Enter to open, tab to navigate, enter to select
Doing Business in Bolivia: Overview
Practical Law Country Q&A 5-501-0384 (Approx. 18 pages)
Doing Business in Bolivia: Overview
by Pablo Rojas, C.R. & F. Rojas-Abogados (Lex Mundi Member Firm)
| Law stated as at 01 Apr 2013 • Bolivia |
A Q&A guide to doing business in Bolivia.
This Q&A gives an overview of key recent developments affecting doing business in Bolivia as well as an introduction to the legal system; foreign investment, including restrictions, currency regulations and incentives; and business vehicles and their relevant restrictions and liabilities. The article also summarises the laws regulating employment relationships, including redundancies and mass layoffs, and provides short overviews on competition law; data protection; and product liability and safety. In addition, there are comprehensive summaries on taxation and tax residency; and intellectual property rights over patents, trade marks, registered and unregistered designs.
To compare answers across multiple jurisdictions, visit the Doing business in... Country Q&A Tool.
This article is part of the multi-jurisdictional guide to doing business worldwide. For a full list of contents, please visit www.practicallaw.com/dbi-mjg.
Overview
In October 2012 and for the first time since the 1920s, Bolivia returned to the international bond market by selling US$500 million of a ten-year debt. Average consumer price inflation for 2012 was 4.5%, less than half the rate of 2011 (9.9%). The Bolivian economy has maintained a growth above 5% per year in 2011-12.
The drawback of Bolivia's positive economic outlook has been the nationalisation of previously owned state companies (Bolivia privatised almost all state owned companies during the 1990s). In December 2012 and February 2013, Bolivian President Evo Morales announced the nationalisation of electricity and airport management companies owned by Spanish companies.
Foreign investment
3. Are there any restrictions on foreign investment (including authorisations required by central or local government)?
Regulated industries
Local and foreign investors have the same rights and obligations. They may be subject to regulation if they are involved in any of the following industries:
- Mining.
- Oil.
- Gas.
- Electricity.
- Transport.
- Telecommunications.
- Gaming.
- Agribusiness.
Other than in these industries, there are no restrictions on foreign shareholders.
All foreign companies operating in the oil and gas industry on behalf of the state are under the jurisdiction of the state, and its laws and authorities. They cannot invoke foreign international arbitration or resort to diplomatic claims.
Border security zone
Under the Bolivian Constitution, there is a border security zone, 50 kilometres from the borderline. A foreign person cannot acquire (or own title to) property in this space, including waters, soil and subsoil, either:
- Individual or jointly.
- Directly or indirectly.
If this prohibition is breached, possession or ownership of the affected property will revert back to the state. However, in cases of national necessity, a foreign person can acquire property in this space, if there is a law to this effect which is approved by two-thirds of Congress.
There is no specific exchange control or currency regulation in Bolivia.
However, Supreme Decree 1423 imposes a tax on the sale of foreign currencies. Financial banking and non-banking entities pay 0.7% on the sale of foreign currency and Foreign Exchange Offices are now taxed with a 50% of tax on income. Financial entities in which the state acts as a majority holder are exempt from the sales tax. This includes the Bolivian Central Bank.
The physical entry or exit of amounts greater than US$10,000 must to be declared through a signed affidavit.
Grants are not available. However, under the Investment Law (September 1993):
- Local and foreign investment is encouraged.
- Local and foreign investors are given the same rights and obligations.
- Free foreign currency exchange is made available to foreign investors.
- Local and foreign investors are allowed to settle their disputes through Bolivian or foreign arbitration proceedings.
- Foreign companies are allowed to acquire all of the assets of local companies.
Business vehicles
The most common form of business vehicle used by foreign companies is a subsidiary. A subsidiary has a flexible structure and limited corporate government requirements. Subsidiaries can take the form of a partnership or corporation.
8. In relation to the most common form of corporate business vehicle used by foreign companies in your jurisdiction, what are the main registration and reporting requirements?
Registration formalities
The incorporation of a corporation (sociedad anónima) requires a minimum of three shareholders. The shareholders can be local or foreign companies or individuals. If a shareholder is an individual, the following information must be submitted to the Commerce Registry:
- Name.
- Age.
- Marital status.
- Nationality.
- Profession.
- Domicile.
- Identification number.
If the shareholder is a company, a certificate of good standing is required stating its:
- Purpose.
- Nationality.
- Domicile.
