PORTFOLIO OF FOREIGN INVESTMENT OPPORTUNITIES IN CUBA 2016-2017. SUMMARY, ANALYSIS AND COMMENTS
José María Camallonga
Lawyer. Partner and Director of International Operations
Renato A. Landeira
Lawyer. Senior Associate
LUPICINIO INTERNATIONAL LAW FIRM
Madrid, 1st December 2016. – At the recent Havana International Fair (FIHAV), the Ministry of Foreign Investment and Economic Cooperation of the Republic of Cuba (MINCEX), published the latest edition of the Portfolio of Foreign Investment Opportunities, a document which lists the different sectors prioritized by the Cuban state for cross-border investors. In this Portfolio, MINCEX considers foreign investment in certain economic activities as “active and fundamental elements for the growth of the country”, however, it should be understood that this does not mean that any sector not mentioned in the Portfolio would be discarded a priori for foreign investment.
Generally, the document prioritizes the Cuban Government´s interest in national production, as oppose to net importation of products and services. The objective is, therefore, to direct foreign investment at replacing imports with exports in strategically chosen sectors, specifically targeting less economically developed areas in order to increase the efficiency of the Cuban productivity chain.
Thus, at the end of 2015, the Ministry of Tourism of Cuba authorized 101 foreign investment projects, followed by twenty-five authorized by the Ministry of Energy and Mining, nineteen by the Ministry of Industry, and fifteen by the Group of Business Administration-Cuba Import-Export (GAE-CIMEX). Furthermore, ten projects were approved by the Ministry of Food and of Transport, nine by the Ministry of Construction, and various other projects by several Cuban institutions.
The forms of foreign investment have transformed little, but at the same time there have been significant changes, with the number of International Economic Association Agreements (AEI) growing from 45% of total foreign investments in 2014 to 47% in 2015. The Joint Venture Company shifted from 50% to 48%, while 100%-Foreign Owned Companies continue to be very much the minority, moving from 5% in 2014 to 4% at the latest reading. The limited presence of the latter model, aimed at Cuban business individuals and Cuban subsidiaries or branches of foreign organizations, has led to Cuba prioritizing this model through industrial infrastructure development projects in the energy sector via special turnkey contracts for engineering, procurement and construction (IPC), engineering, procurement, construction and management (EPCM), build, own, operate, transfer (BOOT), and build, transfer and operation (BTO) agreements.
Thus, the 2016-2017 Portfolio compiles 71 investments in Joint Venture Companies -42.5%; 63 in AEI contracts -37.7%; 16 through productive administration agreements and financial management services contracts -9.5%- each; and 7 in 100%-Foreign Owned Companies -5.3%-.
The opportunities for foreign investment have increased from the 128 presented in the 2015 portfolio to the 167 in this new edition. By sector, the projects in the Mariel Special Development Zone have gone from 20 to 24, in the agricultural, forestry and food sector from 22 to 53; and there are 53 new projects in the sugar sector – none of which were offered in the former Portfolio. In the Industry sector, the number of projects has gone from 12 to 8, and in the tourism sector from 14 to 15. The energy sector maintains the same number of projects, ten, as do the health and audiovisual sector, with three each, and business, with four, which in fact are not the same as the four put forward in the 2015 Portfolio. In the mining sector, there are now 12 projects as oppose to 15, and the transport sector also dropped from 10 to 6. As for the pharmaceutical and biological industry, it went from having 1 project to 2 and in the construction sector, a shift from 14 to 9. The hydraulic sector presents five new projects not found in the old Portfolio, which did not present any from this significant sector.
In this new edition of the Portfolio, there are three new sectors which, until now, were not open to foreign investment: telecommunications, information and communication technology and postal services; banking and finance; and hydraulic. Although there are no specific projects proposed within the first two sectors, the new Portfolio does present five opportunities in the evaluation of drinking water, the production of plastics, the modernization of workshops for hydraulic resources, and the management of pipe production.
The two new sectors in the 2015 Portfolio, wholesale trade and the sanitary health sector, continue in this latest Portfolio. The wholesale trade sector has four projects; the marketing of hardware objects, the logistics of refrigerated foods, the marketing of fabrics and the importation of replacement vehicle parts. The sanitary health sector continues with the same three projects presented in the 2015 Portfolio; the creation of a hemodialysis service available to patients who are on holiday on the island, the construction of a quality of life center, and of an international medical clinic for sport, control and anti-doping education.
