Although the country hosts 500 U.S. companies that employ more than 155,000 Argentines, the Government of Argentina (GOA) has taken actions in recent years that have dampened the investment climate and made the business environment challenging, especially for new entrants to the market. The GOA has signaled its desire to see continued foreign direct investment (FDI) flows to enhance the nation’s productive capacity and GDP growth potential, but longstanding concerns regarding the stability of contractual rights and the regulatory environment diminish the attractiveness of prospective investments in some sectors. GOA actions to curb the remittance of profits abroad have also led some foreign companies to question whether their money should be invested in the country if they are unable to access it later. Currency controls delay companies’ access to dollars to pay suppliers. The GOA introduced an all-encompassing import licensing system that has made importing the materials necessary for the day-to-day functioning of a business to be burdensome. Factories and distributors occasionally sit idle while the GOA delays granting approval to move inputs through customs, a process that can be restrictive and unpredictable. Companies have reported being unable to import to Argentina unless they have a trade balancing plan on file that puts them on a path to ensuring they bring in as much foreign exchange into Argentina as they take out. The GOA has not complied with its obligations under the Bilateral Investment Treaty (BIT) or the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) to pay final and binding arbitral awards rendered in investor-state arbitration under the BIT.
Following an economic crash in 2002 and the then-largest sovereign default in history, real GDP began to recover and grew at an average rate of 7.2 percent between 2003 and 2011. Growth has lately stalled somewhat; private analysts estimate Argentine GDP growth in 2012 was 1.4 percent (official figures are not considered reliable). High growth since 2003 has led to a recovery in key socio-economic indicators which had been buffeted by the 2002 crisis, including a reduction in unemployment from 21.5 percent in 2002 to 7.6 percent during the third quarter of 2012, according to official figures. In December 2012, Central Bank reserves were about $43 billion, up from a low of $9 billion in 2002. However, they were down from a high of over $52 billion at the end of 2010 due to being used to service debt, maintain the exchange rate, and meet other balance of payment needs. Many economic indicators -- with the notable exception of high inflation -- are still positive, though 2012 saw lower economic growth and a decline in investment.
The GOA ended a currency board-style mechanism (“convertibility”) in 2002 that had pegged the Argentine peso (AR$) to the U.S. dollar ($) and devalued the local currency. In January 2002, the government defaulted on roughly $82 billion in privately held debt and over $6 billion in debt to official government creditors (including approximately $360 million owed to the U.S. government). Argentina's debt to official Paris Club creditors now stands at over $9 billion, including arrears and past due interest (as of December 2012).
Argentina continues to owe debt to private bondholders. Ninety-two percent of the defaulted $82 billion of private debt has been swapped for a mix of new bonds with a substantial loss in net present value. Some bondholders, known as the “holdouts,” have not participated in the swaps and continue to pressure Argentina via the courts to settle its outstanding debt for the actual amount they are owed plus interest. In 2006, Argentina paid its $9.5 billion debt to the IMF. In 2010, the government used $6.57 billion in Central Bank reserves to make foreign currency debt payments due that year. The 2012 budget also allowed the use of $5.7 billion in Central Bank reserves to make debt payments. Article 33 of the 2013 budget raised the amount available to pay public and private creditors to almost $8 billion.
Lack of a credible statistics agency is a point of concern. Even within Argentina, the accuracy of figures reported by the official statistics agency (INDEC) has been widely questioned, especially for the Consumer Price Index (CPI). Independent figures have become more difficult to find. The GOA has fined private and non-governmental entities that have published their own inflation statistics, making independent data less available. The IMF formally censured Argentina on February 1, 2013, because of manipulation of inflation and GDP data, a breach of obligation to the Fund under the Articles of Agreement. In 2012, official figures for the CPI were approximately 10.8 percent, while private analysts estimate that inflation was 25.6 percent.
According to a Presidential decree governing foreign investment in Argentina, foreign companies may invest in Argentina without registration or prior government approval, and on the same terms as investors domiciled in Argentina. Investors are free to enter Argentina through merger, acquisition, green-field investments, or joint ventures. Foreign firms may also participate in publicly-financed research and development programs on a national treatment basis.
In December 2011, the Argentine Congress passed Law 26.737 (Regime for Protection of National Domain over Ownership, Possession or Tenure of Rural Land) limiting foreign ownership of rural land, even when not in border areas, to a maximum of 15 percent of all national productive land. Furthermore, individuals or companies from a same nation cannot hold over 30 percent of that amount; and individually each foreign individual or company faces an ownership cap of 1,000 hectares (2,470 acres) in the most productive farming areas, or the equivalent in terms of productivity levels in other areas. As approved, the law will not be retroactive. Section 11 of the Law establishes that “for the purposes of this Law and according to the BITs underwritten by the Republic of Argentina that are in force at the time this Law becomes valid, the acquisition of rural land shall not be considered an investment as it is a non-renewable natural resource provided by the host country.”
In 2012 Argentina terminated Double Taxation Agreements (DTAs) with Austria, Chile, Spain, and Switzerland. Terminations became effective on January 1, 2013. This has complicated the operating environment for U.S. companies that have tried to integrate their production between Argentina and these countries.
