2009 Investment Climate Statement - Dominican Republic
While the Dominican government welcomes foreign investment, significant systemic problems can make investing in the country a risky undertaking. Foreign investors cite a lack of clear, standardized rules by which to compete and a lack of enforcement. Complaints have included corruption, requests for bribes, delays in government payments, failure of the Dominican government or of Dominican private sector entities to honor contracts, disregard for Dominican court rulings, and non-standard procedures in Customs for valuation of imported goods. In 2008, the Dominican Republic dropped from 99 to 102 among the 163 countries included in the Corruption Perceptions Index of the international non-governmental organization Transparency International. On March 1, 2007, the free trade agreement between Central American countries, the Dominican Republic and the United States (CAFTA-DR) entered into force. Changes are expected over time to allow better regulation and to provide further opportunities for investment.
Under the Foreign Investment Law (No. 16-95), unlimited foreign investment is permitted in all sectors, with the exception of the disposal and storage of toxic, hazardous or radioactive waste not produced in the country; activities negatively impacting public health and the environment of the country; and the production of materials and equipment directly linked to national security unless authorized by the President. There are no limits on foreign control of firms, or screening of foreign investment in the open sectors. In practice, improvements in assisting foreign investors wanting to invest in the Dominican Republic have been made, especially by the Center for Exports and Investment in the Republica Dominicana (CEI-RD). A partial privatization of state-owned enterprises (called “capitalization”) was carried out in the late 1990’s; foreign investors purchased shares and obtained management control of formerly state-owned enterprises engaged in activities such as electricity generation, airport management and milling sugarcane.
In 2007, foreign direct investment flow into the Dominican Republic totaled US $1.51 billion according to the Dominican Central Bank.
Conversion and Transfer Policies
The Dominican exchange system is a market with free convertibility of the peso. The economic agents perform their transactions of foreign currencies under the conditions freely negotiated by them.
The Central Bank uses the weighted average of the market exchange rate to set the rate for its own operations. Importers may obtain foreign currency directly from commercial banks and exchange agents.
The Central Bank participates in this market in pursuit of monetary policy objectives, buying or selling currencies and performing any other operation in the market. Some industries, particularly those operating in free trade zones (zonas francas), complain that the Dominican authorities carry out operations through the Central Bank and the government-owned Banco de Reservas that result in an overvalued peso, penalizing export sectors and the tourism sector.
Resolutions 64-06 and 106-06, issued by the Dominican Civil Aviation Board, require all airlines serving the Dominican market to pay nearly all local taxes in U.S. dollars as opposed to local currency for both entry and exit of each passenger. Some airlines have considered challenging this requirement in the courts, but the fines for failure to comply are punitive and compel the airlines to comply until the courts decide otherwise.
Expropriation and Compensation
More than a few U.S. investors have outstanding disputes with the Dominican government concerning unpaid government contracts or expropriated property and businesses. Property claims make up the majority of expropriation cases. Most but not all confiscations have been used for purposes of infrastructure or commercial development. In some cases, claims have remained unresolved for many years. Investors and lenders have typically not received prompt or adequate payment for their losses, and payment has been difficult to obtain even in cases in which a Dominican court has ordered compensation or the government has recognized a claim. In one case, the Dominican Supreme Court in 1970 ordered the government to compensate a U.S. family whose land and businesses had been expropriated. The Dominican government compensated owners only for the expropriated land but to date has not offered compensation for the businesses. In other cases, lengthy delays in compensation payments have been blamed on errors committed by government contracted property assessors, slow processes to correct land title errors, and other technical procedures.
The past four Dominican administrations have expropriated fewer properties than their predecessors and have generally paid compensation in those cases. Discussions of the U.S.-Dominican Trade and Investment Council meetings in October 2002 prompted the Dominican government to establish procedures under a 1999 law to issue bonds to settle claims against the Dominican government dating from before August 16, 1996, including claims for expropriated property.
In 2005, with assistance from the U.S. Agency for International Development (USAID), the Dominican government identified and analyzed 248 expropriation cases; most (65.5 percent) were resolved by paying claimants with bonds or by dismissing the claim. However, as noted in paragraph 9, a number of U.S. claims against the Dominican Republic remain.