- Opportunities in the Mariel Special Development Zone
The Mariel Special Development Zone (ZED), situated some thirty kilometers to the west of Havana, is considering twenty four investment projects, twenty one of which –compared to twelve in 2015– will use the JVC model, and three will use the 100%-Foreign Owned Company.
Amongst other things, the projects address the production and marketing of taps – an estimated investment of $15 million -, air-conditioning equipment – $15 million -, the production of lightweight cars, silverware and glass containers – $10 million and $70 million respectively -, industrial footwear – $23 million -, and the production and marketing of disposable medical equipment. It also includes the production of marble – $5 million -, and a refined soya bean oil factory – $149 million-. In the medical sector, there are thirteen projects open to foreign investment in the production of medicine – namely peptides, contraceptives, antiretroviral drugs, cephalosporins, carbapenems, among others –, and a biopharmaceutical operating center with an estimated investment of $60 million. Lastly, the Mariel ZED is considering the proposal of the construction of a wholesale space for industrial and food products without specifying the estimate of the investment.
- Food and Agriculture
Agriculture constitutes plays a very active part in the Cuban economy, given that 13.2% of the active working population is involved in this sector. With this is in mind, the State requires foreign investment for the development of a complete production cycle in 53 projects listed in the 2016-2017 Portfolio. This is the sector that is open to the most foreign investment projects, of which twenty will use AEIs, eighteen will use JVCs and fifteen shall be governed by Productive Administration Agreements.
Currently, the country relies on 6.2 million hectares of agricultural land, of which 2.7 million are already cultivated. The aim of these Cuban institutions is to increase current productivity through the renovation of systems and through new investments. Foreign investors, therefore, are faced with a potential domestic market worth nearly $2,000 million a year, and the opportunity to export from Cuba to other Caribbean markets. Yet, the peculiarities of Cuban legislation on this land prevents it from being transferred as property, and the Cuban party with which the foreign party is associated will ultimately have usufruct rights over the land.
The food and agricultural industry policy for foreign investment is aimed at the production of fruit – three projects for the production of citrus fruits and fruit trees with an estimated investment of $54.5, $7.3 and $6.9 million respectively-; bananas – $2.3 million-; green vegetables – six projects all between $4 and $15 million of investments-; rice – $37 million-; grains and cereals; cocoa – $9.2 million-; coffee -$5 million-; pork – five projects totaling $58.3 million-; buffalo, cow and goats milk – $13.9, $1.9 and $7.5 respectively-; poultry – ten projects on the production and marketing of chicken meat with a total investment estimate of $33.5 million-; ostrich meat and duck meat – $4 million each-; peanuts – $70.5 million-; pine resin – $4.4 million-; flowers – $1.3 million -; coal – two projects of $1.7 and $4.7 million-; the distribution of meat – $27 million-; grain production – two projects of $7 and $3.8 million-; quail´s eggs – $7 million-; yucca flour – $2.5 million-; shrimp farming, aquaculture and Mari culture – $10.1, $17.3 and $1.7 million-; cereals – $15.3 million-. Lastly, it proposes investments in refrigeration and boilers – $3.5 million-; and the production and distribution of rum – two projects for $27 and $44 million-.
The 2016-2017 Portfolio also presents formulas for foreign investment in cooperatives in the production of agriculture. 30% of Cuban land is managed by state entities, compared to 70% managed by non-state entities, essentially different cooperatives that are recognized by Cuban law. On this matter, the new Portfolio presents a section on the forms of foreign investment with the participation of agricultural cooperatives. Thus, these cooperatives can function, with financial contributions, following two systems. Firstly, through indirect participation – contractual relations between the agricultural cooperatives and diverse forms of foreign investment. Or indeed, through contractual relations between the cooperatives and State entities, the latter acting with different forms of foreign investment. For direct participation, cooperatives can form part of an AEI, conforming to a commercial society with 100% Cuban capital, and then agreeing on an AEI contract with the foreign investor or even forming a JVC with them. On the contrary, they can create a 100% Cuban society by combining with a Cuban state enterprise and this new society would be the one to make the contract, be it AEI or JVC, with the foreign investor.
