.ey.com