A power of attorney allowing an individual to incorporate a company can only be granted to a person who is resident in Bolivia. The name and activities of the company must be determined before its incorporation.
Rights attaching to shares
Restrictions on rights attaching to shares. There are no restrictions on the rights that can attach to shares.
Automatic rights attaching to shares. Ordinary shares give the right to vote in shareholder meetings. Preferential shares provide the following rights or benefits:
- Higher dividends.
- During liquidation of a company, preferential shares are reimbursed first.
- Minority rights granted by the Bolivian Commerce Code 1977.
9. In relation to the most common form of corporate business vehicle used by foreign companies in your jurisdiction, outline the management structure and key liability issues.
Management structure
Before a company's incorporation, a controller and his alternate must be appointed. They must both be domiciled in Bolivia. A board of directors is also required, which must include:
- A president.
- A vice-president.
- A secretary.
- At least one other director.
Management restrictions
There are no restrictions other than the visa requirements for foreign managers.
Directors' and officers' liability
A director can be held jointly and severally liable to the company, its shareholders and third parties for (Article 166, Commerce Code):
- Any dishonest or imprudent acts.
- Violating the law, the company's bye-laws or regulations.
- Any damage caused by his negligent or fraudulent acts.
- Failing to distribute dividends.
Employment
The following laws regulate labour relations in Bolivia:
- The Bolivian Constitution.
- The Labour Law of 1942 (Labour Law).
- The Social Security Code.
- Pensions Law 065 of December 2010.
- Decrees that amend the Labour Law and Social Security Code.
These laws apply to a local or foreign employee of a company incorporated in Bolivia. The laws can apply to a foreign employee of a company incorporated abroad and hired as a consultant in Bolivia. This is provided Bolivian law is specified as applicable in the employment contract.
If there is a dispute, employees and employers must first try to resolve the issue. This is using a conciliation process through the Labour Ministry. If this fails, the parties are then free to initiate proceedings in the labour courts.
11. Is a written contract of employment required? If so, what main terms must be included in it? Do any implied terms and/or collective agreements apply to the employment relationship?
Foreign employees do not require work permits but their work agreement must be registered with the Bolivian labour authorities, within 90 days after being signed. They need a special purpose visa to sign the agreement and then a one-year residence visa to carry it out.
Special purpose visa
This visa is required by anyone travelling to Bolivia for any purpose other than tourism, including:
- Work purposes.
- Business.
- Voluntary work.
- Seminars.
- Adoptions.
- Marriages.
The special purpose visa may be obtained from a Bolivian Consulate, and is valid for 30 days. Once In Bolivia, an extension of 60 days can be applied for. Processing time should be 2-3 working days.
Resident visa
The applicant must travel to Bolivia to apply for a resident visa. An application for a resident visa is made before the Ministry of Immigration in Bolivia and takes about 30 to 45 days to be approved once filed. The application consists of information and documentation provided by the applicant and sponsoring company in Bolivia. It is granted for one year and on renewal for two years. It covers the immediate family of the beneficiary of the visa. The cost for obtaining a resident visa is US$300 but this does not include any legal fees.
The applicant must renew his special purpose visa once, before filing for a resident visa. During the renewal of the special purpose visa and while processing the resident visa, the Immigration Authorities will retain the passport. The passport may be returned if one needs to travel during the completion of these steps. This will affect the processing times.
Family members may arrive as tourists to Bolivia. They will have to comply with regulations regarding tourist visitors and under this status will be granted up to 90 days to remain in Bolivia.
The following documents are required for obtainment of a Resident Visa:
- Passport copies. Photocopies of all pages of the applicant’s passport.
- Employment contract.
- Police certificate issued Interpol in Bolivia. This document must be issued for applicants and his dependants under 18.
- Good health certificate. This is needed for each applicant and is issued by a certified Bolivian physician.
- Original marriage certificate. This is needed otherwise the authorities will not issue a spouse’s visa.
- Original birth certificates. This is needed for accompanying dependants (children).
- Proof of residence. A scanned copy of the Leasing Agreement, water and electicity invoice, and a map of where the residence is located should be supplied.
- Photographs. (4x4) (6 per applicant).
13. Are employees entitled to management representation and/or to be consulted in relation to corporate transactions (such as redundancies and disposals)?
