Law for Job Creation, Promotion of Business Initiative, Business Formalization and Protection of Investors' Rights
Congreso Nacional
- Decree: 284-2013
- Published: June 5, 2014
- Issuing body: Congreso Nacional
- Gazette: 33,445
- Category: Commercial
Summary
This law simplifies business creation in Honduras by allowing companies to register with a single form, without mandatory minimum capital, and without excessive bureaucratic procedures. It benefits entrepreneurs and investors by reducing costs and facilitating business formalization, generating more jobs and tax revenue for the State.
Considerations
Whereas, the Promotion of Investments as sources of employment and wealth generation is a National priority.
Whereas, through Decree No. 51-2011, the Law for the Promotion and Protection of Investments was approved.
Whereas, in the implementation process of Decree No. 51-2011, certain situations have been detected that hinder its full applicability and that can be easily resolved through amendments to said Law.
Whereas, in the current economic circumstances, it is the State's duty to seek the necessary mechanisms for optimal utilization of its existing resources, attempting to avoid creating greater bureaucracy, as well as reducing the costs incurred by investors in the protection of their tangible and intangible assets.
Whereas, to the extent that the procedure for starting a business is simplified and the rights of investors are protected more adequately, competitiveness indices improve, increasing economic activity and generating greater employment.
Whereas, by facilitating and reducing the costs of opening a business, the formalization of economic activity is incentivized, generating a positive impact on State finances by improving tax collection.
Articles
In order to facilitate the formalization of commercial activities by those who carry them out and to promote the development of business initiative, the incorporation of Commercial Entities is authorized under any modality recognized by the Commercial Code, as well as their modification, transformation, merger, division, split, capital increase or other acts related to their normal activity and performance, complying only with the formalities provided for in this decree and the regulations to be issued for such purpose.
To the commercial entities incorporated under this regime, the provisions of the Commercial Code applicable to the type of entity in question shall apply, as well as those of other laws of the Republic insofar as they do not conflict with the provisions of this Decree. Entities whose purpose is the development of activities subject to special regulation and supervision by the State cannot be created under this modality, such as those engaged in activities related to the financial system.
The creation of commercial entities under this modality must be done through a special single form that must be created for such purpose by the Commercial Registry and that must be available in its offices in physical format or in electronic format through the internet. The forms may be completed and submitted by whoever wishes to incorporate or by an authorized representative, and in the latter case the power of attorney must be authenticated as appropriate. The signatures must be handwritten and affixed before a Notary Public or before the Commercial Registrar when the incorporation is made in physical format, or electronic when done in electronic format. The fees charged by Notaries Public must be freely determined in conjunction with the parties.
The registration of entities incorporated under this modality must be made in a single national electronic registry, with the possibility of opening service windows in any location within the territory of the Republic. The registrar must receive the registration form and perform the registration, evaluating only that the purpose is lawful, assigning the corresponding registration number, digitalizing and preserving it in the database maintained for such purpose. Said database must be freely accessible online by any person for consultation purposes.
Commercial entities formed under this Law may be created with a single member. The establishment of minimum capital at the time of creation shall be strictly voluntary, and must be included in the creation document as a special stipulation in cases where required by the member or members. Entities created without minimum capital stipulation by more than one member must indicate the percentage of participation of each one within it. The registry fee to be paid when the capital of the entity is not stipulated is that established for acts of indeterminate amount. When the entity is a corporation, the shares may consist of certificates that meet the requirements established in the Commercial Code or in account notations in accordance with the provisions of the Securities Market Law.
The meetings of the assembly of members and those of the management bodies of these commercial entities may be held in any location within or outside the national territory or by electronic means, always leaving reliable proof of the attendance of those who participated in them. The notice for such meetings may be made through publication in a mass media outlet or by electronic mail with proof of receipt. The notice must be made with the advance notice determined by the members in the creation document, which for member assembly meetings, except in the case of unanimous assemblies, cannot be less than forty-eight hours or, when the meeting is to be held outside the national territory, ten (10) business days. Meetings of the management bodies may be convened on the same day if so established in the creation document. When the Assembly is held outside the country, mechanisms must be enabled so that members who request it may participate by electronic means in the discussions and votes held.