Foreign and Argentine firms generally face the same tax liabilities. In general, taxes are assessed on consumption, imports and exports, assets, financial transactions, and property and payroll (social security and related benefits).
The GOA has established a number of investment promotion programs. Those programs allow for Value-Added Tax (VAT) refunds and accelerated depreciation of capital goods for investors and offer tariff incentives for local production of capital goods. They also include sectoral programs, free trade zones, and a Special Customs Area in Tierra del Fuego Province, among other benefits. A complete description of the scope and scale of Argentina’s investment promotion programs and regimes can be found at http://www.industria.gov.ar (Spanish), http://www.inversiones.gov.ar, and http://www.mecon.gov.ar/basehome/promocion.htm (Spanish). Information about programs that specifically apply to small and medium businesses may be found at http://www.sepyme.gov.ar (Spanish).
In 2011 the GOA began imposing significant restrictions on remittances of capital overseas by foreign companies. These were formally implemented in December 2012 with Resolution 3417. In 2012 the Central Bank issued Regulation A-5318 officially banning the purchase of dollars by residents (either Argentine or foreign) as a form of financial savings (although it does not prevent residents from maintaining existing dollar saving accounts and time deposits). This measure formally ended the previous norm that had allowed individuals to buy up to $2 million per month without having to specify the destination of the funds (e.g., debt payment, investments, savings, international travel expenses, etc.). Residents can now only buy foreign currency for international tourism purposes, and these purchases are also subject to caps and controls by the GOA of the origin of funds to acquire the currency.
The Federal Tax Authority (AFIP) subsequently uses Resolution 3333 to regulate retail purchases of foreign exchange for travel. Requestors provide information as to the source of their money and proof that it was acquired legally. In addition to other personal data such as birth date, profession, and tax ID numbers, they must also provide details about their planned trips, including where, when, and why they are traveling. Since the issuance of this norm, the government has reportedly provided additional verbal instruction to banks and foreign exchange houses that further limit the purchase of foreign exchange.
Since 2011, government restrictions on foreign currency purchases have led to the expansion of an informal retail foreign exchange market. The informal dollar rate reached a record high (AR$7.54 to the US$) in January 2013, exceeding the official exchange rate (AR$4.96 to the US$) by more than 50 percent.
On August 30, AFIP issued Resolution 3378 imposing a 15 percent tax on all credit card and debit card purchases made abroad by Argentines. AFIP indicated in Resolution 3420 issued on December 20 that the tax would be recoverable as a credit against annual income and wealth tax payments.
Company purchases of foreign exchange are in practice almost halted, even for trade purposes, unless a firm demonstrates it has sold exports for an equivalent amount of foreign exchange. AFIP evaluates each request based on the individual’s or company’s revenue stream. This slows down the importation process and is a frequent subject of complaint from firms operating in Argentina. The GOA also published Resolution 3417 in the December 20 Official Gazette requiring companies that pay debt or transfer utilities abroad as well as those that perform temporary or regular imports to obtain pre-approval by filing a statement of payment with AFIP. This new requirement is part of AFIP’s so-called “single window” system for foreign trade, introduced in early 2012.
The GOA subjects speculative capital inflows to three major requirements: (a) investments may not be transferred out of the country for 365 days after their entry; (b) proceeds from foreign exchange transactions involving these investments must be paid into an account in the local financial system; and (c) a 30 percent unremunerated reserve requirement, meaning 30 percent of such transactions must be deposited in a local financial entity for 365 days in an account that is denominated in dollars and receives no interest payment.
There are some notable exceptions to the deposit requirement. A deposit is not required for capital inflows to finance energy infrastructure. Nor is a deposit required on inflows for the purchase of real property by foreigners as long as the foreign exchange liquidation occurs on the day of settlement (and transfer of the title). A deposit is also not required for inflows from foreigners to be used for (a) tax payment and (b) social security contributions within 10 days of the settlement of the foreign currency. In October 2011, the Central Bank imposed new market controls on non-residents. They are now required to immediately “register capital inflows into the local foreign exchange market when they purchase a local company, contribute capital or purchase real estate.”
Foreign entities are banned from participating in Central Bank initial bond offerings; however, foreign firms may trade Central Bank debt instruments on the secondary market. The Central Bank also requires that exporters deposit U.S. dollar proceeds from exports in “local” banks (cuentas de corresponsalía de entidades financieras locales) within 10 days.
Hard currency earnings on exports, both from goods and services, must be converted to pesos in the local foreign exchange market. In 2011, the GOA eliminated the exceptions previously granted to hydrocarbon and mining exports. These firms must now covert their revenues to pesos on the local foreign exchange market. Revenues from re-exports of some temporary imports and exports to Argentine foreign trade zones are still exempted from this requirement.
In October 2011 the Argentine insurance regulator issued Resolution 36.162 requiring “all investments and cash equivalents held by locally registered insurance companies be located in Argentina.” This has exposed insurance companies to greater country risk since they are unable to diversify their assets outside of Argentina. In 2012, the GOA further expanded the investment requirements for insurance companies requiring them to allocate part of their overall investments in “instruments related to local productive projects.” The minimum percentage required ranges from 5 percent for labor risk insurers to 10 percent for property insurers and 12 percent for life insurers. A government committee composed of the secretaries of Finance, Economic Policy and Development, Internal Trade, Industry, and SMEs as well as the superintendent of Insurance determine the projects eligible to receive such investments.
