2018 Investment Climate Statements: Haiti

Policies Toward Foreign Direct Investment

Haiti’s legislation encourages foreign direct investment. Import and export policies are non-discriminatory and are not based on nationality. Haitian and foreign investors have the same rights, privileges and protections under the 1987 investment code. The GOH has made some progress in recent years to improve the legal framework, create and strengthen core public institutions, and enhance economic governance. The BRH continues to work with the International Monetary Fund (IMF) and the World Bank to implement measures aimed at creating a stable macroeconomic environment. Policies include reducing interest rates to facilitate access to credit and stabilizing the exchange rate. The GOH recently passed a law that requires all business transactions to be in Haitian Gourde. As of September 2017, foreign debt reached USD 2.1 billion, mainly in support of the country’s infrastructure and rebuilding efforts. 75 percent of this debt is owed to Venezuela through the Petro Caribe program.

The government of Haiti is working on new laws to improve the legal framework and incentives for investment in Haiti. The GOH passed anti-money laundering and anti-corruption laws to ensure that Haiti’s legislation corresponds with international standards. In early 2017, the Parliament enacted legislation making electronic signatures and electronic transactions legally binding. Other pieces of legislation that may improve Haiti’s investment climate are pending parliamentary approval, including incorporation procedures, a new mining code, and an insurance code. The government of Haiti also continues to improve Haiti’s infrastructure by rebuilding and rehabilitating its roads, hospitals, and ports.

CFI was established to promote investment opportunities in Haiti. CFI’s main initiatives include streamlining the investment process by simplifying procedures related to trade and investment, providing updated economic and commercial information to local and foreign investors, and promoting investment in priority sectors. The government of Haiti encourages investment that will spur job creation and boost national production in agriculture, textile, business process outsourcing (BPO), and tourism. The GOH seeks to redirect CFI’s focus towards legal reform, and promotion of domestic and international investment with continued emphasis on public relations. CFI also offers tailored services to large investors interested in Haiti.

CFI’s Director General oversees the agency, including decisions to offer tax incentives to new businesses. The Director of Promotion works to attract investment in Haiti, while the Director of Facilitation coordinates with public sector agencies and administrative entities to ensure that CFI is following-up with businesses in a timely fashion.

Limits on Foreign Control and Right to Private Ownership and Establishment

Investors in Haiti can create the following types of businesses: sole proprietorship, limited or general partnership, joint-stock company, public company (corporation), subsidiary of a foreign company, and co-operative society. The most commonly used business structures in Haiti are corporations. The Societees de Droits law, which would facilitate the creation of other types of businesses in Haiti, such as LLCs, has been drafted and is currently pending Parliamentary approval.

Foreign investors are permitted to own 100 percent of a company or subsidiary. As a Haitian entity, such companies enjoy all rights and privileges provided under the law. Additionally, foreign investors are permitted to operate businesses without equity-to-debt ratio requirements. Accounting law allows foreigners to capitalize using tangible and intangible assets in lieu of cash investments.

Foreign investors are free to enter into joint ventures with Haitian citizens. The distribution of shares is a private matter between the two parties. However, the State regulates the sale and purchase of company shares. Investment in certain sectors, such as health and agriculture, requires special government of Haiti authorization. Investment in “sensitive” sectors such as electricity, water, telecommunications, and mining requires a GOH concession as well as authorization from the appropriate state agency. In general, natural resources are the property of the state. Mining, prospecting, and operating permits may only be granted to companies established and resident in Haiti.

Entrepreneurs are free to dispose of their properties and assets, and to organize production and marketing activities in accordance with local laws.

The government of Haiti does not impose discriminatory requirements on foreign investors. Haitian laws related to residency status and employments are reciprocal. Foreigners who are legal residents in Haiti and wish to engage in trade have, within the framework of laws and regulations, the same rights granted to Haitian citizens. However, Article 5 of the Decree on the Profession of Merchants reserves the function of manufacturer’s agent for Haitian nationals.

Foreign firms are also encouraged to participate in government-financed development projects. Performance requirements are not imposed on foreign firms as a condition for establishing or expanding an investment, unless indicated in a signed contract.

Other Investment Policy Reviews

During the past three years, the government of Haiti has not undergone any third-party investment policy reviews (IPRs) through any multilateral organization. In general, Haiti’s political instability, weak institutions, and inconsistent economic policies impede the country’s ability to drive foreign direct investment. The International Finance Corporation and the WB’s Investment Climate Advisory Services support the GOH’s plans to implement integrated economic zones (IEZ) throughout Haiti. Haiti is also working with the United Nations Conference on Trade and Development (UNCTAD) to implement an investment promotion strategy that will foster the expansion of bilateral trade, and the development of border-zone industrial parks to make Haiti more competitive.

The World Trade Organization’s (WTO) 2015 Trade Policy Review reveals that Haiti’s Investment Code and Law on Free Trade Zones is fully compliant with the Agreement on Trade-Related Investment Measures (TRIMs).

Business Facilitation

The Minister of Commerce and Industry’s (MCI) internet registry allows investors to search for or verify the existence of a business in Haiti. The registry will eventually provide on-line registration of companies through an electronic one-stop shop. The one-stop shop is part of a project sponsored by the Inter-American Development Bank (IDB) that seeks to reduce the time needed to register a limited company in Haiti to 10 days. At present, it takes between 70 and 90 days to complete registration with the Commercial Registry at the MCI and obtain the authorization of operations (Droit de fonctionnement). However, CFI also offers a service providing pre-registered and fully authorized companies in manufacturing, agribusiness, and real estate the opportunity to reduce their registration time. Once the Inter-Ministerial Investment Commission validates these established companies, the shares are transferred to the new owners.

