1. Application for Naturalization by Investment, prepared by the MIP.
2. Instance (LETTER) request addressed to the Executive Branch, via the Minister of Interior and Police.
3. Five recent color front photographs 2×2, if interested person is man he must be trimmed and shaved.
4. Color copy of residence permit per investment, with a minimum of six (6) months (in force).
5. Certificate of No judicial record issued by the Attorney General’s Office, with a minimum validity of three (3) months.
6. Certificate of No criminal record issued by the authority or institution of the country of provenance duly apostilled or legalized, with a validity of at least three (3) months.
7. Certificate of Good Conduct, issued by the authorized official of the country of last residence where he has remained for more than five (5) years, duly translated into Spanish, if necessary and legalized at the corresponding Dominican Consulate or at the headquarters In the Dominican Republic of the Consulate of the applicant’s country of origin or the official entity authorized for these purposes. In addition, a certificate of good conduct issued by the Prosecutor’s Office of the corresponding Judicial District or by the National Police of the Dominican Republic.
8. ORIGINAL of the Birth Certificate duly apostilled (formality required to certify the authenticity of the signature, the quality in which the signatory of the document has acted, and, if appropriate, the identity of the stamp or seal of which the document is covered) , In accordance with the Convention de la Haya dated 05/10/1961. With a minimum validity of six (6) months. In case the country of origin of the interested party is not a signatory of said agreement, the act must be legalized (certificate or note with signature and seal proving the authenticity of the document or signature), at the Dominican Consulate or Embassy Accredited in the country of origin of the interested party and the Ministry of Foreign Affairs of the Dominican Republic. In the event that the Document is in a language other than Spanish, it must be translated by a judicial translator and legalized by the Attorney General of the Republic.
9. Color copy of the first three pages of the applicant’s Passport.
10. Copy of all Creation Documents of the commercial company, duly registered and legalized, in the General Directorate of Internal Taxes and in the Chamber of Commerce of the Dominican Republic.
11. Copy of the property titles of the buildings and a Certification of charges and encumbrance of the same ones issued by registry of titles (indispensable).
12. Copy of vehicle registration.
13. Bank letter.
14. Color copies of the identity card.
15. Letter of Guarantee notarized and legalized in the Attorney General’s Office, supported by a person Dominican of origin, with economic solvency, stating that he is responsible for the moral, economic, maintenance and repatriation expenses, if any with the applicant. This Declaration must indicate the data of the property and of the vehicle that puts in guarantee. If the guarantor is married, he must provide the wife’s authorization, with a copy of his identity card and the witnesses who appear in the act. In addition to:
16. A) Color copy of the guarantor and witness documents (if applicable).
17. B) Copy of title to the property
18. C) Copy of vehicle registration
19. D) Bank card
20. Up-to-date certifications issued by the General Directorate of Migration stating the status of the applicant, the time that has resided in the Dominican Republic and that has deposited a letter of guarantee in that Directorate.
21. Affidavit with three (3) Dominican witnesses of origin, where the interested party establishes domicile in the Dominican Republic, made by a Notary Public in the Dominican Republic and duly legalized in the Attorney General’s Office of the Republic. Attach a copy of the identity and electoral documents of the witnesses that appear in the act.
22. Proof of the Foreign Investment Registry issued by C. E. I.-R.D.
23. Copy of the complete Passport with a minimum validity of one year.
24. Certification issued by the National Council of Free Export Zones (C.N.Z.F.E.) in the case of companies established under the free zones regime.
25. In cases where the interested party is in the process of processing the investment and does not yet have the corresponding certifications, the MIP will admit as evidence the acknowledgment of receipt of the request and the deposit of documents required for the registration of the investment issued by the corresponding institution.
26. Proof of the depositary bank, in the case of investments made in financial instruments.
27. In the case of a Designated Investment Project, the applicant must submit a certificate that guarantees the project, issued by the Executive Branch, through C.E.I.-R.D., or C.N.Z.F.E., as applicable.
28. In the cases provided for in article 33, paragraph 1, of the General Migration Law 285-04, the contracting company shall provide proof that the interested party is a person with the qualifications required by law whose specialty is not met by technicians Countries. In such case, you must submit, in addition to the documents indicated above, a copy of the employment contract.
29. In the case provided for in the preceding paragraph, the contracting company will be guarantor of the contractor, by notarial act in which it guarantees morally and economically and undertakes to cover the costs of return, if necessary.
30. The application may include spouses and direct relatives of the applicant. In order to include relatives, the interested party must present documentation of the family bond, as the case may be. At the time of application for the residence permit, relatives must present the documents mentioned in items 1, 2, 3, 4, 5, 6 and 7 of these requirements. In the case of minors of eighteen (18) years, the requirements of numbers 5, 6 and 7 are not required.
31. In the cases of Companies that are covered by the Laws of Incentives or Companies contracted by the Executive Power, must deposit original of the approval of the Executive Power or the Decree that authorizes them to operate, or internal resolution of the state institution With which the project or the approval of the National Congress of the service contract or of the financing agreement is carried out, provided that such approval mentions the project and the intervening parties. It only needs a single certification or proof in original for each company.
32. In case the applicant is a shareholder of the company, he must also present an Act of the Administrative Council of the company in original, duly notarized and endorsed at the Attorney General’s Office of the Dominican Republic, or registered with the Chamber of Commerce and Production of Santo Domingo, where you specify your status as shareholder of the company.
33. If the applicant is an employee of the company, he must submit an original of the labor contract registered with the Ministry of Labor or a letter of certification of employment of the receiving company, notarized and endorsed by the Attorney General’s Office Dominican Republic, specifying the general information of the employee, the position he or she will perform in the company, date of entry to the company, the salary earned in addition to the company’s guarantee letter being responsible for the payment of repatriation charges if necessary , Notarized and endorsed by the Attorney General’s Office. Similarly in cases of dependents (wife) and children. In addition the company must send a power of representation that authorizes the executive who signs these communications on behalf of the same.
34. In case of contracts or letter of appointment from abroad, it must be duly translated into Spanish, if necessary and legalized at the corresponding Dominican Consulate or at the Dominican Republic headquarters of the Consulate of origin of the applicant and Foreign Affairs.
35. If the applicant is an economic clerk, a domestic employee, guardian, direct line of credit or a child over 18 years of age of the beneficiary, a guarantee letter must be added where the guarantor (beneficiary of the program) Of economic dependency of the applicant of the residence, and to specify that it takes care of the expenses of maintenance and repatriation if it is necessary.
36. If the application includes the spouse and/or minor children, the following documents must also be submitted: original marriage certificate or copy certified by the corresponding embassy and the Ministry of Foreign Affairs, in addition to those mentioned in paragraphs 1, 2, 3, 4, 6, 7, and 12 of the present requirements, in the case of persons under 18, the requirements of paragraphs 5, 6 and 7 are not required.

