NICARAGUA: INVESTMENT CLIMATE STATEMENT 2008

UNCLAS SECTION 01 OF 11 MANAGUA 000242

SIPDIS

SIPDIS

STATE PASS USTR
USDOC FOR 4332/ITA/MAC/WH/MSIEGELMAN
3134/ITA/USFCS/OIO/WH/MKESHISHIAN/BARTHUR

E.O. 12958: N/A
TAGS: EINV ECON PREL OPIC KTDB USTR NU

SUBJECT: NICARAGUA: INVESTMENT CLIMATE STATEMENT 2008

REF: 07 STATE 158802

OPENNESS TO FOREIGN INVESTMENT
--------------

Legal Framework
--------------


1. The Free Trade agreement between the United States, Central
America, and the Dominican Republic (CAFTA-DR) entered into force on
April 1, 2006, for the United States and Nicaragua. The CAFTA-DR
Investment Chapter establishes a secure, predictable legal framework
for U.S. investors in Central America and the Dominican Republic.
The agreement provides six basic protections: (1) nondiscriminatory
treatment relative to domestic investors and investors from third
countries; (2) limits on performance requirements; (3) the free
transfer of funds related to an investment; (4) protection from
expropriation other than in conformity with customary international
law; (5) a minimum standard of treatment in conformity with
customary international law; and (6) the ability to hire key
managerial personnel without regard to nationality. For additional
information about CAFTA-DR and USAID support for the implementation
of CAFTA-DR, see www.ustr.gov/Trade
Agreements/Bilateral/CAFTA/Section Index.html and www.procafta.net.


2. In addition to CAFTA-DR, Nicaragua's Foreign Investment Law
defines the legal framework for foreign investment. The law allows
for 100% foreign ownership in most sectors (see Right to Private
Ownership and Establishment for exceptions). It also establishes
the principle of national treatment for investors, guarantees
foreign exchange conversion and profit repatriation, clarifies
foreigners' access to local financing, and reaffirms respect for
private property.


3. Other major laws governing foreign investment include the
Temporary Entry Law, which allows for the duty free import of
machinery, equipment, raw materials, and supplies for companies
exporting the majority of their production (see Performance
Requirements and Incentives); the Export Processing Zone Law (see
Foreign-Trade Zones/Free Ports); the Tax Equity Law (see Performance
Requirements and Incentives); the Banking Law (see Conversion and
Transfer Policies and Performance Requirements and Incentives); and
a series of intellectual property laws (see Protection of Property
Rights). In 2006, the Nicaraguan National Assembly approved a
Competition Law, but the law has not yet been implemented (see
Transparency of the Regulatory System). In 2005, the government
amended the Tourism Incentive Law to strengthen incentives for
investment in that sector (see Performance Requirements and
Incentives). See www.asamblea.gob.ni/ for the Spanish-language text
of Nicaraguan law.

Policy Environment
--------------


4. Since taking office again in January 2007, President Ortega has
maintained the legal and regulatory underpinnings of the
market-based economic model of his predecessors. Nicaragua has
stayed current with its CAFTA-DR obligations. Under an IMF program
signed in October 2007, the Government of Nicaragua agreed to
implement free market policies linked to targets on fiscal
discipline, spending on poverty, and energy regulation.


5. In practice, however, a number of factors contribute to an
increasingly uncertain policy environment for foreign investors.
Government often announces economic policies, programs, or decrees
without formal consultation with the private sector. On more than a
dozen occasions, the government has used its tax, customs, and
property administrations to pressure individuals and companies into
accepting noncommercial terms in concessions or contracts (see
Dispute Settlement, Transparency of the Regulatory System, and
Expropriation and Compensation for examples). High profile rulings
by the courts and oversight agencies are unpredictable and widely
believed to be politicized. President Ortega has repeatedly
suggested that it was a mistake to privatize the telecommunications
and energy industries, where a number of foreign firms have
invested; he has not ruled out re-nationalization, although no
formal plans exist. Local business associations have complained
that President Ortega's harsh rhetoric against the United States,
capitalism, and free trade has had a negative effect on foreign
investor attitudes and perceptions of risk when they think of
Nicaragua (for official copies of speeches in Spanish see
www.presidencia.gob.ni).


