Legal System

As a territory of the United States and due to its Spanish colonial past, Puerto Rico is a mixed legal jurisdiction where both civil law and common law coexist. The government of Puerto Rico is a republican form of government with independent executive, legislative and judicial branches. The laws of Puerto Rico derive from different sources depending on the subject in question, but broadly speaking, private law derives from Spanish civil law and is mostly codified, while public law derives from Anglo-American common law. Nonetheless, the US Constitution is the supreme law of the land, followed by applicable federal laws and federal agency rules.

Further down the legal hierarchy lies the Constitution of the Commonwealth of Puerto Rico, followed by its state statutory laws and local regulatory rules. The Constitution of the Commonwealth of Puerto Rico is the supreme law of the territory. It establishes the structure of the government, defines the rights and duties of its citizens, and serves as the foundation for the legal system. The United States retains control of foreign affairs, defence and immigration and, as a general matter, US laws apply in Puerto Rico unless Puerto Rico is specifically excluded.

In general terms, the Government of the Commonwealth of Puerto Rico exercises virtually the same control over its internal affairs as do the fifty US states. As a result of the fiscal and economic crisis that has affected Puerto Rico’s public finances since 2007, the US Congress enacted the Puerto Rico Oversight, Management and Economic Stability Act (PROMESA), which established a financial oversight and management board with broad powers over the government’s budgeting and finances.

Puerto Rico’s Judicial Structure

Puerto Rico has a dual legal system, with federal and local components. While the local federal court handles federal matters, Puerto Rico also has its own local courts that address issues of purely local concern, such as family law, probate, and certain criminal matters under local statutes.

Puerto Rico state courts have jurisdiction over questions of PR state and federal law, except for certain subjects that are under exclusive federal jurisdiction, such as bankruptcy law, federal antitrust, admiralty, customs and federal criminal law. Federal courts have jurisdiction over questions of federal law and only limited jurisdiction over questions of PR local law. The Puerto Rico local court system follows the same hierarchical structure as the federal courts, with a Supreme Court as the highest court, a Court of Appeals as an intermediary court and the trial courts (also known as District Court at the federal level and as the Court of First Instance at the local level).

With respect to Puerto Rico’s federal courts, Puerto Rico falls under the jurisdiction of the US Court of Appeals for the First Circuit, and it has its own US District Court, known as the US District Court for the District of Puerto Rico. This federal district court is a trial-level court with general federal jurisdiction. There are generally two ways to gain access to the federal district courts when there is such concurrent jurisdiction. First is diversity jurisdiction, which involves disputes between citizens of different states, or between US citizens and foreign citizens, where the amount in controversy exceeds a certain threshold set by law. The second primary basis involves a federal question – ie, presenting an issue arising under the Constitution, federal statutes, or treaties of the United States.

Sources of Puerto Rico Law

As mentioned above, applicable law derives from statutory laws, regulatory rules and regulations and common law. The sources of law in Puerto Rico are diverse, reflecting its history, constitutional status, and unique relationship with the United States.

Puerto Rico is an unincorporated territory of the United States, and as such, federal laws enacted by the US Congress are applicable. Federal laws cover a wide range of matters, including taxation, immigration, and other areas that impact Puerto Rico’s legal framework.

The Puerto Rico Civil Code, modelled on the Spanish Civil Code, governs various aspects of private law, including contracts, property, family law, and torts. It serves as a foundational legal text for many civil law matters in Puerto Rico.

Similar to the mainland United States, precedents from other jurisdictions have only persuasive or informational effect and are not binding, but for purposes of certain local statutes, such as the Puerto Rico General Corporations Act, which is modelled on the Delaware General Corporations Law, local courts look to Delaware court opinions as persuasive precedent. Rules enacted by federal and state regulatory agencies, such as the US Securities and Exchange Commission (SEC), the Federal Trade Commission (FTC), the Puerto Rico Department of Economic Development and Commerce (Departamento de Desarrollo Económico y Comercio or DDEC) and the Office of the Commissioner of Financial Institutions of Puerto Rico (Oficina del Comisionado de Instituciones Financieras or OCIF), provide additional sources of law and regulatory frameworks that are relevant to investors.

The US Congress, as the legislative branch of the federal government, and the Puerto Rico Legislative Assembly, its local counterpart, are responsible for enacting statutes, and may delegate rule-making power to executive or independent agencies of the federal and Puerto Rico government to enact and enforce regulatory rules, such as the SEC, FTC, DDEC and OCIF. These regulatory agencies not only implement and enforce new rules but also interpret existing laws within their subject matter expertise. Furthermore, international treaties signed by the US present further sources of law.

As a general matter, Puerto Rico law does not specifically restrict foreign ownership or impose special restrictions on foreign companies operating in Puerto Rico, but foreign companies must be authorised to do business in Puerto Rico. However, the Committee on Foreign Investment in the United States (CFIUS), which is described in greater detail in 7. Foreign Investment/National Security, can review certain foreign investment transactions to determine if they impact US national security. Review by the CFIUS remains mostly voluntary, as mandatory filing is limited to only certain types of transactions, such as those that deal with critical technologies or infrastructure, or that collect and/or maintain sensitive personal data. Investors from certain foreign states are exempt from complying with some aspects of the CFIUS mandatory filing regime.