In The Cases Of Foreign Pensions, Retirement or Renters, must also:

33. They must deposit the financial document of the institution from which the accumulated funds come, as specified in Law 171-07, in its article 1 certified by the Dominican Embassy in the country of origin with headquarters in the Dominican Republic or certified by The Legalization Department at the Ministry of Foreign Affairs of the Dominican Republic.
34. The minimum amount of pensioner income is US $1,500.00 or its equivalent in pesos, and the Renter of US $ 2,000.00 or the equivalent in Dominican pesos.
35. For each dependent defined in article 5 of Law 171-07, applied jointly with the principal applicant, an additional monthly income corresponding to the sum of two hundred and fifty US dollars (US $250.00) will be required.
36. Copy, with original in sight, of the last six movements and financial statements of the account registered in a national institution where the income is being received.
37. Prove that the money received for income is actually consumed in Dominican territory, for which purpose the interested party must provide the corresponding proof, whose admission the Dominican immigration authority reserves the right to evaluate, any document tending to prove it, Such as: credit card status copies, housing rental agreement, payment such as dependent children’s educational services, water, electricity, telephone and any other type of proof of the investment of the interested party’s income in the Dominican Republic.
38. In case of having Pensions, the applicants must present a certification of the government, official body or private company of foreign origin where they rendered their services, duly translated into Spanish by a judicial interpreter, legalized by the Dominican consulate of the country of origin of the document. Said certification must contain the general data of the applicant, time that remained in the company, position held and the amount received as a pension.
39. In case of being Renter, they will have to prove that they enjoy permanent and stable income generated or coming abroad, for a period of not less than five years, through a copy of the contract of rent duly translated into Spanish By a judicial interpreter, legalized by the Dominican Consulate of the country of origin of the document. Likewise, they must present receipt of income of the currencies to the country, by copy of check (s) of transfer of financial entity (s) established abroad.
40. In the case where the interested party has obtained another nationality other than the one of origin must annex a summary history of the same.
41. In the event that the interested party has obtained a change of name, must deposit the act where the change of name, apostilled and translated into Spanish is authorized if it is in another language.
42. Five (5) sets of copies of all the above documents.

NOTE: THE INTERESTED PARTY MUST COME TO AN INTERVIEW TO BE CARRIED OUT IN THE OFFICIAL LANGUAGE OF THE DOMINICAN REPUBLIC, AS PROVIDED FOR IN ARTICLE 29 OF THE CONSTITUTION OF THE REPUBLIC, ONE WEEK AFTER HAVING DEPOSITED ALL THE ABOVE REQUIREMENTS, WHICH MUST BE PROPERLY LEGALIZED, ORGANIZED AS SUCH AND YOU MUST BRING PASSPORT AT THE TIME OF THE INTERVIEW.

MESA & MESA | Abogados

La entrada List of Requirement to Opt for Dominican Republic Citizenship by Investment se publicó primero en MESA ABOGADOS.

The National Intellectual Property Office (ONAPI, as its Spanish abbreviation), when evaluating applications for registration, will give preference to those applicants who have been using the trademark in the country.

It is possible to submit an application on behalf of several people.

Brand types

Local regulations recognize the following as the main types of trade mark: word, mixed, figurative, three-dimensional, sonorous and olfactory.

The stylized word marks are composed only of letters. Figurative marks consist of a drawing, figure or sign and do not contain letters. Mixed marks are a combination of figure and letters.

In the case of mixed, figurative and three-dimensional marks, 5 reproductions of the marks in size 15 x 15 cm must be attached to the application.

Letters, numbers, monograms, figures, portraits, labels, lines and bands and combinations of these, as well as sounds and smells can be registered as trademarks.

Classification

The goods or services to be protected must be classified according to the 11th version of the Nice’s Classification.

An application for trademark registration may cover all goods or services within a class, but it should be borne in mind that this increases the risks of remarks by the regulator.

It is possible to submit a registration application that includes more than one class, known as multiclass records.

Requirements

Applicants residing abroad require a local representative to submit the registration application. Submission of a power of attorney or authorization is mandatory.

Every trademark application requires a physical address in Dominican Republic.

To submit an application for registration the applicant must provide the following information: name, address, description of the trademark, list of goods and services, color (s) to be protected, international class.

The application must indicate the international classification to which the mark belongs, as well as the goods or services to be protected.

The applicant’s signature and payment of the registration fee.

Use

A trademark may be registered without having been used in Dominican Republic. Local regulation does not require proof of use or intended use.

Use is only required after registration.

Trademarks that have not been used without a just cause for a consecutive period of 3 years after their registration can be cancelled.

The regulation makes it possible to waive the right of exclusive use of one or more words of the trademark to be registered.

Colors

The regulation protect design colors as part of the characteristics of the brands.