For purposes of the stipulation in Article 36 of the Commercial Code, commercial entities created under this decree may keep the records of the acts of the member assembly or their management bodies in electronic format. No authorization or notification to any authority of the central, departmental or municipal government is required for the entity's books and accounting records. Neither shall any fee or tax related to such books be charged. The records of the entity's acts and its accounting may be inspected by any of the members at their simple written request. The accounting of these entities may be maintained through information systems that comply with the accounting standards required by the State without need for authorization or notification to any authority.
When so established in the creation document of the entity, a record of the meetings of the member assembly and the management bodies may be made in video. In these cases it is not necessary to keep minutes books, but the video of the respective meeting must be properly archived to prevent or minimize its deterioration over time. A copy of this video must be provided to any of the members at their simple written request. The secretary of the assembly or, in the case of the management bodies of the entity, the secretary thereof or whoever acts in that capacity, must prepare and sign a summary of the agreements reached to be delivered in physical or electronic form to the members and to the members of the governing bodies and subsequently archived for purposes of control and historical record of the entity.
Registry fees and other charges must be able to be paid at the time of registration in the same window of the Commercial Registry or in a separate window of a banking institution, with the corresponding receipt being issued detailing the amounts corresponding to each charge. Said receipt constitutes sufficient proof of payment, so the imposition of stamps or other fiscal charges is not required to evidence them. The amounts collected must be distributed among the beneficiary institutions.
The entities in charge of the Commercial Registry must create the mechanisms so that within a period of no more than one (1) year from the effective date of this Law, the incorporation of commercial entities under the modality established in this Law may optionally be carried out online through the use of electronic signatures.
The special form must contain the information necessary so that in the same registration act the National Tax Registry Card is authorized and delivered, and those who request it must also be enabled so that through the same form the notification of commencement of operations established in Article 10 of the Sales Tax Law and the registration with a Chamber of Commerce may be made, as required under Article 384 of the Commercial Code, for which the Executive Tax Authority (DEI) and the Chambers of Commerce must make the necessary coordinations with the entities in charge of the Commercial Registry to delegate to them the issuance of such documents. Likewise, the form must include the option for those who request it to issue, in the same registration act, the respective municipal operating permit subject to the payment of fees corresponding to the municipality in which the entity is to operate. The respective municipality shall reserve the right to subsequently inspect the entity to verify the veracity of what was declared for this purpose. For this purpose, the respective coordination with the municipalities must be carried out, which may be done in stages, beginning with the largest municipalities.
The Commercial Registry must develop by regulatory means the procedures for the modification, transformation, merger, division, capital increase of commercial entities created under the modality established in this Law through the use of forms in physical or electronic format, and must follow insofar as applicable the requirements of the Commercial Code. The forms must be completed and submitted by the members or through an authorized representative.
Reform Articles 14, 15, 18, 157, 169, 189, 193, 210, 222, 224, 226 and 228 of the Commercial Code contained in Legislative Decree 73-50 and its reforms, which must be read as follows:
The Partnership Agreement must contain: I. The place and date in which the act is executed; II. The names, nationality and domicile of the natural persons, legal entities or associations that form the partnership; III. The class of partnership being formed; IV. The purpose of the partnership; V. Its business name or denominations; VI. Its duration or an express declaration of formation for an indeterminate period; VII. The expression of the percentage of participation of each member when no minimum capital stipulation is made, everything that is contributed in cash or other assets and the value attributed to them; VIII. The domicile of the partnership; IX. The manner in which the partnership is to be managed and the powers of the managers; X. The appointment of managers and the designation of those who are to sign on behalf of the partnership; XI. The manner of distributing profits or losses among the members; XII. The amount of reserves; XIII. The cases in which the partnership is to be dissolved prematurely; XIV. The bases for proceeding to liquidate the partnership; and, XV. The manner of proceeding to elect the liquidators when they have not been designated in advance. When the constituted partnership has a purpose that is subject to regulation by the State, the minimum capital must additionally be indicated in accordance with the requirements of the regulatory body.
