2019 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. Investors have reported that despite Haiti’s investment code and legislation to encourage foreign direct investment, there have not been any notable improvements in recent years in the legal framework and investment code to improve Haiti’s business climate, create and strengthen core public institutions, and enhance economic governance and transparency.

The Central Bank continues to work with the International Monetary Fund (IMF) and the World Bank to implement measures aimed at creating a stable macroeconomic environment. The Central Bank and the Ministry of Economy and Finance concluded a staff-level agreement in March 2019 with the IMF for an extended credit facility, which, if implemented, would provide liquidity to the Haitian government while also setting targets for improvement in fiscal policy. In the fall of 2018, the government of Haiti rescinded its spring 2018 decision that required all business transactions to be in Haitian gourdes. As of September 2018, the government’s foreign debt reached USD 2.12 billion, mainly in support of the country’s infrastructure and rebuilding efforts. Over 85 percent of this debt is owed to Venezuela through the Petro Caribe program.

Despite passing anti-money laundering and anti-corruption laws to ensure that Haiti’s legislation corresponds with international standards, some report that the government has not followed the legal framework of these laws, and has failed to incentivize investment in Haiti. In early 2017, the government enacted a law 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 Center for Facilitation of Investment (CFI) was established to promote investment opportunities in Haiti. The CFI’s main goals 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. In practice, however, the government of Haiti made limited progress in 2018 in incentivizing job creation and boosting national production in agriculture, apparel assembly, and tourism. The Haitian government seeks to redirect CFI’s focus towards the promotion of domestic and international investment with continued emphasis on public relations. The CFI also offers tailored services to large investors interested in Haiti.

The CFI’s Director General oversees the agency, which also serves as the secretariat for Haiti’s Interministerial Commission, which makes decisions on business tax exemptions and incentives. 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 follows up with businesses in a timely fashion. The CFI was closed for multiple weeks and unable to operate at full capacity during periods of civil unrest in early 2019.

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. Legislation for a Corporate Law Act, which would facilitate the creation of other types of businesses in Haiti, such as LLCs, is in draft stage and has been pending Parliamentary approval since May 2017.

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. The 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 Haitian government 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 employment 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

Haiti’s last investment policy review from the United Nations Conference on Trade and Development occurred in 2012-2013. In general, Haiti’s political instability, weak institutions, and inconsistent economic policies impede the country’s ability to drive foreign direct investment.

The World Trade Organization’s (WTO) 2015 Trade Policy Review stated 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 Ministry of Commerce and Industry’s internet registry allows investors to search for or verify the existence of a business in Haiti. The registry should 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, though it is not yet operational. At present, it takes between 70 and 90 days to complete registration with the Commercial Registry at the Ministry of Commerce and obtain the authorization of operations (Droit de fonctionnement).

All businesses must register with the Ministry of Commerce and Industry, the Haitian tax office, the quasi-governmental National Credit Bank (Banque Nationale de Credit), the social security office, and the retirement insurance office. Businesses, both foreign and domestic, can register at Haiti’s Center for Facilitation of Investments (CFI): http://cfihaiti.com/. According to the World Bank’s 2019 Ease of Doing Business Report, the average time to start a business in Haiti is 189 days.

The Ministry of Commerce and Industry generally defines medium-sized enterprises as having less than 20 employees. The Ministry of Commerce and Industry offers some technical and financial assistance to small- and medium-sized businesses.

Outward Investment

Neither Haitian law nor practice 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.

The Center for Facilitation of Investment, in collaboration with the United Nations Development Program, Inter-American Development Bank, and the United Nations Development Program launched two distinct platforms, “Export Haiti” and “Haiti Service Providers,” on December 10, 2018 to help Haitian producers export their products, and help visitors find service providers in Haiti.

Haiti is a beneficiary country of the Caribbean Basin Trade Partnership Act (CBTPA), a trade preference program enacted by Congress 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 categories for Haitian-manufactured apparel.

HOPE II enables the Haitian apparel 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. In order to qualify for duty-free treatment, apparel articles must be wholly assembled or knit-to shape, in Haiti from any combination of fabrics, fabric components, components knit-to-shape, and yarns. In addition, the direct costs of processing operations performed in Haiti or one or more beneficiary countries, as described in CBERA, as amended, or any combination thereof, must not be less than an applicable percentage of the declared customs value of such apparel articles; the applicable percentage for the period December 20, 2018 through December 19, 2019, is 60 percent. The Haiti Economic Lift Program (HELP) is an act passed by the U.S. Congress in 2010 in response to the apparel industry’s needs. The Haiti Economic Lift Program (HELP) Act helps create sustainable support for Haiti’s economy by expanding tariff benefits for certain Haitian textile and apparel exports to the United States. HELP also allows the expansion of duty-free access to the U.S. market for Haitian textile and apparel exports and extends existing trade preference programs for Haiti. The HOPE and HELP Acts have contributed to Haiti’s economic growth. The HOPE and HELP Acts have been instrumental in the redevelopment of Haiti’s apparel industry which accounts for over 90 percent of national export earnings and provides over 45,000 jobs.