Businesses, both foreign and domestic, can register at Haiti’s Center for Facilitation of Investments (CFI): http://cfihaiti.com/ . All businesses must register with the Ministry of Commerce, the Haitian tax office, the quasi-governmental Banque Nationale de Creedit, the social security office, and the retirement insurance office. According to the World Bank’s 2017 Ease of Doing Business Report, the average time to start a business in Haiti is 189 days.

Haiti defines micro-enterprises as less than five employees, and medium sized enterprises as less than 20. MCI offers some technical and financial assistance to small and medium sized businesses. The micro park program, supported by IDB and the European Union (EU), also includes the use of business incubators that offer technical, administrative and financial support to enhance job creation and domestic production. The program calls for the creation of 42 micro-parks focused on agribusiness, mechanical engineering, biotechnology and manufacturing over the course of five years. One of these micro-parks is currently operational: Digneron in Croix-des-Bouquets.

Outward Investment

Neither the law nor the government of Haiti restricts domestic investors from investing abroad. Still, Haiti’s outward investment is limited to a few enterprises with small investments. The profile of these investors includes businesspersons with dual citizenship and others of Haitian origin who presently reside in the country in which their firms operate. The majority of these firms are service providers and not investment firms. There is no current program or incentive in place to encourage Haitian entrepreneurs to invest abroad.

Haiti and the United States are party to the Caribbean Basin Trade Promotion Act (CBTPA), a trade preference program enacted in October 2000 that is set to expire in 2020. CBTPA provides duty-free treatment to apparel wholly assembled, knit or knit-to-shape in certain beneficiary countries in the Caribbean, as long as the apparel uses U.S. fabrics and yarns.

In December 2006, Congress enacted the Haitian Hemispheric Opportunity for Partnership Encouragement Act of 2006, commonly referred to as HOPE. HOPE amended the Caribbean Basin Economic Recovery Act (CBERA) and authorized the President to extend additional trade preferences to Haitian-manufactured apparel. HOPE preference programs are separate programs added as part of CBERA and do not replace those provided by CBTPA.

In June 2008, Congress enacted the Food, Conservation, and Energy Act of 2008 (Public Law 110-246). Title XV, Subtitle D, Part I of the Act contains amendments to the established special rules for imports of apparel and other textile articles from Haiti, which can be found in 19 U.S.C. §2703a. Commonly known as the Haitian Hemispheric Opportunity through Partnership Encouragement Act of 2008 (HOPE II), these amendments expanded the preferences originally established under HOPE, and created four new preference programs for Haitian-manufactured apparel.

HOPE II enables the Haitian textile industry to benefit from tariff advantages with the condition that the government of Haiti and eligible producers comply with internationally recognized labor standards. HOPE II allows for duty-free entry into the United States of a limited number of garments imported from Haiti, provided that 50 percent of the value when imported originates in Haiti, the United States, or another country that has a free trade agreement with the United States. This percentage will increase to 60 percent in December 2018. The Haiti Economic Lift Program (HELP), an act passed by the U.S. Congress in 2010 in response to the apparel industry’s needs, extends HOPE II tariff advantages through 2025. The HOPE and HELP Acts are critical in Haiti’s recovery and create sustained economic growth for Haiti’s economy. Efforts are underway to secure the renewal and the expansion of the program.

Haiti, a CARIFORUM member, signed an economic partnership agreement (EPA) with the European Union (EU) in 2009 but the Haitian parliament has not yet ratified the agreement. The EPA allows the export of products from Haiti to EU countries without tariffs or quotas.

Haiti does not have a double taxation treaty with the United States.

Transparency of the Regulatory System

Haitian laws are written to allow for transparency and to be applied universally. However, Haitian officials do not widely enforce these laws and the bureaucratic “red tape” in the Haitian legal system is often excessive.

Tax, labor, health, and safety laws and policies are also loosely enforced. The private sector often provides services, such as health care, to employees that are not entitled to coverage under government of Haiti agencies or institutions. All regulatory processes are managed exclusively by the government and do not involve the private sector and non-governmental organizations.

Draft bills or regulations are available to the public through Le Moniteur, the official journal of Haiti and some information is available online. Le Moniteur contains public agency rules, decrees, and public notices that the Les Presses Nationales d’Haiti (PNd’H) publishes.

International Regulatory Considerations

Haiti is a member of the Caribbean Community (CARICOM). The CARICOM Single Market and Economy (CSME), created in 1989, aims to advance the region’s integration into the global economy by facilitating free trade in goods and services, and the free movement of labor and capital. CSME became operational in January 2006 in twelve of the fifteen Member States. Haiti, as a member of CARICOM, has expressed an interest in participating fully in CSME. However, to become eligible, Haiti must amend its customs code to align with the CARICOM and WTO standards. In March of 2017, Haiti notified the WTO of its intent to adjust its tariff rates to align them with CARICOM Common External Tariffs (CET). These changes are currently under negotiation.

Haiti also adheres to the compulsory jurisdiction of the International Court of Justice on issues of international law, and of the Caribbean Court of Justice (CCJ) for the settlement of trade disputes within CARICOM.

Haiti is an original member of the WTO. As such, it has made several commitments to the WTO in regards to the financial services sector. These commitments include allowing foreign investment in financial services, such as retail, commercial, investment banking, and consulting. Only one foreign bank, Citibank, still operates in Haiti. Haiti has committed to notifying the WTO Committee on Technical Barriers to Trade (TBT) of all draft technical regulations. However, Haiti is not party to the Trade Facilitation Agreement (TFA).

Legal System and Judicial Independence

As a former French colony, Haiti adopted the French civil law system. The Supreme Court, also known as the Superior Magistrate Council, is the highest court of the nation, followed, in descending order, by the Court of Appeals and the Court of First Instance. Haiti’s commercial code dates back to 1826 and underwent significant revisions in 1944. There are few commercial laws in place and there are no commercial courts. Injunctive relief is based upon penal sanctions rather than securing desirable civil action. Similarly, contracts to comply with certain obligations, such as commodities futures contracts, are not enforced. Haitian judges do not have specializations, and their knowledge of commercial law is limited. Utilizing Haitian courts to settle disputes is a lengthy process and cases can remain unresolved for years. Bonds to release assets frozen through litigation are unavailable. Business litigants often pursue out-of-court settlements.