In preparation for the entry into force of CAFTA-DR, the regional trade agreement with the United States, the Dominican Congress passed legislation to comply with the dispute settlement chapter of the agreement (see Chapter 20 of the CAFTA-DR agreement). While CAFTA-DR provides dispute settlement mechanisms, the Dominican government has not yet established domestic capacity in this area. The authorities state that they are in the process of hiring and training personnel to handle this aspect of the agreement. Currently, quite a few U.S. investors, ranging from large firms to private individuals, have disputes with the Dominican government and parastatal firms involving payments, expropriations, or contractual obligations. Both free trade zone companies and non-free-trade-zone companies have problems with dispute resolution. U.S. firms indicate that corruption in Dominican businesses, government and judiciary impede their access to justice so as to defend their interests. The Embassy expects that the entry into force of the CAFTA-DR agreement will be accompanied by an increase over the short term in the number of disputes, as terms and conditions change.
In April 2002, the Dominican Republic associated itself with the International Center for the Settlement of Investment Disputes ("ICSID", also known as the "Washington Convention"). In August of the same year the country implemented the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). The New York Convention provides courts a mechanism with which to enforce international arbitral awards.
Performance Requirements and Incentives
Foreign investors receive no special investment incentives and no other types of favored treatment, except in the area of renewable energy. There are no requirements for investors to export a defined percentage of their production, unless firms are operating under the regime of free zones (zonas francas). Free zone firms are required to export at least 80 percent of their production. Foreign companies are unrestricted in their access to foreign exchange. Law 69 requires local sourcing when components are of approximately equal cost and quality compared to imports, but this law has not appeared to hinder investors. There are no requirements that foreign equity be reduced over time or that technology be transferred according to defined terms. The government imposes no conditions on foreign investors concerning location, local ownership, local content, or export requirements.
The Dominican labor code establishes that 80 percent of the labor force of a foreign or national company, including free trade zone companies, be composed of Dominican nationals (although the management or administrative staff of a foreign company is exempt from this regulation). The Foreign Investment Law provides that contracts licensing patents or trademarks, leases of machinery and equipment, and contracts for provision of technical know-how must be registered with the Directorate of Foreign Investment of the Central Bank.
The Renewable Energy Incentives Law (57-07) ), which entered into vigor in June 2008, provides an array of incentives to business developing renewable energy technologies. This law was passed as part of the Dominican government’s efforts to invigorate the local production of renewable energy as well as renewable energy manufactured products. The incentives include a 100 percent exemption from taxation on imported inputs (equipment and materials) and a 10-year exemption from all taxation on profits up to, but not beyond, the year 2020.
Right to Private Ownership and Establishment
The Dominican Constitution guarantees the freedom to own private property and to establish businesses. The Foreign Investment Law provides foreign investors the same rights to own property as are guaranteed by the Constitution to Dominican investors. Public enterprises are not given preference over private enterprises. An area of concern, however, is the legitimacy of property titles. The Dominican Republic has a history of problems resulting from conflicting property titles. In an effort to combat this problem, the authorities are working with the Inter-American Development Bank to create an electronic database of all property titles within the country. This project will authenticate and reissue electronically generated property titles to owners. It is not yet clear how conflicts between titles will be resolved.
Protection of Property Rights
The Dominican Republic has laws with sanctions adequate to protect copyrights and has improved the regulatory framework for patent and trademark protection, but United States industry representatives continue to cite a lack of enforcement of intellectual property rights (IPR) as a major concern. The government committed in a side letter to CAFTA-DR to take measures to halt television broadcast piracy and agreed to report on its efforts in this regard in a quarterly report to the Office of the U.S. Trade Representative (USTR). The Dominican authorities have delivered these quarterly reports since January 2005. The Embassy has noted improved coordination in this regard among various government agencies including the Secretariat of Industry and Commerce, the Attorney General’s Office, the Patent Office and the Copyright Office. In 2005 the authorities advised cable television operators of their legal responsibilities regarding copyright and secured a formal agreement with the operators' association in August 2005. Since that time authorities have seized equipment from various operators found to be infringing the laws. The authorities temporarily closed down several broadcasters found to be violating the law.