The following provisions summarise the rules governing the termination of individual employment contracts (Labour Law and Supreme Decree 28700):
- An employment contract can only be terminated if an employee does any of the following:
- intentionally damages any equipment in the workplace;
- reveals industrial secrets;
- fails to take appropriate action or fails to use due care in a manner that negatively affects industrial safety or security;
- unjustifiably fails to attend work for more than three days;
- fails totally or partially to complete the work agreement;
- voluntarily retires;
- commits robbery.
If a worker is dismissed for any of the above reasons, the employer must pay, within 15 days of the date of dismissal, all corresponding severance and social benefits due to the worker. - If a worker is dismissed for another reason he can accept his severance pay and social benefits and leave the company. He can also apply to the Minister of Labour to be reinstated to the position held before his dismissal. The Minister of Labour has discretion to impose fines for any breach of the new labour laws.
Tax
17. What income tax and social security contributions must be paid by the employee and the employer during the employment relationship?
Tax resident employees
An individual resident in Bolivia is liable to pay income tax at the rate of 13% of his salary. Employees must also make compulsory social security contributions of 12.71% of their gross salary as follows:
- 10% personal foreseeable risk account.
- 0.5% joint contribution.
- 1.71% joint risk prime.
- 0.5% pension fund commission.
This is paid to cover the employee against long term risk benefits, including:
- Retirement (at the age of 58 for men and 50 for women).
- Disability.
- Funeral expenses.
- Injuries arising from occupational hazards.
Non-tax resident employees
Foreign employees are subject to the same taxes as local employees. They are exempt from certain social security contributions if they can show that they have made similar contributions in another jurisdiction (certificado de exención que tenga las mismas prestaciones si no son iguales deben).
Employers
The employer must deduct income tax from the employee's salary and submit it to the National Service of Internal Revenue. Employers must make compulsory social security contributions of 3% of the employee's gross salary and also pay a joint risk prime of 1.7%. There are a number of other funds that cover the employee against short-term risks:
- Health fund. This covers illness, maternity and short-term occupational hazards. The employer's contribution is 10% of the employee's gross salary.
- Social fund. This covers the construction, enlargement and repair of schools and hospitals. The employer's contribution is 2% of the employee's gross salary.
- Labour formation and training fund. This is optional and covers staff education and training. The employer's contribution is usually 1% of their gross salary.
Tax resident business
For business entities, tax residency in Bolivia is the place where the business is domiciled and registered. A company's domicile is the place stated in its articles of incorporation. In the absence of this information, a company's domicile is its principal place of business (Article 55, Bolivian Civil Code).
19. What are the main taxes that potentially apply to a business vehicle subject to tax in your jurisdiction (including tax rates)?
A company incorporated or tax resident in Bolivia must pay taxes on all its Bolivian source income. Income from a non-Bolivian source is not taxable.
Value added tax (VAT)
The standard rate of VAT is 13% and it applies to the sale of:
- All movable goods located in the country.
- Work contracts.
- Imports.
Withholding tax
A 12.5% withholding tax is payable when Bolivian source income is paid to foreign beneficiaries. This is subject to the provisions of any applicable double tax treaty (see Question 25).
Transactions tax
The standard rate is 3% and applies to the transfer of ownership of:
- Movable assets.
- Property.
- Rights resulting from the exercise of a trade, industry, profession or business, among other things.
The purchase of shares, debentures, securities or any credit documents are exempt.
20. How are the following taxed:
- Dividends paid to foreign corporate shareholders?
- Dividends received from foreign companies?
- Interest paid to foreign corporate shareholders?
- Intellectual property (IP) royalties paid to foreign corporate shareholders?
Dividends paid
Tax must be withheld at a rate of 12.5%, subject to the provisions of any applicable double tax treaty (see Question 25).
IP royalties paid
IP royalties are treated in the same way as dividends and interest (see above, Dividends paid).
22. Must the profits of a foreign subsidiary be imputed to a parent company that is tax resident in your jurisdiction (controlled foreign company rules)?
Capital goods (raw materials used to produce finished products) are subject to the following import taxes:
- 13% VAT.
- 3% transactions tax.
- 0.5% warehouse fee.
- 1.5% custom house agent's fee.
Imports of non-capital goods are subject to the above taxes and a 10% import duty. In addition, passenger vehicles and heavy-load vehicles are subject to a 10% special consumption tax. Other vehicles are subject to tax at the rate of 18%. All tobacco-related products are subject to a 50% tax. VAT and transaction taxes are the only taxes payable on exported goods, but they are recoverable.
