Investment Incentives

Investment incentives are generally found in the energy and mining sector as described in the Industrial Promotion section.

Foreign Trade Zones/Free Ports/Trade Facilitation

The Free Trade Zone Law provides for free trade zones and free ports. The three existing free trade zones are located in the Paraguana Peninsula, in the state of Falcon, which also has a tourism investment promotion provision; Atuja in the state of Zulia; and the municipalities of Libertador, Campo Elias, Sucre; and Santos Marquina in the state of Merida, but only for cultural, scientific, and technological goods. These zones provide exemptions from most import and export duties and offer foreign-owned firms the same investment opportunities as Venezuelan firms. Venezuela has two free ports that also enjoy exemptions from most tariff duties: Margarita Island (part of Nueva Esparta state) and Santa Elena de Uairen in the state of Bolivar.

Performance and Data Localization Requirements

Venezuela’s 2014 investment law contains mandatory language regarding the development of local suppliers, domestic research and development, and non-traditional exports, but it remains to be determined whether the GBRV will enforce these rules in a manner that constitutes a local content requirement. Venezuela’s telecommunications law gives regulatory authorities powers to access and intervene in telecommunications infrastructure and services in the interest of national security, defense, and public order. Venezuela’s law against computer crimes criminalizes a range of conducts, including unauthorized access to systems, espionage, and sabotage. No information is available regarding requirements that foreign investors store data in Venezuela, although anecdotally many foreign firms store data outside the country.

Real Property

Expropriations, weak public sector institutions, corruption, and lack of judicial independence undermine real property rights in Venezuela. Mortgages and property liens exist. Real estate lawyers say land registries are generally reliable, although in some cases are subject to abuse and corruption. In 2015, the World Bank ranked Venezuela 130 out of 189 countries for ease of registering property. The World Bank said registering a property interest takes nine administrative procedures, 52 days, and costs 2.5 percent of the property value. Venezuela has a law on indigenous land rights which provides general definitions of indigenous peoples’ lands and use rights and assigns the laws implementation to the environment ministry. Data are unavailable on the percentage of Venezuelan land lacking clear title.

A 2013 decree law capped commercial rental rates at 250 VEF/square-meter, which represented 50-75 percent reductions from prior market prices. The law prohibits commercial rent contracts in any currency other than VEF; private arbitration for the resolution of conflicts between landlords and tenants; and foreign companies administering commercial rental contracts.

Intellectual Property Rights

Venezuela’s Intellectual Property Rights (IPR) regime remains inefficient and ineffective. Its 1955 Industrial Property Law (IPL), the primary IPR legislation governing trademarks and patents, conflicts with the 1999 Venezuelan Constitution, domestic labor law, and international agreements to which Venezuela is a signatory. In its current form, the IPL is outdated and incapable of addressing modern IPR issues. It also conflicts with the WTO Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. The 2012 Organic Law of Labor and Workers further complicated Venezuela’s IPR regime because article 325 provides that any intellectual property generated by public sector entities, or using public sector funds, automatically becomes part of the public domain. In 2016, renewed efforts by the National Assembly to update Venezuelan IP law to bring it into compliance with international standards stalled as other more pressing social, political, and economic issues took priority.

In July 2012, recognizing the 1955 industrial property law was outdated and at odds with multiple national and international legal structures, the Venezuelan Supreme Court (TSJ) urged the National Assembly to revise the industrial property law and reconcile it with Article 98 of the 1999 constitution. However, the initiative failed and there have been no new developments since 2014. In 2015, the Autonomous Intellectual Property Service (SAPI) adjusted the fee structure for patents and trademarks, forcing all foreign rights holders to pay fees in dollars at the strongest exchange rate. Limited improvements have occurred in specific areas, such as law enforcement cooperation and the 2015 launch of a “one-stop” SAPI website.

As a WTO member, the GBRV is obligated to adhere to the requirement of the TRIPS Agreement. However, its failure to grant any patents since in 2007 violates TRIPS Articles 2.1 and 62.2. Venezuela is a member of the World Intellectual Property Organization (WIPO). It is also a party to the Berne Convention for the Protection of Literary and Artistic Works, the Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of Their Phonograms, the Universal Copyright Convention, Paris Convention for the Protection of Industrial Property, and the Rome Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations. Venezuela has not ratified the WIPO Copyright Treaty or the WIPO Performances and Phonograms Treaty, nor is it a party to the Madrid Protocol on Trademarks or the Patent Law Treaty.