To fulfill CAFTA-DR requirements, the Dominican Congress passed legislation in November 2006 to strengthen the IPR protection regime by criminalizing end user piracy and requiring authorities to seize, forfeit, and destroy counterfeit and pirated goods as well as the equipment used to produce them. CAFTA-DR mandates both statutory and actual damages for copyright and trademark infringement, and requires measures to help ensure that monetary damages can be awarded even when it is difficult to assign a monetary value to the infringement.
Patents and Trademarks:
The U.S. pharmaceutical industry has expressed concern that the sanitary authority of the Dominican Republic’s Department of Health continues to approve the import, export, manufacture, marketing, and/or sale of pharmaceutical products that infringe patents duly registered in the Dominican Republic. The Industrial Property Law, which was revised in 2000, has only rarely been applied in legal proceedings, so the effectiveness of the law has not been thoroughly tested. In one case in which a Dominican defendant was found guilty of patent infringement, the Dominican Patent Office issued a subsequent opinion, based on obsolete sections of Dominican law; and a Dominican judge cited the newly issued but incorrect opinion to suspend the patent. The decision was ultimately reversed by a court of appeals, but the process took several months and added to the uncertainty about the degree of protection offered to industrial property in the Dominican Republic.
CAFTA-DR requires that test data submitted to the Dominican government for the purpose of product approval be protected against unfair commercial use for a period of 5 years for pharmaceuticals and 10 years for agricultural chemicals. Legislation modifying the industrial property law was passed in November 2006. Trademark infringement is now a criminal offense. At the same time various other dispositions of intellectual property laws were strengthened. The Dominican Congress abolished criminal penalties for patent infringement, a measure applauded by Dominican firms engaged in pharmaceutical piracy or gray marketing. Patent violations must be pursued entirely through civil actions.
Piracy of copyrighted materials is common in the Dominican Republic, despite a strong copyright law passed in 2000, the appointment of a specialized IPR prosecutor with nationwide jurisdiction in 2003, and some improvement in enforcement activity. Audio and video recordings, as well as software, are frequently copied without authorization. The authorities will occasionally seize and destroy such pirated goods, but rarely prosecute offenders.
The copyright and telecommunications authorities cooperated closely in 2005 in a campaign to oblige cable television operators and broadcasters to obtain licenses for re-broadcasting satellite signals and for broadcasting cinematic films. Several firms were closed, fined or warned. Concerning broadcast piracy cases, U.S. industry representatives point to extended delays in the judicial process when cases are submitted for prosecution.
Transparency of Regulatory System
In recent years the Dominican government has carried out a major reform effort aimed at improving the transparency and effectiveness of laws affecting competition. Nonetheless, efforts to establish the rule of law in many sectors of the economy have been impeded or in some cases soundly defeated by special interests. For example, in 2008, the Government refused to enforce a court ruling to halt an illegal blockade of a U.S. business by disgruntled ex-contractors. Many investors, both Dominican and foreign, consider that influence through political contacts will predominate over formal systems of regulation.
On November 20, 2002, Congress passed the Financial and Monetary Law (Law 183-02) to regulate banks and other key players in the financial sector. The IMF standby agreement negotiated in 2003 and 2004 required additional regulation and improved supervision of the banking sector, and authorities have required banks to improve capital ratios in order to meet international standards. The Superintendent of Securities does not regulate the issuance or trading of commercial paper outside the formal securities exchange. Issues traded on the exchange are regulated, although the regulatory entity is weak, and these account for a very small portion of total trades.
In November 2007, the Dominican Senate passed a law on Innovation and Competitiveness that creates a framework for manufacturing companies located outside of industrial free zones to enjoy facilities previously only granted to companies inside the free zone parks. The legislation changed the former Industrial Promotion Corporation (CFI) into the new Center for Industrial Development and Competitiveness (Proindustria).
Efficient Capital Markets and Portfolio Investment
During the 1990s, a period of strong GDP growth and largely successful economic reform, Dominican authorities failed to detect years of large-scale fraud and mismanagement at the privately owned Banco Intercontinental (Baninter), the country’s third largest bank. The failure of Baninter and two other banks in 2003 cost the government in excess of US$ 3 billion, severely destabilized the country’s finances and shook business confidence. The failures and their consequences brought about a crisis of devaluation, inflation and economic hardship. Upon taking office in August 2004, Leonel Fernández’s administration formulated with the International Monetary Fund a comprehensive program aimed at addressing the weaknesses in macroeconomic policies and in a wide range of structural areas. Business confidence gradually returned, but effects of the 2003-2004 economic crisis linger.