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. Haitian officials, however, do not widely enforce these laws and the bureaucratic obstacles in the Haitian legal system are often considerable.

Tax, labor, health, and safety laws and policies are also loosely enforced. All regulatory processes are managed exclusively by the government and do not involve the private sector and non-governmental organizations. 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.

Draft bills or regulations are available to the public through Le Moniteur, the official journal of the Haitian government. Some information is available online. Le Moniteur contains public agency rules, decrees, and public notices that the Les Presses Nationales d’Haiti 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 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. The proposal is still under consideration. Haiti does not grant tariff preferences to any country, but will grant them when provisions of the CARICOM Treaty come into effect.

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 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 with regard to the financial services sector. These commitments include allowing foreign investment in financial services, such as retail, commercial, investment banking, and consulting. One foreign bank, Citibank, operates in Haiti. Unibank bought the Haitian operations of Scotiabank when Scotiabank exited the Haitian market in 2017. Haiti has committed to notifying the WTO Committee on Technical Barriers to Trade of all draft technical regulations. Haiti is not party to the Trade Facilitation Agreement.

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, 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.

According to U.S. citizens seeking to resolve legal disputes, Haiti’s legal system often presents challenges. There are persistent allegations that some Haitian officials use their public office to influence commercial dispute outcomes for personal gain. With international assistance, however, the Haitian government 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 investments 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 to examine investor eligibility for license exemptions as well as customs and tariff advantages. The CFI is the Technical Secretariat of the Commission. The Prime Minister, or his delegate, chairs the Commission, 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 Commission must authorize all business sales, transfers, mergers, partnerships, and fiscal exemptions within the scope of the code. The Commission 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 Haitian government concession as well as an authorization from the appropriate state agency. In general, the government of Haiti 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 by businesses as challenging aspects of 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 allegedly 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. Haiti does not, however, 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 Preval 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, intended to address issues related to the lack of access to land records, surveys, and property titles in Haiti, has been pending in Parliament since 2014. A recent partnership between the private sector, Haitian government, and international organizations developed a useful guide formalizing land tenure, which can be found at: http://www.foncier-developpement.fr/publication/la-securisation-des-droits-fonciers-en-haiti-un-guide-pratique/

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 be issued. The law provides mechanisms on the procedures a court should follow to enforce foreign arbitral awards issues.

International Commercial Arbitration and Foreign Courts

International arbitration is strongly encouraged as a means of avoiding lengthy domestic court procedures. 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, the Haitian Chamber of Commerce and Industry and the Inter-American Development Bank jointly developed the Haitian Arbitration and Conciliation Chamber, which provides mechanisms for conciliation and arbitration in private commercial disputes.

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 Generale des Impots). 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 prorated according to their right. The debtor is released from prison once 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 – based on collateral of movable 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.

Investment Incentives

In order to attract investment to certain industries, the Investment Code created a privileged status for some manufacturers. Foreign and Haitian investors enjoy equal protection under the Law. Under the Investment 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;
• Promote 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 tax 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 – Hanesbrands, Nautica, Dockers, and Fruit of the Loom – at its CODEVI facility. Additionally, several American apparel companies lease factory space in this free zone. All the factories at CODEVI combined employ over 11,000 Haitians.

In October 2012, the government of Haiti, with the support of the Inter-American Development Bank and the United States government, opened the 617-acre Caracol Industrial Park located near the town of Caracol in Haiti’s northeastern region. As of 2019, five companies are operating in the park: the Korean garment company S&H Global, the Sri Lankan company MAS Holdings, the Taiwanese company Everest, and two Haitian companies, Peintures Caraibes and Sisalco. Altogether, these companies employ over 13,000 Haitians. S&H Global is the single largest private sector employer in Haiti.

In 2015, three major FTZ’s were added to the list: Agritrans, the first agricultural free trade zone in Haiti; Digneron, an entity of the Palm Apparel Group which also owns and operates the Palmiers free trade zone; and Lafito, a USD 150 million Panamax port and industrial park. Port Lafito, located 12 miles north of Port au Prince, includes port facility business services that cater to bulk and loose cargo imports, as well as terminal services to worldwide container service shipping lines. The Lafito economic zone currently includes a cement plant, but the industrial park portion of the project is not yet operational.

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 law, 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 information technology providers are not required to turn over source code or keys for encryption to any public agencies.

