Cablegate: 2010 Investment Climate Statement: Costa Rica


DE RUEHSJ #0090/01 0192326
R 192324Z JAN 10



E.O. 12958: N/A

REF: 09 STATE 124006

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Overview of Foreign Investment Climate - Costa Rica

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1.Costa Rica's investment climate is generally favorable and has
been for many years. Consequently, foreign direct investment is
high and has been a significant contributor to Costa Rica's
economic growth. Nevertheless, the country's legal and cultural
environment continues to present stumbling blocks to investors.
The January 1, 2009 entry-into-force of CAFTA-DR in Costa Rica
unambiguously improves Costa Rica's investment climate. In
response to Ref A, Post prepared the following report:


Openness to Foreign Investment


2. Costa Rica actively courts foreign direct investment (FDI). The
four-year administration of President Oscar Arias, (which will end
in May 2010), places a high priority on attracting and retaining
high-quality foreign investment in Costa Rica. The Foreign Trade
Promotion Corporation (PROCOMER) as well as the Costa Rican
Investment and Development Board (CINDE) lead Costa Rica's
investment promotion efforts. FDI in Costa Rica has slumped during
the current global financial crisis but continues to play an
important role particularly in the Real Estate and Tourism industry
sectors (see "Foreign Direct Investment Statistics" below.) The
investment promotion agency CINDE estimates a roughly 30 percent
drop in FDI in 2009 but expects a subsequent rebound.

Costa Rica, together with El Salvador, Guatemala, Honduras,
Nicaragua, and the Dominican Republic, is a signatory to the U.S. -
Central America - Dominican Republic Free Trade Agreement
(CAFTA-DR). Costa Rica is the last country for which the treaty
entered into force (EIF), on January 1 2009. Costa Rica spent the
previous two years meeting a series of legal and implementation
requirements for EIF, and during the first part of 2010 is expected
to fully implement the remaining measures. CAFTA-DR improves Costa
Rica's investment climate by strengthening the protection of
intellectual property rights, providing a mechanism for
arbitration, opening key sectors to competition, and assuring
access to markets in other CAFTA-DR economies. With CAFTA-DR
successfully concluded, Arias administration trade policy is now
focused on the negotiation of similar agreements, most notably with
the European Union and China.

The country's commercial code details all business requirements
necessary to operate in Costa Rica. The laws of public
administration and public finance contain most requirements for
contracting with the state. All businesses must be registered in
the national registry, thereby becoming national companies that may
have national or foreign owners. The investment requirements for
foreign and national persons and companies are identical.
Businesses may be established starting from nothing, acquired,
merged with, or taken over in much the same way as is done in the
U.S. Foreign partnerships with local businesses are quite common.
The state does exercise some monopoly control in some economic
sectors as detailed below in the "Competition from State-Owned
Enterprises" section.

Several public institutions are responsible for consumer protection
as it relates to monopolistic and anti-competitive practices. The
"Commission for the Promotion of Competition" (COPROCOM), a
semi-autonomous agency housed in the Ministry of Economy, Industry
and Commerce, is charged with investigating and correcting
anti-competitive behavior across the economy. SUTEL, the
Telecommunications Superintendency, is charged with regulating fair
competitive practices in the Telecommunications sector. Both
agencies are charged with defense of competition, deregulation of
economic activity, and consumer protection. They have shown some

ability to act, although SUTEL has been operating for less than one

The judicial system generally upholds contracts, but caution should
be exercised when making investments in sectors reserved or
protected by the constitution or by laws for public operation.
Investments in state-protected sectors under concession mechanisms
can be especially complex due to frequent challenges in the
constitutional court of contracts permitting private participation
in state enterprise activities. Furthermore, independent
government agencies can issue permits or requirements that may
contradict the decisions of other independent agencies, causing
significant project delays.

The Arias administration is moving ahead with efforts to build
infrastructure and manage public works projects by using the 1998
concessions law, modified in June 2008. The modifications to the
concessions law were designed to streamline related processes. Two
concession agreements are currently functioning. Operations at the
Port of Caldera, the country's principal Pacific port, began
successfully in 2006. The other concession agreement is for the
San Jose-to-Caldera highway, which is open to transit along a
portion of the route with the remainder of the route to be finished
in fourth quarter 2010.

