Search terms: Argentina
Including: Arbitration Procedure; Recognition and Enforcement; Federal Law.
Division IV of the Federal Court of Appeals on Administrative Matters recently found there to be no basis presently for Argentina's request to set aside the refusal of the International Court of Arbitration of the International Chamber of Commerce (ICC) to admit a challenge against an arbitral tribunal chairman. This request was based on the argument that the ICC court had failed to express the grounds for its decision.
The Argentine Chamber of Commerce and the Chamber of Commerce and Industry of the Russian Federation have signed an agreement to make the resolution of disputes that may arise in bilateral commerce and other economic relations easier. This includes investments between individuals or legal entities domiciled in both countries.
A recent case emphasizes the importance of the seat of arbitration, since its selection determines the procedural law and jurisdiction. Parties involved in arbitration proceedings should ensure they have a complete understanding of the jurisdiction, scope and value of arbitral agreements and the consequences of non-fulfilment of their obligations.
The Supreme Court of the Province of Buenos Aires is yet to decide on appeals filed against the decision of the La Plata Court of Appeals in re Milantic Trans SA v Ministry of Production - Shipyard Río Santiago. The Supreme Court now has the opportunity to reaffirm the correct path marked by the first judicial decision and restore the principle of legal rights.
In a recent case Division D of the Commercial Court of Appeals upheld a first instance decision which had rejected the lack of jurisdiction objection filed by the defendants due to the existence of an arbitral clause agreed by the parties. The court held that arbitral clauses "should be interpreted in a restricted manner".
In a recent decision the Court of Appeals confirmed and ratified the importance of the inclusion of an appropriate arbitration clause in each contract, and the application of the requisites of formal validity of the same, at the moment of requesting the recognition and enforcement of an arbitral award under the New York Convention.
An airline was recently ordered to pay Ps12,000 (approximately $3,000) in compensation to a passenger for the loss of his baggage. In a rather unusual sentence, the judge did not apply the Montreal Additional Protocol 2 to the Warsaw Convention. The airline attempted to appeal the decision, but the appeal was rejected based on a procedural exception contained in the Civil and Commercial Procedural Code.
The recovery period for damages brought under Article 35 of the Montreal Convention 1999 is two years. However, in Argentina, the statute of limitation set forth in Article 35 may be interrupted, delayed or postponed through the Mediation Law. Under the law, a mediation hearing called by claimants to recover damages based on the convention may cause the time limitation to be suspended under certain conditions.
The Federal Court of Appeals on Contentious and Administrative Matters recently modified the penalty imposed by the National Directorate of Internal Commerce on VRG Linhas Aereas. The court stated that whenever specific aviation legislation governs a fact under review, it will prevail over general or domestic legislation.
On June 1 2011 Law 26.683 was passed before Congress. Under the law, airlines that act as customs agents have been withdrawn from the scope of Resolution 39/2011, as issued by the Unit for Financial Information (UFI) earlier this year. Thus, airlines are no longer subject to requests from the UFI regarding suspicious activities linked to money laundering or for the prevention of terrorism.
Resolution 79/2010 of the Regulatory Body for the National Airport System was recently published in the Official Gazette. The resolution instructs Aeropuertos Argentina 2000 SA to implement the assignment of parking positions on airport ramps. Pursuant to the resolution, the assignment of 29 parking positions for Class C aircraft has been changed in accordance with the new layout of the City of Buenos Aires Jorge Newbery Airport.
National Civil Aviation Authority Resolution 764 was recently published in the Official Gazette. The new resolution changes the procedure for requesting approval of scheduled, non-scheduled and special flights. Among other things, it states that petitions to obtain approval of such flights must be made before the Civil Aviation Authority.
Including: Legal Framework; Establishing a Bank; Consumer Credit; Loan Agreements; Privacy and Data Protection; Bank Secrecy; Money-Laundering Prevention.
The Argentine Central Bank recently enacted Communication A5295, establishing certain rules that regulate media and technology companies' payments abroad. The communication sets forth that if the payee is a foreign party that is directly or indirectly related to the paying party or to a foreign party that resides in a tax haven, payment for certain rights or services requires the prior approval of the Central Bank.