The Argentine Central Bank issued Circular A5272/73 on January 27, 2012 increasing bank liquidity requirements for operational risks and minimum capital requirements, which in effect made paying dividends prohibitive until 2014.
On March 9, 2012 the Central Bank expanded the list of activities involving the transfer of money abroad by local subsidiaries to headquarters that will prior approval (Circular A5295). These activities now include: IT services; business and professional services’ royalties, patents, trademarks and copyrights; commercial guarantee payments on exports of goods and services; foreign film, audio and video rights; and services for technology transfer, and rental and leasing income, among other activities. The regulations apply to transactions greater than $100,000 in value.
Section 17 of the Argentine constitution affirms the right of private property and states that any expropriation must be authorized by law and be previously compensated. Fair compensation for expropriation is also guaranteed by international treaty obligation. Article 4 of the United States-Argentina BIT states that investments shall not be expropriated or nationalized except for public purpose upon prompt payment of the fair-market value in compensation. In October 2008, the Government nationalized Argentina’s private pension funds, which amounted to approximately one-third of total GDP, and transferred the funds to the government social security agency. In December 2008, the Argentine parliament also passed legislation nationalizing the Spanish-owned flag air carrier Aerolineas Argentinas.
On April 16, 2012, President Cristina Fernandez de Kirchner announced her government would expropriate 51 percent of oil and gas company YPF from Spanish-owned Repsol. The state takeover of the company was widely criticized by the European Union, and others and has increased investor caution with respect to initiating either new ventures or increasing Argentine-based assets. To date, Repsol has not been compensated for its losses, and prospects for an agreement are uncertain.
The GOA officially accepts the principle of international arbitration. The United States-Argentina BIT provides for binding international arbitration of investment disputes that cannot be settled through amicable consultation and negotiation between the parties. The GOA is a member of the International Center for the Settlement of Investment Disputes (ICSID), the United Nations Commission on International Trade Law (UNCITRAL), and the World Bank's Multilateral Investment Guarantee Agency (MIGA). Companies that seek recourse through Argentine courts, however, may not also pursue recourse through international arbitration.
Prior to and following the 2001/2 Argentine economic crisis, a number of U.S. investors in privatized public utilities filed ICSID arbitration claims against the GOA arguing that the government rulings de-linking public utility tariffs to foreign inflation indices and a January 2002 “pesofication” of dollar-denominated contracts were a de facto expropriation of their investments. In addition, some U.S. investors have filed ICSID arbitration claims based on disputes with provincial governments over unforeseen changes in tax laws and liabilities. Customs treatment and delays in re-negotiating public utility rate changes have also provoked investment disagreements.
There were 25 pending cases against Argentina before ICSID tribunals at the end of December 2012. Eight of these pending ICSID cases were filed under the U.S.-Argentina BIT. A number of the pending cases have reached their final stages.
As of December 2012, the GOA has not complied with three final awards granted to U.S. investors: (1) a September 2007 final ICSID judgment awarding approximately USD 133 million plus interest; (2) a September 2009 final judgment awarding USD 165 million plus interest; and (3) a September 2011 final decision awarding USD 2.8 million with interest. At present, U.S. investors continue to seek payment of outstanding arbitral awards, and two of the claimants with final awards filed petitions with the United States Trade Representative (USTR) to withdraw Argentina’s status as a beneficiary of Generalized System of Preferences (GSP) trade benefits, alleging that Argentina failed to act in good faith to recognize as binding, or enforce, an arbitral award. These petitions were accepted for review, and in March 2012 the Government of the United States confirmed the suspension of Argentina´s GSP benefits, which became effective in late May. The GOA has still not complied with these or other final awards granted to investors by arbitration courts.
Domestic investment dispute adjudication is available through local courts or administrative procedures. However, many foreign investors prefer to rely on private or international arbitration when those options are available.
Formally, no performance requirements are aimed specifically at foreign investors.
Government incentives apply to both foreign and domestic firms.
Companies continue to report that the GOA requires they implement trade balancing programs. These regulations are rarely, if ever, published in any official form. Instead they take place through verbal communication from GOA officials ordering companies to export more from Argentina. Firms relate being told they must export an equivalent amount of goods for the amount they import. This measure has created a secondary market for export offsets where companies purchase export credits from export industries that give them credit for having exported the product. Major international manufacturing firms end up exporting commodities that have little to do with their business models. These costs are usually written off as the cost of doing business in Argentina. Companies failing to abide by trade balancing regulations have reported having their imports to Argentina halted.
In general terms, foreign investors have the same rights as Argentines to establish and own businesses, or to acquire and dispose of interests in businesses.
