Contributed By Alemán, Cordero, Galindo & Lee (Panama - HQ)
Panama has fortunately avoided, to a great extent, the recent economic down-cycles in Latin America and beyond. From 2001 through to 2013, the Panamanian economy grew at an average of 7.2%. However, in recent years there has been a deceleration to 4.9% in 2016 and 5.5% in 2017, but with the International Monetary Fund predicting continued growth of 5.6% in 2018 and 5.8% in 2019. Consequently, the regulatory environment has so far not been affected in terms of the direction and trends in the loan market in Panama. That could yet change, given that some of the industries most affected by the deceleration, like new construction and development, are very dependent on financing.
The high-yield market is not an important source of the emerging trends in Panama.
The loan market in Panama has not seen significant growth in alternative credit providers. Panama’s well-established banking centre continues to be, by far, the main source of credit for local credit transactions.
There have not been, nor are there expected to be, any legal, tax, regulatory or other developments that have or would be expected to have a significant impact on the loan market in Panama.
Both banks and non-banks may provide financing to a company organised in Panama. Foreign financial institutions may also provide financing, from abroad, to a company organised and domiciled in Panama. Typically, entities that provide financing on a regular basis in or from Panama would be required to be regulated by either the Superintendence of Banks (in cases where they provide other banking services, especially deposit-taking activities), the Superintendence of the Securities Market (in cases where they provide other brokerage services or investment advice), or the Ministry of Commerce (in the case of financial entities in small personal loans).
Foreign lenders are not restricted from granting cross-border loans to companies in Panama.
The granting of security or guarantees to foreign lenders is not restricted or impeded.
Panama does not apply any restrictions or controls regarding foreign currency exchange, and does not have a central bank. The US dollar is legal tender in Panama and pegged one-to-one with the Panamanian balboa.
Panama does not apply any restrictions on the borrower’s use of proceeds from loans or debt securities (assuming their use is for legal purposes).
The agent concept is not specifically regulated in Panama law, but is typically something that is contractually regulated between lenders and borrowers in Panama. The trust concept is legally recognised in Panama. The guarantee trust is an often-used collateral instrument in local credit transactions. Alternatively, local borrowers are often required to provide bonds (personal and corporate), mortgages, assignments (e.g. accounts payable) and pledges (over shares, bank accounts, assets, etc.).
Most local loan agreements (and related security documents) typically have standard assignment clauses, allowing the lender to assign either the agreement as a whole, or the credits that result from the agreement. In the absence of such contractual language, Panama law requires consent from the borrower to implement a transfer of the agreement and requires notice in case of the transfer of any credit arising from the agreement.
Debt buy-back by the borrower is permitted under Panama law. However, in the event of such buy-back by the borrower the debt would be considered extinguished.
Payments of interest, commissions, and other charges made to local lenders will not be subject to withholding tax but may be subject to income and other taxes and should be included in their tax returns.
Payments of interest, commissions, and other charges made to foreign lenders will generally be subject to withholding tax, at an applicable rate of 12.5%. However, such withholding would not be caused provided that the proceeds of a loan:
Foreign lenders making loans to entities incorporated and domiciled in Panama should be aware that the credit agreement will be subject in the Republic of Panama to a stamp tax at a rate of USD0.10 for each USD100.00 of the value of any such document, if presented before an administrative authority or court in the Republic of Panama as evidence. In the case of local lenders, the stamp tax will apply.
In the case of commercial loans, there are no usury laws of other rules limiting the amount of interest that can be charged.
In Panama it is not possible to instrument a 'security interest' as a generic and general guarantee. Panamanian law recognises personal guarantees and real guarantees. The most common real guarantees (in rem) are the mortgage, the pledge and the antichresis.
A pledge is a type of real guarantee which may be instrumented over all kinds of movable assets. A pledge has to be constituted with the same formalities of the agreement containing the obligations it guarantees. However, it is essential that the pledge asset is delivered to the creditor or a third party as depository for its perfection. Intangibles such as credits and rights are considered movable assets under Panamanian law and can be the subject of a pledge as long as they are identifiable. In the case of credits represented by negotiable instruments, they have to be endorsed in pledge and delivered. The same works for shares in companies. In general terms, the available structures for encumbering the shares of a Panamanian company would be to constitute either a pledge (under Panama law or the law of another jurisdiction) or a mortgage over the corresponding shares; if the shares are dematerialised and are deposited in an investment account, then such investment account could be pledged.