Unlike the old Portfolio edition, the new edition introduces thirteen projects, ten of them in the form of JVC, two AEI contracts and one Productive Administration Agreement. The Cuban sugar sector is managed by the corporation Zerus, owned by the sugar group Azcuba, which has 56 sugar plantations and many production units for sugar, electricity, alcohol, rum, yeast, animal feed, sorbitol and carbon dioxide, amongst others. Sugar production is an important tradition for Cuba, with a dedicated area of 676,000 hectares and 170,000 public and private workers. The Cuban government will prioritize foreign investments in this sector, which are accompanied by the construction of bioelectrical plants.
More specifically, the Portfolio offers projects in the management of a bioelectrical plant – with an approximate total investment of between $80 and $100 million-; the substitution of imports in the cane sugar field; production plants of fitomas and furanic resins – $15 and $10 million of estimated investments-; an alcohol distillery with a capacity of 200,000 liters per day – $20 million-; and the amplification and modernization of diverse distilleries and rum companies – between $5 and $10 million of estimated investment-.
In the industrial sector –which includes steelworks, lightweight industry, chemicals and electronics-, Cuba has prioritized eight investments. Seven of them will use JVCs and one will use an AEI contract for the production of containers and packaging, the recycling of raw materials, and the production of domestic electric appliances, chemical equipment, medical equipment, textiles and hygiene products, perfumes and cosmetics.
The new Portfolio offers opportunities in the production, marketing and repair of lamps – estimated investment of $4.5 million-; the production of sporting equipment – $10.4 million-; the production and marketing of paper journals and tissue – $81.3 and $69.1 million-; car batteries – $13.8 million-; tinplate containers – $10 million-; plastic injection molds – $10 million-; and electrical conductors – $55.3 million-.
The tourism and property industry is the largest recipient of foreign investment on the island. In 2015, 3.5 million tourists visited Cuba, with an average expenditure of 98.9 CUC per day. At the moment, Cuba has a range of hotels with a total of 65,000 rooms, with the most tourists coming to the country from Canada, England and Germany.
Therefore, Cuba needs foreign investment in hotels via construction and renovation, the promotion of property developments linked to tourism, the management of marinas –only those that are exclusively Cuban owned can be approved through service management contracts-, and the construction of theme parks. It is important to note that foreign investments in Havana and Varadero will be “exceptional”, as investments in Old Havana and the keys in the north of the island are already secured.
Cuba is thus trying to promote new areas of tourist potential such as Guardalavaca, Cienfuegos, Trinidad, Playa de Santa Lucía (Camagüey) and the tourist hotspot of Covarrubias. The principal Cuban tourism operators are: Gran Caribe, Cubanacan, Gaviota Tourism Group, CubaGolf, Islazul, Marlin and Cubasol, each one specialising in one or more different sectors within the tourism industry, and all of them under the supervision of the Cuban Ministry of Tourism.
There are fifteen proposed projects, nine of which are financial management services contracts, five use the JVC model, and one, which encompasses numerous other projects which are yet to be specified, through a hotel management contract. Thus, the construction of hotels and tourist areas in Cienfuegos, Covarrubias, Guardalavaca and Havana is a priority, with the estimate of total investments ranging from $23 to $250 million.
It must be noted that surface rights over the land on which these facilities are to be built are to be held by the Cuban partners and contributed to the JVC as their share of the joint venture capital. This affords the JVC the rights to build and acquire ownership over what is developed, as it is granted the rights for what is built on the land. When this right expires, the ownership of the facilities is returned to the land owner: the State. According to Cuban Civil Law, these surface rights may be granted for a term of up to 99 years, and if it granted for a shorter period, it may be extended up to the full term. Infinite surface rights for the development of tourist accommodation or apartments may be granted. Surface rights –the right to build– are annulled if not acted upon within the two years of being granted, unless an alternative period is agreed. The ownership by the JVC of buildings -apartment complexes-, benefits from full protection in accordance with the new Cuban Foreign Investment Law and the Constitution of the Republic of Cuba and the buyers of buildings located in these property developments which acquire the right of property owner may obtain a special immigration status.