The partnership agreement, as well as its reforms or amendments, must be recorded in the Public Commercial Registry. Partnerships legally recorded in the Commercial Registry have legal personality and cannot be declared non-existent or null with retroactive effects. When the non-existence or nullity of the constitutive act is declared, the partnership is dissolved and liquidated. The ineffectiveness of the declaration of will of any member is considered as cause for separation in favor of that member, who also has the rights corresponding to them under common legislation.
If the partnership agreement or its reforms are not presented for registration in the Commercial Registry within fifteen (15) days following its execution, any member may request it judicially or administratively. Any interested party or the Public Ministry may judicially require any commercial partnership to prove its regular existence. The requirement, in addition to being served personally, must be published. After four (4) months of the requirement have elapsed without the registration having been proven, the partnership shall be placed in liquidation. When the partnership agreement or its reform is executed before a Notary, this person must warn the parties of their duty to register it, of the effects of registration and of the sanctions imposed for non-compliance with this obligation.
Every shareholder has the right to request in writing at any time from the managers of the corporation any internal document of the same, except documents that may constitute a trade secret. All documents whose disclosure to unauthorized persons could cause irreparable damage to the corporation are considered trade secrets. The bylaws of the corporation, minutes of the board of directors, minutes of the shareholders' assembly, financial statements, annual reports, purchase and sale contracts executed by the corporation, accounting books or the register of securities or shares cannot be considered trade secrets. Any provision of the corporation's bylaws contrary to this Article is void. In the absence of a satisfactory response or rejection by the managers of the request stated in this Article, every shareholder may request before the competent judicial authority the appointment of one or more competent experts. The experts may access all documents of the corporation in order to provide the shareholders with the required information. The expert may also, at the request of the shareholders, prepare a report on one or several management operations in case the shareholders have serious and justified doubts about the proper conduct of the corporation's business. The powers of the expert shall be defined by the competent courts. The expert's fees shall be borne by the corporation. The documents or report requested must be directed to the shareholders, the board of directors and the commissioner. These documents or reports must be attached to the corporation's annual report.
Extraordinary assemblies are those that meet to deal with any of the following matters: I. Modification of the partnership agreement; II. Issuance of bonds or notes; III. Authorization of transactions between related parties exceeding five percent (5%) of the corporation's assets; and, IV. Any others for which the law or partnership agreement requires it. These assemblies may meet at any time.
At the request of shareholders holding five percent (5%) of the shares represented in an assembly, the vote on any matter regarding which they do not consider themselves sufficiently informed must be postponed for within three (3) days and without need for new notice. This right may be exercised only once for the same matter.
Agreements of assemblies are null: I. When the members do not have the capacity to adopt them, given the statutory social purpose; II. When taken in violation of the provisions of Articles 177, 178 and 179 of the Commercial Code unless at the time of voting all shares are represented and no shareholder opposes the adoption of the agreement; III. When there is no quorum in the assembly or in the meeting of members; IV. When they have an unlawful, impossible object or are contrary to good customs; V. When they are incompatible with the nature of the corporation, or by their content violate provisions enacted exclusively or principally for the protection of the corporation's creditors, or in view of the public interest; and, VI. When the transactions stated in Article 210 of the Commercial Code cause damage to the corporation and its shareholders.
Unless otherwise agreed, the president of the board is the director first appointed and, in their absence, the one who follows in the order of appointment. For the board of directors to function legally, at least half of the statutory number of its members must attend and, except in cases where the partnership agreement establishes a higher majority for specific matters, its resolutions are valid when adopted by the majority of those present. In case of a tie, the person acting as president of the board shall decide with the casting vote. The bylaws shall determine the manner of calling the board, place of meeting, requirements for keeping minutes and other details regarding the functioning of the board. Irregularities in the functioning of the board are not opposable to third parties acting in good faith, without prejudice to the liability of directors before the corporation. The corporation's commissioners must be notified of board sessions. All transactions are considered related party transactions: I. Between the corporation and one of its managers or directors; II. Between the corporation and third parties in which a manager or director is interested in any way, or in which they deal with the corporation through an intermediary; and, III. Between the corporation and another company, if one of the managers or directors is the owner or manager or director of the latter. The transactions stated in this Article must be submitted to special authorization in accordance with the following rule: If the transaction or the sum of several transactions with the same counterparty during the same period is less than five percent (5%) of the corporation's assets, it must be authorized by the board of directors. When the transaction or the sum of several transactions with the same counterparty during the same period exceeds five percent (5%) of the corporation's assets, it must be authorized by the extraordinary shareholders' assembly. The interested managers or directors must abstain from voting on these resolutions and in case they do vote, their vote may not be counted. The transactions stated in Article 210 shall be null if the conditions stated therein are not respected or if they cause economic damage to the corporation or shareholders.