Real Property

Foreign investors have noted that real property interests are affected by the absence of a comprehensive civil registry. Lease agreement regulations are the same for locals and foreign investors. Many companies report that legitimate property titles are often non-existent and, if they do exist, they often conflict with other titles for the same property. Verification of property titles can take several months, and often much longer. Mortgages exist, but real estate mortgages are expensive and involve allegedly cumbersome procedures. Banks are also risk-averse to issue loans or mortgages. Squatting is not a common practice, but was popular in the aftermath of the 2010 earthquake.

Additionally, mortgages are not always properly recorded under the debtor or creditor’s name. The 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 and medium income households and to improve purchasing power 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 Ministry of Commerce and Industry is drafting a trademark law to align with the government’s international agreements and the modernization of commerce. The government of Haiti also intends to establish an independent office to focus on trademarks and patents. Some report that perceived weak enforcement mechanisms, inefficient courts, and judges’ inadequate knowledge of commercial law may impede the effectiveness of statutory protections.

Haiti is not mentioned in USTR’s 2019 Special 301 Report or the Notorious Markets list.

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: https://ht.usembassy.gov/wp-content/uploads/sites/100/list-of-attorneys-.pdf.

Haitian Copyright Office (BHDA)
Ministry of Culture and Communication
31, Rue Cheriez
Canape-Vert
Port-au-Prince HAITI (West Indies)
Telephone: (509) 2811 0535 or (509) 2811 5626
Email: bhda.gouv@gmail.com or 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
Email: eprophete@bhda.gouv.ht
http://www.mci.gouv.ht/

Director of Legal Affairs / Directeur des Affaires Juridiques: Mr. Rodrigue Josaphat
Ministry of Commerce and Industry
Telephone: (509) 4890-0144
Email: rodrigue.josaphat@mci.gouv.ht

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 and profitable. In principle, there are no limitations to foreigners’ access to the Haitian credit market, but limited credit is available through commercial banks. The free and efficient flow of capital, however, 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.

Administrative oversight in the banking sector is superior to oversight in other sectors. Under Haitian law, however, banks are not required to comply with internationally recognized accounting standards, and they are often not audited by internationally recognized accounting firms. Nevertheless, the Central Bank 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 Central Bank is generally viewed as one of the well-functioning Haitian government institutions.

Money and Banking System

The banking sector has concentrated credit in trade financing and in the proliferation of bank branches to capture deposits and remittances. Telebanking has expanded access to banking services for Haitians. Foreign banks are free to establish operations in Haiti. Three major banking institutions (Unibank, Sogebank and Banque Nationale de Credit) hold 80 percent of total banking sector assets. With the acquisition of the Haitian operations of Scotiabank in 2017, Unibank became Haiti’s largest banking company with a deposit market share of 36 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 74 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. This framework requires that Central Bank 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 April 2019, the Central Bank’s reference exchange rate was approximately 84 gourdes for one U.S. dollar and inflation reached 17 percent, remaining on a gradual upward trend. 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 178 million in the foreign exchange market during FY 2018. Additionally, in January 2019 it announced measures to adjust the reserve requirements ratios for commercial banks. As of February 4, 2019, reserve requirement ratios for commercial banks increased to 45 percent and 51 percent for deposits held in local currency and in U.S. currency respectively. This policy adjustment requires that banks convert 12.5 percent of their USD-denominated reserves into gourdes. As of early April 2019, Haiti’s stock of net international reserves is approximately USD 766 million, which is less than three months of import cover.

There are no legal limitations on foreigners’ access to the domestic credit market. However, banks demand collateral 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 collateral 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 Central Bank aims 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, although the Haitian government has not implemented relevant legislation to establish such a bureau.

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 Central Bank 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 in FY2019.

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 are equivalent to approximately 30 percent of GDP. In 2018, Haiti received over USD 2.9 billion in remittances. There are no restrictions or controls on foreign payments or other fund transfer transactions. 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 government of Haiti has expressed an intention to put 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 expected implementation of an agreement on the United States Foreign Account Tax Compliance Act (FATCA).

Sovereign Wealth Funds

To date Haiti does not have a Sovereign Wealth Fund.

Per information released by the Central Bank in September 2018, since 2011 Haiti has levied a tax of US USD1.50 on all transfers into and out of the country, with the proceeds designated for the National Fund for Education. According to the Central Bank’s report in September 2018, more than US USD120 million has been collected since July 2011 on remittances from the diaspora.

Before 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 SOEs. The sector included a flourmill, a cement factory, a telephone company (TELECO), the electricity company (EDH), the national port authority, the airport authority, and two commercial banks: Banque Nationale de Credit and Banque Populaire Haitienne. The law defines SOEs 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 SOEs are fully owned by the state, while others are jointly owned commercial enterprises. The Haitian parliament has full authority to liquidate state enterprises that are underperforming.

