In the framework of a globalized world and social networks that are established as a measure of possible interest of economic, social and political groups, data protection regulations become more relevant. In fact, the European Union through the General Data Protection Regulation 2016/679 of the European Parliament and of the Council of April 27, 2016, establishes mandatory requirements, as of May 25, 2018, on regard to data protection, and which also apply to individuals in charge of the processing of data who are outside the European Union but who handle personal data of interested parties residing in the European Union.
In the case of Panama, our greatest protection is directly established through our Constitution, mainly in articles 42 to 44. These articles establish the regulatory framework in which the criterion that must be met is the consent of the owner of the personal data to obtain, process and store them. Additionally, it allows them to have access to that information in order to update or delete it from the respective database. The habeas data action is established in these articles to guarantee the right of access to personal information.
How does this affect companies?
For labor purposes, our Labor Code establishes the obligation for the employer to keep a record with information of the workers; this record is subject to inspection by the Ministry of Labor and Workforce Development. The worker in accordance with the constitutional protection has the right to access, update and amend that information, as appropriate.
Based on the regulatory framework and principles established in the Constitution, in case of the local practice, personal data protection has been included in special laws that regulate them depending on the specialization of the matter or business. Special laws such as the following, all of which follow in general terms the constitutional principles:
- Law 51 of July 22, 2008, as amended, which defines and regulates electronic documents and electronic signatures and the provision of data storage services for documents and certification of electronic signatures and adopts other provisions for the development of electronic commerce;
- Law 51 of September 18, 2009, as amended, that dictates rules for the storage, protection and provision of data of telecommunications services users and adopts other provisions;
- Law 24 of May 22, 2002, as amended, which regulates the information service on the credit history of consumers or clients;
- Executive Decree 52 of April 30, 2008, which adopts the single text of Decree Law 9 of February 26, 1998, as amended, and which regulates the banking regime and the Superintendency of Banks;
- Law 68 of November 20, 2003, as amended, which regulates the rights and obligations of patients, in terms of information and free and informed decision;
- Law 81 of December 31, 2009, which protects the rights of users of credit cards and other financing cards; and
- Law 33 of April 25, 2013, as amended, which creates the National Authority of Transparency and Access to Information.
Remarkably, there is no express prohibition in Panama regarding the movement of personal data outside Panama. Existing laws have a more focused approach to the administration and processing of information and its storage. In this sense, there is the General Directorate of Electronic Commerce of the Ministry of Commerce and Industries, which regulates data storage service providers, an entity that regulates the protection of data that must be followed by businesses and imposes the obligation to maintain security measures and protection of information.
I would like to conclude by mentioning that to date, there is a Personal Data Protection Bill that has been submitted to the National Assembly, being the second attempt this year to pass a national law that compiles the regulation on this matter.
Panama, September 25, 2018. Morgan & Morgan and sixteen attorneys of the firm were recognized in the Chambers Latin America 2019, guide of the best lawyers and law firms across 20 countries of Central America, the Caribbean, South America and Mexico.
The firm has been ranked in the first Bands within the areas of Banking & Finance, Capital Markets, Corporate/M&A, Dispute Resolution, Energy & Natural Resources, Intellectual Property, Offshore, Projects, Real Estate, Shipping and Shipping Litigation.
Likewise, the publication noted as leaders in their areas attorneys Inocencio Galindo, Francisco Arias, Ramon Varela, Roberto Vidal, Simon Tejeira, Jose Carrizo, Luis Vallarino, Ana Carolina Castillo, Allen Candanedo, Maria Eugenia Brenes, Roberto Lewis, Luis Manzanares, Enrique De Alba, Jazmina Rovi, Juan David Morgan Jr. and Francisco Linares.
One of the clients interviewed stated that “Judging by the results that the firm achieves, I can say that their advice is effective and arrives in a timely manner. I would highlight their availability and technical competence”.
About Morgan & Morgan
With over 80 lawyers and 20 practice areas, Morgan & Morgan is a full service Panamanian law firm, regularly assisting local and foreign corporations from different industries, as well as recognized financial institutions, government agencies and individual clients. Of particular note is our continuous advice for clients involved in all stages of the development of important projects related to energy, water supply, construction, oil, mining, public infrastructure, retail, ports, transportation, among others. Learn more at www.morimor.com.