The Haitian Chamber of Commerce and Industry (CCIH), in partnership with the government of Haiti and with funding from the EU, has a commercial dispute settlement mechanism, known as the Arbitration and Conciliation Chamber, that provides a mechanism for conciliation and arbitration in cases of private commercial disputes.

Haiti’s legal system often hinders Americans trying to resolve legal disputes. There are persistent allegations that some Haitian officials use their public office to influence commercial dispute outcomes for personal gain. However, with international assistance, the GOH is actively working to increase the credibility of the judiciary and the effectiveness of the national police.

Laws and Regulations on Foreign Direct Investment

The Investment Code prohibits fiscal and legal discrimination against foreign investors. The code explicitly recognizes the crucial role of foreign direct investment in promoting economic growth. It also aims to facilitate, liberalize, and stimulate private investment, and contains exemptions to promote investment that enhance competitiveness in sectors deemed priorities, especially export-oriented sectors. Tax incentives, such as reductions on taxable income and tax exemptions, are designed to promote private investment. Additionally, the code grants Haitian and foreign investors the same rights, privileges and equal protection. Foreign investors must be legally registered and pay appropriate local taxes and fees.

The code also established an Inter-Ministerial Investment Commission (CII) to examine investor eligibility for license exemptions as well as customs and tariff advantages. The Prime Minister, or his delegate, chairs the CII, which is composed of representatives of the Ministries of Economy and Finance, Commerce, and Tourism, as well as those ministries that oversee specific areas of investment. The CII must authorize all business sales, transfers, mergers, partnerships, and fiscal exemptions within the scope of the code. The CII also manages the process of fining and sanctioning enterprises that disregard the code.

Investment in certain sectors, such as health and agriculture, requires special government of Haiti authorization. Investment in “sensitive” sectors, such as electricity, water, and telecommunications, requires a government of Haiti concession as well as an authorization from the appropriate state agency. In general, the GOH considers natural resources as State property. Accordingly, exploring or exploiting mineral and energy resources requires concessions and permits from the Ministry of Public Works’ Bureau of Mining and Energy. Mining, and operating permits may only be granted to firms and companies established in Haiti.

The following areas are often noted as limitations within Haitian law: operation of the judicial system; publication of laws, regulations, and official notices; establishment of companies; land tenure and real property law and procedures; bank and credit operations; insurance and pension regulation; accounting standards; civil status documentation; customs law and administration; international trade and investment promotion; foreign investment regulations; and regulation of market concentration and competition. Although these deficiencies hinder business activities, they are not specifically aimed at foreign firms; rather, they appear to affect both foreign and local companies equally.

Competition and Anti-Trust Laws

There is currently no law to regulate competition. Haiti is one of the most open economies in the region. The investment code provides the same rights, privileges and equal protection to local and foreign investors. Anti-corruption legislation also criminalizes nepotism and the dissemination of inside information on public procurement processes. However, Haiti does not have Anti-Trust legislation.

Expropriation and Compensation

The 1987 Constitution allows expropriation or dispossession only for reasons of public interest or land reform, and is subject to prior payment of fair compensation as determined by an expert. If the initial project for which the expropriation occurred is abandoned, the Constitution stipulates that the expropriation will be annulled and the property returned to the original owner. The Constitution prohibits nationalization and confiscation of real and personal property for political purposes or reasons.

Title deeds are vague and often insecure. The government of Haiti established the National Institute of Agrarian Reform (INARA) to implement expropriations of private agricultural properties with appropriate compensation. The agrarian reform project, initiated under the Preeval administration (1996-2001), was controversial among both Haitian and U.S. property owners. There have been complaints of non-compensation for the expropriation of property. Moreover, a revision of the land tenure code is expected to address current issues related to the lack of access to land records, surveys, and property titles in Haiti. A recent partnership between the private sector, GOH, and international organizations developed a useful guide formalizing land tenure.

Dispute Settlement

ICSID Convention and New York Convention

In 2009, Haiti ratified the 1965 International Convention on the Settlement of Investment Disputes between states and nationals of other states (ICSID). Under the convention, foreign investors can call for ICSID arbitration for disputes with the state. The government of Haiti appears to recognize that weak enforcement mechanisms and a lack of updated laws to handle modern commercial disputes severely compromises the protections and guarantees that Haitian law extends to investors.

Haiti is not a signatory to the Inter-American-U.S. convention on International Commercial Arbitration of 1975 (Panama Convention).

Investor-State Dispute Settlement

Haiti is a signatory to the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitration Awards, which provides for the enforcement of an agreement to arbitrate present and future investment disputes. Under the convention, Haitian courts can enforce such an agreement by referring the parties to arbitration. Disputes between foreign investors and the state can be settled in Haitian courts or through international arbitration, though claimants must select one to the exclusion of the other. A claimant dissatisfied with the ruling of the court cannot request international arbitration after the ruling is issued.

The law provides mechanisms on the procedures a court should follow to enforce foreign arbitral awards issues. In recent years, there have not been any investment dispute cases involving the government of Haiti and foreign investors.

International Commercial Arbitration and Foreign Courts

International arbitration is strongly encouraged as a means of avoiding lengthy domestic court procedures. The Haitian Arbitration and Conciliation Chamber (CCAH) provides mechanisms for conciliation and arbitration in private commercial disputes. Foreign judgments are enforceable under local courts. During the past ten years, there have not been any major commercial disputes between local and U.S. firms.

Haiti is actively working with the international community to create a domestic culture that accepts international arbitration as an effective means for dispute resolution. In 2005, CCIH and IDB jointly developed the CCAH.