6. After successive years of improvement, Nicaragua fell in the
World Economic Forum's Competitive Index Rankings from 95th place in
2006 to 111th in 2007. Significant slippage occurred in the quality
of Nicaraguan institutions and market efficiency components of the
index. In 2008, the Heritage Foundation Index of Economic Freedom
ranks Nicaragua 81st (at the 60.1 percentile) worldwide for economic
freedom, down from 65th (at the 61.9 percentile) in 2007. However,
the Heritage Foundation has maintained Nicaragua's placement at the
70th percentile on investment freedom, one of ten components
comprising its Index of Economic Freedom (see
www.heritage.org/research/features/index/).

CONVERSION AND TRANSFER POLICIES
--------------


7. The Foreign Investment Law (2000/344) and the Banking, Nonbank
Intermediary, and Financial Conglomerate Law (2005/561) allow
investors to freely convert and transfer funds associated with an
investment. Article 10.8 of CAFTA-DR ensures the free transfer of
funds related to a covered investment. Local financial institutions
freely exchange U.S. dollars and other foreign currencies.
Foreigners may open bank accounts, but the process is cumbersome and
time consuming. The Superintendent of Banks and other Financial
Institutions monitors financial transactions for illicit activity.



8. On several occasions, most recently in October 2007, President
Ortega has suggested that foreign investors should reinvest their
profits locally rather than repatriate them. To date, the
government has prepared no formal policy proposals on this topic.


9. The official exchange rate is adjusted daily according to a
crawling peg that devaluates the cordoba against the U.S. dollar at
an annual rate of 5%. The official exchange rate as of February 15,
2007, was 19.02 cordobas to one U.S. dollar. As a result of local
food and international energy prices, inflation rose to 16.2% in
2007 (from 10.2% in 2006),placing stress on Nicaragua's crawling
peg regime.

EXPROPRIATION AND COMPENSATION
--------------


10. During the 1980s, the Sandinista government confiscated 28,000
real properties. Since 1990, thousands of individuals have filed
claims against the government to have their property returned or
receive compensation. Compensation is most often in the form of
low-interest bonds issued by the government. As of December 2007,
the Nicaraguan Government had settled more than 4,500 U.S. citizen
claims. A total of 677 Embassy-registered U.S. claims remain. In
December 2007, the Ortega administration established unrealistic
standards of proof to demonstrate ownership and expropriation, and
announced plans to dismiss claims accepted by previous
administrations. The Ortega administration also sought to
retroactively review already settled claims. The U.S. Embassy in
Nicaragua is contacting claimants and working to ensure that the
property rights of U.S. citizens are respected. A U.S. citizen with
such a claim may contact managuapropoffice@state.gov.


11. CAFTA-DR prohibits expropriation unless for a public purpose.
The government must pay prompt, adequate, and effective
compensation. See www.ustr.gov/Trade
Agreements/Bilateral/CAFTA/Section Index.htm for additional
information.


12. In August 2007, the Nicaraguan Government seized, via judicial
order, several petroleum storage tanks owned by a U.S. company on
the pretext that the company had not paid value-added taxes
associated with the import of crude oil, despite the fact that
petroleum and petroleum products are not subject to this tax and no
mechanism exists to collect it. The government then used the tanks
to store petroleum products imported from Venezuela under the terms
of a government-to-government financing agreement. In January 2008,
the U.S. company sold the tanks in question to state-owned company
Petronic and negotiated a purchase agreement with Petronic for crude
oil imported from Venezuela.


13. See Protection of Property Rights for a description of other
forms of land security problems affecting investors.

DISPUTE SETTLEMENT
--------------


14. Difficulty in resolving commercial disputes, particularly the
enforcement of contracts, remains one of the most serious drawbacks
to investment in Nicaragua. The legal system is weak, cumbersome,
and members of the judiciary, including those at senior levels, are
widely believed to be corrupt or subject to political pressure. A
commercial code and bankruptcy law exist, but both are outdated.