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.
Including: Legal Framework; National Securities Commission; Buenos Aires Stock Exchange; Stock Market; Over-the-Counter Electronic Market; Central Depository System; Other Markets; Public Offering and Listing
The Argentine Securities Exchange Commission has launched a formal investigation against a foreign company and the company's Argentine representative on the grounds that the parties attempted to intermediate in the public offering of securities without the proper authorizations and without being registered with a self-regulated entity.
The Buenos Aires Stock Exchange has issued Resolution 1/2006, which adopts regulations to help new companies enter the Argentine capital markets. The resolution is a response to the lack of initial public offers in Argentina in recent years - the last one took place in 2000.
The Argentine Central Bank has established a restrictive position on simultaneous transactions involving securities and has issued new proceedings for the filing of foreign exchange. The bank's interpretation of the conditions that a purchase and sale of securities must fulfil in order to qualify as an exchange transaction challenges important precedents in this area.
Including: Corporations; Limited Liability Companies; Foreign Companies.
The granting of stock options to top-tier executives in Argentine privately held companies is becoming increasingly frequent, as they offer an excellent instrument for aligning the top executives' interests with those of the company. However, companies intending to implement such options should be aware of the risks and contingencies involved in Argentina due to the lack of specific regulation on the matter.
The Commercial Court of Appeals of the City of Buenos Aires recently passed a ruling regarding the right to exclude shareholders in closely held corporations in the event of 'just cause'. Closely held corporations account for more than 90% of legal entities in Argentina, employ more than 70% of the workforce and account for more than 50% of the economic activity in the country.
Trade secrets or confidential information regimes grant protection to valuable secret commercial information from misappropriation by third parties. Such regimes constitute an adaptive discipline seeking to respond to increasing employee mobility, changing technology and rising entrepreneurial activity. In Argentina, trade secrets are protected by Section 156 of the Penal Code and the Confidentiality Law.
Since the issue of General Resolution 7/2005, legislative activity by the Corporations Inspectorate has decreased. However, the regulations enacted by the inspectorate are now starting to have a real effect on businesses, and the courts have issued rulings in cases challenging decisions of the inspectorate.
Since the issue of General Resolution 7/2005 in August 2005, the Corporations Inspectorate has taken a step back from the need to regulate many matters concerning companies incorporated in Argentina, and specifically in Buenos Aires. The reason behind this move is the fact that all such matters requiring regulation are covered by the provisions of Resolution 7/2005.
The Corporations Inspectorate issued a resolution providing that foreign companies which register their corporate documents according to the provisions of Section 123 of the Business Associations Law must establish a domicile so that all notices sent by the inspectorate will be considered to have been duly sent and received upon delivery to the registered domicile.
Including: Legislation; Scope; Enforcing agency; Prohibited practices under Antitrust Law; Dominant position; Merger control; Market investigations; Cartel prosecutions; Preliminary diligence; Administrative and private antitrust litigation; Penalties; Statute of limitations.
In response to an appeal lodged by the National Commission for the Defence of Competition, the Supreme Court recently agreed with a federal court decision that the commission's request for closure of proceedings initiated in connection with a complaint filed for anti-competitive acts prohibited by the Antitrust Law should be overturned. The court argued that the resolution exceeded the powers vested in the commission.
The secretary of domestic trade recently issued a new preventive measure within the pay television market and ordered an important provider of pay television channels to refrain from entering into certain conduct that may infringe the provisions set forth in the Antitrust Law. The new preventive measure shows that the commission continues to assess competition in the pay television market, but may yet be revoked.
Tribunal A of the Court of Appeals on Economic Criminal Matters recently issued a resolution annulling a decision of the Antitrust Commission issued under Section 35 of the Antitrust Law. The case involved the supply of newsprint paper to a La Rioja newspaper. The resolution confirmed that the Antitrust Commission cannot issue preventive measures under Section 35.
Over the last few years the National Commission for the Defence of Competition has been engaged in competition advocacy. Each year the commission executes a number of measures that aim to spread the provisions set forth in the Antitrust Law and the concept of free competition across the community. The commission has a wide range of alternative ways to implement competition advocacy policies.
