Marval O'Farrell & Mairal
Founded in 1923, Marval, O’Farrell & Mairal is the largest law firm in Argentina. A market leader at both local and Latin American levels, the firm has been providing sophisticated, high quality advice to international and local clients for 90 years. The firm comprises over 300 lawyers and has wide experience of international business issues and the complexities of cross-border transactions.Show more
In 2016 there were several regulatory developments regarding the use of technology in the financial sector. The Central Bank of Argentina issued regulations aiming to integrate technological innovations in the financial sector to promote greater formalisation of the economy, increase access to banking services and facilitate access to and use of digital tools. These regulations highlight the Central Bank's intention to promote the use of new technologies for legal and financial transactions.
Since December 2015, a series of measures have been implemented to deregulate and implement progressively more flexible regulations regarding foreign exchange controls. Among other things, the changes relate to the acquisition of foreign currency, financial indebtedness and the repatriation of direct and portfolio investments by non-Argentine residents.
The Argentine Central Bank has recently issued Communication A4643, which extended the maximum term for the proceeds of foreign financial indebtedness to be transferred into Argentina and converted into pesos through the local foreign exchange market to 365 calendar days.
The legality of offsetting debits and credits with a suspended financial institution has been much debated. However, the National Supreme Court of Justice of Argentina ruled that set-off cannot take place during the suspension of a financial institution.
In light of recent regulatory trends, foreign financial corporations should carefully analyze the advantages and disadvantages of electing an individual or a separate legal entity as its representative in Argentina, and of reorganizing a representation office in Argentina.
The Argentine Central Bank has issued Communication A/4507, which regulates the transfer of foreign currency to Argentina for the payment to local financial entities of financial debts and financial guarantees granted by foreign residents. The communication came into effect on March 8 2006.
The Argentine Central Bank has issued Communication A/4443, which replaces the regulations regarding financing to exporters under Communication A/4415, issued in September 2005. The amendments are designed to relax some of the requirements provided by the previous regulations in order for local exporters to receive export financings.
The Central Bank of Argentina has issued a communication establishing new requirements on the indebtedness of Argentine residents with regard to advances and pre-export financings. The Central Bank also issued a communication introducing a new regime for the financing of investment projects aimed at increasing export capacity.
New regulations on the transfer of funds into and out of Argentina reinforce some existing obligations (eg, the minimum period for which funds entering the country must remain before being transferred out again), but also impose new restrictions (eg, a 30% reserve requirement on funds transferred into Argentina).
The Central Bank of Argentina has set out a framework to determine the requirements and frequency for the filing of reports on direct and real estate investments held by Argentine residents abroad, and by non-Argentine residents in Argentina.
The Central Bank of the Argentine Republic has issued a new regulation which states that Argentine residents holding 10% or more in foreign companies and real estate properties abroad, and non-Argentine residents holding 10% or more in Argentine companies and real estate properties in Argentina, must declare such information to the Central Bank.
On June 1 2004 details of the debt restructuring proposal for the reduction of Argentina's public external indebtedness were announced. Under the proposal, the principal amount of defaulted debt is $81.2 billion and the reduction of principal under nominal terms is 75%. Debt restructuring will be carried out by the issue of par bonds, quasi-par bonds and discount bonds.
Until June 30 2004, Argentine individuals and legal entities in the private non-financial sector may purchase foreign currency on the foreign exchange market in order to make portfolio investments abroad for an amount exceeding the normal $1 million per calendar month limit. However, restrictions exist on the use of such funds.
Under certain conditions, non-residents in Argentina can now access the local exchange market to make portfolio investments abroad in excess of the previous maximum of $500,000, as long as funds are used to repurchase or pay foreign debts. The regulatory regime governing the repatriation of investments by non-residents has also been liberalized.
A new government decree requires the registration of transfers of funds to and from Argentina, with certain exceptions. The decree also provides that once foreign funds have entered Argentina, they may not be transferred abroad for at least 180 days. These measures were passed to prevent the eventual departure of speculative capital which may be entering Argentina.
A New York district court recently declined to grant stays requested by Argentina in actions brought by individual bondholders seeking repayment of Argentina's defaulted foreign debt. However, several class action motions were denied on procedural grounds, including failure to define the class with sufficient precision in the motion.
The Supreme Court recently declared that Section 2 of Decree 214/02, which converts dollar bank deposits into pesos, is unconstitutional. Among other things, the court held that the rule is invalid as an emergency decree and involves an unconstitutional curtailment of individual property rights.
Tight exchange controls were imposed by the Argentine Central Bank (CBRA) in early 2002, including a requirement to obtain prior CBRA approval for many overseas payments. A new regulation creates exemptions from these requirements for certain payments of loan principal and interest. Argentine companies may also now purchase foreign currency to pay dividends or profits abroad.
The Antitrust Commission recently ruled that it is the only government agency authorized to analyze the competitive effects of bank restructurings undertaken by the Central Bank. As these restructurings often result in market consolidations under the Antitrust Law, the parties involved must now report them to the Antitrust Commission.
Due to the social, economic and political crisis in Argentina, the government has resolved to devaluate the peso and 'pesify' debts denominated in US dollars or other foreign currencies.
A new decree addresses sovereign debt restructuring, the liquidity of the banking system and the restructuring of financial entities. It provides measures to help the banking system and financial entities undergoing liquidity crises.