As described in 4.3. Disclosure and Reporting Obligations, the Bureau of Economic Analysis of the US Department of Commerce has a mandatory survey (BE-13, Survey of New Foreign Direct Investment in the United States) that collects data from US companies. A US company is required to report if (i) it is acquired or established by a foreign person or entity resulting in the creation of a foreign direct investment relationship or (ii) it is an existing US affiliate of a foreign parent and establishes a new US legal entity, expands its US operations or acquires a US business enterprise.

Historically, the Puerto Rico government has promoted investment in Puerto Rico through a mix of financial and tax incentives, aimed at promoting the establishment of new businesses and promoting job creation. However, fiscal and economic challenges arising from the prolonged recession from 2007 to 2017, as well as fragile infrastructure and unstable public utilities, have created a complex economic landscape in recent years for investments in Puerto Rico. 

The island has faced challenges such as natural disasters, a significant public debt burden, and the ongoing recovery from the aftermath of Hurricane Maria in 2017. Despite these challenges, there have been notable developments and emerging trends that shed light on the current state of Puerto Rico’s economy. Notably, after almost two decades of contraction, challenges, and setbacks, the Puerto Rico economy appears to be finally turning a corner.

One trend worth noting is the continued effort to diversify Puerto Rico’s economy. Traditionally dependent on sectors like manufacturing and pharmaceuticals, there has been a push to attract investment in emerging industries. Efforts to position Puerto Rico as a hub for technology, renewable energy, and tourism have gained momentum. Investors and businesses are exploring opportunities in these sectors, drawn by tax incentives and the potential for growth.

In the aftermath of Hurricane Maria, there has been a concerted focus by the public and private sector on rebuilding and fortifying the island’s infrastructure, particularly its electric power system. Investments in resilient infrastructure, including energy, transportation, and telecommunications, have become key components of Puerto Rico’s economic development strategy. These initiatives aim to enhance the island’s ability to withstand future natural disasters while fostering economic growth. Puerto Rico’s economy has been gradually recovering since 2018, in part aided by the large amount of federal disaster relief and recovery assistance funds injected into the Puerto Rico economy in connection with Hurricane María and other recent natural disasters.

The tourism sector is a vital component of Puerto Rico’s economy, and recent trends suggest a renewed focus on expanding and enhancing this industry. Efforts to promote the island as a premier tourist destination, coupled with investments in hospitality infrastructure, aim to boost visitor numbers and drive economic activity.

Although the Puerto Rico economy is still subject to external shocks, and US federal fiscal policy continues to have a material impact on Puerto Rico’s economic outlook, Puerto Rico continues to show signs of a decoupling from the US mainland. While challenges persist, there are encouraging signs of economic diversification, infrastructure development, and strategic initiatives to attract investment. The path forward involves a delicate balance of addressing fiscal challenges, leveraging economic incentives, and fostering industries with growth potential. As Puerto Rico navigates its economic trajectory, continuous monitoring of these trends will be crucial for policymakers, investors, and businesses seeking to participate in and contribute to Puerto Rico’s economic resurgence.

Most Puerto Rico companies are privately held entities with only a handful of local companies having shares listed on a national stock exchange, primarily consisting of bank holding companies.

The structures for transactions in Puerto Rico can vary depending on the nature of the transaction, the parties involved, and the legal and regulatory requirements.

• Asset Purchase Agreement (APA): In an asset purchase transaction, the buyer acquires specific assets of a business rather than the entire business itself. This can include tangible assets such as inventory and equipment, as well as intangible assets like intellectual property. Asset purchase agreements outline the terms and conditions of the transaction.
• Stock Purchase Agreement (SPA): In a stock purchase transaction, the buyer acquires the ownership interest (stock) of a company. This means the buyer assumes ownership of the entire business, including its assets and liabilities. Stock purchase agreements specify the terms and conditions of the sale of stock.
• Merger: Mergers involve the combination of two companies into a single entity through a statutorily provided mechanism. These transactions can be structured in various ways and consideration can be provided either in stock or cash.
• Joint Ventures: Joint ventures involve collaboration between two or more entities for a specific business purpose. The parties contribute resources, share risks and rewards, and often establish a separate legal entity for the joint venture. Joint venture agreements outline the terms of the collaboration.
• Licensing Agreements: Licensing agreements allow one party to use the intellectual property (such as trade marks, patents, or copyrights) of another party for a specified period and under certain conditions. These agreements can involve the payment of royalties or licensing fees.
• Franchise Agreements: Franchise agreements grant the right to operate a business using the brand, trade marks, and business model of the franchisor. Franchisees typically pay fees or royalties to the franchisor in exchange for the right to use their established business format.
• Real Estate Transactions: Real estate transactions in Puerto Rico can take various forms, including sales, leases, and development agreements. The structure of the transaction will depend on the parties involved and the specific terms negotiated for the transfer or use of real property.
• Public-Private Partnerships (PPPs): PPPs involve collaboration between public and private entities to develop and operate public infrastructure projects or services. These partnerships are often governed by comprehensive agreements that outline the roles, responsibilities, and revenue-sharing arrangements between the public and private sectors.