Bankruptcy Regulations

Haiti’s bankruptcy law was enacted in 1826 and modified in 1944. There are three phases of bankruptcy under Haitian law. In the first stage, payments cease and bankruptcy is declared. In the second stage, a judgment of bankruptcy is rendered, which transfers the rights to administer assets from the debtor to the Director of the Haitian Tax Authority (Direction Geeneerale des Impots, or DGI). In this phase, assets are sealed and the debtor is confined to debtor’s prison. In the last stage, the debtor’s assets are liquefied and the debtor’s verified debts are paid. In practice, the above measures are seldom applied. Since 1955, most bankruptcy cases have been settled between the parties.

Although the concepts of real property mortgages and chattel mortgages – pledging of personal property, such as machinery, furniture, automobiles, or livestock to secure a mortgage – exist, real estate mortgages involve antiquated procedures and may fail to be recorded against the debtor or other creditors. Property is seldom purchased through a mortgage and secured debt is difficult to arrange or collect. Liens are virtually impossible to impose, and using the judicial process for foreclosure is time consuming and often futile. Banks frequently require that loans be secured in U.S. dollars. Debts are normally paid in local currency.

Investment Incentives

In order to attract investment to certain industries, the Investment Code created a privileged status for some manufacturers. Under the Code, eligible firms can benefit from customs, tax, and other advantages. Investments that provide added value of at least 35 percent in the processing of local or imported raw materials are eligible for preferential status.

The statute allows for a five- to ten-year income tax exemption. Industrial or crafts-related enterprises must meet one of the following criteria in order to benefit from this exemption:

• Make intensive and efficient use of available local resources (i.e., advanced processing of existing goods, recycling of recoverable materials);
• Increase national income;
• Create new jobs and/or upgrade the level of professional qualifications;
• Reinforce the balance of payments position and/or reduce the level of dependency of the national economy on imports;
• Introduce or extend new technology more appropriate to local conditions (i.e., utilize non-conventional sources of energy, use labor-intensive production);
• Create and/or intensify backward or forward linkages in the industrial sector;
• Export-oriented production;
• Substitute a new product for an imported product, if the new product presents a quality/price ratio deemed acceptable by the appropriate entity and comprises a total production cost of at least 60 percent of the value added in Haiti, including the cost of local inputs used in its production;
• Prepare, modify, assemble, or process imported raw materials or components for finished goods that will be re-exported;
• Utilize local inputs at a rate equal or superior to 35 percent of the production cost.

For investments that match one or more of the criteria described above, the government of Haiti provides customs duty and tax incentives. Companies that enjoy tax exempt status are required to submit annual financial statements. Fines or withdrawal of tax advantages may be assessed to firms failing to meet the Code’s provisions.

A progressive tax system applies to income, profits, and capital gains earned by individuals.

Foreign Trade Zones/Free Ports/Trade Facilitation

A law on Free Trade Zones (FTZ) was established in 2002. The law defines the conditions for operating and managing economic FTZs, with exemption and incentive regimes granted to investment in such zones. The law is not specific to a particular activity. Instead, it defines FTZs as geographical areas to which a special regime on customs duties and controls, taxation, immigration, capital investment, and foreign trade applies, and where domestic and foreign investors can provide services, import, store, produce, export, and re-export goods.

FTZs may be private or joint venture. The law provides the following incentives and benefits for enterprises located in FTZs:

• Full exemption from income tax for a maximum period of 15 years, followed by a period of partial exemption that gradually decreases;
• Customs and fiscal exemptions for the import of capital goods and equipment needed to develop the area, with the exception of tourism vehicles;
• Exemption from all communal taxes (with the exception of fixed occupancy tax) for a period not exceeding 15 years;
• Registration and transfer of the balance due for all deeds relating to purchase, mortgages, and collateral.

A FTZ has been established in the northeastern city of Ouanaminthe, where a Dominican company, Grupo M, manufactures clothing for a variety of U.S. companies – Sarah Lee, Nautica, Dockers, Fruit of the Loom and Levi Strauss – at its CODEVI facility.

In October 2012, the government of Haiti, with the support of the Inter-American Development Bank (IDB) and the United States Government, opened the 617-acre Caracol Industrial Park (PIC) located near the town of Caracol in Haiti’s northeastern region. In 2012, two companies began operating in PIC: the Korean garment company S&H Global and a Haitian paint manufacturer, Peintures Caraibes. A jean manufacturer and a Haitian paint producer began operations in 2013 at CODEVI and Caracol, respectively. Several other companies, including a fragrance and cosmetics manufacturer, and a Haitian garment manufacturer, started up in 2014 at PIC.

In 2015, two major FTZ’s were added to the list: Agritrans, the first agricultural free trade zone in Haiti, which launched in 2015, and Port Lafito, a USD 150 million Panamax port and industrial park. The Lafito port is part of a comprehensive development project that includes an industrial free zone, hospital, residential-commercial area, and leisure amenities to include a boutique hotel, a beach club and a marina. Lafito is located 12 miles from the port of Port-au-Prince, and the owners, the GB Group, expect that the industrial park, once operational, will have the potential to generate over 3,000 jobs in the apparel sector. The Panamax port was completed and began operations in 2015.

In 2016, various Asian-based firms, including MAS Holdings, a USD 1.6 billion conglomerate with 48 manufacturing facilities across 15 countries, and Reliable Source Industrial International (RSI), one of the leading manufacturers of sportswear and swimwear apparel in Asian, expressed concrete interest in establishing operations in Haiti and both firms are now present in Haiti. MAS began operations at PIC in early 2018.

The GOH’s Ministry of Commerce and Industry added two new FTZs in Port-au-Prince. This includes, FTZ 1 (Digneron in Croix-des-Bouquets), which is expected to create between 12,000 and 15,000 jobs, FTZ 2 (Santo du Jour in), is expected to provide 10,000 jobs and FTZ 3 (Lafito, just outside of Port-au-Prince), which is expected to create between 10,000 and 15,000 jobs.