Investors must exercise "caveat emptor," since many firms operate
in the informal sector of the economy. Appropriate due diligence
should include confirming a company's registry and formal
participation in the Costa Rican economy such as paying taxes.

While the government focuses on promoting foreign investment in
export industries, foreign franchises have prospered in the
domestic market over the past thirty years. Both foreigners and
nationals have invested in bringing U.S. brands from a wide array
of business sectors to Costa Rica, including fast food (such as
Taco Bell, Kentucky Fried Chicken, Pizza Hut, Domino's Pizza, Papa
John's Pizza, McDonald's, Burger King, Wendy's, Subway, Quiznos and
TCBY Yogurt), car rentals (including Hertz, Avis, Dollar, and
Budget), hotels (such as Marriott, Doubletree by Hilton,
Intercontinental, Regents, Hampton Inn, and Best Western), and
designer clothing boutiques (including Tommy Hilfiger, Liz
Claiborne, and athletic wear brands such as New Balance). Price
Smart (owned and managed by the founders of Price Club in the U.S.)
has four Costa Rican stores. WalMex, via a 2009 acquisition,
controls Wal-Mart Central America, a company comprised of 146
stores operating under the Pali, Maxibodegas, Mas x Menos, and
Hipermas brands.

Ranking Year

TI Corruption Index
5.1 2008

Heritage Economic Freedom: Rank(Freedom%] 46(66.4) 2009

World Bank Doing Business 121

Millennium Challenge Corporation (MCC) measures are not available
for Costa Rica.


Conversion and Transfer Policies


3. There are no restrictions on receiving, holding or transferring
foreign exchange. There are no delays for foreign exchange, which
is readily available at market clearing rates and readily
transferable through the banking system. From 1983 until 2006,
Costa Rica maintained a crawling peg exchange regime with the U.S.
dollar. However, in October 2006, the country transitioned to a
crawling band regime, which is in reality a "dirty float" with
explicit upper and lower limits. The Central Bank also created a

foreign exchange market, "MONEX", (USD/Colon) in which buyers and
sellers are matched blindly. Participants may register without any
initial fee and may either buy or sell amounts over the $1,000 USD
minimum. A variety of instruments designed to insure against
exchange rate volatility are being introduced into the market and
may be obtained through the Securities Exchange ("Bolsa de
Valores") or through banks. To date, the result appears to be
satisfactory with the Central Bank, but market participants have
struggled to adapt to the greater uncertainty. Dollar bonds and
other dollar instruments may be traded legally. No restrictions
are imposed on reinvestments or on the repatriation of earnings,
royalties, or capital except when these rights are otherwise
stipulated in contractual agreements with the government of Costa
Rica. Royalties are taxed in accordance with Title IV of the
Income Tax Law No. 7092 at rates varying from 10 to 25 percent.



Expropriation and Compensation


4. Expropriation of private land by the government without prompt
or adequate compensation has hurt some Costa Rican and foreign
investors. These incidents usually involve land expropriated to
create national parks, indigenous reserves, or agricultural
projects for poor farmers. One long-standing case required over
fourteen years to wind its way through the Costa Rican court
system, only to conclude without providing compensation to the U.S.
citizen landowner. Another case involving titled beach land
subject to an expropriation order for a national park has
highlighted conflicting decisions between different government
entities and the pitfalls experienced when the government lacks the
funds to pay for land that it is required by law to protect.

Article 45 of Costa Rica's constitution stipulates that no property
can be expropriated from a Costa Rican or foreigner without prior
payment and demonstrable proof of public interest. The 1995 Law
7495 on expropriations further stipulates that expropriations can
take place only after full and prior payment is made. Foreigners
and Costa Ricans are supposed to receive equal treatment.
Provisions include: (a) return of the property to the original
owner if it is not used for the intended purpose within ten years
or, if the owner was compensated, right of first refusal to
repurchase the property back at its current value; (b) a
requirement that the expropriating institution complete
registration of the property within six months; (c) a one-month
period during which the tax office must appraise the affected
property; (d) a requirement that the tax office itemize crops,
buildings, rental income, commercial rights, mineral exploitation
rights, and other goods and rights, separately and in addition to
the value of the land itself; and (e) provisions providing for both
local and international arbitration in the event of a dispute. The
expropriations law was amended in 1998 and then again in 2008 to
expedite some procedures, particularly those necessary for
acquiring land for the construction of new roads.