It is important to note, however, that the Puerto Rico General Corporation Act, which is modelled on the Delaware General Corporation Law, requires shareholder approval for extraordinary matters such as mergers and the sale of all or substantially all assets. Given Puerto Rico’s treatment as a foreign jurisdiction under the federal Internal Revenue Code, when it comes to structuring local M&A transactions, special consideration is typically given to structuring transactions to avoid triggering federal tax liability.

Special laws that apply to specific industries, such as insurance, mortgage banking and banks, impose additional requirements that impact the structuring of M&A transactions in Puerto Rico.

As detailed in 6. Antitrust/Competition, M&A transactions in Puerto Rico are subject to US and local antitrust and competition laws. In addition, transactions involving the issuance of securities in Puerto Rico will be subject to the regulatory framework enacted and enforced by the SEC, as well as the Puerto Rico Uniform Securities Act, which is enforced by OCIF.

Legal Entities

Most Puerto Rico entities are incorporated as corporations or organised as limited liability companies (LLCs). The choice of entity type is typically determined by differences in tax treatment, liability limitations, and structural flexibility, among other considerations.

Corporate Governance

Corporate governance matters in Puerto Rico are largely governed by federal law and the Puerto Rico General Corporations Act. The Puerto Rico General Corporations Act is modelled on the Delaware General Corporation Law, and court opinions issued by Delaware courts in connection with the interpretation of the Delaware General Corporation Law are considered persuasive precedents for the purposes of interpreting the analogous provisions of the Puerto Rico General Corporations Act.

Like Delaware, Puerto Rico law imposes fiduciary duties of loyalty and care upon officers and directors of a corporation, as well as on controlling shareholders. Puerto Rico law also follows the shareholder primacy framework adopted by Delaware in which the officers of the corporation must act in the best interests of the shareholders and the corporation. Corporations with shares of stock listed in a stock exchange and registered with the SEC must also comply with the applicable requirements of the Securities Exchange Act of 1934, the Sarbanes-Oxley Act of 2002 and the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, which provide a framework of rules and disclosure and other requirements, as detailed in 5. Capital Markets.

Controlling Shareholders

Under the Puerto Rico General Corporation Act, controlling shareholders owe fiduciary duty (duty of loyalty) to the corporation and its shareholders in situations where they might have a conflict of interest with respect to a corporate matter. For certain types of entities, such as LLCs, members may agree to eliminate such fiduciary duties for officers, directors and controlling members.

Shareholder Litigation

The Puerto Rico General Corporations Act allows for shareholder litigation in two ways:

• Shareholders can pursue a direct action against the corporation and its management for damages suffered as an individual shareholder.
• On the other hand, shareholders can present a derivative action on behalf of the corporation and against its management if the directors or officers violate their fiduciary duties.

Beneficial Ownership Disclosures and Insiders Under the Federal Securities Laws

Federal beneficial ownership and insider disclosures applicable to publicly traded companies in the United States apply to Puerto Rico publicly traded companies.

Beneficial Ownership Disclosures Under the Corporate Transparency Act

Pursuant to the beneficial ownership information disclosure rule adopted by the Financial Crimes Enforcement Network (FinCEN) of the US Department of the Treasury during 2022, which becomes effective on 1 January 2024 (the “CTA Rule”), certain “reporting companies” will be required to file certain identifying information regarding the reporting company and its “company applicants” and “beneficial owners” with FinCEN. While the CTA Rule treats entities organised in Puerto Rico, as well as foreign entities authorised to do business in Puerto Rico, the same as their analogous counterparts in other US jurisdictions, exemptions available to certain large companies may not be available to Puerto Rico entities that would otherwise meet certain thresholds because they generally do not file US federal income taxes. Any available exemptions from the CTA Rule disclosure requirements must be evaluated on a case-by-case basis given that they rely on technical criteria.

Premerger Filing Thresholds

Pursuant to the Federal Premerger Notification Program established by the Hart-Scott-Rodino Act of 1976 (HSR), parties to certain transactions involving large mergers and acquisitions must submit premerger notification to the FTC and the US Department of Justice. Notification is required at certain filing thresholds, depending on transaction size and size of person tests. See 6. Antitrust/Competition for more details.

Bureau of Economic Analysis (BEA)

The BEA of the US Department of Commerce compiles inbound FDI in the US (including Puerto Rico) to compile statistics on the scale of foreign-owned business activities in the US. Companies are required to report inbound FDI transactions to the BEA within 45 days after formation or acquisition of a company if the transaction was executed by a foreign person or entity or by an existing US entity with 10% or more foreign ownership.

Structure and Sources of Financing

As a US territory, Puerto Rico entities and investors have access to and participate in the US capital markets.

The Puerto Rico government lost access to the capital markets in 2014 and following the enactment of PROMESA in 2016, has been under the supervision of a federally appointed financial oversight and management board for Puerto Rico. As of 2023, the debt of the central government of Puerto Rico and most of its instrumentalities has been restructured pursuant to PROMESA’s bankruptcy processes, signalling a potential return by the government of Puerto Rico to the capital markets in the near future.

Nevertheless, businesses in Puerto Rico, like those elsewhere in the United States and in other regions, have access to a variety of financing options. The availability and attractiveness of these options can vary depending on the size of the business, industry, creditworthiness, and other factors. The primary sources of financing for businesses in Puerto Rico include, without limitation:

• traditional bank loans to fund various needs, such as working capital, equipment purchase or expansion;
• government agencies that offer financing programmes to promote economic development, including through low-interest loans, grants and guarantees to support specific industries or activities; and
• private equity and venture capital.