The Antitrust Commission has issued a new preventive measure under Section 35 of the Antitrust Law. The resolution, which originated from an accusation filed by a freelance air conditioning unit installer, compelled Argentina's largest retail stores to grant guarantees for air conditioning equipment, even if the equipment is not installed by the stores' own team of installers.
Although not specifically contemplated by the Antitrust Law or its regulatory decrees, preliminary diligence is increasingly used by the Antitrust Commission in order to establish whether an economic transaction with effect in Argentina should have been notified according to the terms of Section 8 of the Antitrust Law.
Congress recently passed a new law imposing several limits on the ownership and possession of rural land by foreign companies and individuals. Strongly backed by the governing party, and supported by the most diverse political parties, the law follows the example of countries such as Brazil, which are tending to regain control over rural land by local citizens and to protect small-scale producers.
A leveraged buy-out of the target is one of the typical strategies used to push down debt on acquisitions. The Argentine tax authority recently audited this type of transaction and decided that the interest deduction must be disallowed, with the effect of eliminating leveraged buy-out transactions from the M&A arena. However, the authority's position can be viewed as a narrow interpretation of the current law.
Hiring expatriates in Argentina is not a simple procedure, as any employer that wishes to hire foreign employees must meet stringent immigration requirements before it can do so. In addition, before hiring a foreign employee, companies that conduct operations in Argentina must be registered with the National Registry of Sponsoring Entities and each prospective employee will require a work visa.
Including: Basic Income Tax Rules Applicable to Local Corporate Entities; Basic Rules Applicable to Non-residents; Limits on Deductions for Payments Made to Non-residents; Transfer-Pricing Rules; Anti-deferral Rules; Corporate Reorganizations; General Anti-avoidance Rule; Relief from Double Taxation; Other Taxes.
Following the cancellation of the former double tax treaty between Spain and Argentina in 2012, a new treaty between the two countries has recently been signed. The new treaty reflects in general terms the structure of its predecessor, while introducing a few relevant changes. Although these changes are significant, a mere renegotiation of the then-extant treaty would arguably have sufficed.
A conflict between the Income Tax Law and the Companies Act may arise if, during the two-year period following a restructuring, the surviving company (or companies) must make a capital reduction following the mandate imposed by the Companies Act, thus potentially jeopardising the requirement under the Income Tax Law for the continuity of proprietary interest. This conflict was analysed in a recent appellate court decision.
Following its unilateral termination of tax treaties with Chile, Spain and Switzerland, Argentina is in the process of negotiating new double tax agreements. It is hoped that this will ensure that the continuity of treaty benefits can be preserved. A number of rulings are also pending before the Supreme Court dealing with certain treaty law open issues for which a definition or clarification is expected.
In 2011 the Argentine government created a commission to evaluate and review the double tax treaties that were in force or those to be signed in future. After a year of inaction, the goverment recently decided unilaterally to terminate the treaty with Switzerland. Since then, two other treaties have also been denounced (those with Chile and Spain) as a result of the commission's analysis and determination.
Article 73 of the Income Tax Law states that transfers of cash or assets to third parties that are not performed in the company's interest are subject to an interest presumption at a fixed rate determined by statute. However, without a precise definition of the relevant terms, the scope of the requirements under which Article 73 applies is subject to debate. Two Supreme Court decisions have shed light on the issue.
The Federal Tax Court recently analysed the scope and application of the most-favoured nation clause contained in the Latin American Integration Association treaty. The Tax Court adopted a very clear position on how the scope of the clause must be construed, in the context of the treaty in particular, and in any other treaty with similar features.
On May 18 2005 the Senate approved Law 26,032 on Internet Services in order to include the search, receipt and dissemination of information and ideas through the Internet within the constitutional guaranty that safeguards the freedom of expression.
Since the enactment of the Glaciers Law in 2010, natural resources companies in Argentina have been waiting with interest for the results of the national inventory of glaciers and the environmental audits of priority areas. According to preliminary findings, the work carried out in both the cross-border Pascua Lama project and the Veladero project has been deemed to have no impact on local glaciers.