Priority

The benefit of the right of priority may be claimed by applicants from countries having binding treaties with Dominican Republic. The right of priority must be claimed within 6 months from the date of the first application.

Translation

It is possible to include within the protection a translation of the trademark into a language other than Spanish.

Procedure

Examination of form and substance: Within 15 days of the application the Trademark Office makes a formal and substantive review of the application by issuing an approval decision or opposing to registration.

Publication: If the application is approved, the applicant must pay the publication fee. This publication is made every other week in a newspaper of national coverage.

Opposition: The Trademark Office issues an objection action, which must be responded to by the applicant within 30 days of notification.

Third parties who feel affected by an application for registration have 45 days after publication to file an opposition before the Trademark Office.

Oppositions to trademark applications are notified to the applicant, who has 30 days to submit his/her arguments.  It is possible to obtain an extension of this period.

The oppositions are known by the ONAPI legal department. ONAPI’s response takes 3 to 6 months.

Certificate of Registration: If the applicant has complied with the formal and substantive requirements and has not been objected to by a third party, ONAPI will issue the registration certificate, which is valid for 10 years.

Should there is no opposition from a third party, the registration process takes approximately 4 months.

Renewal

The trademark may be renewed for succeeding 10-years periods, no later than six (6) months prior to its expiration date or six (6) years thereafter, but in the latter case it would pay the fee plus an extra charge.

MESA & MESA | Abogados

info@mesalex.com

La entrada Dominican Republic Trademark Registration Guide se publicó primero en MESA ABOGADOS.

The relevant legal norm in the Dominican Republic is the 385 Act of 2005, on Protection to the Rights of the Consumer or User. Also influenced by, Decree 236-08, which contains the regulations for the application of the aforementioned law.

The first aspect to be determined is when a product should be withdrawn from the market. In this sense, article 63 of the consumer protection law, states:

“The supplier is responsible for the suitability and quality of the goods and services offered, sold or rendered in the market. A good or service is considered to be defective, void or insufficient when, by its nature or conditions, it does not fulfill the purpose or utility for which it was intended, it is different from the specifications stipulated by the manufacturer or supplier or reduces its quality or the possibility of its use, than of having known it, the consumer or user would not have purchased it or would have paid a lower price. ”

Paragraph. In the event that a good or service is found to be defective, void or insufficient, without informing the user, the supplier shall be obliged, at the option of the consumer or user, to receive the goods and services, to return the goods Value paid, to grant a reduction in the price or value paid, or to return the goods or services with the qualities, quality and price originally offered. The service providers shall have thirty (30) days, counted from the date of the user’s claim, to demonstrate that any insufficiency in the provision of their services is not imputable to them.”

It’s of vital importance in the this analysis the provisions of articles 35, 36 and 37 of the aforementioned law, which establish the following texts:

“Art. 35.- Risks not foreseen. After introducing a product or service in the market, if there is established the existence of unforeseen risks, defects or alterations that make it dangerous for health or safety, the supplier will be obliged to inform, immediately and publicly, to the competent authorities and the population in general, and must use all appropriate means to ensure timely information on the risks of the product or service to the entire population. The fulfillment of this obligation does not exempt the supplier from the responsibilities that may be established in each case. (Emphasis by underline added by us)

Article 36.- The supplier shall also be obliged to take appropriate measures and to comply with the measures provided by the competent authorities to eliminate or reduce the danger, including the withdrawal or suspension of the affected products or services, as well as replacement or repair, as the case may be.

Article 37.- The Executive Direction of Pro Consumidor (Pro Consumer) will have competence to enforce these measures.

It is worth noting that the law defines a supplier as: “A natural or legal person, public or private, who habitually or occasionally produces, imports, manipulates, processes, packages, stores, distributes, sells or sells products or provides services in the market to consumers or users, including liberal professional services that require for their pursuit a university degree, in what concerns the commercial relationship that entails their exercise and the publicity that is made of their offer or any equivalent act”.

The obligations contained in the Consumer Protection Act are mandatory both for the supplier or exporter as for the local importer or distributor and Article 102 establishes the joint liabilities of both market agents.

In addition, the legal regime establishes sanctions in cases of non-compliance. These penalties, depending on the seriousness of the offense, range from 20 to 500 minimum wages. In 2016, the minimum wage is approximately USD152.00.

Based on the aforementioned legal provisions, we must first of all point out that every supplier or exporter to the Dominican Republic market of consumer products must comply with the legal obligation to inform both the Competition Protection authorities and the Population in general of the existence in the market of products that can represent a risk for the security of the population.

A notice from the supplier or exporter to your local distributor informing you of defects in the product and requesting its withdrawal from the market is not sufficient to comply with applicable legal regulations.

Rodolfo Mesa Chávez

La entrada Consumer Protection: The Removal of Defective Products. se publicó primero en MESA ABOGADOS.

One of the most effective conservatory measures that can be taken by the creditor is the provisional judicial mortgage.

The first aspect is to analyze the regulatory framework that allows for prosecution of legal actions on the basis of a ruling or decision emanating from a foreign court, namely:

a) Article 26, item 1 of the Constitution establishes that the Dominican Republic: “Recognizes and applies the norms of general and American International Law to the extent that their public powers have adopted them (…);

b) Article 122 of Law No. 834 of July 15, 1978: “Rulings rendered by foreign courts and acts received by foreign officials are enforceable in the territory of the Republic in the manner and in the cases as provided for by the law”.

c) Art. 89 of law No. 544-14: “Recognition of foreign judicial decisions in contentious matters. Foreign judicial decisions in contentious matters will be recognized in the Dominican Republic. ”

The most appropriate legal scenario is presented by the Civil Procedure Code, which establishes the right of creditors to request a competent judge to authorize the registration of a temporary judicial mortgage against the real estate of the debtor(s). In this sense Articles 54 and 55 of the Code of Civil Procedure express verbatim the following:

Art.-54: “The judge of the First Degree may also, in the same manner and under the conditions established in article 48, authorize the creditor to take a registration of a temporary judicial mortgage on some or all of the properties of his debtor. This provisional registration will only produce effects for three years; but may be renewed for equal time indefinitely, by submitting the order that authorized the first registration. The creditor must sue over the fund within the term indicated in the order authorizing the mortgage registration, under penalty of invalidity of the registration. Within a period of two months from the date on which the judgment on the merits has acquired res judicata, the creditor must convert the provisional registration into final registration, which shall take effect retroactively from the date of the first registration and will be done without cost. The creditor will pay the rights and expenses only once. In the absence of definitive registration within the indicated period of two months, the provisional registration will be retroactively without effect and its cancellation may be requested by any interested person, at the expense of the person who took the registration and by order issued by the judge who authorized it. ”

Article 55: “When the value of the Real State affected by the provisional registration, authorized in accordance with the preceding article, is notoriously greater than the amount of the sums entered, the debtor may limit its effects, at any time, by the Judge of the Referrals or by the judge who knows the merits of the claim, by notifying that the properties that are reserved have at least a double value to the principal credit amount, interest and expenses.

Procedure To Follow.

Once obtained the Ruling of the foreign court, the same must be legalized, either via Apostille, if the jurisdiction of origin of the Ruling is part of the agreement or via ordinary legalization.

An important aspect is that to make legal actions more viable to be filed in the Dominican Republic it is highly desirable that the decision of the foreign court expresses the amount or value of the precautionary measures against the assets of the debtors.

Once the decision or ruling is legalized, it must be translated into Spanish by a Judicial Interpreter, duly authorized for the purposes. Depending on the number of pages this process could take from 3 to 5 days, including the legalization of the translation by the competent authorities. It is recommended to translate the same documents and contracts that serve as the basis for the claim, as a way to cover it with the greatest possible weight.

Following and under the provisions of articles 54 and 55 of the Code of Civil Procedure must be drawn up an application or request to the Chief Judge of the competent court so that on the basis of the judgment and the documents and contracts that accompany it authorizes to take measures against the movable and immovable property of the customer’s debtors. It is worth noting that this procedure is essentially administrative, so in principle the counterparty does not participate.

It is optional for the judge to grant or deny authorization. To this end, the claimant must demonstrate the urgency and danger of collecting the credit. “The credit will be considered in danger and therefore there will be urgency when evidence is provided of a nature such as to allow the assumption or fear of imminent insolvency of the debtor, which will be recorded in the order issued by the judge[1].”

The document/act that authorizes the registration of the mortgage must indicate:

1. The urgency;
2. The amount by which the lien is authorized
3. The period in which the creditor must sue before the competent judge on the merits, on the penalty of nullity.

The judge may demand from the creditor the prior justification of sufficient solvency or the presentation of a guarantor or bail, which will be done in the hands of the secretary or in the hands of a Conservator.

The document/act will be executed on schedule and notwithstanding any recourse.

In practice in civil and commercial matters the judge takes approximately 10 to 15 days to render his decision. It is worth noting that in its decision the judge usually grants a period of 30 days for the creditor to sue the content.

The competent court to file such an application may be both the domicile of the debtors and the place where the affected buildings are located.

With obtaining the authorization of the Dominican court to place precautionary measures against the property of the debtors, provisional judicial mortgages are registered in the Registry of Deeds of the places where the real estate is located. To do this, a physical and cadastral location of the location and situation of the affected property must have been previously made.

With the deposit of the decision in the offices of the Deed Registers the Real State property is taxed with a temporary judicial mortgage that follows the property regardless of who owns it. However it is worth noting that this does not prevent the property to be taxed by other definitive mortgages.

The registration of the Provisional Judicial Mortgage by the competent Registry of Deeds is done together with the two invoices referred to in article 2148 of the Civil Code. Due to the temporary nature of the mortgage, the effectiveness of the registration is reduced to three years, but can be renewed, for an equal period, indefinitely, by presenting the car that authorized the first registration.

It is necessary to make the notification of the Order authorizing the Provisional Registration of the Judicial Mortgage within the fifteen days of its registration, with election of domicile within the jurisdiction of the Registry of Titles where the registration or registration has been made[2].

It is important to take into account that the content must be sued within the period indicated in the order authorizing the registration of the mortgage, under penalty of invalidity of the inscription.

Once a final and irrevocable ruling has been obtained on the matter, the creditor will be obliged, within a period of two months from said Ruling to convert the provisional registration into final registration, which will produce its effects retroactively from the date of the first inscription.

With respect to the conversion of the provisional judicial mortgage authorized by the judge, into a final judicial mortgage, our Supreme Court of Justice has established that: “In order for a provisional judicial mortgage, taken with the authorization of the judge, to be converted definitively, Sufficient that the creditor is provided with a document proving the existence of his credit, but it is necessary that a Ruling with authority of the res judicata should have intervened that orders the debtor to pay the obligation incurred or that the claim is contained in a Authentic act with enforceability[3]“.

In the absence of definitive registration within two months, the provisional registration will be retroactively without effect and its cancellation may be requested by any interested person, at the expense of the person who took the registration and by order issued by the judge who authorized it.

Rodolfo Mesa Chavez

Twitter: @rodolfomesa

[1] Art. 48, Civil Procedure Code.

[2] Art. 56, Civil Procedure Code

[3] Cas.Civ.12 Jan 2000, B.J. 1070, pages. 94-98.

La entrada Precautionary Measures for the Protection of Credit Originated in a Foreign Judgment. se publicó primero en MESA ABOGADOS.

The 3-02 Act on Commercial Registration establishes as a mandatory requirement the obtaining of a Mercantile Registry for any company that habitually engages in commercial activity in the national territory, this includes foreign companies. In addition, the text imposes sanctions on commercial companies that professionally engage in business without being registered in the Mercantile Registry.