Qualified companies can participate in a government programme called the Puerto Rico Industrial, Tourism, Education, Medical and Environmental Pollution-Control Facilities Financing Authority (AFICA), which provides financing by issuing industrial revenue bonds for certain projects that promote the economic development of Puerto Rico.

Regulation

The US capital markets are regulated by the SEC, which is an independent US government agency empowered to enforce securities laws and to regulate public companies’ disclosure requirements, securities offerings, and market activities. It also oversees security exchanges, brokers, dealers, investment advisers and mutual funds. Puerto Rico’s capital markets are also regulated by OCIF, which is the independent Puerto Rico government entity responsible for administering the Puerto Rico Uniform Securities Act (PRUSA). Specifically, OCIF is responsible for enforcing securities laws, licensing broker-dealers, investment advisers, and other market participants.

General Overview

Securities regulation in Puerto Rico is governed by both federal and Puerto Rico laws. On the state level, Puerto Rico enacted the Puerto Rico Uniform Securities Act (PRUSA). On the other hand, securities are also regulated by a series of federal statutes, which in turn authorise a series of regulations promulgated by the SEC. The main federal statutes are the Securities Act of 1933 and the Securities Exchange Act of 1934.

Securities Act of 1933

The Securities Act governs the initial issuance and registration of securities, including registration exemptions. It requires that investors receive full and fair disclosures, including financial and other significant information concerning securities being offered for public sale and prohibits deceit, misrepresentations, and other fraud in the sale of securities.

Securities Exchange Act of 1934

The Exchange Act governs the purchase and sale of securities, securities brokerage firms, securities exchanges and financial reporting. It created the SEC and empowered it with broad authority over all aspects of the securities industry, such as the power to register, regulate and oversee brokerage firms, transfer agents, clearing agencies and the securities self-regulatory organisations, like the New York Stock Exchange, the NASDAQ Stock Market, and the Financial Industry Regulatory Authority (FINRA).

PRUSA

PRUSA is modelled on the Model Uniform Securities Act and is administered by OCIF. Among other matters, PRUSA regulates the offer and sale of securities (unless federal pre-emption applies). This act provides the legal framework for the regulation of securities in Puerto Rico. It includes provisions related to registration requirements, anti-fraud measures, and the licensing of securities professionals. PRUSA makes it unlawful for any person to offer or sell any security unless it has been registered, is exempt from registering, or is classified as a federally covered security subject to the Securities Act of 1933.

As a general matter, private equity funds, venture capital funds and their investment advisers organised under the laws of Puerto Rico and/or authorised to do business in Puerto Rico are subject to the laws of the United States and all applicable rules and regulations promulgated by the SEC and the analogous local regulator in Puerto Rico, the OCIF. See also 1.2 Regulatory Framework for FDIs.

As a territory of the United States, all federal laws on antitrust and competition apply in Puerto Rico. Therefore, reference should be made to the relevant portions of the HSR, the Clayton Act and Sherman Act. As a matter of state law, Puerto Rico has a merger control regime.

Act 77-1964, also known as the Puerto Rico Antimonopoly Law, governs competition law in Puerto Rico (“Act 77”). In a broad and brief analysis, the Puerto Rico attorney general, referred to officially as the “Secretary of Justice”, and by his/her delegation the assistant secretary of justice in charge of monopolistic affairs, may, at the request of an acquiring party, give his/her opinion on the legality of any acquisition of assets or share capital before the accomplishment thereof. The application for an opinion shall be filed in writing in the Office of Monopolistic Affairs of the Puerto Rico Department of Justice. The application must disclose every material fact of the intended transaction. At any time, the applicant may be requested to furnish additional information and documents concerning its production and sales or any other necessary documents to determine its economic impact. All information submitted as part of this process will be strictly confidential unless it is required for any judicial action on the part of the state against the applicant.

In no case will an opinion be given on an acquisition that responds to a plan already in operation or is inconsistent with any other provision of this statute. An opinion that the proposed acquisition is lawful, may state, as necessary to keep the immunity referred to below, such conditions as shall reasonably tend to safeguard the effectiveness of this statute and prevent the abuse of the immunity to be granted. Every application filed per this statute and in which the Secretary of Justice is to render an opinion shall be referred to the state Economic Development Administrator and the state Secretary of Economic Development and Commerce, who shall advise the Secretary of Justice in that respect.

A favourable opinion on an acquisition carries immunity against any action on the part of the state for violation of this section. However, the state reserves the right to file any criminal, civil or administrative proceeding when a violation of the conditions of the opinion is committed, or when, post-acquisition, the execution of the acquisition plan or the ensuing activities deviate from the facts presented to the Office of Monopolistic Affairs during the process to obtain the opinion on the acquisition.

Unfavourable opinions, conversely, function solely as administrative guidance for the involved parties as stipulated in their terms. Such opinions hold no legal weight in judicial proceedings and cannot be used to establish statutory violations. Enforcement under this section rests solely with the state.