International resources companies are aware of the need to pay attention to indigenous rights from their experiences of mining around the world. Accordingly, many companies currently go beyond what is specifically required of them by Argentine law to protect indigenous rights. However, changes proposed by the new Civil Rights Reform Bill could provide greater certainty for both resources companies and indigenous communities.
The mining industry in Argentina has experienced unrelenting growth over the past decade, but has met with opposition from local communities due to its perceived environmental impact. The Supreme Court recently issued a series of decisions that may be crucial in the government's effort to reconcile mining, economic development and environmental protection.
Argentina's largest oil and gas company, YPF, was recently nationalised. A major reason given by the government for the expropriation was that hydrocarbons self-sufficiency is a matter of national public interest and a state priority. The government has also indicated that it envisages increased investment activity in the oil and gas sector in the immediate future.
Historically, mining and drilling for hydrocarbons in Argentina have met with considerable opposition. However, the government has recently taken steps to promote the resources industry in a sustainable way that aims to give a real economic return to the provinces in which such activity is located. It is hoped that the new measures will promote a simplified process and alleviate some of the activists' concerns.
The provinces of Rio Negro and Neuquen have recently implemented decrees that encourage investment in the exploration and exploitation of shale gas reserves, as well as other unconventional oil and gas reserves. The decrees provide for a relaxation or pausing of the exploration periods when discoveries cannot currently be exploited economically.
Including: Introduction; Federal regulations; Other considerations.
A new law on environmental liabilities was recently published in the Official Gazette for Buenos Aires province. It details provisions which regulate the identification of environmental liabilities, as well as the obligation to restore contaminated sites or areas of risk to the population's health in order to mitigate negative impacts on the environment.
The Senate of the province of Buenos Aires recently passed the first law in the country establishing the principles, liabilities and obligations for the sustainable management of waste electric and electronic equipment (WEEE). The new law aims to prevent and reduce the generation of WEEE, promote the reuse and recycling of such waste and modify the conduct of individuals that are part of the lifecycle of electric and electronic devices.
The Buenos Aires provincial executive power recently filed a bill with the legislative body for discussion and possible approval of a new Environmental Infractions Code. This innovative code will form the first compendium of administrative rules in Argentine law that addresses the protection of natural resources and the calculation of environmental administrative infractions and penalties corresponding to each breach.
The National Congress has passed the new Law on Minimum Standards for Protection of Glaciers and Periglacier Environment. In addition to defining 'glaciers', the new law created the National Glacier Inventory, where all glaciers and periglacier geoforms that act as water reserves within the national territory will be listed, with all the necessary information for their adequate protection, control and monitoring.
The Environmental Protection Agency of the province of Buenos Aires recently issued Resolution 389/2010 governing electronic waste management. The new resolution aims to prevent the indiscriminate generation of electronic waste and promote the reuse and recycling of such waste, with manufacturers, importers, distributors and retailers of electronic equipment being given a key role.
With the development of the Internet, existing legal regulations have often been rendered obsolete, presenting situations for which there is no appropriate legal rule or regulation. Each case must therefore be assessed individually, applying the general rules of the Civil Code and, in particular, those regulating fault-based liability. The court of appeals recently examined the liability of search engines for the content of third-party websites.
The Argentine software industry is ripe for consolidation and further penetration in today's globalised world. A combination of factors gives this sector the potential to expand its international presence. However, this is likely to necessitate consolidation of the existing 1,600 software companies.
The Internet frequently renders existing legal regulations obsolete, generating situations for which there is no appropriate legal rule or even cases where there is absolutely no legal regulation. When a singer filed a complaint against web search engines for linking to websites that associated her image or name with sexual content, the court was faced with new liability issues which are not yet subject to any specific regulation.
Law 25,563 came into force on February 14 2002 and amends the Bankruptcy Law. The amendments are a reaction to the current Argentine economic crisis, and include the extension of the exclusivity period in which a restructuring agreement can be reached and the reduction of litigation expense for restructuring proceedings.