Panama, September 19, 2018. Jose Carrizo, partner and head of the Litigation and Dispute Resolution practice group of the firm, contributed with the Panama chapter of The Arbitration Review of the Americas 2019, a publication that summarizes relevant issues that help general counsel, arbitrators and private practitioners to avoid the pitfalls and seize the opportunities of international arbitration.
Mr. Carrizo provided a comprehensive analysis of the arbitration system in Panama, its legislation and every aspect that confirms the country as an international and regional center for the resolution of arbitral disputes.
Jose Carrizo is an experienced attorney with ample knowledge in both domestic and international arbitration processes. He has served as arbitrator in the National Arbitration and Mediation (NAM), based in New York. Mr. Carrizo is also a member of the Panama Chapter of the International Arbitration Court of the International Chamber of Commerce.
The guide is available here.
Morgan & Morgan advised the Hitachi, Ltd., Mitsubishi Corporation, and Ansaldo STS, S.p.A. with an Agreement to provide a monorail system for Line 3 of the Metro of Panama
Morgan & Morgan advised the Hitachi, Ltd., Mitsubishi Corporation, and Ansaldo STS, S.p.A., in connection with an Agreement signed with Metro de Panamá, S.A., a corporation 100% owned by the Republic of Panama, regarding the participation of this group of companies that, led by Hitachi, Ltd., shall perform the works of the Nominated Subcontractor under the turn-key contract for the Monorail type Line 3 of the Metro of Panama Project (the Line 3 Project), which will be signed with a Main Contractor selected through a public bidding process under the laws of the Republic of Panama.
The Nominated Subcontractor will be responsible for the design, supply, and putting into operation of the Integrated Operating Systems (SIO) of the Line 3 Project, including Monorail type of Rolling Stock, signaling system, train control based on CBTC technology and communication system, control center, traction power system and low-voltage transformation system, track switches and automatic platform doors, among other responsibilities.
This transaction’s complexity was mainly that the contractual terms and conditions of the Nominated Subcontractor’s contract had to be agreed with Metro de Panama, S.A. as the Project’s Owner, but not as a party of the said contract between the Nominated subcontractor and the Main Contractor. Such terms and conditions, which had to
anticipate the contractual relationship with the resulting Main Contractor of the Line 3 Project bidding process, are to be reflected as part of said bidding process’ bid documents.
The Metro of Panama is the most important public infrastructure project under development in the Republic of Panama and the first of its class in Central America.
BVI, September 11, 2018. One year ago to date, the city of Tortola in the British Virgin Islands (BVI) was hit by hurricane Irma. The winds of said hurricane flattened the infrastructure and public services of the city, including Morgan & Morgan’s offices in this Island. Sadly, some of coworkers and teammates lost their homes.
Despite that, our organization never stopped providing services to our internal and external clients. Creativity, willingness, the organization and commitment of our people in the BVI took a central role at such difficult times. Our group contributed with a donation of US$15,000, through the International Lawyer’s Association for restoration of electricity; we also contributed with direct donations to our coworkers to help reestablish normalcy in their lives. Our offices were rebuilt almost completely and while the works were ongoing, work was carried on from the house of some of our coworkers and other offices temporarily established. The leadership of Jorge Yu, Kaylinda Richardson and Fanny Evans was invaluable.
Today, our CEO, Dr. Juan David Morgan G., together with other partners and lawyers of Morgan & Morgan, visited them to tell all, “Thank you for the exemplary commitment, solidarity and teamwork!”
Morgan & Morgan opened its first offices in The Bahamas since 1991. We created MMG (Bahamas) Ltd. as a corporate service and later on, in 1996, founded MMG Bank & Trust Ltd., which started our financial unit´s successful path into the financial service industry.
Our board of directors decide in the mid-90s that The Bahamas was going to be one of our prominent jurisdictions because this sovereign country has become a well-recognized and reputable international financial center, with a modern and robust legislation, governmental supervision oriented towards facilitating business ventures and has an enviable workforce of seasoned and educated professionals.
We have seen its democratically elected governments navigate successfully through the tough times the smaller international financial centers have had to deal with given the shame and blame attitude of certain multinational organizations and communities. The Bahamas has been wise and steadfast in their positions and negotiations fully aware of the negative impact on the financial services industry as a whole a wrong decision might have. We value that at Morgan & Morgan. Also, the fact that we can fly directly several times a week to Nassau, from our headquarters located in Panama City, is also a big reason we feel comfortable with his jurisdiction.
But, what and why do we offer services and products to our clients from The Bahamas?