The conditions for a foreign company to provide services in the Dominican Republic are summarized in the fulfillment of the following requirements:

a) .- Commercial Registry. The commercial registry constitutes a public database of all the companies and entities that carry out commercial activities in a certain territorial demarcation, this registry is issued by the Chamber of Commerce an of the city where the main offices of the foreign company are located .

The requirements for commercial registration are as follows:

• The constitutive documents of your country of origin, duly legalized by Apostille.
• Updated list of shareholders duly legalized by Apostille.
• Assembly of the commercial entity approving business operations in the Dominican Republic, registration of the company and the establishment of domicile in the Dominican Republic.
• Copy of the passports of the members of the board of directors.
• Address in the Dominican Republic, where the foreign company will be located.

The estimated time is 10 working days.

b.-) National Taxpayer Registry (RNC). It forms the database of all companies and entities subject to the payment of taxes in the Dominican Republic. The indicated registration is granted by the General Directorate of Internal Revenues (DGII) – Tax Department. Through this registration companies are authorized to issue invoices with validity in national territory.

To obtain the RNC it is necessary to have previously obtained the Mercantile Registry. The applicant must submit a copy of the documents of incorporation, as well as copies of the passports of the members of the Board of Directors. The estimated time of obtaining is 10 working days.

c.-) Establishment of Domicile in National Territory. It constitutes a special authorization issued by the Executive Branch, through which the foreign company is licensed to establish itself in the Dominican Republic. The requirements are as follows:

• The constitutive documents of your country of origin, duly legalized by Apostille.
• Updated list of shareholders duly legalized by Apostille.
• Assembly of the commercial entity approving business operations in the Dominican Republic, registration of the company and the establishment of domicile in the Dominican Republic.
• Copy of the passport of the members of the Board of Directors.
• Power granted to the person who will make the corresponding procedures before the Ministry of Interior.
• The address in the Dominican Republic where the foreign company will be located.

Once the foreign company has been authorized to operate in the national territory, it must comply with the general regulations applicable to all commercial companies, among which, the following should be noted:

Labor.

The third book, title I, of the Labor Code, regulates the nationality of work. In this sense, article 135 establishes that eighty percent (80%), at least of the total number of workers of a company must be Dominicans. Foreigners who exercise exclusively the functions of management or administration of an enterprise are exempt from this provision; as well as technical workers, provided that, in the opinion of the Department of Labor, there are no unemployed Dominicans capable of replacing it.

In the case of foreign consulting companies, it is recommended to request permission from the Ministry of Labor to be exonerated from compliance with the quota of national workers set forth in article 135 of the Labor Code.

Labor regulations require companies to register in the Integrated Labor Registry System (SIRL).

Migratory.

The Dominican migratory regulations establish that all the foreigners that carry out activities of business or work must be provided with the corresponding visa. In this sense the foreign technical staff must be provided with a business visa for work purposes.

The reference visa usually has a validity of one year and allows a stay of 3 to 6 months. In case of personnel with permanence or prolonged stay a special residence permit must be obtained.

In light of the regulations in force in the Dominican Republic, it is possible for a foreign advisory and consultancy company to provide services from abroad to Dominican clients without registering in the Dominican Republic, but when the consulting or advisory service is provided in the Dominican Republic, the Company must register in the country.

Rodolfo Mesa Chavez

Twitter: @rodolfomesa

La entrada How Establish and Operate with a Foreign Company se publicó primero en MESA ABOGADOS.

According to Law 491-06 on Dominican Republic Civil Aviation (LAC) airports are classified as public, private and military. Public airports are intended for general air navigation use; private airports are those intended for particular use by a person or a company; military airports are those intended to be exclusively used by Dominican Republic armed forces.

To operate any public or private airport, an operator must have an authorisation issued by Dominican Institute of Civil Aviation IDAC. When an airport is a public aerodrome, it also requires previous authorisation from the president of the republic.

Dominican Aeronautical Rule (RAD) 19 defines aerodrome guidelines and airport certification, while RAD 14 defines regulations related to their design and operation.

Furthermore, the Airport Commission, an independent body created by Law No. 8-78, is involved in licensing and permission granting.

By a president’s decree, the Dominican state set the airport fees and charges. Both private airports and state airports operated under concession are subject to airport fees determined by the Dominican state.

LAC provides that any aircraft entering to or departing from Dominican territory shall comply with the airworthiness rules provided by IDAC. RAD 25 provides that IDAC shall accept the airworthiness certificates issued by the European Safety Aviation Agency (EASA) and the Federal Aviation Administration of the United States (FAA). Airports are bound to comply with safety rules set by IDAC.

There is no specific guideline for assigning a slot; airport operators usually assign the slots by arrival time order or as agreed with air operators.

The Airport Commission rules ground handling, which approves contracts and services fees in all Dominican Republic airports.

According to LAC, IDAC has to offer, supervise and monitor air traffic control services and ensure they are performed at an optimum safety level, as per ICAO rules. RAD 11 rules all matters related to air traffic control services.

LAC regulates any matters related to aircraft registration. To that end the Nation Aircraft Registry was created by IDAC. An aircraft could be registered by Dominicans and foreign citizens who are domiciled in the Dominican Republic.

Before an aircraft is registered in the Dominican Republic, the previous registration must to be cancelled.

Those aircraft owners who comply with the legal requirements could apply for a definitive registration.

Mortgages and charges on Dominican Republic aircraft can be recorded in the National Aircraft Registry. Mortgages are recorded by notarised documents, in accordance with Civil Code provisions.

According to LAC, an aircraft can be detained only with the relevant court authorisation, based on debts derived from airport and air navigation services rendered.

Aircraft maintenance is regulated by LAC and (RAD) No. 43. These regulations are applicable to aircraft with registration issued in the Dominican Republic.