Invasion and occupation of private property by squatters, who are
often organized and sometimes violent, occurs in Costa Rica. The
Costa Rican police and judicial system have at times failed to
deter or to peacefully resolve such invasions. It is not uncommon
for squatters to return to the parcels of land from which they have
been evicted, requiring expensive and potentially dangerous
vigilance over the land.


Dispute Settlement


5. Costa Rica uses the Roman civil law system rather than common
law. The jury system is not used, although judicial reform efforts
have included testing the use of juries in some cases. The

fundamental law is the country's political constitution of 1949,
which grants the unicameral legislature a particularly strong role.
The civil and commercial codes govern commercial transactions. The
courts are independent, and their authority is respected. The
roles of public prosecutor and government attorney are distinct:
the public prosecutor or Attorney General ("Fiscal General")
operates a semi-autonomous department within the Judicial branch
while the government attorney or Procurator General ("Procurador
General") works within the Ministry of Justice and Grace in the
Executive branch. Judgments of foreign courts are generally
accepted and enforced. The Constitution specifically prohibits
discriminatory treatment of foreign nationals.

Monetary judgments are usually made in Costa Rican colones.
However, if the dispute involves a dollar-denominated transaction,
the award may first be calculated in dollars and then converted to
colones for payment.

Litigation can be long and costly. The legal system is
significantly backlogged, and civil suits take over five years on
average from start to finish. Some U.S. firms and citizens have
satisfactorily resolved their cases through the courts, while
others have seen proceedings drawn out over a decade without a
final ruling. The process to resolve squatter cases through the
courts can be especially cumbersome. Also, civil archives
recording land title are at times incomplete or contradictory.
Potential buyers should retain experienced legal counsel and
carefully conduct due diligence to ensure that properties are free
of conflicting ownership claims.

Arbitration is theoretically possible under the civil and
commercial codes. However, U.S. investors have experienced mixed
results from such proceedings organized by local attorneys. A 1998
law governing alternative conflict resolution (Law 7727) sought to
encourage arbitration and simplify the procedures under which
arbitration takes place. Several arbitration centers operate,
including one at the Costa Rican - American Chamber of Commerce.
Some cases reportedly have been successfully and quickly resolved
under the law.

Costa Rica has been a member of the International Center for the
Settlement of Investment Disputes (ICSID) since 1993, when it
acceded to the Washington Convention. Since then, the ICSID has
successfully resolved one land expropriation case. Costa Rica is
also a member of the World Bank Multilateral Investment Guarantee
Agency (MIGA), which provides a forum for international arbitration
in investment disputes, as well as investment guarantees. Private
energy producers have included international arbitration clauses in
their contracts. Costa Rica has not joined the United Nations
Protocol for the Compulsory Settlement of Disputes between

The provisions of Chapter 10 of CAFTA-DR provide an additional
avenue for aggrieved investors to pursue international arbitration.
The arbitration process under CAFTA-DR is designed to be open and
transparent; hearings and documents are public, and amicus curiae
submissions are expressly authorized. The CAFTA investment chapter
includes checks to help assure that investors do not abuse the
arbitration process. The agreement includes a provision that
allows tribunals to dismiss frivolous claims and award attorney's
fees and filing costs. No arbitration cases had yet been filed
during CAFTA-DR's first year (calendar year 2009).

The Costa Rican bankruptcy law, addressed in both the commercial
code and the civil procedures code, is similar to corresponding
U.S. law. Title V of the civil procedure code outlines creditors'
rights and the processes available to register outstanding credits,
administer the liquidation of the bankrupt company's assets, and
pay creditors according to their preferential status.