The manager or directors during the exercise of their functions must: I. Exercise their functions in the best interest of the corporation; II. Prevail the interests of the corporation and shareholders above their own; III. Avoid current and potential conflicts of interest; IV. Ensure that the agreements stated in Article 210 are authorized by the competent corporate bodies; V. Refrain from making abusive, direct or indirect use of their functions to make, or cause other members of the corporate structure to make, decisions contrary to the social interest of the corporation; and, VI. Perform their management with the prudence and diligence with which a person with the same functions, in a comparable situation, would have acted to protect the interests of the corporation and shareholders. The manager or directors are individually and jointly liable for damages caused to the corporation or third parties due to their actions or omissions; violation of the legislative or regulatory provisions applicable to corporations in particular the duties enumerated in this Article; violation of the corporation's bylaws or for faults committed during their management. The manager or directors involved in transactions stated in Article 210 who, due to their actions or omissions or due to violations of the duties enumerated in this Article, generate damages to shareholders, the corporation or third parties, may not avail themselves of a decision by the general assembly to disclaim responsibility.
Directors are jointly liable for their management, with the following exceptions: I. In cases of delegation provided that the directors have acted without fraud or gross negligence in preventing harmful acts or omissions; and, II. When it comes to acts of delegated directors whose functions have been determined in the bylaws.
The liability of managers to the corporation is extinguished: I. By the approval of the balance sheet regarding the operations explicitly contained in it or in its annexes. The following cases are excepted: a) Approval of the balance sheet by virtue of untruthful data; and, b) If there is express agreement to reserve or exercise the action for liability; II. When the manager or directors have proceeded in compliance with a decision of the general assembly that are not manifestly illegal; This exception shall not apply in the case of authorization by the extraordinary general assembly of transactions between related parties stated in Article 210 of the Commercial Code; and, III. By approval of the management or by express waiver or transaction agreed by the general assembly.
Even in the cases of Article 226, shareholders representing at least five percent (5%) of the capital stock may directly exercise the action for civil liability against the manager or directors, provided that the following requirements are met: I. That the complaint includes the total amount of the liabilities in favor of the corporation and not merely the personal interest of the claimants; and, II. That in such case, the plaintiffs have not approved the resolution taken by the general shareholders' assembly regarding not proceeding against the manager or directors sued. The assets obtained as a result of the claim, with deduction of expenses incurred therein, shall be received by the corporation.
Reform Articles 1782 and 1789 of the Civil Code, which must be read as follows:
A partnership or company is a contract by which a capital or asset or tangible or intangible assets are contributed as patrimony with the object of limiting liability to the same and so that the profits or losses resulting from the speculation are distributed to the member or members in the proportions agreed upon in the creation document. The partnership may be unipersonal when constituted by a single natural or legal person, or collective when constituted by two or more.
The partnership contract may be evidenced in a public deed or in a private document that meets the formalities established by Law and must be recorded in the Commercial Registry.
It is lawful for the parties to agree to waive the judicial procedure for the execution of guarantees and to be subject to a special execution procedure before a notary. The agreement subscribed for such purpose may be contained in the same public instrument that contains the guarantee or in a separate public instrument and must be recorded in the corresponding property registry. Said agreement must establish the base price of the real property given as guarantee and the form of the requirement, and must comply with the procedures established in this decree.
The Notary in charge of execution must verify that the obligation is contained in a valid public instrument and is currently enforceable. Once done, the Notary must require the debtor to fulfill the obligation within a period of twenty-four (24) hours. In the same act of the requirement, the following must be notified to the debtor:
- 1)
The pending obligation and its amount;
- 2)
The name of the creditor, the place where payment may be made or the name of the banking establishment and bank account number in which the amount may be deposited; No. 33,445 3) The day, place and time in which the sale in public auction of the property given as guarantee will take place in accordance with the base price established in the contract; and, 4) The statement of before whom payment or deposit must be made, which may be done before the deadline set for the event. Against this requirement, no opposition may be made other than payment.