In early 2005, the IMF board approved a 28-month Standby Agreement worth approximately US$660 million. Quantitative targets were generally met with large margins, especially on the monetary side. Dominican authorities had more difficulty in making required structural changes. The Agreement ended in January 2008.
The Dominican securities market, the Bolsa de Valores de Santo Domingo, was founded in 1991. Since beginning operations, the Bolsa has handled initial offerings of commercial paper. The relatively inexperienced Superintendency of Securities (SIV) contends with a very aggressive private banking sector that maintains a non-transparent, unregulated secondary market in securities. This legal but unregulated trading of securities generally escapes supervision. The Capital Market Law and its regulations and the Monetary and Financial Law 183-02 are not specific on how to regulate the market in commercial paper.
The private sector has access to a variety of credit instruments. Foreign investors are able to obtain credit on the local market but tend to prefer less expensive offshore sources. There are 14 multi-service banks, 15 development banks, 18 savings and loan associations, a mortgage bank, 69 finance companies, 23 loan houses, and a national housing bank. The Central Bank regularly issues certificates of deposit, using an auction process to determine interest rates and maturities.
There have been occasional spontaneous outbreaks of protest in some of the poorer areas of the Dominican Republic over spiraling electricity costs and lengthy rolling blackouts. Occasional labor protests have been peaceful.
Corruption remains an endemic problem in civilian government, in the private sector, and within the security forces. Corruption and the need for reform efforts are openly and widely discussed. A respected Dominican non-governmental organization supported by USAID sponsored research in 2004 that established the fact that during the previous 20 years, only one sitting government official had been convicted of corruption. That individual was released after serving only six months of the sentence. The judiciary has dealt administratively with judges deemed corrupt, but no known prosecutions of corrupt judges have taken place.
The Dominican Congress ratified the UN Convention against Corruption on October 26, 2006. The UN Convention has a broader scope on corruption than do other agreements; it includes provisions regarding money laundering, obstruction of justice, private sector corruption, and asset recovery.
In April 2005 the President established a National Ethics and Anti-Corruption Commission empowered to receive complaints about actions and decisions of government officials. The Commission is little known and underutilized by the general public.
The letter of agreement with the IMF stipulated that the authorities would obtain the passage of legislation criminalizing the theft of electricity. This legislation was also a requirement of a World Bank lending program for electricity sector reform. The legislation finally passed in August 2007, but the deadline for implementation passed without any enforcement. The law still has not been implemented as of December 2008 indicating a lack of political will to address reforms in the sector and reduce the government’s massive subsidy (2008 est. over $1 billion) to the electricity sector.
In June 2005 a group of former officials including a former minister, transport union leaders and businessmen were convicted of fraud in handling government subsidies for the purchase of buses for public transport. The minister was sentenced to three years of house arrest and a fine. The verdict was confirmed on appeal and in July 2008 the Supreme Court denied a petition to revise the verdict.
In July 2008, the Supreme Court upheld the convictions in the Baninter bank fraud case for violation of the banking and monetary laws, as well as money-laundering. Two senior bank officials and a noted Dominican-American bank advisor were sentenced to ten years and hundreds of millions of dollars of indemnification and fines were imposed. In November 2008, the Supreme Court also upheld the convictions of two senior Bancredito bank officials for similar offenses. They were sentenced to eight years in prison.
Many Dominican elected and appointed officials do not distinguish between the public interest and their own financial and personal interests in the private sector. Reports from the private sector reveal that some officials work in both sectors simultaneously and have much influence over the bidding process of certain contracts. The new government procurement law is intended to end this common practice, but it appears that time will be required to standardize the new procedures.
Bilateral Investment Agreements
On September 6, 2005, the Dominican Congress ratified the Free Trade Agreement with the United States and five Central American countries (CAFTA-DR). Implementation occurred on March 1, 2007. The Dominican Republic has bilateral investment treaties with Chile, Ecuador, France, Spain, and bilateral trade agreements with several Central American countries (CARICOM), and a partial trade agreement with Panamá, but these do not provide the level of protection to investors generally offered by U.S. bilateral investment treaties. An agreement for the exchange of tax information between the United States and Dominican Republic has been in effect since 1989.