Performance and Data Localization Requirements

Foreign firms are encouraged to participate in government-financed development projects. However, performance requirements are not imposed on foreign firms as a condition for establishing or expanding an investment, unless indicated in a signed contract.

Under Haitian laws, foreign investors operate their businesses and use their assets to organize production freely. Companies are not forced to localize or to use local raw materials for the production of goods. Foreign IT providers are not required to turn over source code or keys for encryption to any public agencies.

Real Property

Real property interests are affected by the absence of a comprehensive civil registry. Lease agreement and regulation are the same for locals and foreign investors. Legitimate property titles are often non-existent. If they do exist, they often conflict with other titles for the same property. Property legally purchased does not automatically revert to other owners. Squatting is not a common practice, but was popular in the aftermath of the 2010 earthquake. Verification of property titles can take several months or longer. The Embassy regularly receives reports of fraudulent or fraudulently recorded land titles. Mortgages exist, but real estate mortgages are expensive and involve cumbersome procedures. Additionally, mortgages are not always properly recorded under the debtor or creditor’s name. Affordable Housing Institute (AHI), the World Council of Credit Unions, USAID, and Habitat for Humanity jointly launched the Home Ownership and Expansion (HOME) Program in 2015. The HOME project works with local financial institutions and housing developers to promote access to affordable housing to low-medium income households through long-term financing.

Intellectual Property Rights

Haitian law protects copyrights, patent rights, and inventions, as well as industrial designs and models, special manufacturers’ marks, trademarks, and business names. The law penalizes individuals or enterprises involved in infringement, fraud, or unfair competition; however, enforcement is weak. Haiti is a signatory to the Buenos Aires Convention of 1910, the Paris Convention of 1883 regarding patents, and the Madrid Agreement regarding trademarks. Haiti has ratified the Bern Copyright Convention.

The current draft trademark law appears to reflect the government of Haiti’s determination to revise its intellectual property legislation in accordance with its international agreements. Perceived weak enforcement mechanisms, inefficient courts, and judges’ inadequate knowledge of commercial law may impede the effectiveness of statutory protections.

Resources for Rights Holders

For more information concerning intellectual property rights, please contact the U.S. Embassy’s Economic and Commercial Specialist at PAPECON@state.gov.

Local lawyers list: http://photos.state.gov/libraries/haiti/231771/PDFs/List%20of%20Attorneys%20May%202011.pdf .

Haitian Copyright Office (BHDA)
Ministry of Culture and Communication
31, Rue Cheriez
Canape-Vert
Port-au-Prince
HAITI (West Indies)
(509) 2811 0535
(509) 2811 5626
bhda.gouv@gmail.com; contact@bhda.gouv.ht

Director General/Directrice Generale: Mrs. Emmelie Phrophete Milce
Industrial Property Offices
Intellectual Property Service, Department of Legal Affairs
Ministry of Trade and Industry
http://www.mci.gouv.ht/ 

Parc Industriel Metropolitain (SONAPI),
Route de l’aeroport
Port-au-Prince
mcihaiti@yahoo.fr

Director of Legal Affairs/Directeur des Affaires Juridiques: Mr. Rodrigue Josaphat

For additional information about treaty obligations and points of contact at local IP offices, please see WIPO’s country profiles at http://www.wipo.int/directory/en/ .

Capital Markets and Portfolio Investment

The scale of financial services remains modest in Haiti. The banking sector is well-capitalized, profitable, and gross international reserves are able to cover over three months of imports. As of March 2018, Haiti’s stock of net international reserves is approximately USD 860 million. In principle, there are no limitations to foreigners’ access to the Haitian credit market, and credit is available through commercial banks. However, free and efficient flow of capital is hindered by Haitian accounting practices, which are below international standards. While there are no restrictions on foreign investment through mergers or acquisitions, there is no Haitian stock market, so there is no way for investors to purchase shares in a company outside of direct transactions.

The standards that govern the Haitian legal, regulatory, and accounting systems do not comply with international norms. Haitian laws do not require external audits of domestic companies. Local firms calculate taxes, obtain credit or insurance, prepare for regulatory review, and assess real profit and loss. Accountants use basic accounting standards set by the Organization of Certified Professional Accountants in Haiti (OCPAH).

Administrative oversight in the banking sector is superior to oversight in other sectors. However, under Haitian law, banks are not required to comply with internationally recognized accounting standards, and they are often not audited by internationally recognized accounting firms. Nevertheless, Haiti’s Central Bank (BRH) requires that banks apply internal audit procedures. As part of their corporate governance all private banks also have in-house audit functions. Most private banks follow international accounting norms and use consolidated reporting principles. The BRH is generally viewed as one of the well-functioning GOH institutions.

Money and Banking System

The banking sector has concentrated credit in trade financing and in the proliferation of branches to capture deposits and remittances. Telebanking now provides access to banking services for Haitians that are first-time account holders. Foreign banks are free to establish operations in Haiti. Three major banking institutions (Unibank, Sogebank and BNC) hold 80 percent of total banking sector assets. With the acquisition of the Canadian Bank-Scotiabank in 2016, Unibank became Haiti’s largest banking company with a deposit market share of 34 percent. As part of the deal, Scotiabank remains one of Unibank’s international correspondent banks. U.S.-based Citibank also has a correspondent banking relationship with Unibank.

The three major commercial banks hold 75 percent of the total loan portfolio, while 70 percent of total loans are monopolized by 10 percent of borrowers. This increases the Haitian banking system’s vulnerability to systemic credit risk and restricts the availability of capital. The quality of the loan portfolios in the banking system, measured by the ratio of nonperforming loans over total loans, has improved over the years due to the recent modernization of the regulatory and supervisory framework of the financial sector. The measure requires that BRH conduct regular inspections to ensure that financial institutions are in compliance with minimum capital requirements, asset quality, currency, and credit risk management.