A further eighty installations across the island are offered in the form of a hotel management contract, of which twenty eight are situated in the city of Havana. Some examples amongst them; the hotel New York, in Old Havana, with 56 rooms-; the Villa Trópico, en Jibacoa, with 154 rooms; the Comodoro, en Miramar, with 467 rooms; the Boutique Chateau Miramar, with 50 rooms; or the Monte Barreto, in Miramar, with 400 rooms.
Also proposed are five administration contracts for the Guardalavaca marinas – $5 million-; Cayo Guillermo -$5 million-; Isla de la Juventud – $6 million-; Trinidad – $10 million-; and Santiago de Cuba -$20 million-. There is also the opportunity for foreign investment in the establishment of an equestrian club –an estimated investment of $2.5 million-; and also in the creation of a fishing and diving center – $5.8 million-; a network of tourist parks in natural areas – $4 million-; and a network of lodgings for nature tourists – $10 million-.
- Oil and Gas
Cuba has geological reserves of up to 6 billion barrels of oil and practically the whole Cuban territory – some 100,000km2 – could be open for oil exploration, as well as the already located oilfields in both deep and shallow waters. Cuba currently extracts four million tones of oil and gas per year, three million of which are of oil – 19 million barrels – and one million are gas, with 100 million cubic meters of natural gas per year.
The new Portfolio proposes three oil exploration projects and production sharing, of which two would be in shallow waters and in the Economically Exclusive Zone of the Gulf of Mexico, and one in land blocks, adding to a total of 85 blocks. Finally, MINCEX offers foreign investors the opportunity to work on the movement and storage of combustibles, mix, loading and unloading vessels, and alternative means of extraction where it is not possible to extract oil by traditional methods. All of these are formalized by AEI agreements in the variants of speculative exploration and shared production. In all cases, the Cuban party will be the Cuban Oil Union (CUPET).
- Renewable energies
One of the main priorities of the Cuban State is the use of renewable energy sources (FREs) in order to reduce inefficiencies in the energy system, to reduce the dependence on fossil fuels, and to contribute to environmental sustainability and reduce the high state cost incurred by the use of finite resources.
Currently, only 4.3% of the energy consumed in the country comes from FREs, compared with the 74% coming from fossil fuels. Of the FREs, Cuba primarily uses biomass, wind and solar energy, hydroelectric power and biogas as sources of renewable energy.
There are five proposed projects: the construction of solar farms in the west, with a capacity of up to 100MW through a build, operate, own (BOO) contract, amounting to approximately two dollars a day. Secondly, the installation of sixteen bioelectric projects of between 30 and 50 megawatts – $90 million-; and three wind farms in Manatí, Jagüeyes and Río Seco, of 40, 35 and 50 megawatts respectively, each in the form of 100%-Foreign Owned companies.
Cuba has a variety of varied geographical structures in which iron, nickel, copper, cobalt, lead, zinc, gold, silver, magnesium and chromium are the most abundant. Mining, alongside energy, was the sector which received second most foreign investment in Cuba in 2014.
The Portfolio has published twelve new opportunities in the sector, all in the form of international economic administration contracts, which address the research and exploitation of precious metals – silver and gold -, base metals – copper, lead and zinc -, and other metals found in central Cuba, Holguín, Sierra del Plurial, Sierra Maestra and Isla de la Juventud. All of these have yet to state an estimated investment, and their amounts will be worked out individually, according to each specific project.
Additionally, research into the feasibility of the economic exploitation of black tails in Holguín is being opened up to foreign investment -$9 million-; as well as red tails –$4.4 million-; and the processing of lateritic nickel and cobalt materials in Pinar del Río, Camagüey and Holguín.
Foreign investment in transport is one of the most ambitious challenges for the present and future Cuban economy. As an industry, it has played a key role in the contemporary history of the country. Cuban transport infrastructure – automobile, railway, sea-port and air –is in the midst of a restructuring, organizational and technological modernization process. Cuba currently boasts 25 airports – of which 10 are international-, 60,000 kilometers of road network, 8,000km of railway tracks and 40 shipyards and docks, all in need of significant renovation.