15. Enforcement of court orders is frequently subject to
nonjudicial considerations. Courts routinely grant injunctions
("amparos") to protect citizen rights by enjoining official
investigatory and enforcement actions indefinitely. Foreign
investors are not specifically targeted, but they are often at a
disadvantage in disputes against nationals with political or
personal connections. Misuse of the criminal justice system
sometimes results in individuals being charged with crimes arising
out of civil disputes, often to pressure the accused into accepting
a civil settlement. The World Bank estimates that on average local
courts issue a preliminary ruling on contract disputes in 540 days.
Monetary judgments normally are rendered in Nicaraguan currency, but
may be denominated in U.S. dollars.


16. Dispute resolution is even more difficult in the Northern and
Southern Atlantic Autonomous Regions (RAAN and RAAS, respectively),
where most of the country's fishery, timber, and mineral resources
are located. These large regions, which share a Caribbean history
and culture, comprise more than one-third of Nicaragua's land mass.
The division of authority between the central government and
regional authorities is complex and flexible. Local officials may
act without effective central government oversight.


17. The Mediation and Arbitration Law (2005/540) establishes the
legal framework for alternative dispute resolution. Nicaragua is a
signatory of the New York Convention and the Inter-American
Convention on International Commercial Arbitration. Arbitration
clauses should be included in business contracts if one has doubts
about the Nicaraguan judicial system. In January 2008, the
Nicaraguan Chamber of Commerce and the American Chamber of Commerce
of Nicaragua announced plans to merge their mediation and
arbitration centers.


18. CAFTA-DR establishes an investor-state dispute settlement
mechanism. An investor who believes the government has breached a
substantive obligation under CAFTA-DR or that the government has
breached an investment agreement may request binding international
arbitration. Proceedings under this mechanism are generally open to
the public and documents are made publicly available.


19. Several U.S. companies and the U.S. Chamber of Commerce in
Washington have voiced their concern that Nicaraguan Law 364,
enacted in 2000 and implemented in 2001, presumes guilt without due
process and retroactively imposes arbitrary liabilities on foreign
companies that manufactured or allegedly used or distributed the
chemical pesticide DBCP in Nicaragua. DBCP was banned in the United
States after the Environmental Protection Agency cancelled its
certificate for use (with exceptions) in 1979.


20. In January 2007, employees who own 40% of a local
pharmaceutical company forcefully took possession of the company's
manufacturing facilities as the result of a dispute with management.
Several U.S. citizens own shares in the company. The majority
owners of the company have been unsuccessful in their attempts to
regain control of the facilities through action in the courts and
are participating in negotiations with employees brokered by the
Nicaraguan Government.

PERFORMANCE REQUIREMENTS AND INCENTIVES
--------------

Performance Requirements
--------------


21. Nicaragua's labor code states that 75% of employees, not
including management posts, must be Nicaraguan. The Law on
Promotion of National Artistic Expression and Protection of
Nicaraguan Artists (1996/215) requires that foreign production
companies contribute 5% of total production costs to a national
cultural fund. In addition, the law requires that 10% of the
technical, creative, and/or artistic staff be locally hired. Under
CAFTA-DR, Nicaragua does not require U.S. film productions to
contribute to the cultural fund or hire locally.

Investment Incentives
--------------


22. The Tax Equity Law (amended 2005/528) allows firms to claim an
income tax credit of 1.5% of the FOB value of the exports. The Law
of Temporary Admission for Export Promotion (2001/382) allows for
businesses to purchase machinery, equipment, raw materials, and
supplies duty and VAT free if used in export processing. Businesses
must export 25% of their production to take advantage of these tax
benefits. See Foreign Trade Zones/Free Ports for a description of
incentives for investments in free trade zones.


23. The Fishing and Fish Farming Law (2004/489) exempts gasoline
used in fishing and fish farming from taxes. Investors in the
sector must register with the Directorate General for Natural
Resources in the Ministry of Trade, Industry, and Development and
with the Nicaraguan Fishing and Aquaculture Institute (INPESCA).
Environmental regulations also apply (see Transparency of the
Regulatory System).