IDAC must ensure the proper maintenance of aircraft registered in the Dominican Republic.

Likewise the law provides that an air operator must ensure that aircraft maintenance and operations are performed in the public interest and according to LAC provisions, rules, regulations, directives and orders issued by IDAC.

When aircraft are registered overseas, IDAC is not directly involved in their maintenance and it is just involved in control and ramp revisions.

La entrada Rules on Operation of Airports and Aircrafts in The Dominican Republic se publicó primero en MESA ABOGADOS.

JAC is the consulting body for government authorities concerning air transport policies and the ruling and executive body for economic matters.

IDAC is a specialised independent and technical body in charge of aviation safety. It supervises and controls civil aviation, particularly the enforcement of relevant rules and regulations.

CESAC is the authority for civil aviation security, and the body responsible for enforcement and compliance with the National Programme of Civil Aviation Security.

The basic legal framework includes the following laws:

• Law No. 491-06, dated 28 December 2006, on Dominican Republic Civil Aviation (LAC);
• Law No. 188-11, dated 22 July 2011, on Airport and Civil Aviation Security; and
• Law No. 8-78, dated 17 November 1978, on Airport Commission.

The following international conventions are applicable to Dominican civil aviation:

• Warsaw Convention 1929;
• Chicago Convention 1944;
• Montreal Protocol 1947;
• Montreal Protocol 1954;
• Hague Protocol 1955;
• Tokyo Convention 1963;
• Hague Convention 1970;
• Montreal Convention 1971 and its supplementary protocol;
• London Convention 1972 (on regulation to prevent collisions at sea) and its appendices;
• Montreal Convention 1991;
• Montreal Protocol 1988; and
• Montreal Convention 1999.

The Dominican Republic has entered into bilateral agreements with 40 countries for opening commercial airlines routes.

IDAC is responsible for air navigation safety and takes all measures and regulations to guarantee aviation safety.

IDAC supervises the fulfilment of the safety rules set out in appendices 1, 2, 11, 14 and 68 of the Chicago Convention.

The main safety rules are contained in LAC and Dominican Aeronautical Rules (RAD) numbers 2, 61 and 110.

IDAC has the authority to check the fulfilment of flight rules and inspect mechanical conditions and aircraft airworthiness.

According to LAC, the pilot shall have final authority concerning all matters related to the aircraft while he or she is in charge of the aircraft.

IDAC is authorised to validate licences issued by other member countries of the International Civil Aviation Organization (ICAO) to pilots, crew and mechanics that are going to support or operate Dominican aircraft.

Surveillance and air traffic control rules accord with ICAO rules, while safety rules accord with provisions set out in the Chicago Convention and its appendices.

Access to the Market.

Access to the market is regulated. National air operators must obtain an economic authorisation certificate (CAE), issued by JAC, and they must also obtain an air operator’s certificate (AOC), issued by IDAC.

Foreign air operators need an operation permission issued by JAC, which shall be issued after confirming that they comply with safety specifications provided by IDAC and the security aviation rules provided by CESAC.

JAC could refuse to issue permissions or authorisations for certain routes, if it considers traffic needs are satisfied.

Requirements for National Operators.

Article 220 of LAC provides that air transport services are reserved to national air operators, but they could be granted to foreign air operators from countries that have entered into agreements or treaties with the Dominican Republic.

To determine and guarantee the capacity and economic and financial suitability of national air operators they must apply for an economic authorisation certificate from JAC.

Foreign air operators prove their financial and economical capacity by submitting the permissions issued by the relevant authorities in their countries.

According to LAC, national companies are those whose capital and substantial ownership is owned by Dominican citizens with at least a 35 per cent share and their board of directors is composed of Dominicans in the same proportion. Also, national companies are those where 50 per cent plus one of the directing staff not on the board are Dominican and those having their headquarters located in the Dominican Republic.

On 24 April 2013, the Dominican Republic enacted Law 67-13, which amended certain aspects of the Civil Aviation Law (Law 491-06).

The main goal of this amendment is to change the requirements for a national air operator. Pursuant to this new law a company with foreign capital in full (100 per cent) can be considered as a national air operator, provided, however, that the investment is coming from an internationally known airline.

Nowadays most operating airlines are from abroad. Dominican authorities have an open and flexible policy to allow the entry of new foreign air operators into the market.

Licensing and permissions are ruled by LAC. To operate a route, national air operators need a CAE issued by JAC, and an AOC issued by IDAC.

National air operator applicants must prove to JAC that they comply with nationality requirement in connection with company ownership and control.

Furthermore, the national air operator must prove compliance with the National Civil Aviation Security Programme as set forth by CESAC, which has been drafted in accordance with appendix 17 of the Chicago Convention, as well as financial and economic supporting information, feasibility studies, etc.

Licences for foreign companies are issued according to reciprocity agreements entered into by the Dominican Republic and the operator’s country. However, JAC is authorised to issue an operation licence without an agreement or reciprocity statement.

Operation licences are issued for a 10-year maximum term.

Rodolfo Mesa Chavez

Note: This article is based in author contribution to Getting the Deal Through. Air Transport Dominican Republic

La entrada Aviation Regulations in Dominican Republic se publicó primero en MESA ABOGADOS.

The provisions of the law 544-14 regarding international private law, is which conditions the validity of foreign sentences to the enforceability declaration by the Dominican court.

However, the exequatur is requested depending on the sentence nature. The usual sentences classification: declaratory, constitutive and convictions, we notice that the declaratory sentences can be recognised but not enforceable, like constitutes sentences which can be recognised but not enforced because they are enforceable from their mere decision, as the sentences of convictions can be recognised and enforceable.