The Puerto Rico Department of Justice will determine the competitive impact of the investment as part of its review process. The process usually requires defining the market at issue, its geographic boundaries, the competitors within the market, the market concentration of the parties to the transaction before and after the potential merger – by considering methods such as the Herfindahl-Harshman Index (HHI), the current economic factors and trends within the market that may affect competition such as barriers of entry into the market, and their respective abilities before and after the merger to control prices and therefore limit competition.

The Puerto Rico Court of First Instance (state trial court) may prevent, prohibit, enjoin and punish violations of Act 77, and it shall be the duty of the Secretary of Justice to institute proceedings for injunctions or any other proceeding to prevent, prohibit, enjoin and punish such violations, and to obtain such other or further relief as may be appropriate. When a party complained of shall have been duly notified that an action has been filed against it, the court shall proceed, as soon as possible, to the hearing and determination of the case; and pending such proceedings and before final decree, the court may make such temporary restraining orders or prohibition as shall be deemed just in the premises.

The Court of First Instance shall have exclusive jurisdiction to entertain criminal proceedings for violation of this chapter. Disobedience of an order of the court to enforce the provisions of this chapter is punishable as contempt. The person found guilty of said violation may be punished by a fine not exceeding USD25,000, imprisonment not exceeding one year, or by both penalties, at the court’s discretion.

Puerto Rico law does not impose general restrictions on foreign direct investments other than the restrictions on the banking, mortgage banking, and insurance industries, which apply to both foreign and domestic investors. In addition, transactions that may require an HSR filing may not close until the relevant waiting period expires or terminates.

As a general matter, Puerto Rico law does not restrict foreign ownership or impose special restrictions on foreign companies operating in Puerto Rico. However, foreign companies must be authorised to do business in Puerto Rico. As discussed in 1.2 Regulatory Framework for FDI, CFIUS is a US government committee authorised to review certain foreign investment transactions in order to determine the effect of such transactions on the national security of the USA, including Puerto Rico. 

CFIUS operates pursuant to Section 721 of the Defense Production Act of 1950, as amended (50 USC 4565) (Section 721), commonly known as the Exon-Florio Amendment, and the regulations promulgated by the Treasury Department (31 CFR Part 800, et seq), Executive Order 11858, as amended, and Executive Order 14083, as well as pursuant to authority granted to it by the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA).

Pursuant to the Exon-Florio Amendment, the President has broad authority to investigate and prohibit any merger, acquisition or takeover by or with foreign persons which could result in foreign control of persons engaged in interstate commerce, if the President determines that such merger, acquisition or takeover constitutes a threat to US national security. Congress has indicated that the term “national security” is to be interpreted broadly and that the application of the Exon-Florio Amendment should not be limited to any particular industry. The President delegated the authority to make investigations pursuant to the Exon-Florio Amendment to the Committee on Foreign Investment in the US (“CFIUS”), an interagency committee made up of representatives of various executive branch agencies.

CFIUS has jurisdiction to review “covered transactions,” which are transactions in which a foreign person gains “control” over a US business. “Control” is often interpreted as equity, but CFIUS’ definition is far broader: “[t]he term control means the power, direct or indirect, whether or not exercised, through the ownership of a majority or a dominant minority of the total outstanding voting interest in an entity, board representation, proxy voting, a special share, contractual arrangements, formal or informal arrangements to act in concert, or other means, to determine, direct, or decide important matters affecting an entity[.]” Therefore, depending on the ownership structure or other operational control of the contractor, CFIUS could view the operating agreement as conferring control, thus subjecting the transaction to CFIUS jurisdiction.

Currently, the CFIUS notification process is voluntary for most transactions (ie, transactions that do not involve “critical technology”). Parties choose to notify CFIUS of their transactions because the President has broad authority to block transactions (or unwind them if they have already closed) if he or she determines that a transaction threatens US national security, although this is rare. In addition, if the parties do not voluntarily file their transaction, CFIUS can ask the parties to file or self-initiate its own review before or after the closing. If CFIUS clears a transaction, that clearance provides a safe harbour against future CFIUS action related to that transaction. The CFIUS framework provides a timetable for reviewing and clearing transactions that can take up to 90 days to complete.

Under FIRRMA, the first major CFIUS reform in a decade, parties are required to notify CFIUS of certain transactions. On 13 February 2020, two Final Rules issued by CFIUS implementing most of the provisions of FIRRMA became effective. One rule expands CFIUS’ jurisdiction to review certain non-controlling foreign investments in US businesses involving critical technology, critical infrastructure, and sensitive personal data (“TID businesses”) (the “US Business Rule”). The other rule expands CFIUS’ jurisdiction to review certain foreign investments in US real estate (the “Real Estate Rule”). These rules will impact foreign investment – including foreign investments made indirectly via US investors – in US energy, infrastructure, telecom/IT, financial services, technology, healthcare and pharmaceuticals, and real estate sectors.

Under the US Business Rule, non-controlling foreign investment in US businesses that produce, design, test, manufacture, fabricate, or develop critical technology will be subject to CFIUS voluntary filing jurisdiction if a foreign person also acquires information access, board nomination, or decision-making rights as a result of the investment. The US Business Rule authorises CFIUS to review covered investments in US businesses involved in a sensitive subset of critical infrastructure, defined as “covered investment critical infrastructure.” In particular, a covered investment will be subject to CFIUS voluntary filing jurisdiction if the investment is in a US business that owns, operates, manufactures, supplies, or services (each a critical infrastructure “function”) specific types of critical infrastructure.