The Central Bank’s main challenge is maintaining sound monetary policy in the context of a larger-than-expected government deficit and a depreciating local currency. As of early May 2018, BRH’s reference rate was approximately 65.86 Gourdes for one U.S. dollar. Inflation is currently at 12.9 percent and continues to trend downwards. The exchange rate suffers from continued pressure on the foreign exchange market. To ease the pressure on the local currency, the Central Bank proceeded with the sale of USD 150 million in the foreign exchange market during FY 2016-2017, while maintaining the reserve requirement ratios of commercial banks at 49.5 percent for deposits held in U.S. currency and 44 percent for deposits in local currency.

There are no legal limitations on foreigners’ access to the domestic credit market. Credit is available on market terms through commercial banks. However, banks demand a pledge of real property to grant loans. Given the lack of effective cadastral and civil registries, loan applicants face numerous challenges in obtaining credit. The banking sector is extremely conservative in its lending practices. Banks typically lend exclusively to their most trusted and credit-worthy clients. In addition, the high concentration of assets does not allow for product innovation at major banks.

To provide greater access to financial services for individuals and prospective investors, the government of Haiti’s banking laws recognize tangible movable property (such as portable machinery, furniture, and tangible personal property) as collateral for loans. These laws allow individuals to buy condominiums, and banks to accept personal property, such as cars, bank accounts, etc., as a pledge for loans. USAID has a loan portfolio guarantee program with a diversified group of financial institutions to encourage them to expand credit to productive small and medium enterprises, and rural micro-enterprises. The government of Haiti seeks to establish a credit rating bureau to disseminate data on the total indebtedness and concentration of credit risks of businesses and individuals in the financial sector, but this bureau does not currently exist.

Foreign Exchange and Remittances

Foreign Exchange

The Haitian gourde (HTG) is convertible for commercial and capital transactions. Banks and currency exchange companies set their rates at the market-clearing rate. The Haitian Central Bank (BRH) publishes a daily reference rate, which is a weighted average of exchange rates offered in the formal and informal exchange markets. The market determines the exchange rate for the HTG. The difference between buying and selling rates is generally less than five percent. Declining aid inflows and low domestic production led to a significant depreciation of the HTG.

Remittance Policies

The government of Haiti does not impose restrictions on the inflow or outflow of capital. The Law of 1989 governs international transfer operations and remittances. Remittances are Haiti’s primary source of foreign currency and account for an estimated one quarter of GDP. There are no restrictions or controls on foreign payments or other fund transfer transactions, and foreign exchange is readily available. While restrictions apply on the amount of money that may be withdrawn per transaction, there is no restriction on the amount of foreign currency that residents may hold in bank accounts, and there is no ceiling on the amount residents may transfer abroad.

The GOH is now putting in place stricter measures to monitor money transfers in accordance with Haiti’s efforts to deter illicit cash flows, as mandated by the 2013 Anti-Money Laundering Act and the forthcoming implementation of the United States Foreign Account Tax Compliance Act (FATCA).

Sovereign Wealth Funds

To date Haiti does not have a Sovereign Wealth Fund (SWF). However, several entities are currently working with the Haitian diaspora to fund a SWF, which could be used to modernize the country’s public education and/or sanitation system. The SWF would be funded with remittances received from Haitian who are living overseas. Some analysts also suggest that revenue could come from taxing the remittances sent by the diaspora. Haitians send approximately USD 2 billion in remittances annually to support their families.

Before the privatization efforts that began in the mid-1990s, the government of Haiti fully owned and operated State-Owned Enterprises (SOE). The Haitian commercial code governs the operations of the SOE’s. The sector included a flourmill, a cement factory, a telephone company (TELECO), the electricity company (EDH), the national port authority (APN), the airport authority (AAN), and two commercial banks: Banque Nationale de Credit (BNC) and Banque Populaire Haitienne (BPH). The law defines SOE as autonomous enterprises that are legally authorized to be involved in commercial, financial and industrial activities. All SOEs operate under the supervision of a sectorial ministry, and are expected to create economic and social return. Today, some SOE’s are fully owned by the state, while others are mixed-enterprises. The Haitian parliament has strict authority to liquidate state enterprises that are underperforming.

Today, the non-financial SOEs that remain in the public portfolio includes the electrical company (EDH), the national airport authority (AAN), the sugar factory, the port authority (APN), the social security office (ONA), the postal office, and the vehicle insurance company (OAVCT). The majority of SOEs are financially sound, with the exception of EDH. EDH is receiving substantial annual subsidies from the government of Haiti to stay in business.

Privatization Program

With the economic difficulties of the late 1990’s and mismanagement of the SOE’s, the government was forced to liberalize the market and allow foreign firms to invest in the management and/or ownership of Haitian state-owned enterprises. To accompany the initiative, the government established the Commission for the Modernization of Public Enterprises (CMEP) in 1996 to facilitate the privatization process, while creating strategies to privatize all SOE’s.

In 1998, two U.S. companies, Seaboard and Continental Grain, purchased shares of the state-owned flourmill. Each partner currently owns 23 percent of the new company known today as Les Moulins d’Haiti. In 1999, a consortium of Colombian, Swiss, and Haitian investors purchased a majority stake in the national cement factory. In 2010, a Vietnamese corporation, Viettel, officially acquired 60 percent of the state telecommunications company Teleco (now operating as Natcom), with the government of Haiti retaining 40 percent ownership. Competition is not distorted in favor of state-owned enterprises to the detriment of private companies.

To further liberalize the economy, the government provided fiscal incentives to the GB Group to build Haiti’s first Panamax container port. This project received its first ship in late 2015.