According to a multi-year study by the Business Software Alliance (BSA) released in 2014, Venezuela ranked as one of the top 20 economies worldwide for unlicensed software and an estimated 88 percent of the software used in Venezuela in 2014 was unlicensed. The commercial value, if all unlicensed products were purchased legally, would be roughly USD 1 billion. According to the BSA report, the amount more than doubled from 2007 to 2013. No Venezuelan markets were identified in 2016’s U.S. Department of Commerce “Notorious Markets” Report. The World Economic Forum’s Global Competitiveness Report for 2016-2017 ranked Venezuela last out of 138 countries in IP protection. The Property Rights Alliance’s 2016 International Property Rights Index (IPRI) once again ranked Venezuela last out of 128 countries, after slightly improving to 125 out of 129 countries in 2015.

Patents and Trademarks

SAPI has issued no new patents since 2007. Venezuela’s 1955 IPL provides that patents of invention, improvement, model, or industrial drawing are valid for five or ten years, depending on the preference of the filer. Patents for technologies developed abroad may be valid for five years or until the original foreign patent term expires, whichever is shorter. These patent durations violate the 20-year patent-term required under the TRIPS Agreement. Article 15 of the IPL excludes several items, including medicine and pharmaceuticals, financial systems and plans, industrial processes, and speculative or theoretical inventions, from patent protection in violation of Article 27 of the TRIPS Agreement.

Venezuelan IP lawyers note that SAPI’s handling of trademarks is less hostile to rights-holders than its handling of patents, but trademark issues continue to be a problem. Trademarks must be filed with SAPI and published in SAPI’s official Gazette. SAPI grants trademarks for 15 years, and they may be renewed for successive 15-year periods. Trademarks are valid from the date SAPI publishes them in its bulletin. The registration process averages 12-14 months, but the process can take significantly longer if a third party opposes the registration. SAPI continues to reject, under Article 33 of the IPL, most applications for trademarks bearing geographical indications. Data provided by IP attorneys show a steady decline of trademark registrations, from 30,000 in 2005 to 20,000 in 2015. The decrease is due, in part, to companies pursuing trademarks in other Andean countries such as Colombia where IP laws have more clarity and stronger enforcement. From a legal perspective, companies feel trademarks obtained in other AC countries may still be enforceable in Venezuela at a later date. In addition, new fee structures that have increased the overall price for trademarks for foreign companies could also be a factor. Implemented in May 2015, the new fee structure forces foreign rights holders to pay patent and trademark fees in U.S. dollars calculated at the strongest exchange rate, currently 10 bolivars per U.S. dollar, rather than the weaker DICOM rate of approximately 710 bolivars per U.S. dollar. Legal representatives in Venezuela and their foreign rights holders have complained that although the higher fees apply equally to domestic and foreign companies when expressed in bolivars, the regulation requiring foreign rights holders to pay the fees in U.S. dollars at the official exchange rate is discriminatory. The overall effect is a substantial increase in patent and trademark fees for foreign rights holders because they can no longer use more preferential exchange rates for these transactions.

Copyrights

Creative works are protected under the 1993 Copyright Law, the Berne Convention, and the Universal Copyright Convention. The law is modern and comprehensive and extends copyright protection to all creative works including computer software.

Enforcement

Lengthy legal processes, inexperienced judges, and insufficient investigative and prosecutorial resources significantly hamper IP enforcement in Venezuela. The GBRV abolished the Venezuelan copyright and trademark enforcement branch of the federal police in 2010. Although the GBRV has not replaced this organization, SENIAT, the Venezuelan tax and customs authority, occasionally conducts low-level raids against known illegal markets or small vendors of counterfeit goods. In February 2016, SENIAT officials met with Mexican Institute of Industrial Property (IMPI) to finalize a draft Memorandum of Understanding between the two countries to facilitate cooperation on industrial IP. Legal experts, however, note that IP laws are unevenly enforced and cases can take years to resolve without guarantee of a positive outcome. The process is so slow and the penalties are so low that the system does not deter counterfeiters.

Data from industry representatives indicates that copyright piracy, including piracy over the Internet, and trademark counterfeiting remains widespread. Venezuela remains non-compliant with Section Four, Part Three, of the TRIPS Agreement, which mandates special requirements related to border enforcement measures. However, there are examples of cooperation. According to an Interpol press release, Venezuelan law enforcement officials participated in an international operation (Operation Jupiter VII) in October 2015 against criminal organizations involved in counterfeiting of goods that included 11 South American countries.