Concerning the granting of the exequatur to foreign sentences, Dominican jurisprudence has provided that the validity of a foreign sentence in Dominican territory is subject to obtain the exequatur, the judge should consider the legal qualification of the judicial decision submitted to him to be examined, to determine its declaratory, constitutive or conviction nature, since the declaratory and constitutive sentences don’t require such exequatur, due their enforcement don’t require a real performance, which request the public force support, only the sentences of convictions, that impose the enforcement of a positive benefit to give or make, or negative to not make, are subject to ask for the exequatur, according therefore.[1].

Recognition of a foreign sentence is done by the exequatur procedure, to confer on it the same effect as national sentences.

Exequatur is the decision by which the first instance court authorises the enforcement in Dominican Republic of a sentence or foreign act; this decision is passed previously to the assessment of procedure and substance, confirmation of final and rendering enforceable of act or sentence in the country of origin and the fulfilment with the contentious public order where every person of interest shall appear.[2]

A foreign sentence to be recognised and enforced shall have three requirements. Those requirements are formal, procedure and material type.

Concerning the formal requirements, it worth to remember the sentence is a document from foreign jurisdiction which authenticity, therefore, is hard to determine. That’s why is required the foreign sentence has the characteristics as any foreign document has to be admitted.

The procedure requirements are to ensure a due process existence. Then, in a hand is required an international jurisdiction judge is involved, and, in the other hand, that the defendant had has a real chance for a defense.

The material requirement, finally, concerns to the desire of guarantee the public order in the own country; consequently the foreign sentence contains is examined from this point of view.

The mentioned law 544-14 incorporated the enforceability requirements of Bustamante code, an international instrument which serves as a reference, as following:

• Capacity to know the matter and try it, according with this code rules, the judge or court that having passed it.

• The parties have been summoned in person or by attorneys in fact for the trial.

• The rule is not in the contrary of the public law or public order in the country to be enforced.

• Enforceable in the State in which is passed.

• Translated by an officer or legal translator from the State on which it is to be enforced, if language is different.

• That the document has the needed requirements as to be authentic in the State which is from, and those required to be legalised by the State which desires to enforce the sentence.

Rodolfo Mesa Chavez

Mea & Mesa | Abogados

[1] Civ. Case May 8th 2002, B.J. unpublished

[2] IDEM

La entrada Enforcement of Foreign Judgment in Dominican Republic se publicó primero en MESA ABOGADOS.

Limited Liability Company, Company, Limited Partnership, Limited Liability Partnership.

• Which structure/business vehicle is the most common one for foreign companies to adopt and what are the liability and reporting provisions for it?

Limited Liability Company. The liability of the members is limited to what they have invested. After start operations it should report to tax authority monthly.

• What are the rules on capitalisation of entities in the [DOMINICAN REPUBLIC]?

The partners have a preference right to invest in a same proportion of his current investment.

• What information are we required to provide businesses/consumers with when trading with us?

All relevant information of the products/ services. All business should be conducted in good faith.

• We would prefer to avoid having an actual physical presence in the [DOMINICAN REPUBLIC] and instead are looking to appoint an agent or distributor to sell our products and/or services. What are the legal implications?

Under determinate circumstances the local agent/ distributor should be compensated in case of unilateral agreement termination.

• We intend to sell goods via our online website. What are the legal requirements if we wish to sell into the [DOMINICAN REPUBLIC]?

No especial rule for sale online.

• Do you have legislation in respect of the use of electronic signatures?

The law 126-02.

• We intend to import goods into the [DOMINICAN REPUBLIC] for sale. What are the legal requirements for doing this?

You will need an import permit and pay the customs tax. Packaging rules instruct to translate labels into Spanish language

• What rights do consumers have when selling to them? Dominican Republic has an especial law that protect the rights of the consumers.

Main rights are: Protection of the heath, education for the use of the product, accurate information of the products/services, protection of economic interest, compensation for damages, among other collective rights.

• What are a customers rights in so far as returning goods (whether or not they are faulty)?

The customers have returning rights only of faulty goods.

EMPLOYMENT QUESTIONS

• We are looking to set-up a business in the [DOMINICAN REPUBLIC] and intend to bring some of our current employees into the [DOMINICAN REPUBLIC] to work. Do we require work/residency permits?

Yes. Also there is a limit of 20% of foreign employees.

• What formalities do we need to comply with when recruiting employees in the [DOMINICAN REPUBLIC]?

All employees must be major of 18 and be registered at the Labour Department and Social Security Department.

• What are the minimum rights we have to adhere to for employees in the [DOMINICAN REPUBLIC]?

Pay the minimum salary and accomplish with the health and security regulations.

• Is there a difference if someone is contracted as a consultant as opposed to being an employee?

Consultants are considered freelancers and are not protected by the labour code.

• What options exist if we want to terminate employees contracts with us? Can we make them redundant?

The contract can be cancel for a breach of the employee. It is possible to make it redundant, in that case the employer must compensate the employee through monetary payment based on salary and the date of the contract.

TAX AND INVESTMENT QUESTIONS

• Are there any restrictions on foreign investment in to the [DOMINICAN REPUBLIC]?

No restrictions.

• Do you have any currency or exchange controls in place?

No

• How are employees taxed in the [DOMINICAN REPUBLIC]?

The employer retain from the employee’s salary the tax applicable and then pay it to the tax authority.

• What are the current rates of tax for employees?

Between 15% – 25% of their taxable incomes.

• What taxes apply to the business models you have identified above?

27% of the taxable income.

• How are dividends to foreign companies/shareholders taxed?

The company that pay dividends to companies/shareholder should retain an pay to tax authority a 10%.

• Are there transfer pricing rules in place?

Articles 281 and 282 of the Tax Code set up the rules.

• Do you have double taxation treaties in place with foreign jurisdictions. If so where can we find out details?

The information is available at website of the tax authority – www.dgii.gov.do/legislacion/acuerdos/Paginas/acuerdos.aspx

La entrada Frequently Asked Question (FQA) For Doing Business in Dominican Republic. se publicó primero en MESA ABOGADOS.