However, the media law (passed in 2009) caps foreign capital ownership of media outlets at 30 percent; requires a minimum national content of between 60 to 70 percent; requires that all transmission signals be owned totally or partially by the national government; establishes a minimum screen quota for Argentine movies; imposes a 0.5 percent of annual revenue fee on foreign programmers for acquiring Argentine films; requires advertisement transmitted by broadcast channels or national channels be produced locally; dictates that all investment in advertising on a non-national signal be covered by exemptions and reductions to income tax; gives foreign media operations differing tax treatment from local companies; and limits the number of broadcasting licenses (based on geography and market segment) to be held by a single licensee. Although implementing regulations have been published, some provisions of the law have been suspended pending judicial review. Measures regarding the limitation of foreign ownership in media outlets are not retroactively applied to existing foreign investments currently covered by BIT provisions of non-discriminatory treatment. The U.S.-Argentina BIT contains such protection for U.S. firms. Also, in December 2011, the passage of Law 26.737 (law for the protection of the national domain regarding the ownership and possession of rural land) limited the land ownership right of foreign investors in Argentina.
Secured interests in property, including mortgages, are recognized and common in Argentina. Such interests can be easily and effectively registered. They also can be readily bought and sold. The government of Argentina adheres to most treaties and international agreements on intellectual property and belongs to the World Intellectual Property Organization and the World Trade Organization (WTO). The Argentine Congress ratified the Uruguay Round agreements, including the provisions on intellectual property, in Law 24425 on January 5, 1995. Since 1996, however, Argentina has been on the Office of the U.S. Trade Representative's intellectual property rights “Priority Watch List.”
Patents: Patent protection remains a theme of particular importance in Argentina's intellectual property rights regime. Extension of adequate patent protection to pharmaceuticals and genetically modified seeds has been a source of bilateral disagreement. Representatives of U.S. companies with significant interest in patented product sales in Argentina say that the patent issuance process is slow and that the backlog of patent applications remains substantial. The National Intellectual Property Institute (INPI) has, however, taken a number of steps to reduce the backlog, including the implementation of fast-track procedures, and opportunities for companies to prioritize their patent applications before INPI several times over the past years. In April 2002, the United States and Argentina reached an agreement with respect to most of the claims in a WTO dispute brought by the United States with respect to Argentina's implementation of its Trade Related Aspects of Intellectual Property Rights (TRIPS) obligations. Two issues, including the critical issue of data protection, remain unresolved. The United States and Argentina have agreed to leave these issues within the WTO dispute settlement mechanism for action. New patent legislation implementing part of the April 2002 agreement was passed in December 2003. However, some U.S. and European pharmaceutical firms have expressed concern that some provisions in the amended legislation limit their ability to protect patented products via the use of judicial injunctions to prevent patent violations. The unlicensed production by Argentine firms of pharmaceuticals whose patent rights are owned by foreign companies is a longstanding concern to foreign pharmaceutical companies. On May 8, 2012 the Ministries of Health and Industry and the Patent and Trademark Office (INPI) published a joint Resolution (118/2012, 546/2012 and 107/2012 that sets new standards for chemical and pharmaceutical patent applications. The guidelines instruct patent examiners to reject new use, new form, and new formulation patents, and specify a number of other changes to drugs which will no longer be acceptable.
Copyrights, Trademarks, Trade Secrets, and Semiconductor Chip Layout Design: Although Argentina’s copyright law dates to 1930, it provides a sound legal framework to protect intellectual property such as books, films, music, and software. Piracy of CDs, DVDs, and software is widespread. While enforcement continues to be sporadic and pirated products are widely available on the market, the government of Argentina has passed laws designed to allow authorities to mount undercover operations; to electronically flag suspect shipments; to facilitate the seizure and detention of suspect merchandise; and to more frequently rotate customs personnel. The Customs administration in 2006 instituted a voluntary trademark registry and owner notification program. Seizures of imported counterfeit goods have since risen dramatically. Some industry actors have noted that further protection for trademark owners should include the right to demand destruction of fraudulent goods to prevent reentry to the market. The government has decreased the time needed for trademark registration and increased the rate at which trademarks are registered. In the view of many industry observers, however, the trademark law, passed in 1980, provides civil damages that are insufficient to be an effective deterrent. The judiciary is reluctant to impose deterrent penalties such as prison sentences in criminal cases, and it is rare that companies press criminal charges. Argentina has no specific law on trade secrets although penalties for unauthorized revelation of trade secrets are applied to a limited degree under commercial law. Argentina has signed the WIPO Treaty on Integrated Circuits, but has no law dealing specifically with the protection of layout designs and semiconductors.
Argentine government authorities, including the Ministries of Economy, Production, and Planning and a number of quasi-independent regulatory entities, have mandates to foster competition and protect consumers. Some international investors have expressed concern about abrupt changes in sector-specific regulatory regimes that in their view increase uncertainty.
In general, national taxation rules do not discriminate against foreigners or foreign firms (e.g., asset taxes are applied to equity possessed by both domestic and foreign entities). Government tax authorities scrutinize tax declarations of foreign corporations operating in Argentina with the intent of curbing the use of offshore shell corporations to shelter profits and assets from taxation. This has led to tax disputes with foreign-owned firms which have structured their operations in a manner they believe to be consistent with Argentine law while minimizing total corporate tax obligations to all of the countries in which they operate.