24. The Forestry Conservation and Sustainable Development Law
(2003/462) establishes preferential property tax rates and income
tax exemptions in addition to duty and tax exemptions for inputs and
capital goods used in forestry projects. In September 2007, the
Nicaraguan Government implemented a temporary ban on commercial
logging and compelled operators to supply all timber felled by
Hurricane Felix to the government for reconstruction of the RAAN
after the hurricane. Enforcement of this law appears spotty.


25. The Hydroelectric Promotion Law (amended 2005/531) and the Law
to Promote Renewable Resource Electricity Generation (2005/532)
provide incentives to invest in electricity generation, including
duty free imports of capital goods and income and property tax
exemptions. Regulatory concerns limit investment despite these
incentives (see Transparency of the Regulatory System). Private
investment in hydroelectric dams is banned from the Asturias,
Apanas, and Rio Viejo Rivers and is limited to 30 megawatts on all
other rivers.


26. The Special Law on Mining Prospecting and Exploitation
(2001/387) exempts mining concessionaires from import duties on
capital inputs (see Transparency of the Regulatory System for
additional information on the mining sector).


27. The Tourism Incentive Law (amended 2005/575) includes the
following basic incentives for investments of $30,000 or more
outside Managua and $100,000 or more within Managua: income tax
exemption of 80% to 100%; property tax exemption; exoneration from
import duties on vehicles; and value added tax exemption on the
purchase of equipment and construction materials.

Immigration Issues
--------------


28. Those wishing to permanently reside in Nicaragua must request a
resident visa from the Office of Immigration in Managua. Investors
who live in Nicaragua but fail to obtain a residency permit have
encountered immigration problems, including deportation. The
Nicaraguan private sector has encouraged the government to establish
a short-term business visa category to mitigate the problem.
Investors should consult with Nicaraguan immigration authorities to
ensure that they have an appropriate visa or resident status while
engaging in business.

RIGHT TO PRIVATE OWNERSHIP AND ESTABLISHMENT
--------------


29. In 1992, the Nicaraguan Government began to privatize small
state-owned companies that the first Ortega government had
nationalized or established in the 1980s. Subsequent privatization
programs managed by the World Bank and Inter-American Development
Bank sold state-owned telecommunications and electricity generation
and distribution companies. Over the past 15 years, Nicaragua has
privatized more than 350 state enterprises.


30. The government owns and operates the water and sewage company
(ENACAL),the port authority (EPN),and the power transmission
company (ENTRESA). Private sector investment is not permitted in
these sectors. In addition, the government owns operates the
country's largest insurance company (INISER),the largest
electricity generating company (ENEL),one free trade zone (Parque
Industrial Las Mercedes) and a basic food commodity storage and
distribution company (ENABAS). The government enjoys exclusive
rights to manage public social security pension funds (see Efficient
Capital Markets and Portfolio Investment). In 2000, Spanish company
Union Fenosa bought both the north and the south electricity
distribution companies from ENEL (see Transparency of the Regulatory
System). However, operation of the concession has suffered greatly
from weak regulatory oversight and the lack of a supportive legal
regime.


31. The military and its officers' pension fund have investments in
many sectors, especially retail. These companies compete on equal
terms with privately owned businesses and do not constitute an
impediment to foreign investment.

PROTECTION OF PROPERTY RIGHTS
--------------

Real Property
--------------


32. Many foreign investors experience difficulties defending their
property rights in Nicaragua. Property registries suffer from years
of poor recordkeeping. Establishing a title history is often
difficult. The wrongful expropriation of 28,000 properties in the
1980s has greatly complicated the process. Attracted by escalating
property values, unscrupulous individuals have engaged in protracted
confrontations with U.S. investors to wrest control of tourist
properties along the Pacific coast in the Departments of Rivas and
Chinandega. Judges and municipal authorities have been known to
collude with such individuals, and a cottage industry supplies false
titles and other documents to those who scheme to steal land.
Property invasions usually go unchallenged by local law enforcement
officials and in some cases turn violent. Although the Ortega
administration claims to be committed to protecting individual
property rights, the situation substantially worsened during 2007.
As of March 1, 2008, the Embassy is working with 294 U.S. citizens
to recover 667 properties confiscated by the Ortega administration
in the 1980s.