Legal Ground.

Article 54 of Dominican Civil Procedure Code: “The First Instance Judge could equally, in same conditions and ways provided in Article 48 authorised the creditor to take a provisional registration of a legal mortgage on some or in all real estates of his debtor. This registration is provisional, and shall only produce effect for three years; but could be renewed for equal period of time ad infinitum, by submitting the judicial order which authorized the first registration. The creditor should request on the merits on the case in the term indicated in the judicial order which authorizes the mortgage registration, under penalty of nullity of registration. Within the two month term from the date the sentence on the merits of the case has acquired the force of res judicata, the creditor shall convert the provisional registration into a final registration, which shall produce its effects retroactively from de date of the first registration and shall be for free. The creditor shall pay the right and expenses once. When a final registration is missing within the two month term, the final registration shall be without effect retroactively and its cancellation could be requested by any interested individual, to the account of the individual who has taken the registration and in virtue of the judicial order passed by the judge who has authorised it.

Article 55 of Dominican Civil Procedure Code: “When the value of the real estate affected by the provisional registration, which is authorised according with the foregoing article, is noticeably greater than the registered amount, the debtor could make to limit its effects, at any time, by the presiding judge or the judge who considers the merit of the case, by notifying that the real estates which are to be reserved have at least the double in value than the amount of the capital of the credit, interest and expenses”.

Procedure. Doctrine And Jurisprudence.

Competent Court. The President Judge of the relevant Civil and Commercial Courtroom of the First Instance Court is the only competent to this matter. Subject to the territory, the relevant court is which located at the debtor domicile or the place where the real estates which registrations are to be taken are located.

1. – Request submitted to relevant court to ask for that by the Judicial Order authorises the provisional registration of legal mortgage on some or all debtor real estates. Such provision can affect either the current properties as well as to futures properties, by enforcing the Article 2123 of Civil Code, which reads: “(…) the legal mortgage can be enforced on the current real states of the debtor, and also on those that can be acquired”. As well as the real estates considered as real estates by designation[1].

For this purposes the plaintiff should demonstrate the urgency and danger in collecting the credit. “The credit shall be considered in danger and therefore it will have urgency when the evidence is given which allow supposing or being afraid of the imminent insolvency by the debtor, who shall be included in the judicial order to be passed by the judge”[2].

The judicial order which authorizes the mortgage registration shall indicate:

1. The urgency.
2. The amount of the seizure.
3. The term within which the creditor shall request to the relevant judge about the merits of the case, under penalty of nullity.

The judge could request to the creditor a previous justification to prove enough solvencies or to present a guarantor or a bond, which shall be done before the secretary or a receiver.

The judicial order shall be performed according with the proceedings and despite any appeal.

2. – Registration of the Provisional Legal Mortgage in the National District Deed Registration Office, with two bills as referred in Article 2148 of Civil Code. Since the provisional nature of the mortgage, the validity of such registrations is for three years, but can be renewed for equal period of time ad infinitum, by submitting the judicial order which authorizes the first registration.

3. – Notification of the Judicial Order which authorises the Legal Mortgage Provisional Registration within fifteen days from its registration, with domicile chosen within the jurisdiction of Deed Registration Office where the registration has been done.[3].

4. – Request the merits of the case within the term indicated in the judicial order which authorised the mortgage registration, under penalty of nullity of the registration.

5.-Once the final and irrevocable sentence on the merit of the case is obtained, the creditor shall be bound, in two month term, based on such sentence to convert the provisional registration into a final registration, which shall have retroactive effect from the first registration date.

Concerning the conversion of the Provisional Legal Mortgage into a Final Legal Mortgage by a judge, our Supreme Court of Justice has set forth: “In order a provisional mortgage, taken with a judge authorisation, be converted into a final mortgage, is not enough that the creditor have a document to prove his credit existence, but is necessary a sentence with the force of res judicata which condemn the debtor to pay the obligation, or that the credit is included in an enforceable authentic act”[4].

If the final registration is missing within the two month term, the provisional registration shall be invalid retroactively and its cancelation could be request by any interested individual, on the account of the individual who has taken the registration and in virtue of the judicial order passed by the judge who has authorised it.

The registration shall be for free, since the creditor pays the fiscal taxes once. The status acquired by the creditor because of the first registration shall be conserved once the final mortgage registration is obtained.

In the other hand, the debtor can obtain the reduction or limitation of registration effects, at any time, by the power of the Presiding Judge, or the judge who passed the judicial order, when the value of such real estates affected by the provisional mortgage, be notoriously greater than the amount of the registration subject matter. In this case, the debtor shall notify that the real estates reserved as the guarantee at least have a value equivalent twice the capital of the credit, interest and expenses.

If the credit is not recognised by the sentence which decides on the merits of the case, the provisional mortgage registration shall be done when such sentence has the force of res judicata, by itself or by decision of the judge who authorised the provisional registration.

Registration Effects.

According with Article 57 of Civil Procedure Code, after registering the mortgage subject to Articles 54 and 55, the debtor could not lease without judicial authorisation, nor constitute real rights enforceable to the prosecuting creditor, nor receive in advance or assign incomes, for more than three month under penalty of nullity. The disposal is not only non-enforceable to creditor registered, but is affected by nullity.

Rodolfo Mesa Chavez

Mesa & Mesa | Abogados

[1] Artagnan Pérez Méndez, Civil Procedure, Tomo III, pág. 91

[2] Art. 48 of Civil Procedure Code.

[3] Art. 56 of Civil Procedure Code.

[4] Civ. Case January 12th 2000, B.J. 1070, pages 94-98.

La entrada Procedure to Appy for a Registration of a Provisional Legal Mortgage as Security for Payment se publicó primero en MESA ABOGADOS.