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Performance Requirements and Incentives

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6. Three investment incentive programs operate in Costa Rica: the
free trade zone system, a so-called active finishing regime, and a
duty drawback procedure. These incentives are available equally to
foreign and domestic investors. These incentives include tax
holidays, free or subsidized infrastructure and industrial parks,
and training of specialized labor force.

Individual companies are able to create industrial parks that
qualify for Free Trade Zone status by meeting specific criteria and
applying for such status with Costa Rica's Foreign Trade Promotion
Authority (PROCOMER). Presently, there are 251 companies operating
within 28 FTZs within Costa Rica. Companies in FTZs receive
exemption from virtually all taxes for eight years and at a reduced
rate following that period. In addition to the tax benefits,
companies operating in FTZs enjoy simplified investment, trade and
customs procedures, which provide a convenient way to avoid Costa
Rica's burdensome business licensing process. The tax holidays
provided for investment in FTZ manufacturing companies are
scheduled to phase out in accordance with World Trade Organization
(WTO) agreements by 2015, to be replaced by Law 8794 which
eliminates explicit export incentives and replaces them with
favorable tax treatment of specific types of company or
organization. The WTO-mandated change does not apply to those
companies that export only services. Call centers, logistics
providers, and software developers are among the companies that may
benefit from FTZ status but don't physically export goods. Such
service providers have become increasingly important participants
in the free trade zone regime.

The active finishing regime, created by decree in 1997, suspends
taxes for renewable one-year periods on imported inputs of
qualifying companies, and then exempts the inputs from those taxes
when the finished goods using or containing them are exported. The
regime also facilitates a five-year renewable suspension of taxes
on capital goods used to manufacture exported goods. Companies
within this regime may sell to the domestic market if they have
registered to do so and pay pro rata import duties on capital
equipment used for the domestic market. Finally, the drawback
procedure provides for rebates of duties or other taxes that have
been paid by an importer for goods subsequently incorporated into
an exported good.

While the procedures necessary to obtain residency in Costa Rica
are traditionally long and very bureaucratic, immigration officials
believe that a new law taking effect in March of 2010 will make the
process less burdensome. In any case, existing immigration
measures do not appear to have inhibited foreign investors'
mobility to the extent that they affect Foreign Direct Investment
(FDI) in the country.

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Right to Private Ownership and Establishment

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7. All private entities and persons, domestic or foreign, may
establish and own businesses and engage in all but a few forms of
remunerative activity. The exceptions are in sectors that are
reserved for the state (legal monopolies) or that require
participation of at least a certain percentage of Costa Rican
citizens or residents (electrical power generation, broadcasting
and professional services). Under CAFTA-DR, the insurance and a
part of the telecommunications sectors are now opening to
competition. In other activities, such as medical services, state
firms operate, but that does not preclude private sector
competition, which generally receives equal treatment to state
companies. Three banks owned by the state receive some advantages
over their 11 private competitors, namely that they cannot be
forced into bankruptcy, a guarantee not afforded to private banks.


Protection of Property Rights


8. Secured interests in both chattel and real property are
recognized and enforced, and mortgage and title recording is
mandatory. The laws governing investments in land, buildings and
mortgages are generally transparent. However, there are continuing
problems of overlapping title to real property and fraudulent
filings with the national registry, the government entity that
records property titles. The Costa Rican government does not
prevent foreign title companies from operating. While title
guaranty is not a service traditionally offered in the country,
Stewart Title Company, First Costa Rican Title and Trust and Latin
American Title Company all offer title guaranty and related

Similar to fraudulent filings, investors have faced difficulties
with transactions involving property located in indigenous
protected zones that has been represented as property without other
claims or risk of expropriation. Investors should exercise
appropriate due diligence when conducting transactions dealing with
land in indigenous zones as they may either be unable to obtain
free and clear title or risk future expropriation.

Investment in Costa Rican real estate requires care; many U.S. real
estate investors have experienced problems with obtaining clean
titles, adverse possession by squatters, and unscrupulous lawyers.
Landowners should be sure to demonstrate a continuing presence on
and control over their land.