Some practical considerations in evaluating the convenience of a pledge over a mortgage include the fact that pledge agreements are usually executed in a private document and do not have to be registered, making them more time- and cost-efficient. Mortgage agreements must be granted in a public deed and registered in the Public Registry of Panama. Furthermore, the mortgage structure and process also imply that:
For a pledge agreement to be perfected, the pledge assets (the shares of the Panamanian company) must remain outside the control of the pledgor (the custodian can be any agreed-upon third party, including but not limited to the lender) while, under a mortgage structure, the mortgaged assets usually remain under the control of the mortgagor.
Under a pledge agreement, the parties can agree to execute the pledge either judicially or extra-judicially. If a special method of execution is not agreed by the parties in the pledge agreement, Articles 820 and 821 of the Commercial Code of Panama provide a simple extra-judicial method for execution of the pledge under which the pledgee must grant the pledgor 30 days’ notice for the sale or transfer of the pledge assets, the value of which will be determined by two expert witnesses named by the parties, or if there is a disagreement, by a third expert witness named by the first two expert witnesses or by a judicial authority. Notwithstanding the above, it is common for the parties to agree upon an extra-judicial method of execution in the pledge agreement itself.
A mortgage will be judicially executed unless otherwise agreed by the parties (Article 43 of Law No 129 of 2013). However, even if the parties agree on an extra-judicial sale, the following procedure must be complied with:
Notwithstanding the above, there are some aspects of the pledge and the mortgage which are very similar and do not pose a particular advantage or disadvantage when comparing one form of security vis-à-vis the other form. Particularly:
Certain rights in contracts have to be assigned, but are subject to whatever the respective agreement may dictate on the matter. However, as in the case of most insurance policies, in which it is necessary to have consent of the insurer for the assignment of rights over such policies, the general rule is that the acceptance of the other party is required.
The enforcement of a pledge requires legal action before a competent court. However, it is possible to include in the agreement the possibility that the lender appropriate the pledged assets. In such a case, it is a matter of public policy to include in the respective pledge agreement a method to determine a fair value of the pledged assets. Otherwise it is mandatory to follow the procedure established in the Code of Commerce, which calls for a valuation of the pledged asset by two experts, one appointed by each party. If they cannot agree, they have to appoint a third expert for a final determination.
Bank accounts can be pledged, but this may present certain inconveniences when the account is used for the cashflow of the business revenues, especially when in cases where the banks involved are very conservative. The pledge of accounts located outside of Panama is subject to the laws of the country in which the account is held.
Since operations of this type have a significant degree of complexity in the structuring of guarantees, such guarantees are increasingly being instrumented through trusts. Trusts are considered independent and autonomous contractual arrangements, as opposed to pledges or mortgages, which are accessory agreements that depend on the principal agreement. Through the use of trusts, funds (bank accounts) can be managed and rights over real estate property and other rights over movable property held. Since the ownership rights over the trust assets is transferred to the trustee, the intervention of judicial authorities for enforcement is not necessary.
Additionally, certain types of assets can also be assigned as collateral through standard assignment agreements, either to the lender, a security agent or a trust structure.
Panama law does not permit a floating charge or other universal or similar security interest over all present and future assets of a company.
It is possible for entities in Panama to give downstream, upstream and cross-stream guarantees.
There are no such restrictions.
The most common advice regarding due authorisation for the granting of security of guarantees by a Panamanian entity acting as a guarantor has to do with the fact that when acting as a guarantor for the obligations of a third-party borrower, it is the shareholders of the guarantor (Panama entity) who should (in most cases) provide the relevant corporate authorisation.
Depending on the type of security, they are most often released by mutual consent (in the case of a trust), registering a cancellation (in the case of a real property mortgage), and/or by the execution of a release document and return of pledged instruments (in the case of most pledge agreements).
The priority of competing security will vary depending on the type and nature of the security. For example, Panama law allows for several ranking mortgages in the case of real and personal property, depending on the date of creation of such specific security and its recordation with the Public Registry. It also allows for mortgagees to vary their positions with regard to their rank on a particular security. Contractual subordination is also fairly common and, absent fraud on the part of an insolvent party, such provisions should survive the insolvency of a borrower incorporated in Panama.
Typically, upon an event of default under the terms of the respective credit documentation, a secured lender can enforce its collateral. The traditional types of security and their enforcement mechanisms are outlined in 5 Guarantees and Security, above.