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

Privatization Program

In response to the economic difficulties of the late 1990s and mismanagement of the SOEs, the government liberalized the market to 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 in 1996 to facilitate the privatization process, while creating strategies to privatize all SOEs.

In 1998, two U.S. companies, Seaboard and Continental Grain, purchased shares of the state-owned flourmill. Each partner currently owns a third of the 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.

The government has allowed limited private sector investment in selected seaports. 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 National Regulatory Authority of the Energy Sector in Haiti (ANARSE), a state body created by decree in February 2016, concluded prequalification rounds for regional and mini electricity grids and power production, in October 2018 and March 2019 respectively. ANARSE is expected to start issuing tenders in 2019 for concessions for public private partnership for these regional and mini grids.

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.

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. In practice, however, it has been reported that the law has rarely been applied.

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.

Transparency International’s Corruption Perception Index for 2018 ranked Haiti in the second lowest spot in the Americas region, with a score of 20 out of 100 in perceived levels of public corruption. Drawing on 13 surveys and expert assessment, the index scores on a scale of zero (highly corrupt) to 100 (very clean). The 2018 Corruption Perceptions Index report ranks Haiti 161 out of 180 countries worldwide. The government of Haiti has made some progress in enforcing public accountability and transparency, but substantive institutional reforms are still needed. In 2004, the government of Haiti established the Anti-Corruption Commission (ULCC), however its lacks the necessary resources and political will to be effective. In 2008, Parliament approved the law on disclosure of assets by civil servants and high public officials prepared by ULCC, 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, resulting in what companies have identified as a decrease 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, according to foreign investors.

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: info@ulcc.gouv.ht

Marilyn B. Allien
President
Fondation Heritage pour Haiti
Petion-Ville, Haiti
Telephone: (509) 3701-7089
Emails: 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 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 https://www.transparency.org/cpi2018. 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: https://www.weforum.org/reports/the-global-enabling-trade-report-2016 for more information
• 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: https://www.globalintegrity.org/annual-reports/
• 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/

President Jovenel Moise was inaugurated in February 2017. The U.S. government partners with Haiti in its efforts to strengthen the rule of law and enhance public security; pursue economic growth through increased domestic resource mobilization and support for private investment; and strengthen good governance and anti-corruption efforts. Civil unrest in 2018-2019 stems from a number of factors including a stagnant economy and the lack of progress in the fight against corruption. Haiti’s political situation remains fragile. President 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. These factors have hindered both reconstruction efforts and the passage of important legislation.

The Haitian National Police continues to improve its ability to maintain public security, especially during widespread protests throughout the year, which called for improved governance and economic conditions along with a fight against corruption. Politically and socio-economically motivated civil disorder, such as periodic demonstrations triggered by government proposals to increase fuel prices and mismanagement of public funds, sometimes interrupted normal business operations. Companies have complained that establishing and safeguarding real property rights in Haiti remains a very significant problem, given extremely weak registry and judicial capacity in country. While significant improvements in the police force’s technical and operational capabilities have reduced kidnapping and homicide in recent years, some repot other violent crimes remain a serious problem, along with criminal gang control of a number of Port au Prince’s marginalized areas. According to several businesses, the Haitian judicial system is weak and lacks the ability to successfully deter and prosecute violent crime.

The special legislation of the Labor Code of 1984 establishes and governs labor regulations. Under the Code, the Ministry of Social Affairs 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, the government of Haiti passed a labor law to permit three 8-hour shifts in a working day, although this has not been fully implemented for all sectors in Haiti. 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 still revising a new labor code that will better comply with international labor standards.

According to U.S. companies, 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 apparel assembly industry to improve productivity through improvement in working conditions. The initiative prompted ILO to launch Better Work Haiti, a program that was designed to ensure compliance with international labor standards and spur jobs creation in the garment sector.

Since the inception of Better Work Haiti, the garment sector has seen 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 2018, the minimum wage for the garment sector was HTG 420 for eight hours of work or (approximately USD 5.06) in the export-oriented apparel 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: https://betterwork.org/blog/portfolio/better-work-haiti-17th-biannual-synthesis-report-under-the-hope-ii-legislation/.

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.

In October 2019, OPIC’s mandate and operations will be transitioned into the new U.S. International Development Finance Corporation.

Haiti is a member of the World Bank’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 2: Key Macroeconomic Data, U.S. FDI in Host Country/Economy

Table 3: Sources and Destination of FDI

Data not available.

Table 4: Sources of Portfolio Investment

Data not available.

Alexis Nieves
Commercial Officer
Embassy of the United States of America
Boulevard du 15 Octobre, Tabarre 41
Port-au-Prince, Haiti
Email: PAPECON@state.gov