The insurance regulator has issued a new resolution which amends the General Insurance Regulation. Among the many changes that it introduces, the new resolution increases the amount of documents and information that board members and officers of local insurance and reinsurance companies must provide to the insurance regulator.
Under the 2012-2020 Insurance Plan a percentage of the investment portfolios of insurance companies will be redirected to mid-term and long-term productive and infrastructure projects. However, the insurance regulator recently stated that redirection of insurers' investments in the real economy is just one of the plan's goals. The insurance and reinsurance market should therefore prepare itself for new regulation.
The president and the Ministry of Economy recently announced the 2012-2020 Insurance Plan. Under the plan, a percentage of insurance companies' investment portfolios must be redirected to mid-term and long-term productive and infrastructure projects, among other things. How this plan will evolve and its real impact on the industry are expected to become evident in the next few months.
The insurance regulator recently issued a new resolution that focuses on the need to assign a specific code to new reinsurance or retrocession contracts. The resolution provides that all reinsurance or retrocession contracts entered into by insurance companies or local reinsurers must be identified by a reinsurance operation code. The code must be submitted before the contract enters into force.
Admitted reinsurers are authorised to offer reinsurance from their head offices only on a per-exception basis, and may freely offer retrocession coverage to 'local' reinsurers. The insurance regulator recently introduced a controversial requirement for admitted reinsurers to register a permanent establishment in Argentina. The registration process at the Buenos Aires Office of Companies has been plagued with difficulties.
Under the Minimum Capital Requirements Regulation, reinsurers that start the registration process for operation as a local reinsurer will shortly be required to deposit an initial capital equal to twice the minimum capital (which can be later reduced). To avoid this increase, international reinsurers that wish to become local reinsurers are advised to begin the registration process before the change.
The liability of internet search engines has been the topic of a number of judicial decisions in Argentina. However, a recent judgment differs somewhat from those that preceded it, both in that the protection of personal non-transferable rights was not claimed and in relation to the nature of the affected rights. The case concerned unauthorised use of a registered trademark in the context of an internet search.
Over the past few decades, comparative advertising has become widely used in a number of countries, including the United States. However, as Argentina lacks specific regulation on the subject, its use is still rare in the country. It is clear that until specific legislation has been enacted in this regard, any comparative advertising activity will entail risks that trademark lawyers and advertisers alike will find difficult to evaluate.
A recent judgment rendered by the Federal Court of Appeals in Civil and Commercial Matters provides a good example of how courts should behave in cases of patent infringement. The court analysed the requirement of appraising the claimed amount when filing a complaint for patent infringement and held that a quantification of the claimed amount could be seriously established only once evidence had been produced.
A new resolution recently published by the National Institute of Industrial Property offers new patentability guidelines for the examination of patent applications of chemical-pharmaceutical inventions. The new resolution affects the possibility of obtaining patent protection for pharmaceutical inventions by changing the criteria by which the novelty and inventive step of such inventions will be examined.
Trademarks play an essential role in the domain name field, with the owners of trademark rights acting as the main promoters of the regulatory process. Until recently, such conflicts could only be settled in court. However, following the introduction of a new rule to the resolution on domain name registration, it is now possible to settle domain name disputes out of court, with NIC Argentina acting as the enforcing authority.
The Federal Court of Appeals in Civil and Commercial Matters recently granted a preliminary injunction against a registered trademark on the basis that it is prima facie identical to a well-known trademark owned by a third party. This ruling was particularly unusual as the plaintiff had not registered the trademark in Argentina, but the defendant had registered the trademark in Argentina.
Argentine law provides for litigation without costs in both civil and commercial proceedings. This process allows plaintiffs that lack financial resources access to the courts. If a plaintiff is not granted litigation without costs, the rule is that the losing party pays. However, what is the situation if a plaintiff loses in court, but has been granted litigation without costs?
The Supreme Court has dismissed a claim to obtain an antisuit injunction purporting to stop a judicial claim filed by Candlewood Timber Group LLC before the Delaware Chancery Court against the Argentine branch of a US company. Candlewood's claim was based on the Hydrocarbons Law and two concession agreements for the production and transportation of oil held by the US company.