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/ .

Resources for Rights Holders

• Embassy Caracas Economic Section: CaracasEcon@state.gov, 58-0212-975-8402
• The Venezuelan-American Chamber of Commerce: www.VenAmCham.org 
• U.S. Patent and Trademark Office (USPTO): www.uspto.gov , 1-800-786-9199
• National Intellectual Property Rights Coordination Center: www.iprcenter.gov 
• International Trade Administration, U.S. Department of Commerce: www.stopfakes.gov 

For a list of local lawyers, please visit: http://photos.state.gov/libraries/venezuela/19452/public/Commercial_Law_
Firms_List.pdf 

Capital Markets and Portfolio Investment

Venezuela’s financial services sector is heavily regulated. In 2010 the GBRV passed laws to reform the financial sector, including the Organic Law of the National Financial System, the regulatory framework for banks, insurance companies, and the capital markets; the Law for Insurance Activity; the Capital Markets Law, which created a state-run securities exchange; the Bicentennial Public Securities Exchange (BPVB); and the Law of Banking Sector Institutions. Financial services account for a relatively small but growing share of GDP. According to BCV data, financial services represented seven percent of GDP in the first three quarters of 2015, the latest data available. Financial services growth until 2014 was driven by increasing monetary liquidity (M2) resulting from loose fiscal and monetary policy and strict currency controls, which traps VEF earnings in Venezuela.

Venezuelan capital markets are underdeveloped and thinly traded. The leading Caracas stock market index, the Caracas Stock Exchange Index, nearly tripled in bolivars year on year as of April 1, 2017. Private analysts attribute the rise to government spending-driven increases in M2 and currency controls that trap the liquidity in Venezuela, although Venezuela’s inflation has eroded any local currency increase in real terms. Activity in Venezuela’s securities market has decreased in recent years due to nationalizations of previously listed firms and the GBRV’s seizure of 51 brokerages, since 2010, mostly on charges of illegal trading in a now defunct foreign exchange market.

Venezuela’s primary stock market is the Caracas Stock Exchange (BVC). On January 31, 2011, the GBRV launched the BPVB, under the November 2010 securities market law, to sell government and corporate bonds and to compete with the BVC. The BPVB was empowered to trade both VEF- and USD-denominated securities, but as of April 2014 it had only traded VEF-denominated debt. Private brokerages have not been allowed to participate in the BPVB. Trading volumes in both the BVC and the BPVB are low and dominated by fixed-income public- and private-sector securities offering negative real interest rates due to an excess of VEF liquidity trapped in Venezuela by currency controls.

Foreign investors can buy or sell stocks and bonds in Venezuelan capital markets as long as they have registered with the securities regulator, the Superintendent of Securities (SNV). Venezuela’s 2014 foreign investment law requires foreign investors to obtain a foreign investment registration before they invest directly in Venezuelan firms.

Money and Banking System

Venezuelan credit markets are heavily regulated. The BCV and the Superintendent of Banks (SUDEBAN) regulate Venezuela’s banking sector. The 2010 law of banking sector institutions describes banking as a public service and banks as public utilities, permitting the GBRV to nationalize financial institutions without National Assembly approval. The public sector’s share of total bank assets has grown in recent years, primarily through GBRV nationalizations. According SUDEBAN data, in February 2017 there were 31 banking institutions – 24 private and 7 public – down from 59 in November 2009. Public-sector banks held an estimated 33 percent of total banking sector assets in February 2017.

Venezuela’s banking sector is heavily distorted by the GBRV’s and BCV’s expansive fiscal and monetary policies, which combined with currency controls trap local currency liquidity in the economy, fuel inflation, reduce loan default rates, and inflate banking sector profitability indicators. Universal and commercial banks enjoyed return on equity of roughly 72 percent in the twelve months to February 2017, with a sector-wide default rate of less than 1 percent, driven by M2 growth and currency controls that constrain capital transfers out of Venezuela. Financial analysts believe reform to the currency control regime would have to be paired with banking sector reforms to avoid widespread stress to the financial system.