Under the laws of the Republic of Panama, the choice of a foreign law as set forth in the transaction documents is valid, and the irrevocable submission by a Panamanian counterparty to a foreign jurisdiction, as set forth in such transaction documents, is legal, valid, binding and effective. A waiver of immunity would be upheld in Panama.
Subject to the issuance of a writ of exequatur by the Supreme Court of Panama, any final judgment obtained against a party in a foreign court relating to a transaction documents would be recognised, conclusive and enforceable in the courts of Panama without reconsideration of the merits, provided that:
In the case of an arbitral award, any foreign final award rendered against a party by an arbitration panel or arbitrator duly appointed and empowered in accordance with the terms of any of the transaction documents to which such party is a party, rendered in connection with an "international" arbitration, would be recognised and enforced against each such party by the competent courts of Panama without re-examination of the merits pursuant to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards or the Panama Inter American Convention on International Commercial Arbitration of 30 January 1975, as applicable, or, if both conventions are equally applicable, in accordance with the provisions of whichever convention is more favourable to the party seeking recognition or enforcement of said foreign final award. For purposes of this opinion an arbitration is deemed "international" if:
There are no specific matters which might impact a foreign lender's ability to enforce its rights under a loan or security agreement, but a case-by-case analysis of the relevant transaction will be required to make this determination, particularly in the case of borrowers and/or collateral related to public concession agreements, or those that require any sort of regulatory or governmental approval.
There are no rules specifically establishing an out-of-court process for rescue or reorganisation in the Republic of Panama, nor any voting requirements associated therewith.
Debt restructuring efforts between a debtor and its creditors will mostly be governed by general rules of contract and obligations, and the agreement of other creditors may not be imposed on an individual creditor without consent.
In situations where a debtor has several creditors willing to negotiate with the debtor as a group, however, the creditors will usually enter into a ‘standstill agreement’, agreeing not to enforce any rights of execution against the debtor during negotiations.
The negotiations will be aimed at reaching an agreement between creditors themselves, and between the group of creditors and the debtor, which tries to balance the operational needs of the debtor with the obligations owed to creditors.
If negotiations are successful, they will most likely involve amendments to the individual contracts between the debtor and the creditors involved.
It is important to note that any creditors who are not part of negotiations, or who decide not to enter into an agreement with the other creditors or the debtor, will not be affected in any of their rights or privileges as creditors. Furthermore, any liens or encumbrances over assets of the debtor will remain unaffected.
During negotiations it is also important to keep in mind that certain ‘clawback’ provisions, established in Law No 12 of 19 May 2016 (the Law of Insolvency Proceedings), may retroactively affect the validity of acts or contracts if insolvency proceedings are later commenced:
There are two types of insolvency proceedings contemplated under the Law of Insolvency Proceedings: that of liquidation, and that of reorganisation.
Under the insolvency proceeding of liquidation, the right of creditors to individually engage in enforcement actions is suspended. Creditors with a pledge, mortgage, or other real right security, however, may individually continue enforcement actions or opt to do so within the liquidation proceeding.
Under the insolvency proceeding of reorganisation, an ‘insolvency financial protection’ (protección financiera concursal) shall apply from the time the reorganisation proceeding is declared open, until the time when an Agreement of Reorganisation, agreed to by the General Assembly of Creditors, is confirmed by the corresponding bankruptcy judge. This has also the effect of suspending (staying) enforcement actions.
However, if the Agreement of Reorganisation is not approved by the General Assembly of Creditors, if it is not confirmed by the judge, if it is breached, or if six months pass from the time the insolvency financial protection started, the right of creditors to enforce pledges or mortgages will be considered automatically re-established.
The general rules of preference and their order of payment are established in the Civil Code.
Movables (Personal Property)
The following credits have preference within this category:
1. credits for works, reparation, conservation, or sales price, regarding movables possessed by the debtor;
2. credits secured by a pledge, regarding movables possessed by the creditor;
3. credits secured by surety (fianza) relating to commercial effects or securities, granted in a public or commercial establishment;
4. credits relating to transport, regarding movables transported, for the price, expenses and rights of transport and conservation up to the time of delivery and up to 30 days afterwards;
5. credits relating to lodging, regarding movables of the debtor at the place of lodging;
6. credits relating to seeds and cultivation expenses, regarding related goods harvested; and
7. credits relating to leases of one year, regarding movables of the debtor on the leased property.
Between two or more credits within this category, the following rules apply:
Immovables (Real Property)
The following credits have preference within this category:
1. tax credits of the State, regarding movables of taxpayers;
2. credits of insurance companies, regarding movables insured;
3. mortgage credits, regarding immovables which have been mortgaged; and
4. credits annotated in the Property Section of the Public Registry, regarding immovables annotated, by judicial order, seizure of assets, or execution of judicial decisions.
Between two or more credits within this category, the following rules apply:
The following other credits have preference:
1. tax credits of municipalities, as well as credits related to judicial expenses or administration of insolvency, duly authorised or approved; credits regarding the debtor’s funeral; and
2. credits regarding:
Between two or more credits within this category, the following rules apply:
Panama does not have the concept of equitable subordination.
If the borrower becomes insolvent, and furthermore if the security provider or guarantor become insolvent, the guaranteed obligations will have a risk of non-payment.
This may not be a concern where the amount owed is secured with a pledge, a mortgage, or other type of real right security, and the value of the collateral is sufficient to secure full payment. However, to the extent the collateral is not sufficient to satisfy payment in full, the lender will still have a risk of non-payment, although presumably lower.
Furthermore if, upon becoming insolvent, insolvency proceedings are commenced, and the lender has no credits secured with a pledge, a mortgage, or other type of real security, enforcement rights of the lender would be suspended, and the lender's credit would be included in the mass of credits within the corresponding insolvency proceeding that results.
It is also important to consider the risk of retroactively invalidating certain acts, contracts, and transfers that may favour the lender, to the extend that these are deemed to fall under a clawback provision under the Law of Insolvency Proceedings.
Project finance in Panama is not regulated by any specific law, but rather by various laws and regulations, including but not limited to the Civil Code, the Commercial Code and Law No 129 dated 31 December 2013 regarding Chattel Mortgages, among others.
Public-private partnerships are not yet common in Panama and no specific legislation applies to them. There are certain Panamanian companies in the distribution and energy sector that are of mixed ownership between the government and private entities. These resulted primarily from the privatisation of the public utility companies in the 1990s.
No specific permit or tax is required pursuant to project finance transactions, except for the necessary permits required for the project itself. Additionally, depending on the financing structure, notarial, registration fees and stamp taxes may be applicable.
The principal entity in charge of regulating and supervising the oil and gas industry is the Secretary of Energy, which is in charge of compliance with the rules and regulations over the market for oil and gas products, pursuant to Cabinet Decree No 36 of 2003.
With respect to the power (energy) sector, the ASEP or National Authority for Public Services is the principal entity in charge of compliance with the rules and regulations related to the generation, distribution and transmission of power (electricity), primarily pursuant to Law No 6 of 3 February 1997 and Executive Decree No 22 of 19 June 1998.
With respect to mining, the entity principally in charge is the Ministry of Commerce and Industry through its Directorate for Mineral Resources, which is in charge of regulating and supervising compliance with the Mineral Resource Code of Panama.
Generally, there are no restrictions on foreign investment in Panama, except for certain activities in which foreign governments (or government-owned entities) may be limited. There may be relevant tax treaties that provide for a more favourable tax treatment. Typically, the project companies are corporations (sociedades anónimas), except for situations in which a shareholder of the project company is a US person, in which case, for US tax considerations, the project companies are typically structured as limited liability companies (sociedades de responsabilidad limitada).
The typical financing sources are banks and multilateral institutions. Nonetheless, there have been various transactions financed through export credit agencies. Project bonds are typically used in a take-out or refinancing of the project and not at a greenfield stage.
The principal rules and regulations relating to compliance with environmental studies are set out in Law No 41 of 1998 (General Environmental Law) and Executive Decree No 123 of 14 August 2009, which regulates the law. Compliance and regulation of the sector are the purview of the Ministry of the Environment, which includes oil and gas, power and mining activities (in so far as they are environmentally sensitive activities).
The Criminal Code of Panama is also relevant here in the sense that some sections of it relate to environmental crimes. Compliance is the purview of the relevant public attorneys and judges.
In addition, the Sanitation Code and the Labour Code include rules regarding the applicable health and safety norms, with the Ministry of Health and the Ministry of Labour (respectively) being the relevant government authorities in charge of compliance.
Islamic finance is not contemplated or regulated by Panamanian laws and regulations.