33. The Capital Markets Law (2006/587) provides a legal framework
for securitization of movable and real property. The banking system
is widening its loan programs for property purchases, but there is
no secondary market for mortgages. See Efficient Capital Markets
and Portfolio Investment for more information on the financial
sector.

Intellectual Property
--------------


34. CAFTA-DR made Nicaraguan standards for the protection and
enforcement of IPR consistent with U.S. and emerging international
intellectual property standards. To implement the agreement,
Nicaragua has strengthened its legal framework to 1) provide
state-of-the-art protections for digital products such as software,
music, text and videos; 2) afford stronger protection for patents,
trademarks, and test data, including an electronic system for the
registration and maintenance of trademarks; and 3) deter piracy and
counterfeiting. The Nicaraguan Government has not yet implemented
an effective system for test data protection and patent linkage for
pharmaceutical products, as required by CAFTA-DR.


35. The legal regime for protection of intellectual property rights
(IPR) in Nicaragua is adequate but to date enforcement of
intellectual property law has been limited. Pirated optical media,
including music, videos, and software are sold openly, although in
relatively small numbers compared to other countries. In 2006, the
government successfully prosecuted a case against a vendor selling
pirated DVDs, only to have the conviction overturned months later.
In July 2007, the Nicaraguan Government again successfully
prosecuted a case in a local court against a Nicaraguan citizen
selling pirated music CDs. The offender was sentenced to two years
in prison-later reduced to parole-and fined 5,000 cordobas ($267).
The Prosecutor General and National Police are currently
investigating 28 intellectual property cases. With Department of
Justice assistance in November 2007, Nicaraguan law enforcement and
judicial officials collaborated to create a Nicaraguan manual for
best practices in investigating and prosecuting intellectual
property crimes.


36. Major IPR laws include:
--Patent, Utility Model, and Industrial Design Law (amended
2007/634)
--Copyright and Related Rights Law (amended 2006/577)
--Satellite Signal Programming Protection Law (amended 2006/578)
--Trademark and Other Distinctive Signs Law (amended 2006/580)
--Plant Variety Protection Law (1999/318)


37. Nicaragua is a signatory to the following international
conventions and agreements on intellectual property:
--Mexico Convention on Literary and Artistic Copyrights (1902)
--Buenos Aires Convention on Literary and Artistic Copyrights (1910)

--Inter-American Copyright Convention (1946)
--Universal Copyright Convention (Geneva 1952 and Paris 1971)
--Bern Convention for the Protection of Literary and Artistic Works
(1971)
--Geneva Convention for the Protection of Producers of Phonograms
(1971)
--Brussels Satellite Convention (1974)
--International Convention for the Protection of New Plant Varieties
(1978)
--Agreement on Trade-Related Aspects of Intellectual Property Rights
(1994)
--Paris Convention for the Protection of Industrial Property (1996)
--The World Intellectual Property Organization (WIPO) Copyright
--Treaty and Performances and Phonograms Treaty (2002)

TRANSPARENCY OF THE REGULATORY SYSTEM
--------------


38. A 2006 World Bank Survey placed Nicaragua in the 32nd
percentile (100, best) worldwide for Regulatory Effectiveness (see
http://info.worldbank.org/governance/). Investors regularly
complain that regulatory authorities are arbitrary, negligent, or
slow to apply existing laws, at times in an apparent effort to favor
one competitor over another. Lack of a reliable means to quickly
resolve disputes with government administrative authorities or
business associates has resulted in some disputes becoming
intractable (see Dispute Resolution).


39. Registering a business is a relatively straightforward process.
The Nicaraguan Government operates a One-Stop Shop for Investment
(Ventanilla Unica de Inversiones, or VUI) within the Ministry of
Trade, Industry, and Development (MIFIC) to streamline investment
and business licensing (see www.mific.gob.ni). The VUI claims that
the average time for registering a business is fifteen days.
However, investors report considerably longer times, and a 2006
World Bank study estimated that the process takes 39 days (see
http://info.worldbank.org/governance/). The services of the VUI are
equally available to domestic and foreign-owned businesses. The
Embassy strongly recommends the retention of an experienced attorney
for any investor interested in establishing a presence in Nicaragua.
See nicaragua.investway.info for additional information on
registering a business.