The BCV sets maximum and minimum interest rates banks can charge. Limits, as of April 2017, included 24 percent on commercial and personal loans, 29 percent on credit cards, and 16 percent on car loans. With inflation of 180 percent in 2015 and estimated at nearly 500 percent in 2016, real interest rates are negative, giving banks a disincentive to lend. Banks are required to allocate roughly 59 percent of their portfolio for loans to the housing, agriculture, small business, manufacturing, and tourism sectors, at preferential interest rates that have been negative, in real terms, since 2012. Universal and commercial banks are prohibited from making commercial loans for terms longer than three years. The BCV also regulates interest rates on savings accounts and time deposits. Limits as of April 2017 have included 16 percent on savings account balances from 0 to VEF 20,000, 12.5 percent on savings account balances above VEF 20,000, and 14.5 percent on certificates of deposit. Such rates have been negative, in real terms, since 2009, discouraging household saving and incentivizing domestic consumption and the purchase of U.S. dollars in the parallel market as a more stable store of value. Faced with negative real interest rates on bank deposits and VEF-denominated securities, multinationals with VEF earnings trapped in Venezuela have increasingly invested in commercial real estate in an attempt to mitigate inflation risks.

The majority of banking sector assets is concentrated in the country’s five largest banks. Total banking assets, at roughly USD 1.5 billion (at the official 10 VEF/USD exchange rate), grew 192 percent from February 2016 to February 2017. Public and private universal and commercial banks control 99 percent of total banking sector assets. The three largest private universal banks are: Banesco, with 15 percent of total sector assets March 2016; Banco Provincial, with 12 percent; and, Banco Mercantil, with 11 percent. Banesco and Banco Mercantil are Venezuelan-owned, while Banco Provincial is majority-owned by BBVA of Spain. Citibank is the only U.S.-owned universal bank with a presence in Venezuela. The two largest state universal banks are Banco de Venezuela and Banco Bicentenario. The GBRV nationalized Banco de Venezuela from Spain-based Banco Santander in May 2009. Banco de Venezuela is now the country’s largest bank, with 20 percent of total sector assets in March 2016. Banco Bicentenario was formed in 2010 through the nationalization of four private banks; it held six percent of assets as of March 2016.

The BCV promulgated regulations in September 2012 outlining conditions under which businesses and individuals may open USD-denominated bank accounts at Venezuelan universal and commercial banks. Venezuelan residents may use such accounts for international transfers, overseas debit card transactions, and transactions through the DICOM FX mechanism (see Section 6 on Foreign Exchange and Remittances). Venezuelans may not withdraw U.S. dollars from such accounts in Venezuela, however.

Foreign Exchange and Remittances

Foreign Exchange

Since 2003, the GBRV has maintained strict currency controls. Venezuela’s foreign exchange (FX) regime has been in flux for several years, with multiple FX mechanisms and exchange rates introduced, modified, and eliminated. In March 2016, Venezuela again modified its official FX mechanisms, and now authorizes two official FX mechanisms to sell U.S. dollars to private sector firms and individuals. In practice, access to hard currency for the private sector has been severely limited in the last year.

The BCV oversees and provides daily information about the two FX mechanisms. The first, the Protected Rate, or DIPRO, sells USD at the official exchange rate of 10 VEF/USD for imports of goods and services deemed national priorities, primarily food, medicine, and medical supplies. Firms and individuals soliciting dollars from CENCOEX must register with the body and obtain supporting documentation from various GBRV ministries, e.g., certificates of non-national production of the proposed imports and statements of good standing with the tax authorities.

The second mechanism, the Complementary Rate or DICOM, is a managed floating rate, used for imports of non-priority goods and services. The government has not yet published regulations defining which sectors are eligible to purchase FX at either rate. The BCV publishes the DICOM rate daily.

Remittance Policies

Foreign investors in Venezuela have struggled to convert their VEF earnings into U.S. dollars. Since 2008, CENCOEX and its predecessor, CADIVI, virtually ceased approving the sale of U.S. dollars for earnings or capital repatriation. Multinational firms have announced numerous accounting losses due to exchange rate depreciation. As a result, many multinational firms have deconsolidated their Venezuelan subsidiary from their global financial statements. Venezuela’s investment law limits earnings repatriation to a maximum of 80 percent of local currency earnings in any fiscal year. Legally, foreign investors could purchase dollars through DICOM to repatriate earnings, at a significant devaluation compared to the DIPRO exchange rate, but DICOM has not been able to satisfy the demand for hard currency. There is also an unauthorized parallel market for dollars. Private websites hosted outside of Venezuela publish the parallel exchange rate. They report that the rate has been depreciating significantly reaching 4,400 VEF/USD on April 12, 2017, a devaluation of 74 percent since April 11, 2016 and a depreciation of 99 percent since April 2013.