The government of Haiti has allowed private sector investment in electricity generation to compensate for EDH’s inability to supply sufficient power. Three private power producers generate electricity for EDH. The most recent entry, E-Power, opened a 32 megawatt, USD 56 million, IFC-financed heavy fuel-oil powered generation plant in Port-au-Prince in 2011. The government has allowed limited private sector investment in selected seaports, and expressed interest in the USAID-backed Cap-Haitian Port rehabilitation project, and in privatizing the Port-au-Prince and Cap-Haitian airports. Despite initial enthusiasm in both the public and private sectors for privatization, progress has been slow. To date, out of nine State-Owned Enterprises three enterprises have been privatized, and two other privatizations are under consideration.

Awareness of responsible business conduct among producers and consumers is limited but growing. Though rather informal, some Haitian firms have a Corporate Social Responsibility (CSR) component to their business plan. Irish-owned telecommunications company Digicel, for example, sponsors an Entrepreneur of the Year program and has built 120 schools in Haiti. Natcom provides free internet service to several public schools throughout the country. Les Moulins d’Haiti, partially owned by U.S. firm Seaboard Marine, provides some services including electrical power to surrounding communities. In the aftermath of the 2010 earthquake, many firms provided logistical or financial support to humanitarian initiatives, and many continue to contribute to reconstruction efforts. Haiti’s various chambers of commerce have also become more supportive of social responsibility programs.

The government of Haiti has not established any incentives to encourage adherence to Responsible Business Conduct (RBC).

Haitian law, applicable to individuals and financial institutions, criminalizes corruption and money laundering. Bribes or attempted bribes toward a public official are a criminal act and are punishable by the criminal code (Article 173) for one to three years of imprisonment. The law also contains provisions for the forfeiture and seizure of assets.

Corruption, including bribery, raises the costs and risks of doing business in Haiti. U.S. firms have complained that corruption is a major obstacle to effective business operation in Haiti. They frequently point to requests for payment by customs officials in order to clear import shipments as examples of solicitation for bribes. Some importers reportedly “negotiate” customs duties with inspectors.

Transparency International’s Corruption Perception Index for 2017 ranked Haiti one the most corrupt countries in the Caribbean region, ranking 157th out of 177 countries worldwide, and with little improvement from last year. The government of Haiti has made some progress in enforcing public accountability and transparency, but substantive institutional reforms are still needed. Since 2004, the government of Haiti established the Specialized Unit to Combat Corruption (ULCC) in the Ministry of Economy and Finance. In 2008, the law on disclosure of assets by civil servants and high public officials prepared by ULCC was approved by Parliament, but, to date, compliance has been almost nonexistent.

The government of Haiti created the National Commission for Public Procurement (CNMP) to ensure that government of Haiti contracts are awarded through competitive bidding and to establish effective procurement controls in public administration. The CNMP publishes lists of awarded government of Haiti contracts. The procurement law of 2009 requires contracts to be routed through CNMP. In 2012, however, a presidential decree substantially raised the threshold at which public procurements must be managed by the CNMP, decreasing transparency for many smaller government contracts. Moreover, the government frequently enters into no-bid contracts, sometimes issued using “emergency” authority derived from natural disasters, even when there is no apparent connection between the alleged emergency and the government contract.

Haiti is not a party to the OECD Anti-Bribery Convention.

Resources to Report Corruption

Any corruption-related activity can be reported to the Haitian Anti-Corruption Unit, responsible for combatting corruption or to Transparency International’s branch in Haiti, Haiti Heritage Foundation, which monitors corruption:

David Bazile
Director General
Unite de Lutte Contre la Corruption
13, rue Capotille, Pacot, Port-au-Prince, Haiti
Telephone: (509) 2811-0661 / (509) 4890-3647
Email address: info@ulcc.gouv.ht

Marilyn B. Allien
President
Fondation Heritage pour Haiti
Petion-Ville, Haiti
Telephone: (509) 3701-7089
Email address: admlfhh@yahoo.com / heritagehaiti@yahoo.com

Some useful resources for individuals and companies regarding combating corruption in global markets include the following:

• Information about the U.S. Foreign Corrupt Practices Act (FCPA), including a “Lay-Person’s Guide to the FCPA” is available at the U.S. Department of Justice’s Website at: http://www.justice.gov/criminal/fraud/fcpa ;
• Information about the OECD Anti-bribery Convention including links to national implementing legislation and country monitoring reports is available at: http://www.oecd.org/department/0,3355,en_2649_34859_1_1_1_1_1,00.html . Please also see the new Anti-bribery Recommendation and Good Practice Guidance Annex for companies: http://www.oecd.org/investment/anti-bribery/anti-briberyconvention/44884389.pdf ;
• General information about anti-corruption initiatives, such as the OECD Convention and the FCPA, including translations of the statute into several languages, is available at the Department of Commerce Office of the Chief Counsel for International Commerce website: http://www.oecd.org/site/adboecdanti-corruptioninitiative/ ;
• Transparency International (TI) publishes an annual Corruption Perceptions Index (CPI). The CPI measures the perceived level of public-sector corruption in 180 countries and territories around the world. The CPI is available at http://www.transparency.org/cpi2014 . TI also publishes an annual Global Corruption Report that provides a systematic evaluation of the state of corruption around the world. It includes an in-depth analysis of a focal theme, a series of country reports that document major corruption-related events and developments from all continents. For more information, please visit https://www.transparency.org/research/gcr ;
• The World Bank Institute publishes Worldwide Governance Indicators (WGI). These indicators assess six dimensions of governance in 212 countries, including Voice and Accountability, Political Stability and Absence of Violence, Government Effectiveness, Regulatory Quality, Rule of Law and Control of Corruption. For additional information, please visit: http://info.worldbank.org/governance/wgi/pdf/WGI.pdf . The World Bank Business Environment and Enterprise Performance Surveys are also available at: http://data.worldbank.org/data-catalog/BEEPS ;
• The World Economic Forum publishes the Global Enabling Trade Report, which presents the rankings of the Enabling Trade Index, and includes an assessment of the transparency of border administration (focused on bribe payments and corruption) and a separate segment on corruption and the regulatory environment. Please see: http://www.weforum.org/  for more information;
• Additional country information related to corruption can be found in the U.S. State Department’s annual Human Rights Report available at http://www.state.gov/j/drl/rls/hrrpt/;
• Global Integrity, a nonprofit organization, publishes its annual Global Integrity Report, which provides indicators for 92 countries with respect to governance and anti-corruption. The report highlights the strengths and weaknesses of national level anti-corruption systems and is available at: http://report.globalintegrity.org/ .