The Argentine Securities and Exchange Commission (Comisión Nacional de Valores - CNV) is the federal agency that regulates securities markets offerings. Securities and accounting standards are transparent and consistent with international norms.
The Argentine Congress approved in November 2012 a new Law to amend regulations over the domestic stock market. The bill expands the local capital market, but it also provides for greater regulatory intervention in financial deals and corporate administration of listed companies.
U.S. banks, securities firms, and investment funds are well-represented in Argentina and are dynamic players in local capital markets. In 2003, the government began requiring foreign banks to disclose to the public the nature and extent to which their foreign parent banks guarantee their branches or subsidiaries in Argentina.
The private pension fund system -- consolidated in 1995 -- provided a growing base for capital markets until the 2001-2002 economic and financial crises. Following the government’s 2005 debt restructuring, private pension funds once again became significant players in domestic capital markets. However, the government's nationalization of the private pension funds’ assets in November 2008 shut down the funds’ investment activities. As a result of the nationalization, Argentina’s Social Security Agency (ANSES) now holds large equity stakes in domestic and foreign firms trading on the local stock exchange, and has also taken on the private pension funds’ holdings of federal and provincial government debt. This nationalization considerably decreased the liquidity and depth of the securities market in Argentina.
Following new provisions introduced in the Central Bank charter reform approved in mid-2012, banks operating in Argentina holding at least 1 percent of total market deposits are required to lend at least 5 percent of their deposits -- approximately ARS 15 billion -- for “productive investments” at an interest rate of 15 percent by December 2012. This interest rate is well below private estimates of inflation at 25 percent. In December 2012, the GOA again required major banks to lend another 5 percent of their deposits (approximately AR$17 billion) for “productive investments” by June 2013 at similar rates required in the previous program.
The Argentine government owns stakes ranging from 1 percent to 31 percent in 42 companies through ANSES. U.S. investors also own shares in some of these companies. As part of the ANSES takeover of Argentina’s private pension system in 2008, the government agreed to commit itself to being a passive investor in the companies and limit the exercise of its voting rights to 5 percent, regardless of the percentage of a company it actually owned. In April 2011, the GOA removed the 5 percent cap and moved to increase ANSES’ influence over these companies by nominating members for their boards of directors and exercising influence over issues such as dividend payments.
The Argentine government also owns or participates in companies in the following sectors: Civil commercial aviation, water and sanitation, oil and gas, electricity generation, transport, paper production, banking, railway, shipyard, and aircraft ground handling services.
There is an increasing awareness of corporate social responsibility (CSR) among both producers and consumers. Foreign and local enterprises both tend to follow generally accepted CSR principles, such as the OECD Guidelines for Multinational Enterprises. CSR practices are welcomed by beneficiary communities throughout Argentina.
Demonstrations are common in metropolitan Buenos Aires and occur in other major cities and rural areas. Protesters on occasion block streets, highways, and major intersections, causing traffic jams and delaying travel. While demonstrations are usually nonviolent, individuals sometimes seek confrontation with the police and vandalize private property. Looting in several cities in December 2012 led to two deaths and approximately 25 injured. Groups occasionally protest in front of the U.S. Embassy or U.S.-affiliated businesses. Though political violence is always concerning, it is not widely considered a hindrance to the investment climate in Argentina.
Corruption, including bribery, raises the costs and risks of doing business. Corruption has a corrosive impact on both market opportunities overseas for U.S. companies and the broader business climate. It also deters international investment, stifles economic growth and development, distorts prices, and undermines the rule of law.
It is important for U.S. companies, irrespective of their size, to assess the business climate in the relevant market in which they will be operating or investing, and to have an effective compliance program or measures to prevent and detect corruption, including foreign bribery. U.S. individuals and firms operating or investing in foreign markets should take the time to become familiar with the relevant anticorruption laws of both the foreign country and the United States in order to properly comply with them, and where appropriate, they should seek the advice of legal counsel.
The U.S. Government seeks to level the global playing field for U.S. businesses by encouraging other countries to take steps to criminalize their own companies’ acts of corruption, including bribery of foreign public officials, by requiring them to uphold their obligations under relevant international conventions. A U. S. firm that believes a competitor is seeking to use bribery of a foreign public official to secure a contract should bring this to the attention of appropriate U.S. agencies, as noted below.
U.S. Foreign Corrupt Practices Act: In 1977, the United States enacted the Foreign Corrupt Practices Act (FCPA), which makes it unlawful for a U.S. person, and certain foreign issuers of securities, to make a corrupt payment to foreign public officials for the purpose of obtaining or retaining business for or with, or directing business to, any person. The FCPA also applies to foreign firms and persons who take any act in furtherance of such a corrupt payment while in the United States. For more detailed information on the FCPA, see the FCPA Lay-Person’s Guide at: http://www.justice.gov/criminal/fraud/.