The requirement may be made at a physical or electronic address previously agreed upon, or failing that at the domicile or place of employment of the debtor. If the debtor is not present, it shall be sufficient to post a copy at the entrance of the place and a copy must also be delivered to any person present there and to two (2) neighbors of the place who shall act as witnesses to the act. Furthermore, video recording of these proceedings may be carried out, which shall have legal force. If the whereabouts of the debtor are unknown, the requirement must be published three (3) consecutive times with one (1) day interval in a newspaper of the largest circulation and a mass media outlet with coverage in the place of the last known domicile of the debtor, after which the execution may proceed.
When payment is made effective before the Notary within the designated period, the Notary must record the same and closes the file, issuing the corresponding receipt. If it is proven that payment had been made prior to the requirement, the Notary must suspend the process and remit the proceedings before the corresponding Court of First Instance so that it may determine the veracity or lack thereof of the payment, for which purpose, within the twenty-four (24) hours following receipt REPÚBLICA DE HONDURAS - TEGUCIGALPA, M. D. C, 5 DE JUNIO DEL 2014
of the proceedings, the case must be opened ex officio to trial for a period not exceeding five (5) business days, after which the closure of said period must be ordered ex officio. If it is determined that the payment is sufficient to fulfill the obligation, the judge must issue a resolution ordering the definitive suspension of the process and the closure of the proceedings. If it appears that payment has not been made effective or that it is insufficient to fulfill the obligation, the Court of First Instance must issue the respective resolution within the same period established in the preceding paragraph, ordering that the proceedings be sent back to the Notary so that the latter may conclude the execution process. If there has been a partial payment, execution must be carried out for the remainder. The judge's resolution must be issued within a period not exceeding forty-eight (48) hours after the probationary period established in the first paragraph of this Article is closed.
The deed in which the requirement or notification by the Notary is recorded must be registered in the same entry in which the guarantee has been registered. The registration of the notification or requirement as an annotation in the entry where the property, act or contract is found has the same value as judicial seizures.
The sale must be made in public auction in favor of whoever offers the best price. The creditor may participate in the auction by offering the value of its credit or a higher amount. In the event that no one participates in the auction, the property must be adjudicated in favor of the creditor without the need for the latter to offer its Section A Agreements and Laws, No. 33,445 credit. In cases where the value of the auctioned property does not cover the full payment of the obligation, the creditor's right to pursue other property of the debtor remains reserved, and this must be stated in the corresponding deed. A corresponding deed must be drawn up for all proceedings. This deed shall serve as evidence of transfer of ownership of the guarantee and must be registered.
The rules for determining the priority and preference of creditors' rights over guarantees are determined by the applicable private law legislation.
When there are other creditors guaranteed by the property that will be executed, the creditor interested in its execution must notify the other creditors through a Notary. When these other creditors have authorized the use of a physical address for practicing requirements and notifications, they may be notified at that address. If they are not found there, a copy of the notification must be posted at the entrance of the place and a copy must also be delivered to any person present there and to two (2) neighbors of the place who must serve as witnesses to this act. This notification must be registered in the entry where the property given as guarantee is recorded.
When there are several creditors, they may reach an agreement before a Notary regarding the manner in which they will distribute the proceeds from the sale by creditor or from the extrajudicial sale by the Notary. REPÚBLICA DE HONDURAS - TEGUCIGALPA, M. D. C, 5 DE JUNIO DEL 2014
When the other creditors who have rights over the same guarantee cannot be notified or they do not reach an agreement after being notified, special authorization must be requested from the judge of the domicile where the property is located to proceed with the execution process. For the granting of this authorization, the judge may request that a bond be posted to guarantee the rights of the other creditors. This notification must be registered in the public registry. No appeal lies against this resolution.