Investment in beachfront property in Costa Rica faces a unique set
of circumstances. Almost all beachfront is public property for a
distance of 200 meters from the mean high tide line, with an
exception for long-established port cities. The first 50 meters
from the mean high tide line cannot be used for any reasons by
private parties. The next 150 meters, also owned by the state, can
only be leased from the local municipalities for specified periods
and particular uses, such as tourism installation, vacation homes,
etc. Investors should exercise caution and obtain qualified legal
counsel before purchasing property, particularly near beachfront
areas. Potential investors in Costa Rican real estate should also
be aware that the right to use traditional paths is enshrined in
law and can be used to obtain court-ordered easements on land
bearing private title. Disputes over easements are particularly
common when access to a beach is an issue.

Costa Rica is a signatory of many major international agreements
and conventions regarding intellectual property. The GATT agreement
on Trade Related Aspects of Intellectual Property (TRIPS) took
effect in Costa Rica on January 1, 2000. Costa Rica in 2002
ratified the World Intellectual Property Organization (WIPO)
"internet treaties" pertaining to Performances and Fonograms (WPPT)
and Copyright (WCT). Building on the existent regulatory and legal
framework, CAFTA-DR required Costa Rica to further strengthen and
clarify its IPR regime, with several additional IPR laws added to
the books in 2008.

While the legal framework governing intellectual property is
basically in place, Costa Rica does not adequately enforce those
rights. The current attorney general has publicly encouraged
aggrieved parties to file legal action in civil court and has
stated that given limited judicial resources, IPR enforcement is a
low priority.

In 2009 Costa Rica remained on the Watch List in the United States
Trade Representative's (USTR) annual Special 301 Report. The USTR
noted that IPR enforcement with respect to copyright piracy and
trademark counterfeiting required greater priority and resources.
Significant delays in judicial proceedings and a lack of official
investigators, public prosecutors, and criminal and civil judges
specializing in intellectual property continue to hamper effective
enforcement. Since 2005 the U.S. Embassy in Costa Rica has
actively recruited candidates to attend various IPR training
seminars offered and funded by the United States Patent and Trade
Office (USPTO) and the United States Department of Justice (DOJ).

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Transparency of Regulatory System

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9. Costa Rican laws, regulations and practices are generally
transparent and foster competition, except in the sectors
controlled by a state monopoly, where competition is explicitly
excluded. Tax, labor, health and safety laws are not seen as
interfering with investment decisions. When applying environmental
regulations, the Costa Rican organization that reviews
environmental impact statements has been slow in issuing its
findings, causing delays for investors in completing projects.

There are several independent avenues for appealing regulatory
decisions, and these are frequently pursued by persons or
organizations opposed to a public sector contract or regulatory
decision. The avenues include the comptroller general (Contraloria
General de la Republica), the Ombudsman (Defensor de los
Habitantes), the public services regulatory agency (ARESEP), and
the constitutional review chamber of the Supreme Court. The
procurator general's office (Procurador General de la Republica) is
frequently a participant in its role as the government's attorney.

The process has kept the regulatory system relatively transparent
and free of abuse, but it has also rendered the system for public
sector contract approval exceptionally slow and litigious. There
have been several cases in which these review bodies have
overturned already-executed contracts, thereby interjecting
uncertainty into the process. Bureaucratic procedures are
frequently long, involved and can be discouraging to new investors.

A similarly transparent process applies to proposed laws and
regulations. The Legislative Assembly generally provides ample
opportunity for supporters and opponents of a law to understand and
comment upon proposals. To become law, a proposal must be approved
by the Assembly by two plenary votes. The signature of ten
legislators (out of 57) is sufficient after the first vote to send
the bill to the Supreme Court for constitutional review.
Regulations must go through a public hearing process before being
signed into law.

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Efficient Capital Markets and Portfolio Investment

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10. There are no controls on capital flows in or out of Costa Rica
or on portfolio investment in publicly traded companies. Larger
investors often arrange their financing abroad where rates tend to
be lower and lending limits are higher. Foreign investors are able
to borrow in the local market, but they are also free to borrow
from abroad.