The Organization for Economic Co-operation and Development’s (OECD) Financial Action Task Force (FATF) announced in February 2013 that Venezuela was no longer subject to FATF’s global anti-money-laundering/combatting terrorist finance (AML/CFT) monitoring process. FATF noted Venezuela would continue to work with the Caribbean FATF regional body to address AML/CFT deficiencies identified in Venezuela’s mutual evaluation report.

Sovereign Wealth Funds

Venezuela does not maintain a Sovereign Wealth Fund.

Article 135 of the Venezuelan constitution declares a general duty for all non-state actors to respect laws regarding social responsibility. Venezuela’s 2014 foreign investment law requires foreign investors to promote responsible business conduct (RBC) consistent with international standards. Various Venezuelan laws set forth requirements intended to advance principles generally included under the concept of RBC. GBRV regulation and enforcement of these laws is weak and uneven.

The Venezuelan private sector is generally aware of and promotes RBC. The Venezuelan-American Chamber of Commerce (VenAmCham), for its part, promotes RBC though its Social Alliance program, which organizes RBC-themed events. The Venezuelan Federation of Chambers of Commerce (Fedecamaras) promotes RBC through a standing working group devoted to the dissemination of best practices and an annual award to recognize RBC excellence.

OECD Guidelines for Multinational Enterprises

Venezuela does not encourage foreign or local firms to follow the OECD Guidelines for Multinational Enterprises or the UN Guiding Principles on Business and Human Rights.

Several factors make human resources a challenge for domestic and foreign investors alike: heavily regulated labor markets; talent flight, as skilled Venezuelans have sought employment abroad due to physical insecurity and political and economic uncertainty; government programs that support poorer Venezuelans making it more difficult for companies to attract unskilled labor; and declining traditional trade unions, as the GBRV has supported the establishment of “parallel” unions aligned to government interests and new “workers militias” to monitor the activities of union members. Roughly 10 percent of the total workforce is unionized. The GBRV extended in December 2015 for three more years a firing freeze in place since 2002 that shields most private-sector workers from termination, including for cause. Venezuelan labor law explicitly forbids employers from using contractors in place of direct employees, since May 2015, labeling the practice as a fraud.

In April 2012, former President Chavez used a presidential decree law to pass a long-pending Organic Law of Labor and Workers. The law replaced a 1997 labor law, expanding workers’ rights and benefits. The law prohibits employer discrimination on the basis of race, sex, age, civil status, religion, political beliefs, social class, nationality, sexual orientation, union membership, criminal record, or disability. The law prohibits termination without legal justification and requires employers to consult labor courts regarding the lawfulness of a termination. The law also prohibits employers from hiring third-party contractors to perform ongoing, regular duties as a means of avoiding legal obligations owed to those on one’s payroll. The law guarantees a retirement pension for workers in both the formal and informal sectors.

The 2012 law reduced the legal workweek from 44 to 40 hours and guaranteed workers 15 days of vacation, plus one day for each additional year of employment, up to a total of 30 days per year. The law also introduced new rights for female workers with children, including: 26 weeks of paid maternity leave for mothers (six pre- and 20 post-natal); two breaks per day for mothers who are breastfeeding; and access to a lactation room, if they work for an employer with more than 20 employees. The law created guidelines for temporary workers, who can work 10-hours daily with a labor inspector’s permission; shift workers may not work more than 42 hours per week, on average, over any eight-week period. The GBRV promulgated regulations implementing the new labor law in May 2013.

In 2015, Venezuela saw continued protests and work stoppages by unions across the public and private sectors. While no official statistics are available for 2015, according to the non-governmental organization Venezuelan Observatory of Social Conflict the number of labor protests increased in 2015 compared to 2014 registering 1910 labor protest, an increment of approximately 26 percent compared with 2014. The GBRV has delayed negotiations over collective bargaining agreements for workers in the public sector, leaving more than two million public employees without collective contracts, including teachers and electrical workers. No figures from 2016 were available, but protests and work stoppages continued due to a variety of economic, social, and political concerns.

The GBRV’s statistics agency (INE) estimated the unemployment rate at 6.8 percent in 2015. INE estimated 41 percent of the employed worked in the informal sector and 59 percent in the formal sector. No official numbers have been released since the end of 2015.