Other Instruments: It is U.S. Government policy to promote good governance, including host country implementation and enforcement of anti-corruption laws and policies pursuant to their obligations under international agreements. Since enactment of the FCPA, the United States has been instrumental to the expansion of the international framework to fight corruption. Several significant components of this framework are the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Antibribery Convention), the United Nations Convention against Corruption (UN Convention), the Inter-American Convention against Corruption (OAS Convention), the Council of Europe Criminal and Civil Law Conventions, and a growing list of U.S. free trade agreements. Generally all countries prohibit the bribery and solicitation of their public officials.
OECD Antibribery Convention: The OECD Antibribery Convention entered into force in February 1999. As of March 2009, there are 38 parties to the Convention including the United States (see http://www.oecd.org/dataoecd/59/13/40272933.pdf). Major exporters China, India, and Russia are not parties, although the U.S. Government strongly endorses their eventual accession to the Convention. The Convention obligates the Parties to criminalize bribery of foreign public officials in the conduct of international business. The United States meets its international obligations under the OECD Antibribery Convention through the U.S. FCPA. Argentina ratified the OECD Anti-Corruption Convention in 2001.
UN Convention: The UN Anticorruption Convention entered into force on December 14, 2005, and there are 158 parties to it as of November 2011 (see http://www.unodc.org/unodc/en/treaties/CAC/signatories.html). The UN Convention is the first global comprehensive international anticorruption agreement. The UN Convention requires countries to establish criminal and other offences to cover a wide range of acts of corruption. The UN Convention goes beyond previous anticorruption instruments, covering a broad range of issues ranging from basic forms of corruption such as bribery and solicitation, embezzlement, trading in influence to the concealment and laundering of the proceeds of corruption. The Convention contains transnational business bribery provisions that are functionally similar to those in the OECD Antibribery Convention and contains provisions on private sector auditing and books and records requirements. Other provisions address matters such as prevention, international cooperation, and asset recovery. Argentina has signed and ratified the UN Convention against Corruption (UNCAC). It is an active participant in UNCAC’s Conference of State Parties and is participating in the pilot review of the implementation of UNCAC.
OAS Convention: In 1996, the Member States of the Organization of American States (OAS) adopted the first international anticorruption legal instrument, the Inter-American Convention against Corruption (OAS Convention), which entered into force in March 1997. The OAS Convention, among other things, establishes a set of preventive measures against corruption, provides for the criminalization of certain acts of corruption, including transnational bribery and illicit enrichment, and contains a series of provisions to strengthen the cooperation between its States Parties in areas such as mutual legal assistance and technical cooperation. As of December 2009, the OAS Convention has 34 parties (see http://www.oas.org/juridico/english/Sigs/b-58.html) Argentina is a party to the OAS Anti-Corruption Convention. It is also an active participant in the Mechanism for Follow-up on the Implementation of the Inter-American Convention against Corruption (MESICIC).
Council of Europe Criminal Law and Civil Law Conventions: Many European countries are parties to either the Council of Europe (CoE) Criminal Law Convention on Corruption, the Civil Law Convention, or both. The Criminal Law Convention requires criminalization of a wide range of national and transnational conduct, including bribery, money-laundering, and account offenses. It also incorporates provisions on liability of legal persons and witness protection. The Civil Law Convention includes provisions on compensation for damage relating to corrupt acts, whistleblower protection, and validity of contracts, inter alia. The Group of States against Corruption (GRECO) was established in 1999 by the CoE to monitor compliance with these and related anti-corruption standards. Currently, GRECO comprises 49 member States (48 European countries and the United States). As of December 2011, the Criminal Law Convention has 43 parties and the Civil Law Convention has 34 (see http://www.coe.int/greco.) Argentina is not a party to the Council of Europe Criminal Law and Civil Law Conventions.
Free Trade Agreements: While it is U.S. Government policy to include anticorruption provisions in free trade agreements (FTAs) that it negotiates with its trading partners, the anticorruption provisions have evolved over time. The most recent FTAs negotiated now require trading partners to criminalize “active bribery” of public officials (offering bribes to any public official must be made a criminal offense, both domestically and trans-nationally) as well as domestic “passive bribery” (solicitation of a bribe by a domestic official). All U.S. FTAs may be found at the U.S. Trade Representative Website: http://www.ustr.gov/trade-agreements/free-trade-agreements. Argentina does not have a free trade agreement (FTA) in place with the United States.
Local Laws: U.S. firms should familiarize themselves with local anticorruption laws, and, where appropriate, seek legal counsel. While the U.S. Department of Commerce cannot provide legal advice on local laws, the Department’s U.S. and Foreign Commercial Service can provide assistance with navigating the host country’s legal system and obtaining a list of local legal counsel.
Assistance for U.S. Businesses: The U.S. Department of Commerce offers several services to aid U.S. businesses seeking to address business-related corruption issues. For example, the U.S. and Foreign Commercial Service can provide services that may assist U.S. companies in conducting their due diligence as part of the company’s overarching compliance program when choosing business partners or agents overseas. The U.S. Foreign and Commercial Service can be reached directly through its offices in every major U.S. and foreign city, or through its Website at http://www.trade.gov/cs.