Competition
26. Are restrictive agreements and practices regulated by competition law? Is unilateral (or single-firm) conduct regulated by competition law?
Competition authority
When resolving competition issues, provisions included in the following apply:
- Constitution.
- Commerce Code.
- Criminal Code.
- Law 1600.
- Supreme Decree 29519.
- Supreme Decree 0071.
- Resolutions that refer to unfair trade.
These provisions apply both to local and foreign investors.
The main competition authority in Bolivia is the Company Regulator (www.autoridadempresas.gob.bo/).
Restrictive agreements and practices
Article 314 of the Bolivian Constitution prohibits private monopolies and oligopolies. All forms of association aiming for total control and exclusivity in the production and commercialisation of goods and services are prohibited.
A set of regulatory statutes known as Law 1600 is aimed at regulating competition issues in certain industries, such as:
- Telecommunications.
- Banking.
- Insurance.
- Transportation.
- Electricity.
- Hydrocarbons.
Title V of Law 1600 applies when resolving competition issues in regulated industries.
Currently, there is no comprehensive merger control system in Bolivia.
Newly created, sector-specific supervisory and control authorities administer and enforce specific regulations. These apply to regulated industries such as:
- Electricity.
- Hydrocarbons.
- Telecommunications
- Securities.
- Insurance.
Mergers of Bolivian corporations are also subject to the Bolivian Commercial Code, which requires notice of a proposed transaction to be given to creditors and shareholders. The creditors and shareholders can lodge objections through the judicial process before a civil judge. There is a market share filing threshold for mergers in the electricity sector. Mergers or acquisitions in this sector that provide a market share of greater than 36% for the company must be reported. Other regulated sectors do not have filing thresholds and must contact the relevant regulatory authorities before a merger.
Bolivian competition authorities typically apply a high level of scrutiny to domestic acquisitions in regulated industries. Bolivian authorities are less concerned with foreign-to foreign mergers as Bolivian statues have no arm's length jurisdiction.
Intellectual property
Patents
Nature of right. For an invention to be patentable, it must be all of the following:
- New.
- Involve an inventive step.
- Capable of industrial application.
- Not be specifically excluded from protection as a patent.
The owner has the right to use a patented invention and prevent unauthorised third parties from (Article 52, Decision 486, Andean Pact):
- Making, offering for sale, selling or using a patented product, or importing it for these purposes.
- Making, offering for sale, selling or using a product obtained directly by a patented process.
Protection. To be protected, patents must be registered with the Bolivian Patent Office.
Enforcement. A patent owner can enforce his rights through an action for re-vindication. This means that a patent owner can claim affected rights from the competent national authority and request:
- The transfer of the applications being processed or the rights being granted.
- Recognition of those rights as co-applicant or co-owner when persons with no rights obtain or apply for patents or registration of industrial designs.
Compensation for damages can be requested in the same claim, if permitted by the domestic legislation of the member country (Article 237, Decision 486). A patent owner can also enforce his rights through the Bolivian criminal courts (Article 363, Bolivian Penal Code).
Length of protection. Protection lasts for 20 years, subject to the payment of renewal fees. An annual maintenance fee must also be paid.
Trade marks
Nature of right. The mark must be capable of graphic representation and of distinguishing the goods or services of one undertaking from another. The owner of a registered trade mark has the exclusive right to use it and prevent all unauthorised third parties from doing any of the following (Articles 153 to 155, Decision 486):
- Using or affixing the trade mark or a similar or identical distinguishing sign to products in respect of which the trade mark is registered or to products connected with the services for which the trade mark is registered.
- Removing or changing the trade mark once it has been placed on, or affixed to products.
- Manufacturing, selling or storing materials that reproduce or contain the trade mark.
- Using, in the course of trade, identical or similar signs to the trade mark for goods or services, where the use would be likely to result in confusion or a mistaken association with the registered owner.
- Using, in the course of trade, identical or similar signs to a well-known trade mark with respect to any goods or services where the use could unjustly damage the registered owner's economic or commercial interests.
- Making public use of identical or similar signs to a well-known trade mark where the use could weaken the distinctive force or value of that trade mark for commercial or advertising purposes or take unfair advantage of its prestige.
Protection. To be protected, trade marks must be registered with the Bolivian Trade Mark Registry. Unregistered trade marks can be protected by an action for passing off, but the limitations of this action make registration advisable.
Enforcement. A trade mark owner can enforce his rights through an action before the competent authority (Chapter I title XV, Decision 486). A trade mark owner can also enforce his rights under Article 362 of the Penal Code.