The Notary before whom a guarantee has been constituted cannot participate in its execution. TITLE III RESTRUCTURING OF INSTITUTIONALITY FOR THE PROMOTION OF INVESTMENTS AND GREATER EFFICIENCY THEREOF
Reform Articles 21, 40, 42, 43, 44, 45, 46 and 50 of the Law for the Promotion and Protection of Investments contained in Legislative Decree No. 51-2011 and its reform decrees and incorporate by addition to the same Article 17-A; all of which shall read as follows:
Even if decreed by the Council of State Secretaries, real property on which projects subject to these provisions are developed shall not have applied to them the provisions for the regularization of real property by public necessity contained in the Property Law." No. 33,445
The maximum duration of stability contracts shall be fifteen (15) years, except in the case of investments under the Public-Private Partnership modality, whose duration shall be as established in the clauses of the respective contract or in the separate agreement executed for that purpose. When projects related to forestry or mining activities are involved, the term of validity may be extended up to twenty-five (25) years.
Investments classified as projects of national interest are subject to the application of an accelerated investment procedure. Prior to the declaration by the National Investment Council or COALIANZA as applicable, an economic analysis and viability study of the project must be conducted, for which purpose a ruling with the respective recommendation must be issued. Said recommendation must be transmitted to the Executive Branch so that the President of the Republic in Council of State Secretaries or in a special sectoral cabinet, if deemed appropriate, may issue an Executive Decree containing the declaration of national interest and a certificate of incorporation and operational viability. This certification serves as all permits or licenses required by Honduran legislation to develop the project. This procedure from its inception to its conclusion with the issuance of the Executive Decree must be completed within a period not exceeding thirty (30) business days.
The National Investment Council (CNI) is created as a public law entity, with legal personality and its own assets, whose principal purposes are: REPÚBLICA DE HONDURAS - TEGUCIGALPA, M. D. C, 5 DE JUNIO DEL 2014
a) The promotion and development of private investment; b) The facilitation of procedures and assistance to investors before, during and after an investment is established; and, c) The formulation of public policy proposals aimed at creating a favorable climate for both national and foreign investment. The Council's assets shall be comprised of donations and contributions it receives from those who benefit from the services it provides, contributions it receives from the State of Honduras, resources from donations and others of lawful origin that result from its operations. Likewise, it is authorized to contract loans and make investments aimed at increasing its assets in low-risk instruments in national or international markets. The contributions and donations received by the Council must be published on its website, detailing the amounts or values of the contribution or donation and the name or business name of the contributor(s), as well as the purposes for which it is to be used. The State may make periodic or isolated contributions of resources for specific purposes to the same, or subcontracted for activities, consultancies, missions or specific projects related to its functions.
The Board of Directors of the National Investment Council shall be composed as follows: From the Public Sector a Commissioner of COALIANZA and three State Secretaries appointed by the President of the Republic; and from the Private Sector four representatives shall participate who shall be appointed by the President of the Republic from a list of ten (10) persons that shall be sent to him by the COHEP. Their rotation and conditions of appointment for more than one term shall be determined in the regulations of this Law.