The Departments of Commerce and State provide worldwide support for qualified U.S. companies bidding on foreign government contracts through the Commerce Department’s Advocacy Center and State’s Office of Commercial and Business Affairs. Problems, including alleged corruption by foreign governments or competitors, encountered by U.S. companies in seeking such foreign business opportunities can be brought to the attention of appropriate U.S. government officials, including local embassy personnel and through the Department of Commerce Trade Compliance Center “Report A Trade Barrier” Website at tcc.export.gov/Report_a_Barrier/index.asp.
Guidance on the U.S. FCPA: The Department of Justice’s (DOJ) FCPA Opinion Procedure enables U.S. firms and individuals to request a statement of the Justice Department’s present enforcement intentions under the anti-bribery provisions of the FCPA regarding any proposed business conduct. The details of the opinion procedure are available on DOJ’s Fraud Section Website at http://www.justice.gov/criminal/fraud/fcpa. Although the Department of Commerce has no enforcement role with respect to the FCPA, it supplies general guidance to U.S. exporters who have questions about the FCPA and about international developments concerning the FCPA. For further information, see the Office of the Chief Counsel for International Counsel, U.S. Department of Commerce, Website, at http://www.ogc.doc.gov/trans_anti_bribery.html. More general information on the FCPA is available at the Websites listed below.
Exporters and investors should be aware that generally all countries prohibit the bribery of their public officials, and prohibit their officials from soliciting bribes under domestic laws. Most countries are required to criminalize such bribery and other acts of corruption by virtue of being parties to various international conventions discussed above.
According to the World Bank’s worldwide governance indicators, corruption remains an area of concern in Argentina. In the latest Transparency International Corruption Perceptions Index (CPI) that ranks countries and territories by their perceived levels of corruption, Argentina ranked 102 out of 178 countries.
There is a strong regulatory framework for combating corruption, but enforcement is uneven, and a slow-moving judiciary makes rooting out corruption difficult. The law provides criminal penalties for official corruption. Public officials are subject to financial disclosure laws, and the Ministry of Justice's Anti-Corruption Office (ACO) is responsible for analyzing and investigating federal executive branch officials based on their financial disclosure forms. The ACO is also responsible for investigating corruption within the federal executive branch or in matters involving federal funds, except for funds transferred to the provinces. While the ACO does not have authority to independently prosecute cases, it can refer cases to other agencies or serve as the plaintiff and request a judge to initiate a case. Reports of the activities of the ACO may be found at http://www.anticorrupcion.gov.ar (Spanish).
Argentina is a party to the OAS Anti-Corruption Convention and ratified the OECD Anti-Corruption Convention in 2001. Argentina has signed and ratified the UN Convention against Corruption (UNCAC). It is an active participant in UNCAC’s Conference of State Parties and is participating in the pilot review of the implementation of UNCAC. It is also an active participant in the Mechanism for Follow-up on the Implementation of the Inter-American Convention against Corruption (MESICIC).
Some useful resources for individuals and companies regarding combating corruption in global markets include the following:
The governments of Argentina and the United States signed a Bilateral Investment Treaty (BIT) in 1991. The agreement was amended, ratified by the Congresses of both countries, and entered into force on October 20, 1994. The Argentina-United States BIT can be found on the following site: http://2001-2009.state.gov/documents/organization/43475.pdf. Argentina does not have a bilateral tax treaty with the United States.
The BIT provides protections against capital movement restrictions, expropriations, and performance requirements; it also establishes a means for the settlement of investment disputes. The BIT lists a few sectors in which Argentina maintains exceptions to national treatment for U.S. investors: real estate in border areas, air transportation, shipbuilding, nuclear energy, uranium mining, and fishing. U.S. investors must obtain permission from the Ministry of Defense’s Superintendence for Frontiers to invest in non-mining activities in border areas.
Argentina has 50 BITs currently in force and valid double taxation treaties (DTAs) with Australia, United Kingdom, Denmark, Germany, Belgium, France, Italy, Sweden, Canada, Bolivia, Brazil, Finland, Norway, and the Netherlands. There is some current discussion by ruling party legislators to annul some or all elements of extant BITs, but it is not clear whether that initiative will move forward. Effective on January 1, 2013, Argentina terminated DTAs with Austria, Chile, Spain, and Switzerland. In addition, a number of treaties concerning the exemption of income from international transport are in force.
The GOA signed a comprehensive agreement with the Overseas Private Investment Corporation (OPIC) in 1989. The agreement allows OPIC to insure U.S. investments against risks resulting from expropriation, inconvertibility, war or other conflicts affecting public order. OPIC programs are currently used in Argentina. Argentina is also a member of the World Bank's MIGA.
Argentine workers are among the most highly educated in Latin America. Wages in dollar terms have historically been competitive, but Argentina is losing ground due to inflation increasing over nominal peso depreciation. Argentina has relatively high social security charges and other labor taxes. As of the third quarter of 2012, the unemployment rate was 7.6 percent according to official government statistics. The Ministry of Labor, Employment, and Social Security estimated that 34.5 percent of the urban workforce worked in the informal sector as of the second quarter of 2012, stable from 2011.
Organized labor plays an active role in labor-management relations and in the Argentine political system. Standoffs between management and union activists do occur, but many managers of foreign companies say that they have good relations with their unions. While negotiations between unions and industry are largely market-driven, they occasionally require mediation by the Ministry of Labor.