In addition, CFIUS filings will be required for certain investments in TID businesses involving foreign government investors. CFIUS requires a mandatory filing when a foreign person obtains a “substantial interest” in a US business and a foreign government in turn holds a “substantial interest” in the foreign person. That is, if a foreign person’s investment in a TID business gives that foreign person a 25% or greater direct or indirect voting interest in the TID business, and a foreign government, in turn, holds a 49% direct or indirect interest in the foreign person making the investment, a mandatory declaration is required.

The criteria and analyses relating to the CFIUS approval process in Puerto Rico do not vary from that which applies more broadly in the United States. For more information, see 7.1 Applicable Regulator and Process Overview.

To the extent CFIUS identifies a risk with respect to a covered transaction, CFIUS has the authority to negotiate and impose conditions, which generally vary based on the nature of the risk identified.

To the extent CFIUS identifies a national security risk with respect to a covered transaction that cannot otherwise be mitigated, CFIUS may make a recommendation to the President of the United States with respect to a course of action relating to the transaction. The President has authority to suspend or prohibit the transaction, including requiring divestment by the foreign entity if the transaction has already been consummated.

There are other federal and state regulatory reviews and/or requirements on FDI transactions that are industry-specific. An example of this is the required licensing and authorisation from the Federal Communications Commission (FCC) for foreign investment in US companies within the telecommunications services sector. For the purposes of Puerto Rico law, the banking, mortgage banking and insurance industries are subject to special statutory regimes that may impact FDI transactions.

Entities organised under Puerto Rico laws (“Domestic Entities”) are subject to Puerto Rico income taxes on their worldwide income, subject to certain exemptions, exclusions and deductions.

In the case of entities taxed as corporations (such as corporations or limited liability companies that do not elect to be treated as conduit entities) the applicable corporate income tax rate is 18.5% plus a progressive surtax that can go up to 19% for net taxable income subject to surtax in excess of USD275,000. Long-term capital gains, however, enjoy a preferential income tax rate of 20%.

Entities organised under the laws of a jurisdiction other than Puerto Rico (“Foreign Entities”) are subject to Puerto Rico income taxes only with respect to their income from Puerto Rico sources or effectively connected with a Puerto Rico trade or business. Foreign Entities engaged in business in Puerto Rico and taxed as corporations are subject to the same tax system applicable to Domestic Entities, plus a branch profit tax equal to 10%. The main difference is that the Puerto Rico income tax applies only to their net taxable income that is from Puerto Rico sources or effectively connected with the Puerto Rico trade or business. Foreign entities not engaged in business in Puerto Rico are subject to a 29% tax, which must be withheld at source on the gross amount of any income from Puerto Rico sources (without deductions) by the payor.

As a general rule, any Domestic Entity or Foreign Entity, including corporations, can elect to be treated as conduit entities for Puerto Rico income taxes, even if they only have one member or owner. Conduit entities are not subject to Puerto Rico income taxes. Instead, the owners are responsible for the payment of such income taxes in their personal capacity on their distributable share of the conduit entity’s income and gains.

It is important to note that an LLC organised under the laws of a jurisdiction other than Puerto Rico that is treated as a partnership, disregarded entity or flow-through entity for US federal or foreign income tax purposes is treated by default as a conduit entity for Puerto Rico income tax purposes and cannot elect to be treated as a corporation. A single-member LLC organised under Puerto Rico laws may elect to be treated as a disregarded entity for Puerto Rico income tax purposes only if its sole member is an individual bona fide resident of Puerto Rico. Non-PR LLCs (ie, LLCs organised outside of Puerto Rico) with a single member may elect to be treated as disregarded entities for Puerto Rico income tax purposes.

Domestic Entities and Foreign Entities doing business in Puerto Rico are also subject to other local taxes, such as a gross income tax payable to the municipalities where the business is conducted, municipal excise taxes on construction work, personal and real property taxes, transfer taxes and payroll taxes, among others. Additionally, Puerto Rico imposes an excise tax on certain products imported or manufactured in Puerto Rico and certain business activities and transactions.

Finally, Puerto Rico has implemented a sale and use tax (SUT) system, which applies to the acquisition, use, consumption and importation of taxable items to Puerto Rico. The term “taxable items” generally includes tangible personal property, taxable services and admission rights. The SUT rate is 11.5%, with 10.5% payable to the Puerto Rico Treasury Department (the central government portion) and 1% payable to the corresponding municipality (the municipal portion). Generally, the taxpayer is the person that acquires or uses the taxable item, but if there is a merchant, the merchant is required to collect the SUT and remit it to the Puerto Rico Treasury Department.

It is important to note that if the Domestic Entity or Foreign Entity is covered by a tax exemption decree, the Puerto Rico income tax rate is generally reduced to 4% and certain exemptions will apply in connection with other applicable taxes.

Dividends paid by a Domestic Entity to a non-Puerto Rico resident individual are subject to a 15% income tax withholding. If the dividend is paid to a Foreign Entity not engaged in trade or business in Puerto Rico, the withholding rate is 10%. Interest paid by a Domestic Entity to a US citizen not resident in Puerto Rico is considered non-Puerto Rico source income and, therefore, not subject to Puerto Rico income taxes.