In 2007, the Dominican government started negotiating bilateral agreements with Canada and Mexico. The Dominican government also signed an Economic Partnership Agreement with the European Union as part of CARICOM in December 2007 that entered into force in 2008.
OPIC and Other Investment Insurance Programs
The Overseas Private Investment Corporation has been active in the Dominican Republic with both insurance and loan programs. The Dominican government is a party to the Multilateral Investment Guarantee Agency (MIGA) Agreement.
The Dominican Constitution provides the right of workers to strike and the right of private sector employers to lock out workers. The Dominican Labor Code, which became law in June 1992, is a comprehensive piece of legislation that establishes policies and procedures for many aspects of employer-employee relationships, ranging from hours of work and overtime and vacation pay to severance pay, causes for termination, and union registration. The Labor Code requires that 80 percent of non-management workers of a company be Dominican nationals.
The Labor Code establishes a standard work period of 8 hours per day and 44 hours per week and stipulates that all workers are entitled to 36 hours of uninterrupted rest each week. An ample labor supply is available, although there is a scarcity of skilled workers and technical supervisors. Some labor shortages exist in professions requiring lengthy education or technical certification. Most employers have found the local work force competent, trainable, and cooperative. Foreign employers are not singled out when labor complaints are made. Organized labor represented an estimated 8 percent of the work force. The Labor Code specifies that 20 or more workers in a company may form a union. Before a union may officially call a strike, however, it must have the support of an absolute majority of all company workers, unionized or not; it must have previously attempted to resolve the conflict through mediation; it must have provided written notification to the Ministry of Labor of the intent to strike; and it must have waited 10 days from that notification before striking. In part due to these stringent requirements, brief work stoppages are more common than lengthy strikes.
Collective bargaining is legal and may take place in firms in which a union has gained the support of an absolute majority of the workers. Few companies have collective bargaining pacts. The Labor Code stipulates that workers cannot be dismissed because of trade union membership or union activities; however, in practice, it appears that some firms have fired workers associated with union activities. The Dominican labor code establishes a system of labor courts for dealing with disputes. While cases did make their way through the labor courts, the process was often long and cases remained pending for several years. Both workers and companies reported that mediation facilitated by the Secretariat of Labor was the most effective method for resolving worker-company disputes.
Many of the major manufacturers in the Free Trade Zones have voluntary codes of conduct that included worker rights protection clauses generally aligned with the International Labor Organization (ILO) Declaration on Fundamental Principles and Rights at Work. Workers are not always aware of such codes or the principles they contain.
Foreign-Trade Zones/Free Ports
The Dominican Republic's free trade zones (FTZs) are regulated by Law 8-90, which provides for 100 percent exemption from all taxes, duties, charges and fees affecting production and export activities in the zones. These incentives are for 25 years for zones located near the Dominican-Haitian border, and 15 years for those located throughout the rest of the country. These incentives were extended through the year 2015 in agreement with the World Trade Organization. This legislation is managed by the Free Trade Zone National Council (CNZFE), a joint private sector/government body with discretionary authority to extend the time limits on these incentives. Companies in the FTZs must export at least 80 percent of their products.
Foreign currency flows from the free trade zones are handled via the free foreign exchange market. Foreign and Dominican firms are afforded the same investment opportunities both by law and in practice. The CNZFE’s Annual Statistical Report for 2007 noted a Free Zone Sector with a total of 53 free zone parks and 526 operating companies. Of those companies, 240, or 45.6 percent are from the United States. Other significant investment was made by companies registered in South Korea, Sweden, Netherlands and Switzerland. In general, firms operating in the free trade zones experience fewer bureaucratic and legal problems than do firms operating outside the zones. In 2007, free zone exports totaled US$4.56 billion, compared to US$4.5 billion in 2006.