For myriad of good reasons apart from the gorgeous weather and waters. The Bahamian governments has always been investor friendly and have created a series of incentives that make the island a good venue for a variety of industries such as tourism, financial services, corporate services, insurance, marinas, real estate, among others. The friendly tax environment includes no income tax, no capital gains tax, no estate tax, no withholding tax, no dividend tax and no payroll tax to those who work in the Bahamas. But for a Value Added Tax of 7.5% on some goods and services, tax benefits abound.
We have also seen the creativity and the also the want to fill the markets needs attitude of the regulators. What better example of this is the creation of the SMART Fund legislation. In these times of fiscal compliancy and an international effort to exchange of information, clients must be happy to mitigate their tax burden. Therefore, cost efficient vehicles, that protect assets, help with estate planning and reduce the effective tax rate will be well viewed by clients.
The Bahamas SMART Fund
We´ve recently activated our SMART (Specific Mandate Alternative Regulatory Test) fund license provider MMG Fund Services Ltd. For wealth and tax planning in Brazil, SMART Funds have become a very useful and efficient tool. This vehicle has been promoted with certain success in Brazil by the Bahamian authorities. Brazilian residents are taxed globally, that is on their income anywhere in the world. Most of the financial income obtained outside Brazil is taxed at a rate of 15% except for dividends, which may be taxed at up to 27.5%. For a Brazilian client with a portfolio of ordinary or preferred shares paying dividends frequently, current taxes would reduce investment return dramatically. SMART Funds are an alternative that, on one hand, differ payment of taxes over dividends by capitalizing them and, on the other, upon redemption of the shares from the SMART fund, said income would be taxable at 15% only, producing a 12.5% savings.
There are seven “models” of the SMART fund that investors can choose, but for a private individual or family, the most common model is the SMART fund 4 Model. The features of this SMART fund are:
- No offering memorandum is required – a term sheet is optional, but not mandatory.
- No more than five individual investors.
- Operates as a private investment company.
- Subject to an annual certification to the Securities Commission or Unrestricted Fund Administrator.
- Investors can waive requirement for an annual audit.
- Can have an ISIN Number and Bloomberg Ticker.
As you can see, we at Morgan & Morgan are very comfortable offering products and services and we have a range of seasoned professionals that can help you choose the correct fund structure for your family. Finally, let us congratulate the Bahamas Financial Services Board on their 20th anniversary and thank them for making our job a little bit easier
Panama, August 25, 2018. With the topic “Panamanian Fiscal Regulatory Framework in International Securitization”, Mr. Francisco Arias G., partner in charge of the Securities and Capital Markets practice group of Morgan & Morgan, participated as a speaker in the conference Latest Trends in Asset Securitization: Applications to the Panamanian Market. The event was organized by Flex Funds, a firm specializing in vehicles for worldwide investment.
The seminar was held at the Hilton Hotel in Panama City, and was attended by representatives of financial institutions, investment advisors, asset managers, family businesses, among other local and international professionals.
Other topics were discussed in the activity, such as Perspectives and triggering factors in the mergers and acquisitions sector in Central America, the securitization of assets and their applications and the experiences in the securitization of assets in securities firms in Panama.
About Morgan & Morgan
In the sector of capital markets in Panama, Morgan & Morgan focuses on public and private offerings, some with cross border components. The Securities and Capital Markets team of the firm has been involved in numerous transactions involving several billions of dollars. The firm also have assisted many clients in obtaining various licenses from the Superintendence of Securities Markets, including securities brokerage and investment fund administration.
Partners Roberto Lewis, Raul Castro, Luis Manzanares and Fernando Boyd contributed with the Panama chapter of Chambers & Partners Private Wealth Guide 2019.
The guide provides expert legal commentary on the key issues for high net worth individuals and covers the important developments in twenty-seven jurisdictions, including Panama.
The complete guide is available here.
New Law establishes a legal framework for the comprehensive approach to Sexually Transmitted Infections (STIs) and the Human Immunodeficiency Virus (HIV)
Law 40 of August 14, 2018 has, among other, some provisions that affect the workplace, such as the following:
Obligations and prohibitions for employers:
- Any discrimination and stigmatizing or segregating act is prohibited to the detriment of those affected, as well as against their relatives and friends.
- Every employer is obliged to implement practical ILO recommendations on STI and HIV, and must take all necessary measures to effectively protect the life and health of its affected workers.