40. The Competition Promotion Law (2006/601) creates a
Superintendency for Competition to investigate and discipline
businesses engaged in anticompetitive business practices, including
price fixing, dividing territories, exclusive dealing, and product
tying. To date, the National Assembly has not funded the
superintendency and the competition law remains unenforced.


41. The Consumer Defense Law (1994/182) includes a consumer bill of
rights that establishes minimum standards for product safety and
quality as well as for truth in marketing. Under this law, MIFIC's
Consumer Defense Directorate may investigate business and levy
fines. The Ministry of Public Health, Directorate General of
Sanitary Regulation, regulates the sale of food and drugs (including
cosmetics),while the Ministry of Agriculture and Forestry is
responsible for plant and animal health issues (see Chapter 5: Trade
Regulations, Customs, and Standards of the Country Commercial Guide
for further information on food, drug, and consumer product
regulation). Government resources to enforce these public health
and safety regulations are limited, especially in informal markets.


42. The Directorate General of Taxation in the Ministry of Finance
and Public Credit collects income and value-added taxes, as set
forth in the most recent version of the Tax Code (2006/598). The
Directorate General of Customs in the Ministry of Finance and Public
Credit collects customs duties (see Chapter 5: Trade Regulations,
Customs, and Standards of the Country Commercial Guide for further
information on customs procedures). Investors cite arbitrariness in
taxation and customs procedures, as well as a lack of delegation of
decision-making authority. Tax audits of foreign investors have
increased in frequency and duration, to the point where they may
hinder normal business operations. Investors also complain that
customs authorities wrongly classify goods to boost tariff revenue.



43. The Environment and Natural Resources Law (1996/217) authorizes
the Directorate General for Environmental Compliance, Ministry of
Natural Resources and the Environment (MARENA),to evaluate
investment plans and monitor ongoing operations to verify compliance
with environmental standards (see www.marena.gob.ni). The Law on
Crimes against the Environment and Natural Resources (2005/559)
includes additional environmental standards. Some investors
complain that MARENA takes political considerations into account in
determining whether to issue an environmental permit. Budgetary
constraints limit MARENA's ability to enforce environmental
standards.


44. In addition to environmental regulation, mining investments are
regulated under the Special Law on Mining Prospecting and
Exploitation (2001/387),which is now administered by the newly
created Ministry of Energy and Mining. The Ministry of Energy and
Mining also retains the authority to grant oil and gas exploration
concessions. In 2007, the Supreme Court ruled that several oil
exploration concessions had been granted without proper consultation
with the governments of the autonomous regions on the Atlantic
coast, though the concessions were situated outside recognized
regional waters. The central government used the ruling as leverage
to re-negotiate more favorable terms.


45. The telecommunications sector is fully privatized and open to
competition. Under CAFTA-DR, Nicaragua opened its
telecommunications sector to U.S. investors, service providers, and
suppliers. U.S. exports of telecommunications equipment receive
duty-free treatment. CAFTA-DR establishes rules promoting
competition in telecommunications services and addresses key
regulatory concerns that may create barriers to trade and investment
in telecommunications services. Enitel, the former state telephone
company, is now 99% owned by a Mexican company. The mobile
telephone industry in Nicaragua is served by two nationwide
operators. Enitel controls switching for all cellular service. The
Nicaraguan Institute for Telecommunications and Postal Service
(TELCOR) regulates the sector and has generally encouraged
competition (see www.telcor.gob.ni). CAFTA-DR requires the
establishment of a fair and transparent pricing regime.


46. The Electricity Sector Law (amended 2004/465) and the Energy
Stability Law (amended 2007/627) establish the legal framework for
the electric power sector. The Ministry of Energy and Mines Law
sets policy for the sector and grants licenses and concessions to
investors, while the Nicaraguan Energy Institute sets prices and
regulates the industry (see www.ine.gob.ne). Investment in
transmission and distribution is limited by law (see Right to
Private Ownership and Establishment). Investment in this sector has
been constrained by regulatory and political uncertainty and by a
complex tariff system that does not provide clear incentives to
generators. Growing demand and the lack of maintenance has resulted
in extensive, rolling blackouts throughout the country during much
of 2007