Argentine law affords unions the right to negotiate collective bargaining agreements and offers recourse to mediation and arbitration. The Ministry of Labor ratifies collective bargaining agreements, which covered roughly 75 percent of the formally employed work force. According to the ILO, the ratification process impeded free collective bargaining because the ministry considered not only whether a collective labor agreement contained clauses violating public order standards but also whether the agreement complied with productivity, investment, technology, and vocational training criteria. There are no special laws or exemptions from regular labor laws in the Foreign Trade Zones (FTZs).
Argentina has two types of tax-exempt trading areas: Free Trade Zones (FTZs), which are found throughout the country; and the more comprehensive Special Customs Area (SCA), which covers all of Tierra del Fuego Province and whose benefits apply only to already established firms.
Argentine law defines an FTZ as a territory outside the “general customs area” (GCA, i.e., the rest of Argentina) where neither the inflows nor outflows of exported final merchandise are subject to tariffs, non-tariff barriers, or other taxes on goods. Goods produced within a FTZ generally cannot be shipped to the GCA unless they are capital goods not produced in the rest of the country. The labor, sanitary, ecological, safety, criminal, and financial regulations within FTZs are the same as those that prevail in the GCA. Foreign firms receive national treatment in FTZs.
Under the current law, the GOA may create one FTZ per province, with certain exceptions. More than one FTZ per province may be allowed in sparsely populated border regions (although this provision has not been fully utilized). Thus far, the GOA has permitted FTZs in most of the 24 Argentine provinces. The most active FTZ is in La Plata, the capital of Buenos Aires Province.
Merchandise shipped from the GCA to a FTZ may receive export incentive benefits, if applicable, only after the goods are exported from the FTZ to a third country destination. Merchandise shipped from the GCA to a FTZ and later exported to another country is not exempt from export taxes. Any value added in an FTZ or re-export from an FTZ is exempt from export taxes.
Products manufactured in an SCA may enter the GCA free from taxes or tariffs. In addition, the government may enact special regulations that exempt products shipped through an SCA (but not manufactured therein) from all forms of taxation except excise taxes. The SCA program provides benefits for established companies that meet specific production and employment objectives.
The SCA program applies only to Tierra del Fuego Province. The government reduced some SCA benefits in the early 1990s. Some of these benefits were later reestablished at first only for those firms previously established in Tierra del Fuego Province, and later applied to all firms. The SCA program is scheduled to expire at the end of 2023. In late 2006, Economy Ministry Resolution 776 abolished export tax exemption enjoyed by oil companies operating in Tierra del Fuego Province. The Argentine Congress passed a law in November 2009 establishing value-added tax rates up to 21 percent on cell phones, televisions, digital cameras and other electronic items not produced in the southern Tierra del Fuego foreign trade zone. According to the government, the bill aims to increase government revenue through higher tax collection, and encourage investment in Tierra del Fuego to promote local manufacturing and job growth. Additionally, the law removes certain tax benefits and taxes electronic products between 20.5 percent and 26 percent, which is reduced by two-thirds for electronics produced in Tierra del Fuego. However, the use of non-tariff barriers to effectively mandate the local production of many electronic goods is often the primary reason that foreign firms choose to assemble electronic products in Argentina.
According to the United Nations Conference on Trade and Development (UNCTAD) World Investment Report 2012, the total stock of FDI in Argentina at the end of 2011 was estimated at $95.1 billion. In 2011 Argentina attracted 1.4 percent of FDI inflows to developing countries (versus 1.1 percent in 2010) and 4.6 percent of FDI inflows to Latin America and the Caribbean (versus 4 percent in 2010). Total FDI inflows in 2011 were estimated at $7.2 billion by UNCTAD. According to the UNCTAD report, in 2011, Argentina was among the countries that received less FDI than anticipated. The Argentine Central Bank has not published detailed FDI data for 2011.
The stock of U.S. FDI in Argentina in 2010 was estimated at USD 13.3 billion by the U.S. Commerce Department http://www.bea.gov/international/di1usdbal.htm. More than 500 U.S. companies have significant investments across a broad range of sectors, employing approximately 155,000 Argentines. Other important foreign sources of investment capital include Spain, Brazil, Chile, Mexico, the UK, the Netherlands, Germany, and Italy.
Argentine firms increasingly invested abroad during the 1990s (particularly in Brazil, Paraguay, and Uruguay). In 2010, according to UNCTAD, its outward FDI flows amounted to $694 million. However, Argentina has remained a net recipient of FDI.
Despite the strong stock of FDI, flows continue to lag behind Argentina’s regional counterparts. According to the World Bank, FDI in Chile reached 7.1 percent of GDP in 2010; 4.0 percent in Uruguay; and 2.3 percent in Brazil. In Argentina, the 2010 flow of FDI represented just 1.7 percent of GDP.
The Argentine Ministry of Economy and Trade Promotion (http://www.inversiones.gov.ar), and the Central Bank of Argentina (http://www.bcra.gov.ar) have additional detailed information on FDI in Argentina.