Interest paid to a non-Puerto Rico resident individual who is not a US citizen or foreign entity not engaged in trade or business in Puerto Rico is exempt from withholding if the recipient of the interest is not related to the Puerto Rico payor/borrower. If the Puerto Rico borrower is related (which generally includes direct or indirect control or common ownership, control meaning more than 50%) then a 29% Puerto Rico income tax withholding would apply. 

Puerto Rico is an unincorporated territory of the United States and does not have full sovereignty or authority to enter into treaties with other countries. However, tax treaties entered into by the United States may be made applicable to Puerto Rico as an unincorporated territory of the United States. Therefore, each tax treaty must be reviewed to determine its applicability to Puerto Rico. As a general rule, US income tax treaties currently in place do not extend to Puerto Rico.

As a territory of the United States, there is no tax treaty between Puerto Rico and the United States. There is, instead, an implementation agreement known as the Tax Coordination Agreement between the United States of America and Puerto Rico of 1989, which is designed to facilitate mutual assistance on tax matters, avoid double taxation and prevent the avoidance and evasion of fiscal laws. 

If the Domestic Entity or Foreign Entity is covered by a tax exemption decree, certain exemptions may apply to the payment of dividends and interest from income covered by the decree.

Puerto Rico promotes and encourages foreign investment through various tax incentives. The Puerto Rico Incentive Code provides tax incentives, tax credits, and other benefits to certain businesses, including, manufacturing, tourism, green energy, film, private equity funds and other financial activities, agricultural, and certain export services and trade commerce activities, among others. Analysing whether the activities may qualify for incentives is the first step when structuring an investment in Puerto Rico.

A foreign investment structure via an asset deal generally provides a better tax result for the investor/buyer because it allows for a step-up in the basis of the assets acquired, which in turn results in a higher depreciation/amortisation deduction going forward. The acquisition of the membership interest of an entity taxed as a conduit entity may provide the same tax result to the foreign investor/buyer and generally results in a more tax-efficient structure for the seller.

Puerto Rico does not allow for the filing of consolidated returns. Notwithstanding, taxpayers may enjoy the benefits of consolidation by investing through various flow-through/conduit entities wholly owned by a corporation/parent company. This way, flow-through gains and losses may be consolidated in the parent company’s corporate income tax return.

Capital gains from the sale by a non-Puerto Rico resident or Foreign Entity of shares in an entity taxed as a corporation is treated as non-Puerto Rico source income exempt from Puerto Rico income taxes, regardless of the assets held by the Puerto Rico corporation. The capital gain from the sale of an ownership interest in an entity taxed as a conduit interest, however, may be subject to Puerto Rico income taxes if the conduit entity was engaged in trade or business in Puerto Rico and the seller is a non-Puerto Rico resident individual that is not a US citizen, or a Foreign Entity not engaged in trade or business in Puerto Rico.

Capital gains from the sale of real property, on the other hand, constitute Puerto Rico source income and, therefore, a non-Puerto Rico resident or Foreign Entity will be subject to Puerto Rico income taxes on such gains. The buyer in the transaction that generates a Puerto Rico source capital gain (ie, real estate, conduit entity interest) is required to withhold the applicable Puerto Rico income tax and remit it to the Puerto Rico Treasury Department.

Investments in Domestic Entities that are taxed as conduit entities or in any other flow-through Puerto Rico business are generally made through a Domestic Entity taxed as a corporation. Such an investment vehicle serves as a “blocker” for the foreign investor as it eliminates the requirement of the foreign investor to file Puerto Rico income tax returns. The “blocker” will file Puerto Rico tax returns, pay the applicable Puerto Rico income taxes, and distribute its earnings and profits to the foreign investor, net of the applicable Puerto Rico income tax withholding.

Additionally, on an exit, the foreign investor may sell the shares or ownership interest of the corporation or Domestic Entity and be exempt from Puerto Rico income taxes. The “blocker” may not necessarily result in a lower Puerto Rico income tax rate but simplifies the applicable Puerto Rico tax return compliance. If Puerto Rico operations are covered by a tax exemption decree, the “blocker” treatment is the preferred option because the blocker pays a fixed 4% Puerto Rico income tax rate and may distribute the earnings and profits without any Puerto Rico income taxes.

The Puerto Rico Internal Revenue Code of 2011, as amended (the “PR Code”), contains several rules designed to prevent tax avoidance or abuse. The Secretary of the Treasury has the authority to impute or reassign items of income and expenses to properly reflect the tax liability of the parties. In this regard, Puerto Rico follows the US federal transfer pricing rules. For example, deductions for payments to related Foreign Entities that are not engaged in trade or business in Puerto Rico are limited to 49%, unless a certification that a transfer pricing study prepared in accordance with US federal tax rules was obtained to confirm the amount of the payments. Also, as mentioned above, interest paid to foreign-related entities is subject to a 29% withholding tax. Finally, the PR Code has specific rules designed to accelerate the tax on dividends by treating certain transactions with foreign affiliates as deemed dividends.