Length of protection. Protection lasts for an initial period of ten years. This is renewable indefinitely for further ten-year periods.
Registered designs
Nature of right. The design must be all of the following:
- Relate to the appearance of all or part of a product resulting from certain features of the product or its ornamentation.
- New.
- Have individual character.
The owner has the right to use and prevent unauthorised third parties from using, manufacturing, importing, offering for sale, marketing, or making commercial use of products that incorporate or reproduce the industrial design (Article 129, Decision 486).
Protection. To be protected, designs must be registered with the Patent Office. If already registered, a priority certificate must be enclosed in the registration application.
Enforcement. See above, Patents.
Length of protection. Protection lasts for an initial period of ten years and is renewable at ten-year intervals.
Unregistered designs
Nature of right. The design must be original and relate to shape or configuration.
The owner has the right to use and prevent unauthorised third parties from using, manufacturing, importing, offering for sale, marketing, or making commercial use of the design (Article 129, Decision 486).
Protection. To be protected, designs must be registered with the Patent Office.
Enforcement. See above, Patents.
Length of protection. Protection lasts for a maximum of ten years, subject to renewal at ten-year intervals.
Copyright
Nature of right. Copyright is possible for:
- Original literature (including computer software).
- Dramatic, musical and artistic works.
- Sound recordings.
- Films.
- Broadcasts.
- Cable programmes.
- The typographical arrangement of published works.
The owner of a copyright can oppose any modification of his registered work.
How protected. Copyright is protected by a resolution issued by the Bolivian Copyright Registry.
How enforced. Copyright is enforced through the protection provided by Articles 14 to 17 and Articles 65 to 70 of the Bolivian Copyright Law 1322.
Length of protection. Protection lasts for the life of the author plus 50 years.
Confidential information
Nature of right. Information that is confidential in nature and was initially communicated in circumstances owing an obligation of confidence can be protected. The right is entitled to be protected and enforced for as long as the information remains confidential and there is a legitimate interest that requires protection.
Protection. There are no formalities required for the protection of industrial secrets. Employees or managers are prohibited from revealing trade secrets to third parties and Decision 486 grants express protection to trade secrets. In addition, Articles 257 and 267 to 269 prohibit disloyal competition.
Enforcement. Confidential information is enforced by filing an action for breach of confidence (based on contractual or equitable principles).
Length of protection. There is no defined term.
Marketing agreements
Agency
Agency agreements are regulated by the Commerce Code and must be registered with the Commerce Registry.
Distribution
Distribution agreements are also regulated by the Commerce Code and must be registered with the Commerce Registry.
Franchising
The only limitation is tax-related. Royalties remitted abroad are subject to a 12.5% withholding tax (see Question 19, Withholding tax).
Data protection
Product liability
Product liability is a tort (hechos ilícitos) and is regulated by the Bolivian Civil Code. User and consumer rights are regulated by Supreme Decree No. 0065 2009.
Under the Civil Code "illicit acts" specifically cover product liability. Illicit acts are extra-contractual responsibilities. A person is liable for any wilful or negligent act that causes damage. Accordingly, product liability is based on intent and negligence (Article 984, Civil Code).
Joint liability applies if there is more than one person responsible (Article 999, Civil Code). A person who has indemnified the total amount of damages is entitled to make a claim against the others responsible. If it is not possible to determine the amount of damages owed by each person, the total amount of damages owed is divided equally.
Any product that threatens the health or life of people must be recalled from the market. If damage has been caused as a result of a failure to recall a product, the party affected can file a case for damages.
The burden of proof lies with the victim who has suffered damages as a result of a wilful or negligent act. Causation between a person's acts and the damage caused must be established.
Main business organisations
National Chamber of Commerce (Cámara Nacional de Comercio)
Main activities. Organization representing the private sector of trade and services in Bolivia.
Online resources
Bolivian Information Agency (Agencia Boliviana de Información) (ABI)
W www.abi.bo (Spanish)
Description. Information (News and publication of Government Bids Gazette) provided by the Ministry of Communications.
Contributor profiles
Pablo Rojas, Partner
C.R. & F. Rojas-Abogados (Lex Mundi Member Firm)
T +591 22 313737
F +591 22 313737
E [email protected]
W www.rojas-lawfirm.com
Qualified. Bolivia
Areas of practice. Corporate and business; mining; energy.