The functions of the National Investment Council are:
- a)
Perform the function of Secretariat of the National Council for Competitiveness and Innovation and present to the President of the Republic the public policy proposals necessary to simplify the procedures necessary to carry out private investments or to start a business, as well as to obtain the permits and licenses necessary for its operation, for which purpose it must follow up on the recommendations made in that regard in the World Bank's Doing Business Report or other international organizations that conduct similar studies;
- b)
Define and/or update annually in coordination with the Presidency of the Republic and sectorial state entities the list of priority sectors for investment in Honduras and design strategies for the promotion of the same;
- c)
Coordinate together with the State Secretariat of Foreign Relations the activities abroad of its Executive Secretary. For this purpose, the members of its Board of Directors shall enjoy ambassador status and shall have full powers of representation of the State of Honduras;
- d)
Develop, coordinate, promote and advance through its Executive Secretariat the permanent program of country image as the principal component of efforts to maintain Honduras' competitive identity abroad. The sectorial state institutions must coordinate with the National Investment Council any international promotion effort they intend to carry out within their areas of competence;
- e)
Internationally promote Honduras as an investment destination and may delegate or subcontract this function to other national or foreign entities;
- f)
Work in coordination with the State Secretariat of Foreign Relations and in close relationship and harmony with Honduras' diplomatic representations around the world, in order to provide them with updated information regarding changes in legislation or State policy that could incentivize or affect investment, as well as potential sectors attractive for the same;
- g)
Provide chambers of commerce or other entities as it deems appropriate information regarding changes in legislation affecting investment and business opening and seek the establishment of a single window to achieve this objective;
- h)
Recommend the approval of legal stability contracts and remit them to the Presidency of the Republic for their execution and approval in accordance with what is established in Article 25 of this Law. Those cases are excepted in which the contract is integrated as a clause in a Public-Private Partnership contract; No. 33,445 i) Be the entity responsible for managing and maintaining the State of Honduras' membership in the United Nations Commission on International Trade Law (UNCITRAL), UNIDROIT, and other related international bodies dedicated to the study of commercial law, international investment law and other related disciplines; j) Collaborate with the Executive Branch by proposing the regulation of private law bodies auxiliary to Public Administration, when they are not regulated by law; and, k) Such other matters as may be assigned to it by this law or its regulations. The National Investment Council shall be authorized, when it deems it necessary and within the limits of its budget, to contract in full or in part the services it requires to evaluate and optimize the quality in the performance of its functions, as well as studies related to the business climate in Honduras.
For the performance of its activities, provision of its services and proper administration, the National Investment Council shall have the support of an Executive Secretariat whose holder shall be appointed by the President of the Republic. The appointment shall be of a permanent nature and may be removed by the President of the Republic only for just cause. The Executive Secretariat of the National Investment Council shall have the necessary personnel to be able to perform its REPÚBLICA DE HONDURAS - TEGUCIGALPA, M. D. C, 5 DE JUNIO DEL 2014
functions. The functions of the Executive Secretariat shall be those established in the regulations of this Law.
In order to promote the permanence and expansion of existing investments, the National Investment Council must also provide the services required by investors for the facilitation of the development and expansion of the same, for which purpose it must maintain a database of investments and keep in permanent contact with the directors of companies and government entities involved, in order to detect potential problems that arise after the establishment of the investment and facilitate their solution in the most efficient manner possible. In this regard, the Executive Secretariat is authorized to create a specialized unit or contract the services of an existing entity for the provision of post-investment services, being able to establish charges for these services.
The National Investment Council is authorized to collect an amount equivalent to 0.25% of annual billing for sales or services rendered to those investors who subscribe to stability contracts with the State as a fee for management and maintenance of the same during the contract's validity.
Reform Articles 29 and 34 of the Law for the Promotion of Public-Private Partnership contained in Legislative Decree No. 143-2010 and its reforms, which shall read as follows:
The Commission for the Promotion of Public-Private Partnership (COALIANZA) is authorized to collect up to two percent (2%) of the value of Section A Agreements and Laws No. 33,445 each authorized project from the project's awardee, as a fee for the services it provides. Likewise, the Public-Private Partnership Superintendency is authorized to collect from private companies that subscribe to public-private partnership contracts a contribution for regulation, to be established through the corresponding contract of up to one percent (1%) of the value of annual billing, net of corresponding deductions for Value Added Tax payments. The funds obtained from such collections shall be administered through a Trust created for each institution, of which the Commission for the Promotion of Public-Private Partnership (COALIANZA) and the Public-Private Partnership Superintendency shall be the sole beneficiaries respectively. The proceeds from said trusts shall serve for each institution to cover all or part of its budget. The provisions for the formation of these trusts shall be developed in the Regulations of this Law. If there are remaining funds from the COALIANZA trust fund at the end of the Fiscal Year, the same shall be reserved for use in the research and development of new projects, the rescue of projects in which programmed results have not been achieved and the payment of State defense expenses.
To exercise the rights and obligations that arise from the juridical relationships regulated by this Law, only authorization to provide a service or develop infrastructure granted by the Commission for the Promotion of Public-Private Partnership (COALIANZA) is required. The Commission for the Promotion of Public-Private Partnership (COALIANZA) must assist the project awardee in the processing and obtaining of all permits, licenses, authorizations and other administrative acts required by the Central and/or Municipal Public Administration to operate the Public-Private Partnership (APP).