Haiti returned to constitutional order in February 2017, with the democratic election and inauguration of President Jovenel Moise. Haiti’s political situation remains fragile. Moise’s administration faces challenges due to an inexperienced government, the lack of political will, poor relations between Parliament and the Executive branch, widespread corruption, weak rule of law, and a feeble economy have hindered both reconstruction efforts and the passage of important legislation. Moise’s government has focused on a new development assistance paradigm and requested that the U.S. government and other donors provide direct assistance to the government of Haiti in seven priority areas (electricity, transportation infrastructure, agriculture, education, health, environment, and social programs).

The HNP has largely succeeded in maintaining security since the October 2017 MINUSTAH withdrawal, which coincided with large and at times violent protests in Port-au-Prince against the government’s new budget. Historically, and continuing into early 2018, politically and socio-economically motivated civil disorder, such as periodic demonstrations triggered by government proposals to increase fuel prices and labor strikes, sometimes interrupted normal business operations. Establishing and safeguarding real property rights in Haiti remains a very significant problem, given extremely weak registry and judicial capacity in country. There have been no cases of political groups targeting foreign projects and/or installations. While significant improvements in the police force’s technical and operational capabilities have reduced kidnapping and homicide in recent years, other violent crimes remain a serious problem. The U.S. government and other international partners have called for the Haitian government to invest more in the police to ensure its continued development. There is a shortage in the capacity of Haitian law enforcement to deter and prosecute violent crime. However, it has been making positive strides in strengthening its local law enforcement.

The special legislation of the Labor Code of 1984 establishes and governs labor regulations. Under the Code, the Minister of Social Affairs (MAST) enforces the law and maintains good relationships with employers and workers. Normal working hours consist of 8-hour shifts and 48-hour workweeks. In September 2017, GOH passed a new labor law to permit three eight-hour shifts in a working day. Workers’ social protection and benefits include annual leave, sick leave, health insurance, maternity insurance, insurance in case of accident at work, and other benefits for unfair dismissal.

Labor unions are generally receptive to investment that creates new jobs, and support from the international labor movement, including the AFL-CIO and ITUC, is building the capacity of unions to represent workers and engage in social dialogue. The Ministry of Labor and Social Affairs is revising a new labor code that will better comply with international labor standards. Preparations for the 2015 and 2016 elections, as well as multiple changes in the Minister of Labor during the same period, stalled the revision of the labor code.

Relations between labor and management in Haiti have at times been strained. In some cases, however, industries have autonomously implemented good labor practices. For example, the apparel assembly sector established its own voluntary code of ethics to encourage its members to adopt good labor practices. In addition to local entities, the International Labor Organization (ILO) has an office in Haiti and operates an ongoing project with the assembly industry to improve productivity through improvement in working conditions. The initiative prompted ILO to officially launch Better Work Haiti, a program that was designed to ensure compliance with international labor standards and spur jobs creation in the garment sector over the next 10 years.

Since the inception of Better Work Haiti, the garment sector has seen a 50 percent improvement in occupational safety and health across the factories. Employers have doubled their efforts to improve chemical safety, and over 95 percent of local factories have initiated policies to create a safer work environment as well as provide good working conditions to garment workers. Wages vary depending on the economic sector. As of October 2017, the minimum wage for the garment sector was HTG 350 for eight hours of work or (approximately USD 5.49) in the textile industry. These wages are based on production output so workers often earn more than the minimum wage. Better Work Haiti’s annual report found the majority of factories in compliance with the labor law. The report is available at: http://betterwork.org/global/?p=7201 .

Haiti’s apparel industry has expanded in recent years, and now counts several local and foreign manufacturers, including U.S., Dominican, and Korean investors, which produce a wide range of clothing articles. The sector offers notable opportunities, such as an abundant workforce, duty-free access to the U.S. market, and a program implemented by the International Labor Organization’s Better Work program that ensures good working conditions in factories. Measures are currently underway to enhance the technical skills of the Haitian workforce. The South Korean International Cooperation Agency (KOICA), for example, funded the construction of an apparel training center in the Caracol Industrial Park in Northern Haiti.

The Overseas Private Investment Corporation (OPIC) offers insurance against political risks and financing programs for U.S. investments in Haiti. OPIC financing includes two programs: direct lending and investment guarantees. Direct loans are available to investment projects sponsored by or significantly involving U.S. small businesses. Investment guarantees are available to U.S. eligible investors of any size. OPIC has invested more than USD 223 million in 78 projects in Haiti over 40 years, in infrastructure, renewable resources, and other sectors.

OPIC has an on-lending facility with Citibank available to several Caribbean countries, including Haiti. OPIC guarantees loans totaling USD 100 million, with up to 20 percent of this amount available to Haiti. The OPIC risk share for the facility ranges from 25 to 75 percent for each loan.

Haiti is a member of the WB’s Multilateral Investment Guarantee Agency (MIGA). MIGA guarantees investments against non-commercial risks and facilitate access to funding sources including banks and equity partners for investors.

Table 3: Sources and Destination of FDI

Data not available.
Table 4: Sources of Portfolio Investment

Data not available.

Alexis Nieves
Commercial Attachee
Embassy of the United States of America
Boulevard du 15 Octobre, Tabarre 41
Port-au-Prince, Haiti
Please address email correspondence to PAPECON@state.gov.