Within Costa Rica, long-term capital is scarce. Dollar-denominated
mortgage financing is popular and common, even for Costa Ricans who
do not earn their income in dollars, because of more favorable
lending terms for dollar-denominated vs. colon-denominated loans.
As an alternative to encourage long-term credit, since 2005 the
government has published the value of "Development Units"
("Unidades de Desarrollo"), an inflation-adjusted index value that
may be used to denominate debt transactions. There is a small
secondary market in commercial paper and repurchase agreements.
The securities exchange (Bolsa Nacional de Valores) is small and is
dominated by trading in government bonds. However, the exchange is
actively promoting programs in several promising areas including
currency futures and small stocks. Stock trading is of limited
significance and involves only a dozen of the country's larger
companies, resulting in an extremely illiquid secondary market.

Stock volume traded in all of 2008 was $56.8 million, an average of
about $ 1 million per week, and 2009 volumes are estimated to have
dropped to about half that figure.

Credit is generally allocated on market terms, although the
state-owned banks are expected to act as development banks for
activities deemed to be of public interest. A new "development
bank" structure began functioning in 2009 and mandates that 17
percent of resources from private banks' checking and savings
accounts be destined to small and mid-sized companies. A bank may
administer those resources itself or cede the funds to an
administering bank. While several private banks have expressed
some interest in administering those resources, mandated conditions
(including a very narrow lending margin) have discouraged most
banks' participation and limited participation so far to
state-owned banks and cooperative credit unions. In recent years,
smaller private banks have been absorbed by large multinationals,
so that Costa Rica currently hosts subsidiaries of HSBC, Citibank,
Scotiabank and GE Finance Corporation. Nevertheless, the three
state-owned commercial banks are still dominant, accounting for
43.7 percent of the country's financial system's assets as of
November 2008.

Consolidated total assets of the country's public commercial banks
were approximately USD 9.9 billion in July 2009, while consolidated
total assets of the nine private commercial banks were
approximately USD 7.20 billion. The combined assets of all bank
groups (including affiliated pension funds and brokerage houses,
plus factoring houses and credit unions) were approximately USD
22.7 billion as of November 2008. The banking system has been
notably stable over the past year with non-performing loans
totaling 2.3 percent of total assets as of November 2009.

Costa Rica's national council for the supervision of the financial
system (CONASSIF) oversees Costa Rica's financial sector and
consists of four principal components. The country's general
superintendent of financial institutions (SUGEF) regulates banks
and other financial institutions. The general superintendent of
securities markets (SUGEVAL) oversees the securities exchange. The
general superintendent of pensions (SUPEN) oversees pension funds.
The newly created superintendent of insurance (SUGESE) oversees all
insurance operators. The Costa Rican government is working to
strengthen supervision of the financial sector with assistance from
international donors. Legal and accounting systems are transparent
and consistent with international norms. Many well-known
accounting firms in Costa Rica are affiliated with large U.S.

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Competition from State-Owned Enterprises

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11. State enterprises have enjoyed monopolies in the sectors of
wireless telephony, data telecommunications, and insurance;
however, CAFTA-DR opens these specific sectors up to market
competition. On the telecommunications side, the
telecommunications regulation board "SUTEL" and the
Telecommunications Vice Ministry worked over the course of 2009 to
build the framework of a competitive telecommunications sector.
SUTEL licensed Voice-Over Internet Protocol (VOIP) providers for
operation and one internet provider is operating its own cable
link. SUTEL is now working to hold a spectrum auction in mid-2010
which will likely lead to an early-2011 launch date for one or more
cellular phone competitors to the state monopoly "National
Electrical (and telecommunications) Institute" ("ICE"). On the
insurance side, the new Insurance Regulator SUGESE has authorized a
number of new competitors to the state monopoly "National Insurance
Institute" ("INS"). Those new insurance providers are scheduled to
begin operations by mid 2010.

Fixed-line telecommunications as well as energy generation and
distribution remain firmly in the control of state enterprises.
Transport infrastructure (airports, ports, roads) is likewise
controlled by the state, although the current government

successfully managed the development of a major highway concession
and is exploring public-private partnership arrangements with Costa
Rica's major port and an airport. Petroleum imports are
monopolized by the state petroleum company "RECOPE." Each
state-owned enterprise has its own independent board of directors
and internal operating regulations and procedures. The comptroller
general's office (which reports directly to the Legislative

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