Including: Legal Framework; Establishing a Bank in Argentina; Legislation on Consumer Credit; Loan Agreements; Privacy and Data Protection; Bank Secrecy; Anti-Money Laundering Regulations
A new law designed to reduce tax evasion and prevent unregistered operations has recently been enacted. Among the new measures it will introduce are the limitation of cash operations and the creation of a new type of payment instrument.
The Argentine Money Laundering Law has been regulated by the government through Decree 169/01. This update discusses some of the implications of the new law.
A recently enacted law has created a new tax on credits and debits. This update discusses how the tax will work, as well as other aspects of the new law.
Company & Commercial
One of the major changes introduced by the amended General Companies Law is the possibility of setting up corporations formed by a single shareholder. While the introduction of single-shareholder corporations is a step in the right direction, the restrictions and requisites imposed therein evidence that this new type of organisation does not meet the expectations of the legal and business communities.
In its continued effort to promote the revival of the Argentine economy, the government recently submitted a bill to Congress to create a new type of simplified corporation. At present, in order to undertake a business venture in Argentina – no matter how small – an entrepreneur must set up a traditional company, which will be subject to the same rules and taxes applicable to well-established big businesses.
Argentina is slowly leaving behind a decade of over-regulation. As the country endeavours to make the transition from over-regulation to a private investment-friendly environment, expectations in the M&A sector are high. If the high-inflation and low-growth transition is overcome in the next few months, Argentina should regain significant attractiveness in the region and appeal to local and foreign investment.
The government is proposing an ambitious tax amnesty law which would allow taxpayers to disclose undeclared assets and extinguish any tax obligation relating to such assets by paying a penalty. The government proposal gives taxpayers the option to use the disclosed assets to subscribe to a three-year zero coupon bond and a seven-year 1% per year coupon bond.
Employment & Benefits
Two new draft laws were recently published which will directly affect employment contracts if passed. The first proposes introducing benefits for employees regarding the recruitment of workers aged between 16 and 24 and the regularisation of non-registered employees. The second proposes a temporary ban on dismissals in the public and private sectors without just cause.
The government recently enacted Decree 394/16, which increases the tax-free minimum salary, favouring pensioners and unionised employees. However, the taxation of severance payments in cases of dismissal without cause is a contentious issue for the tax authorities and taxpayers and there has been significant increase in claims for income tax withheld from employees on the termination of employment.
Jurisdiction, the application of local law and the currency of benefits based on share option plans were key factors that resulted in a $6 million award by the National Labour Court of Appeals in favour of a former director general of a large telecommunications corporation. The case illustrates that the risks associated with share option plans increase in cases of termination of employment.
Under the Labour Act, termination without just cause entitles an employee to a severance payment. When defining the basis of calculation of severance payments, the Labour Contract Act refers to the highest and average monthly salaries that an employee accrued during his or her last year of service. The inclusion of bonuses in this calculation is a highly contested issue in labour disputes.
Granting social security rights to migrant employees is of fundamental importance. Depending on the country that expatriates come from and taking into account the length of time that they have worked in Argentina, certain employees are entitled to request recognition of work carried out in Argentina under the relevant international social security agreement in order to receive social security benefits.
There is no specific regulation in Argentina regarding the monitoring of work or company emails. However, the Court of Appeals recently ruled that once an employee is given a user name and password for a company server or IT system, all communications made using that system are private. Employers and employees need to be aware of this decision, as it could be the start of a new trend in this regard.
Under Argentine law a labour relationship exists when one person provides personal services to another in exchange for remuneration, while in a legal, economic and technically subordinate position. All labour relationships in Argentina are governed by the Labour Contract Law, the Constitution and international treaties and conventions with international hierarchical status.
The Court of Appeals recently issued a groundbreaking decision on the application of the new Civil and Commercial Code's arbitrability exclusions to an agreement made before the code came into effect. The court considered the arbitration agreement in a consumer contract to be null and void pursuant to the exclusions in Section 1651 of the new code.
The new Civil and Commercial Code introduced the principle of equal treatment for foreign nationals who litigate in Argentina. In a recent ruling, the Court of Appeals in Civil Proceedings analysed the impact of this provision on certain procedural rules which require foreign nationals who do not maintain a domicile or immovable property in Argentina to provide a bond or similar undertaking when litigating in Argentina.
A recent ruling sets an important judicial precedent regarding the recognition and enforcement of International Centre for the Settlement of Investment Disputes (ICSID) awards in Argentina. The case involved the enforcement of an ICSID award against two Argentine companies in favour of Peru. The ruling established that the award could be enforced in Argentina without the need for exequatur proceedings.
A bondholder of Argentine restructured debt filed for an injunction before the courts against the Bank of New York Mellon, as trustee under the exchange bonds. The plaintiff claimed the distribution of funds (frozen by a US court order) that Argentina had deposited in the bank's account to comply with the payments under the bonds. The Argentine courts dismissed the request due to lack of jurisdiction.
Argentina recently enacted a new Civil and Commercial Code. The new code introduces a specific chapter on international jurisdiction that will substantially alter the framework which governs international litigation in Argentina. The new measures include the power to issue provisional measures and injunctions, international lis pendens and international cooperation.