Interpret Article 31 of the Law for the Promotion of Public-Private Partnership contained in Legislative Decree No. 143-2010 and its reforms, in the sense that the last paragraph thereof is an authorization for the determination of its own salary policy including representation expenses, bonifications, per diems, travel allowances and other stipends in accordance with Articles 361 and 362 of the Labor Code contained in Legislative Decree No. 189 of 1959 and its reforms.
Interpret Article 35 of the Law for the Promotion of Public-Private Partnership contained in Legislative Decree No. 143-2010 and its reforms, in the sense that the same excludes from the application of the Administrative Contention-Jurisdiction Law the contracts that are granted and the procedures that are used.
As applicable, the provisions of Articles 29, 31 and 35 of the Law for the Promotion of Public-Private Partnership contained in Legislative Decree No. 143-2010 and its reforms shall apply to the National Investment Council and to other units of the public administration that the President of the Republic authorizes. No. 33,445
Articles 3-A, 3-B, 6 and 111 of the State Contracting Law contained in Legislative Decree Number 74-2001 dated June 29, 2001 and its reform decrees shall be applicable to the Law for the Promotion of Public-Private Partnership contained in Legislative Decree No. 143-2010 and its reforms. TITLE IV SUPPLEMENTARY AND TRANSITIONAL PROVISIONS
The references made in the Law for the Promotion and Protection of Investments to the Technical Secretariat of the National Investment Council shall be understood as references to the Executive Secretariat of the National Investment Council.
For purposes of complying with the provisions of Articles 15, 16 and 29 of Decree 51-2011 containing the Law for the Promotion and Protection of Investments, judges of the court shall instruct those who file actions before the courts regarding the matters described therein about the existence of these provisions and the right they have to proceed before the arbitral instance as the primary means of dispute resolution. From the date of entry into force of this decree, those proceedings that have been conducted without complying with this requirement shall be subject to nullification. This provision shall be communicated to the Judicial Council and the Supreme Court of Justice in order for communications to be sent and instructions to be issued by all instances of the Judicial Branch. REPUBLIC OF HONDURAS - TEGUCIGALPA, M. D. C, JUNE 5, 2014
Within a period not exceeding one hundred eighty (180) days from the entry into force of this Law, the necessary steps shall be taken to transform the Official Gazette (La Gaceta) into a digital publication, for which purpose the respective website must be created. The National Investment Council may collaborate in contracting the necessary services for such transformation. The publications currently made in the Official Gazette shall be made in its digital version, with charges to be assessed only for the cost of making such publication on its website. The National Graphics Arts Enterprise may charge those who wish to receive a paper copy of the same.
The certification authenticated by a Notary, issued by a Financial System Institution that is a creditor, in which it certifies the full payment of a debt guaranteed by mortgage is sufficient to accomplish cancellation of the encumbrance in the Property Registry. The Financial System Institution is obligated to issue, at no cost to its clients, such certifications. Property registrars cannot require any other formality to proceed with the cancellation of mortgages.
The rules contained in this Law shall be regulated by the Presidency of the Republic through the Ministry of Finance (SEFIN) within three (3) months following its entry into force.
Repeal Articles 380, 381, 382 and 383 of the Commercial Code contained in Legislative Decree Number 73-50 and its reforms.
Repeal Articles 36, 37, 38, 39 and 54 of Legislative Decree No. 51-2011 and its reforms containing the Law for the Promotion and Protection of Investments.
This Decree shall enter into force from the date of its publication in the Official Gazette "La Gaceta". Given in the city of Tegucigalpa, municipality of the Central District, in the Hall of Sessions of the National Congress, on the eighth day of the month of January of two thousand fourteen. MAURICIO OLIVA HERRERA PRESIDENT BY LAW RIGOBERTO CHANG CASTILLO SECRETARY ÁNGEL DARÍO BANEGAS LEIVA SECRETARY To the Executive Branch Therefore: Execute. Tegucigalpa, M.D.C., January 24, 2014. PORFIRIO LOBO SOSA PRESIDENT OF THE REPUBLIC THE SECRETARY OF STATE IN THE MINISTRY OF FINANCE CARLOS BORJAS CASTEJÓN
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