- The worker is not obliged to inform his employer or his co-workers about his condition as an affected person. If he does, the employer must keep strict confidentiality of the case and seek, if necessary, to make adjustments in their work environment according to medical criteria, for the best performance of their duties.
- No employer can deny affected workers the economic benefits to which they are entitled by law, such as deprive them of advancement in rank or promotion within the company.
- The health condition of the affected worker can not be a reason for exclusion in relation to bonuses, awards, training, work trips, recreational activities and any other benefit or activities in the company.
Work permits for appointments or treatments:
- Individuals affected will be granted work permits when required to take care of their health and medical treatments. Additionally, they will be granted up to a maximum of 144 hours, as long as their condition causes a disability.
- Workers affected with STIs or HIV can only be dismissed from their jobs for just cause, with prior authorization from the Ministry of Labor.
This Law repeals Law 3 of January 5, 2000.
The Executive Body, through the Ministry of Health, must regulate Law 40, in a period of 180 days as of August 14, 2018.
Ana Carolina Castillo Solís, associate, Morgan & Morgan
Last year Panama joined the list of countries that have established quotas as a mean for reducing the gender gap. Law 56 of 2017 creates a women quota of 30% on corporate boards of public entities and certain private entities. The Law was recently regulated through Executive Decree 241-A of 2018.
This Law applies to Central Government entities, Decentralized Government entities, state enterprises and mixed capital companies, as well as to companies regulated by the Superintendency of Banks, the Superintendency of Insurance and Reinsurance, the Superintendency of Capital Markets (SMV for its initials in Spanish) and the Panamanian Autonomous Cooperative Institute.
According to the regulatory decree, the purpose of the quota is to give priority to the candidate of the less represented gender if they have the same qualification as the candidate of the other gender in terms of experience, merit, competence and professional performance.
Mixed capital companies
Regarding mixed capital companies, although the Executive Body is in charge of appointing women to meet the quota -taking into consideration aspects such as their preparation and professional experience- the representatives of private equity shall also seek the participation of women on corporate boards.
In compliance with Law 56, regulated entities shall provide in their corporate governance manuals, good practices related to the designation of board members based on criteria of gender equity, merit, experience and in accordance with the requirements of each industry.
To verify compliance with the law, the regulated entity must submit an annual questionnaire to its respective regulator and publish this information on its website as well. It is important to highlight that the law does not provide sanctions for not complying with the quota, but the regulatory decree provides that in case of non-compliance, the company shall give the explanations thereof.
It should also be noted that Law 56 does not affect the current composition of corporate boards, instead it applies gradually to new designations of members being required to meet a 10% quota in July 2018, a 20% quota in July 2019, until reaching a 30% quota in July 2020.
According to information from the SMV, in 2014 out of 744 positions of companies’ boards listed on the Panama Stock Exchange, only 75 were occupied by women, and the percentage of women in boards of Panamanian capital companies in the banking sector is only 4%. It was not until 2014, after 110 years of existence, that the National Bank of Panama elected a woman for the first time as a member of its board of directors.
According to the Global Gender Gap Report 2017 of the World Economic Forum, with 0 representing disparity and 1 representing parity, Iceland leads the list with 0.878, Nicaragua is in the sixth place with 0.814 and Panama is at number 43 with 0.722, above the United States in the 49th place with 0.718. These statistics show that Panama is no stranger to this challenge. Gender equality is precisely one of the sustainable development goals of the United Nations, a commitment undertaken by Panama.
According to Klaus Schwab, Founder of the World Economic Forum, “Gender inequality deprives the world of a huge resource of untapped talent at a time when it is so important to address the enormous challenges and the disruptive forces we face”.
Faced with this situation, various measures such as gender quotas have emerged. Panama has joined the list of countries that have established quotas, such as Iceland, Norway and Finland (leaders in gender parity). In Latin America, countries such as Argentina, Bolivia, Brazil, Colombia, Costa Rica, Ecuador, El Salvador, Haiti, Mexico, Nicaragua, Paraguay, Peru, the Dominican Republic and Uruguay have also created laws with some type of quota.
The tangible positive results that diversity brings -not only of gender- are indisputable, including increasing performance, profitability and competitive advantages. The World Economic Forum estimates that the world GDP could increase by $5.3 trillion dollars by 2025 if it closed the gender gap in economic participation by 25% over the same period. This shows that it is not only necessary, but also convenient, to increase the participation of women and achieve gender parity.