Under Resolution 432/2011 the federal regulator of communication services (AFSCA) has approved the bid conditions for the granting of licences for individuals and corporate entities for the installation and exploitation of audiovisual services by subscription through a physical link or satellite. It may be advisable to review the resolution and its contents before purchasing the bid conditions.
The National Lottery State-Owned Corporation recently enacted Resolution 17/11 on games of chance, for the organisation of contents, drawings and competitions. The resolution introduces new requirements for granting the annual authorisation, approval and accounting and closure of the promotions. Enterprises that have annual authorisations will be provided with a 30-day period to regularise their situation.
In August 2005 the federal government enacted two decrees creating investment programmes in order to encourage private investment in public works. Through Decree 966/2005 the National Private Initiative Regime was adapted to meet the real needs of the government and private investors. The National Public and Private Association Regime was established through Decree 967/2005.
Most of the major electricity generation companies have accepted the government's offer to finance the construction of two new steam power plants. The companies will swap their present and future credits against the Wholesale Electric Market Administrator Company for shares in the new plants.
The government has created trust funds to finance gas and electricity investments, especially for transportation and distribution. The government passed a resolution structuing a financial trust and creating a global programme for the issue of securities representing debt and/or certificates of participation in financial trusts up to a maximum of $3 billion.
Including: Market Development; Licensing Regime; Network and Services Regulation.
Approval of the 2004 acquisition of Movicom Bellsouth by Telefónica Móviles SA was conditional upon the return of 35 megahertz (MHz) of the spectrum to the government. In December 2005 a resolution was passed setting out a timetable for the return of the 35MHz on a progressive basis by geographical area.
New regulations on the interception of communications, dubbed the 'spy law', have attracted widespread criticism. The most controversial duty imposed on providers is to register all 'telecommunications' traffic as defined by a new decree, which broadens the term to include data transfer and value added services involving the Internet and emails.
A new decree envisages that every telecommunications service provider should have the necessary resources to capture and transfer the communications it transmits so that the judiciary or Ministry of Justice may use them to combat crime, and should also systematize its subscriber information.
Argentina's already strict requirements for importing used or refurbished capital goods have been further tightened by a new decree, which recently entered into force. While the decree maintains the list of used capital goods which cannot be imported, it also establishes three different import duty rates applicable to used capital goods. New restrictions in relation to the refurbishment process have also been introduced.
The government recently abrogated the non-automatic licence required for the import of over 600 products, ranging from textiles and footwear to luxury cars and agricultural equipment. While this abrogation may help to reduce the bureaucratic nightmare associated with importing products into the country, it should not be mistaken for liberalisation of the foreign trade sector.
Argentina's foreign trade had a difficult year in 2012. Both importers and exporters suffered under a series of trade-restricting regulations enacted with one aim in mind: to obtain as much foreign exchange (mainly US dollars) as possible in order to pay for Argentina's ever-increasing energy imports bill. A number of trade-restricting regulations enacted in 2012 will continue to hinder trade in 2013.
The government recently published a resolution whereby it abolished the automatic licences required for importing a substantial number of goods. Although the demise of automatic licences in itself does not necessarily represent an improvement in the obstacles affecting imports, it should at least reduce the workload associated with the customs clearance of many goods.
The government recently suspended Economic Complementation Agreement 55 with Mexico regulating trade in the car industry. The bilateral trade balance with Mexico has shifted increasingly against Argentina, widening the trade deficit. Consequently, the government had been trying to renegotiate the agreement. This suspension is another example of Argentina's increasingly protectionist and unilateral trade policies.
As part of its aggressive policy to maintain its trade surplus, the Argentine government has recently introduced a new system imposing limits on payments for imported services. This system is similar in scope and operation to that in place for imports and is separately administered by the tax authority and the Central Bank (each using its own set of regulations).
The Unit for Financial Information (UFI) recently published Resolution 39/2011, which establishes the measures that all registered importers, exporters and customs transport agents must observe in relation with the prevention of money laundering and the financing of terrorism. The UFI later postponed the resolution's application for 180 days, to allow the Argentine Congress time to discuss it further.