As a result, there are six transports projects open to foreign investors in the form of AEI agreements, which address operation and administration matters in the ports of Havana, Cienfuegos, Santiago de Cuba, Sancti Spiritus and Holguín – $15 million, $12 million, $7 million and $10 million, respectively-; the administration of the Casa Blanca shipyard – $57 million-; and also of two shipyards for recreational boats in Santiago de Cuba and Cienfuegos – $1.5 million each-. Lastly, the portfolio offers the modernization of motoring equipment and fuel injection systems – $10.3 million and $2.8 million respectively.
- Pharmaceuticals and Biotechnology
BioCubaFarma, a group of biotechnological and pharmaceutical companies, has more than 21,800 employees, more than 1,800 patents overseas and exports its products to more than 49 countries. Cuban industrial policies in this sector encourage projects in Cuba with strategic partners for the production of certain medications and active pharmaceutical ingredients for generic drugs.
In this instance, two projects have been proposed: the creation of a plant for the production and commercialization of the vaccine against swine fever – $20 million-; and the improvement of the industrial infrastructure in the production of pharmaceutical ingredients involved in the Hepatitis B vaccine – $7 million-.
The acceptance of foreign investment in the healthcare system constitutes one of the big changes that the 2015 Portfolio offered to international investors in association with the Cuban Medical Services Provider, S.A. (CSMC). Specifically, the Portfolio approves the creation of two hemodialysis centers for patients with chronic kidney failure who are on holiday on the island, amounting to $1.5 million each; the creation of a “quality of life center – $30 million-; and an international medical clinic with the objective of providing healthcare services to foreign sportsmen and women – $18.3 million estimated investment-.
The Cuban construction industry includes geographical engineering, design and assembly research, the construction of public, industrial and engineering works, berths and dredging, as well as the production and marketing of construction products and materials. In this Portfolio, there are nine prioritized opportunities for foreign investment, seven of which use an AEI agreement and two which use the JVC model.
The production of lightweight panels for fibre cement walls is proposed – $18 million-, as is the modernization of engineering construction systems – $15.5 million-. Similarly, the construction of a golf complex for tourists is projected – Bellomonte-, whose investment is yet to be determined.
Also proposed is the assembly of a production plant for joinery frames, wooden doors and windows – $6.5 million-: the production of plaster products – $30 million-; a transport and hoisting system for heavyweights – $19.9 million-; equipment repair services – $12.5 million-; and the modernization of an aerated concrete factory – $7.6 million-.
- Wholesale Trade
Together with the health sector, the offer of opportunities for foreign investment in wholesale trade was the other great change in the 2015 Portfolio. The aim of Cuban enterprises is to develop wholesale trade through fundraising, management, know-how and marketing techniques and technology.
At the moment, foreign investment in Cuba will go to wholesale trade, and only “exceptionally” to retail outlets that are associated with Cuban owned wholesale traders. Four concrete projects have been proposed: the marketing of hardware and building materials – $11.8 million-; a logistics operator for managing supply chains for refrigerated food – three projects for $10 million-; the wholesale marketing of fabrics, haberdashery and textiles – $5.2 million-; and the importation and wholesale marketing of spare parts for motor vehicles – $17.1 million-. All of these projects will use the Joint Venture Company model.
The Cuban audio-visual sector aims to promote the technological switch from analogue to digital. There are currently five national public television channels accessible, as well as the international channel, Cubavision. It will also encourage the increase of Cuban audio-visual media to be exported.
The company RTV Comercial would participate in a joint venture for the construction of a high definition audio-visual production and coproduction forum in Managua –with an estimated investment of $35 million-; for the establishment of a paid channel system for Cuban national television – $6 million-; and also the Portfolio proposes foreign investment for the production and marketing of audiovisual technological solutions aimed at the internal education system and exportation – $8.8 million-.
The approval of foreign investment in this sector is one of the new features of this Portfolio. The Cuban water cycle is managed by the National Institute of Hydraulic Resources (INHR) and boasts 34,000 workers in the country. Currently, the National Assembly of People´s Power is debating the laws and regulations to do with water.
