Contributed By Alemán, Cordero, Galindo & Lee
Fortunately, prior to the COVID-19 outbreak, Panama had mostly avoided the recent economic down-cycles in Latin America and beyond. From 2001 through 2013, Panama's economy grew at an average of 7.2% per year. However, in recent years this has dropped to 4.9% in 2016, rising to 5.5% in 2017 and 2018, and dropping to 3% in 2019. Not considering the current health crisis worldwide and its economic repercussions, the International Monetary Fund is predicting negative growth of -2% (down from its original forecast of 5.5%) for Panama in 2020, and a projected recovery of 4% in 2021. 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 still change, given that some of the industries most affected by the deceleration in growth and the COVID-19 crisis, such as new construction and development, are very dependent on financing.
It is still too early to talk about direction or trends, as the impact of the COVID-19 crisis is still unknown in terms of the direction of the loan market in Panama. As in other jurisdictions, Panama has seen extensive lockdowns, furloughs, closures, etc. This has, in turn, dried up the loan market, while the economy seeks to re-open in the coming months. Banks have been cautious and will probably continue to monitor the situation closely, while re-negotiating existing credits and considering regulatory changes in terms of reserves for non-performing loans, as well as liquidity ratios.
The high-yield market is not an important source of finance in 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.
Banking and finance techniques are evolving every day, mainly in connection with tax efficiencies, in order to reflect the investor base and needs of borrowers. In this respect, corporate financings are being structured by way of securities' issuances, registered with the Superintendence of Capital Markets of Panama and listed with the Panama Stock Exchange.
Instead of granting traditional loans, banks are financing their major corporate clients by underwriting securities' issuances, thereby providing their clients with innovative tax efficiencies.
There have not been, nor are there expected to be, any legal, tax, regulatory or other developments that have had, 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 (where they provide other banking services, especially deposit-taking activities), the Superintendence of the Securities Market (where they provide other brokerage services, or investment advice), or the Ministry of Commerce (in the case of financial entities that provide 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 is pegged one-to-one with the Panamanian balboa.
Panama does not apply any restrictions to 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 something that is typically 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 (eg, 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 the case of the transfer of any credit arising from the agreement.
Debt buy-back by the borrower or sponsor is permitted; however, under Panama law, in the event of such a buy-back by the borrower, the debt would be considered extinguished.
There are no provisions with respect to public acquisition finance transactions in Panama.
Payment of interest, commissions and other charges made to local lenders will not be subject to withholding tax but may be subject to income tax and other taxes and should be included in their tax returns.
Payment 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, this should not be the case provided that:
Foreign lenders making loans to entities incorporated and domiciled in Panama should be aware that the credit agreement will be subject to stamp tax in the Republic of Panama at a rate of USD0.10 for each USD100 of the value of any such document, if presented before an administrative authority or court in the Republic of Panama as evidence. The stamp tax will also apply in the case of local lenders.
In the case of commercial loans, there are no usury laws or other rules limiting the amount of interest that can be charged.
In Panama, it is not possible to use 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 pledge, mortgage and antichresis.
Pledges and Mortgages
A pledge is a type of real guarantee which may be given over all kinds of movable assets. A pledge has to be constituted with the same formality as the agreement setting out 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 protection. 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, these have to be endorsed in pledge and delivered. This also applies to 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 shares. If the shares are dematerialised and deposited in an investment account, the investment account could be pledged.
Some practical considerations in evaluating the convenience of a pledge over a mortgage are that pledge agreements are usually executed in a private document and do not have to be registered, thus 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.
Judicial or extrajudicial execution of a pledge
Under a pledge agreement, the parties can agree to execute the pledge either judicially or extrajudicially. 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 extrajudicial 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. However, it is common for the parties to agree upon an extrajudicial method of execution in the pledge agreement itself.
Judicial or extrajudicial execution of a mortgage
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 extrajudicial sale, the following proceedings must be complied with:
Similarities between pledges and mortgages
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 with the other:
Certain rights in contracts have to be assigned but are subject to what the respective agreement may dictate on the matter. However, the general rule is that the acceptance of the other party is required, as in the case of most insurance policies in which it is necessary to have the consent of the insurer for the assignment of rights over such policies.
The enforcement of a pledge requires legal action before a competent court. However, it is possible to include in the agreement the possibility of the lender appropriating the pledged assets. In such cases, it is a matter of public policy to include in the respective pledge agreement a method to determine the 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 the two experts cannot agree, they have to appoint a third expert for a final determination.
Bank accounts can be pledged, but when the account is used for cash flow of the business revenues, this may present certain inconveniences, especially when dealing with banks that are very conservative. The pledging of accounts located outside Panama is subject to the laws of the country in which each account is held.
Since the structure of operations of this type have an important degree of complexity in the structuring of guarantees, such guarantees are increasingly being executed through trusts. A trust is considered to be an independent and autonomous contractual arrangement, as opposed to a pledge or mortgage which is an accessory agreement that depends on the principal agreement. Through the use of trust funds, bank accounts can be managed and rights over real estate property and other rights over movable property can be held. Since ownership rights over the trust assets are 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.
The law in Panama 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.
No restrictions are imposed on a target granting guarantees or security or financial assistance for the acquisition of its own shares.
Regarding due authorisation for the granting of security of guarantees by a Panamanian entity acting as a guarantor, it is the shareholders of the guarantor (Panamanian entity) who should (in most cases) provide the relevant corporate authorisation when acting as a guarantor for the obligations of a third-party borrower.
Depending on the type of security, these 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 varies 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 in 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, in the absence of 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.
Under the laws of the Republic of Panama, the choice of a foreign law as set forth in the transaction documents is a valid choice of law, and the irrevocable submission of a Panamanian counterparty to a foreign jurisdiction, as set forth in those 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 document would be recognised, conclusive and enforceable in the courts of Panama without reconsideration of the merits of the case, 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 that party is a party, rendered in connection with an international arbitration, would be recognised and enforced against each party by the competent courts of Panama without re-examination of the merits pursuant to the 1958 New York Convention on the Recognition of 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 the convention that is more favourable to the party seeking recognition or enforcement of the foreign final award. For the purposes of this decision, an arbitration is deemed international if:
There are no other matters which might specifically 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 government 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, whereby they agree not to enforce any rights of execution against the debtor during negotiations.
The negotiations will be aimed at reaching an agreement between the creditors themselves, and between the group of creditors and the debtor, in an attempt to balance the operational needs of the debtor with the obligations owed to creditors.
If negotiations are successful, these 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 the assets of the debtor will remain unaffected.
It is also important to keep in mind during negotiations that certain claw-back 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:
Up to one year before:
Up to four years before:
No time limit:
There are two types of insolvency proceedings contemplated under the Law of Insolvency Proceedings: liquidation and reorganisation.
Under the insolvency proceeding of liquidation, the right of creditors to engage individually in enforcement actions is suspended. Creditors with a pledge, mortgage, or other real security right, however, may continue enforcement actions individually 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 also has 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:
For between two or more credits within this category, the following rules apply:
Immovables (Real Property)
The following credits have preference within this category:
For between two or more credits within this category, the following rules apply:
The following other credits have preference:
For between two or more credits within this category, the following rules apply:
Panama does not have a concept of equitable subordination.
If the borrower becomes insolvent and, furthermore, the security-provider or guarantor becomes insolvent, the guaranteed obligations will be at 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 that the collateral is not sufficient to satisfy payment in full, the lender will still be at risk of non or partial payment, although presumably the risk will be lower.
Furthermore, if insolvency proceedings are commenced, and the lender has no credits secured with a pledge, a mortgage, or other type of real security, the 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 extent that these may be deemed to fall under a claw-back provision of the Law of Insolvency Proceedings.
Project finance in Panama is not regulated by any specific law, but rather by various laws and regulations, including the Civil Code, the Commercial Code, and Law No 129 of 31 December 2013 regarding chattel mortgages, among others.
Public-private partnerships are not yet common in Panama and no specific legislation applies to them. However, certain Panamanian companies in the distribution and energy sector are of mixed ownership between the government and private entities, which resulted primarily from the privatisation of public utility companies in the 1990s.
No specific permit or tax is required pursuant to a project finance transaction, 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.
Oil and Gas
The principal entity in charge of regulating and supervising the oil and gas industry is the Secretary of Energy, who is in charge of compliance with the rules and regulations governing the market for oil and gas products, pursuant to Cabinet Decree No 36 of 2003.
With respect to the power (energy) sector, the National Authority for Public Services (Autoridad de los Servicios Públicos or ASEP) 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 principal entity 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 also 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, various transactions have also been financed through export credit agencies. With respect to project bonds, these are typically used in a take-out or refinancing of a project, and not at a green-field stage.
There are no issues or considerations associated with the acquisition and export of natural resources in Panama.
With regard to approval and compliance with environmental impact studies, the principal rules and regulations 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 within the purview of the Ministry of the Environment, including oil and gas, power and mining activities, insofar as they are environmentally sensitive activities.
The Criminal Code of Panama also plays a role in these activities with regard to the sections that pertain to environmental crimes, and where compliance with these sections is within 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 with these rules.