The FTZ sector has experienced a loss of approximately 60,000 jobs nationwide from 2004 to 2007. The expiration of the Multi-Fibre Arrangement, the progressive increase in local production costs, including electricity, transportation and even customs costs, and an overvalued currency are some of the major factors affecting the free zone companies’ profitability. Exporters/investors seeking further information from the CNZFE may contact:
Consejo Nacional de Zonas Francas
Leopoldo Navarro No. 61
Edif. San Rafael, piso no. 5
Santo Domingo, Dominican Republic
Phone: (809) 686-8077
Fax: (809) 686-8079 and 688-0236
Web-site Address: www.cnzfe.gov.do
Foreign direct investment in the last few years has been largely concentrated in tourism, free trade zone activity, electricity generation, real estate development and communications. The Dominican government has made a concerted effort to attract new investment, taking advantage of the new foreign investment law and of the country's natural and human resources. The decision in the late 1990’s to privatize or "capitalize" ailing state enterprises (electricity, airport management, and sugar) attracted substantial foreign capital to these sectors.
Foreign Investment Data (in millions of U.S. dollars)
Source: preliminary data from Central Bank of the Dominican Republic
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FDI Stocks 12,899.9
FDI Stock /GDP 31.3 percent
FDI Net Flows 1,516.5
YEAR 2007 FDI flows by source country
(in millions of U.S. dollars)
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United States 796.1
United Kingdom 77.8
Grand Cayman -30.4
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FDI by Sector (in millions of U.S. dollars)
Preliminary data from Dominican Central Bank
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Free Trade Zones 73.5
Real Estate 723.3
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Major Foreign Investors
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50. Following are some of the largest companies registered as foreign businesses by the Central Bank of the Dominican Republic:
A.) American Movil (Mexican) (Compania Dominicana de Telefonos (CODETEL)), formerly owned by Verizon (U.S.), is the main telephone service provider.
B.) Central Romana Corporation (U.S.) is a diversified operation that includes an international airport (La Romana), a hotel, sugar plantations, a mill and real estate businesses, among other activities.
C.) E. Leon Jimenes (ELJ), Cerveceria Nacional Dominicana, C. por. A. (a former local partner of Phillip Morris, of the United States). This company produces cigars and beer. In November 2006, Phillip Morris sold its interest in ELJ’s beer business and assumed 100 percent ownership of ELJ’s cigarette business.
D.) Xstrata (Switzerland), (formerly Falconbridge Dominicana) (Canada) produces ferro-nickel for export from the Dominican Republic.
E.) Shell Company (Netherlands/England) is a distributor of petroleum products. In November 2008, Shell completed the sale of its 50 percent share in the refinery to the Dominican Government.
F.) Citibank (U.S.) has operated in the Dominican Republic for many years. It maintains corporate operations, but in 2006 sold off its retail banking operation in the Dominican Republic to the Bank of Nova Scotia (Scotiabank).
G.) Esso Standard Oil (U.S.) is a long-time distributor of petroleum products.
H.) Chevron-Texaco Caribbean (U.S.) is another long-time distributor of petroleum products.
I.) Colgate Palmolive, Inc. (U.S.) is a leading manufacturer in the Dominican Republic of soaps and toothpaste.
J.) Bank of Nova Scotia (Canada) is one of the longest established foreign commercial banks in the Dominican Republic. It is known as Scotiabank. It expanded its retail business significantly in 2003-2004 when it purchased assets from the failed Banco Intercontinental (Baninter).
K.) AES (U.S.). Owns and operates electricity generation plants.
L.) Ashmore Energy (U.K.), formerly Prisma Energy (U.S.), operates a 180MW electricity generating plant in Puerto Plata. The operation was formerly known as Smith-Enron.
M.) Coastal (U.S.). A major investor in electricity generation.
N.) Seaboard (U.S.). A major investor in electricity generation.
O.) Tricom, 40 percent owned by Motorola, (U.S.), is the second largest provider of long distance and cellular telephone services in the Dominican Republic. Citigroup of New York owns a sizable share of Tricom's debt.
P.) Campanía de Electricidad de San Pedro de Macorís (Formerly Cogentrix) (U.S./Dominican.) operates a 300MW electricity generating plant.
Q.) Trilogy (U.S.), formerly Centennial, is a cell phone operator and provider of long distance calling cards.
R.) CEMEX (Mexico) is the largest cement producer in the Dominican Republic.
S.) Advent International (U.S.) operates six airports in the Dominican Republic, including Santo Domingo’s Las Americas International airport (second in passenger volume) through its local subsidiary, Aeropuertos Dominicanos Siglo XXI (Aerodom).
T.) Major League Baseball (MLB). Many of the U.S. MLB teams have multi-million dollar baseball facilities that recruit and train players for the U.S. clubs.