The PR Code also has several rules disallowing certain expenses deemed or presumed abusive, such as denying tax deductions for certain payments for which an informative return was not filed with the Puerto Rico Treasury Department. Beyond these specific rules, the Puerto Rico Treasury Department may also invoke judicially developed doctrines such as economic substance, substance-over-form, and step transaction. These doctrines empower the department to disregard the form or steps of certain transactions in order to establish the appropriate tax treatment.

It is important to note that Puerto Rico is not an “employment at will” jurisdiction and the termination of employees is highly regulated.

Puerto Rico’s labour and employment relations are governed by a mix of US federal and Puerto Rico laws and regulations. Some of the areas covered by the applicable labour and employment legal regime include:

• wage and hour;
• hiring and termination of employees;
• employment discrimination, retaliation and workplace harassment;
• leaves of absence;
• labour and union laws; and
• employee benefits.

Generally, labour relations in Puerto Rico are governed by the National Labor Relations Act (NLRA). As in the United States, union membership in the Puerto Rico private sector has been significantly declining during the past fifty years. Currently, the percentage of private sector bargained employees stands at approximately 7%.

Foreign investors seeking to establish a presence in Puerto Rico may need to navigate US immigration laws. Visa categories, such as the E-2 Treaty Investor Visa or the EB-5 Immigrant Investor Program, could be relevant depending on the nature and scale of the investment.

Under Puerto Rico law, non-exempt employees must be paid their wages in intervals that do not exceed 15 days. Non-exempt employees are guaranteed statutory benefits such as:

• daily and weekly overtime;
• vacation and sick time;
• premium pay for work performed during the statutory meal period; and
• premium pay for work performed during the seventh consecutive day of work.

Further, employees are required to retain statutory employment insurances such as government-provided workers’ comp and unemployment insurance and short-term non-occupational disability insurance. Benefits such as health insurance, and pension plans such as 401(k)s, are not required by local law but are common.

In an asset purchase scenario, buyers of an ongoing business regularly offer the seller’s employees comparable compensation and benefits to those previously offered by the seller. In this scenario, a significant reduction in compensation and benefits may be deemed a constructive dismissal under Puerto Rico’s Wrongful Termination Act, Act No 80-1976 (“Act 80”), which may trigger the employer’s obligation to pay the discharge indemnity provided in the Act if the termination was executed without “just cause”, as the term is defined in the Wrongful Termination Act.

Act 80 imposes on employers the payment of a discharge indemnity if the involuntary termination or discharge of an employee is without “just cause”, as defined in the statute. Act 80 provides that any person employed for an indefinite period and dismissed without “just cause” will be entitled to receive from his or her employer an indemnification that will depend upon the employee’s seniority with the employer. Employees do not have a mandatory right to their employment when their employer is acquired. However, employees who experience an employment loss as the result of an asset or stock purchase, merger or any other transaction, will be entitled to receive the mentioned discharge indemnity if they are terminated without “just cause”.

Act 80’s definition of “just cause” includes terminations that result from:

• a full, temporary, or partial closing of the operations of the establishment; and
• downsizing made necessary by a reduction in the foreseen or prevailing volume of production, sales, or profits at the time of the discharge or for the purpose of increasing the establishment’s competitiveness or productivity.

Further, offering a transferred employee a compensation and benefits package that is significantly lower than the one offered by the buyer may constitute a constructive dismissal under Act 80 and may trigger payment of the discharge indemnity provided therein.

As a US jurisdiction, Puerto Rico is generally subject to the same laws, rules and regulations regarding intellectual property that apply more broadly in the US as a nation.

Puerto Rico has a double layer of intellectual property protection. As part of the United States, it is subject to federal laws on patents, copyrights, and trademarks, among others. As a state-like jurisdiction within the United States, it has its own complementary regime of protection for trade marks, moral rights, and trade secrets (but not patents, which are regulated only at the federal level). Local laws and regulations are modelled on, and similar to, the federal counterparts and can provide additional benefits. 

Puerto Rico lacks a comprehensive data protection law or a government body responsible for supervising the collection, use and dissemination of personal data of individuals except for what is provided under specific and limited statutes and regulations. In addition to FTC enforcement and the federal laws that govern the collection of personal information in certain sectors, relevant Puerto Rico data protection laws and regulations include:

• Act No 38 of 3 May 2016, known as the Law to Prohibit Requesting Personal Information in Transactions with Credit or Debit Cards;
• Act No 234 of 19 December 2014, known as the Law for the Disposal of Personal Information of Consumers;
• Act No 39 of 24 January 2012, known as the Privacy Policy Notification Act;
• Act No 111 of 7 September 2005, known as the Citizen Information on Data Banks Security Act;
• Act No 210 of 28 August 2003, known as the Telemarketing Fraud Prevention Act;
• Regulation No 8568 to Implement the Publication of the Privacy Policy in the Management of Personal and Private Data of Citizens, as compiled in Puerto Rico, promulgated by Puerto Rico Department of Consumer Affairs on 27 February 2015; and
• Regulation No 7479 promulgated by the Telecommunications Regulatory Board of Puerto Rico on 12 March 2012, known as the Regulation on the Registry of Persons who do not Want Advertisements Via Phone.

Because of the nature of these laws and regulations, they can have extraterritorial scope. Penalties under these laws and regulations vary, but include civil penalties levied on a per-violation basis. Enforcement is still evolving and varies depending on the law or regulation at issue.