The 2016-2017 Portfolio offers five hydraulic projects that are in the form of AEI agreements. These include the formation of groups for the evaluation of drinking water –an estimated investment of $5 million-; the production of plastic elements – $2 million-; administration for the production of smooth or corrugated pipes- $10 million-; the repair of national workshops and the repair of welding machinery and pumping equipment, each with an estimated investment of $1 million.
© 2016. LUPICINIO INTERNATIONAL LAW FIRM
LUPICINIO INTERNATIONAL LAW FIRM, firma de abogados internacional con sede central en Madrid (España) y presencia profesional en Cuba desde 1996. Cuenta con corresponsalía oficial con BUFETE INTERNACIONAL (La Habana) y un equipo de abogados locales expertos en las principales disciplinas del derecho cubano, con especial incidencia en los aspectos jurídicos y mercantiles de la inversión extranjera, tanto en la propia Isla como en la ZED de Mariel.
LUPICINIO INTERNATIONAL LAW FIRM, an international Law firm with headquarters in Madrid and professional presence in Cuba since 1996. The firm corresponds with BUFETE INTERNACIONAL (Havana) and a team of local lawyers, expert in the disciplines of Cuban law, and with special influence on the judicial and commercial aspects of foreign investment, both on the island itself and in the Mariel Special Development Zone.
LUPICINIO INTERNATIONAL LAW FIRM named Band 1 General Business Law – Cuba, Foreign Expert and Corporate M&A Cuba by CHAMBERS & PARTNERS GLOBAL GUIDE 2016. CHAMBERS GLOBAL names José María Viñals Camallonga as “Key Individual”. Partner and department head José María Viñals leads the team in the numerous cases it handles. His practice is heavily oriented towards project finance, asset finance and corporate law”.
The legal directories Legal 500, Chambers & Partners and IFLR 1000 have emphasized LUPICINIO INTERNATIONAL LAW FIRM as one of the best Spanish Law Firms in: General Business Law in Cuba, Real Estate, Banking and Finance, Capital Markets, Corporate and M&A, Dispute Resolution, Competition, Employment, Restructuring and insolvency, Intellectual Property, Project Finance and Tax.
 In this sense, the Chamber of Commerce of the Republic of Cuba (CCRC) recognises that while the Portfolio does not reflect all the needs of the country, other non-listed projects may be proposed by foreign investors and will be considered.
 Law 118 on Foreign Investment, of 29th March 2014 (LIE), defines this as an agreement between one or more national investors and one or more foreign investors to create an international economic association without requiring a different legal entity for each party.
 LIE defines this as a commercial Cuban company that takes the form of a Limited company in which one or more foreign investors and one or more national investors act as shareholders.
 The Foreign Investment Law defines this as a commercial entity with foreign capital without the involvement of any national investor or individual with foreign capital.
 The Inter-American Development Bank (BID) defines this type of agreement as a ´contracting mechanism for works that unite both the design and construction of works simultaneously in one joint process´´.
 The Foreign Investment Law defines it as ‘the zone where a regime and special policies are established, with the aim of encouraging sustainable economic development by attracting foreign investment, technological innovation and industrial concentration, with a view to increasing exports, effectively substituting imports and creating new sources of employment in the internal economy’.
 Vid. Legal Decree 313, of the Special Development Zone, Mariel, 23rd September 2013.
 The ‘Productive or Services Administration Agreement’ is that by which a Cuban state Company or organization with legal personnel, or a commercial business with total Cuban capital, hires a foreign legal representative to manage one or various lines of production, a productive or service facility, or part of the realized activities, over a given period, in exchange for the mutually agreed payment and on the condition of the results of the management administration carried out in correspondence with agreed point. (Source: Cubalegalinfo).
 The agricultural usufruct in Cuba constitutes a right over the use and exploitation of land and other farming goods, granting authority and rights to the individual that are otherwise attached to the real owner, in order that they are used reasonably and sustainably for the production of livestock, forestry and fruit trees. The features that distinguish the usufruct are as follows: the subjects of the judicial relationship which are the State, as bare owner and the usufruct, the beneficial owner; it is established on the land and other goods that belong to it for its use and exploitation. This real right is characterized as being free, temporary, immediate, to a personal title and non-transferrable. Vid. VILLALONGA SOCA, A.: