New limitations to Foreign Companies
On May 17, 2021, the Superintendence of Corporations (“Superintendence”) published General Resolution No. 8/2021 ("RG IGJ 8/21") which establishes limitations in reference to foreign companies registered or applying for registration pursuant to Section 118 and 123 of the General Corporations Law No. 19,550 ("GCL"), especially in relation to special purpose vehicles ("SPVS"), which are basically companies incorporated abroad for the purpose of holding shares of local companies.
Following the restrictive criterion that the IGJ had already set out in Resolutions No. 530/2020 (“SFSC”) and 33/2021 ("MERCADOPAGO"), RG IGJ 8/21 provides that:
- the status as SPV of the entity must be declared at the time of its registration in the Argentine Republic (and not afterwards).
- the registration of more than one vehicle company per group is not allowed.
- the registration of SPVs will not be allowed if their direct or indirect controlling company is registered in the Argentine Republic pursuant to Sections 118 or 123 of the GCL.
- the registration of SPVs resulting from a chain of control between successive sole proprietorships will not be admitted.
- the registration of sole proprietorships whose shareholder is only a company incorporated abroad as sole proprietor, whether it is a vehicle or not, will not be allowed.
Likewise, and with special practical consequences on the activity of Argentine companies owned by foreign companies, RG IGJ 8/21 establishes that companies incorporated abroad that have a principal shareholding stake in local companies with headquarters in the City of Buenos Aires must be registered with the Superintendence. Registrations in other jurisdictions of the Argentine Republic will not be enforceable in such case.
The new regulation also requires that for the purposes of the registration of a foreign company under the terms of section 123 GCL, an investment plan must be submitted along with the list of companies in which it intends to participate or incorporate in the Argentine Republic.
In case the foreign company states that there is no ultimate beneficial owner, documentary evidence must be provided to show that: a) the head of the group company has all of its shares admitted to public offering; or, b) the ownership of the shares is so dispersed among the persons holding the capital stock that none of them holds the minimum percentage of shares (currently 20%).
RG IGJ 8/2021 abolished sections 212, 217, 219, 222, 239, 240 and 249 and amended sections 215, 218, 245, 255 and 256 of the General Resolution No. 7/2015 ("RG IGJ 7/15") to reflect the aforementioned changes. These amendments entail that the Superintendence will not register companies incorporated abroad that:
- lack the capacity and legal standing to act in the place of their incorporation.
- are incorporated, registered or incorporated in countries, domains, jurisdictions, territories, associated states and special tax regimes, considered non-cooperative for tax transparency purposes and/or categorized as non-cooperative in the fight against Money Laundering and Financing of Terrorism, or of low or nil taxation, according to the criteria of the Central Bank of the Republic of Argentina, of the Financial Investigation Unit, of the Ministry of Justice and Human Rights or of organizations governed by international public law standards, such as the United Nations, the Organization of American States, the Financial Action Task Force (FATF), OECD, or, which in the reasonable opinion of the Superintendence, do not meet such standards.
Finally, as a result of the amendment to section 255 of RG IGJ 7/15, the abbreviated annual information regime of foreign companies may only be filed for a maximum of one (1) consecutive financial year.
RG IGJ 8/2021 came into force on the same day of its publication, May 17, 2021.
For further information, please do not hesitate to contact Juan Pablo Bove, Federico Otero, Julián Razumny, Pablo Tarantino, Agustín Griffi, or corporateteam@salmon-meerkat-189985.hostingersite.com.
Francisco Molina Portela New Partner of the Banking & Finance Department
Senior associate Francisco Molina Portela was promoted to partner. Francisco will lead the Banking & Finance Department together with Marcelo R. Tavarone, Federico Salim and Julieta De Ruggiero.
Francisco (35), joined the firm when it was founded in 2014. He concentrates his practice on capital markets transactions, project finance, debt restructuring and banking and securities regulation.
He obtained his law degree from Universidad de Buenos Aires (2011), and completed an LL.M in Banking and Finance Law (with distinction) at Queen Mary University of London in 2016. During 2017/2018 he worked as a foreign associate at Simpson Thacher & Bartlett in New York. He is also an assistant lecturer in Contract Law and Banking Law at the Universidad de Buenos Aires.
Marcelo R. Tavarone, Managing Partner of the firm said: “We are really pleased with Francisco’s promotion, the first associate of our firm to become partner. This promotion is a recognition to his ability and dedication. Since the foundation of TRSyM in 2014, our commitment has been to accompany our associates in their professional development, and Francisco’s promotion is the best example of this. It also reflects the continuous growth of our firm, despite the adverse context that Argentina and the world are going through. Francisco is part of the new generation of lawyers who will lead the future of the legal profession”.
Argentine Central Bank Mandates Companies to Refinance Debt
Pursuant to Communication “A” 7106 dated September 15, 2020, the Argentine Central Bank tightened currency controls.
According to the new regulation, private sector companies and financial institutions shall reprofile at least 60% of any payment of principal scheduled between October 15, 2020 and March 31, 2021 on any external financial debt (other than intercompany debt) and dollar-denominated local securities offerings.
A refinancing plan shall be filed with the Argentine Central Bank based on the following standards:
a) Argentine debtors shall be granted access to the foreign exchange market to purchase foreign currency to make payments of services of principal for up to 40% of the principal amount due on such period only; and
b) at least 60% of the principal amount due on such period shall be refinanced with a new external indebtedness with an average life of at least 2 years.
This shall not apply to: (a) indebtedness with international organizations or their associated agencies or guaranteed by them; (b) indebtedness granted by official credit agencies or guaranteed by them; or (c) payments of principal for an amount no exceeding USD 1,000,000 per calendar month.
The refinancing plan shall be filed before the following deadlines: (a) September 30, 2020, with respect any payment due before December 31, 2020; and (b) at least 30 calendar days before the relevant payment, with respect to any payment due between January 1, 2021 and March 31, 2021.
For more information, do not hesitate to contact Marcelo R. Tavarone, Federico Salim, Julieta De Ruggiero or Francisco Molina Portela.
News in the Oil Upstream Sector: Argentina Fixes Local Crude Oil Reference Price
On May 19th, 2020, Decree No. 488/2020 (the “Decree”) has been issued by the National Executive, which fixes the local crude oil reference price locally produced and delivered (known as the Criollo or domestic barrel) at US$ 45 per barrel, with effects up to December 31st, 2020.
Furthermore, among other relevant matters, the Decree:
- Establishes a 0% rate for export duties if the international crude oil price is below US$ 45 per barrel.
- Foresees certain obligations for producing, trading and refining companies.
- Includes certain restrictions applicable for those companies in connection with the FX market.
- Limits the ability to import crude oil.
- Updates the values foreseen for penalties under the Hydrocarbon’s Law.
According to the Decree’s recitals, this measure is enacted in order to allow oil producing companies to cover operational costs and sustain the activities and/or production levels prevailing prior to the beginning of the epidemiological crisis, taking into account the current demand shrinkage caused by COVID-19. In addition, the Decree holds a special consideration to the strategic dimension of non-conventional hydrocarbons production in Vaca Muerta.
Below is a summary of the Decree’s most relevant aspects:
1. Domestic oil barrel price
The Decree is effective immediately and the domestic price set forth therein is valid until December 31st, 2020, unless as stated below.
Crude oil produced and delivered in the local market shall be invoiced by producing companies and paid by refining and trading companies considering the Medanito crude type oil price of US$ 45 per barrel (US$ 45/bbl) as reference. This price shall be adjusted concerning each crude type for quality and charging port, according to the usual practice in the local market, and shall also be applicable for payment of royalties to Provinces.
Should at any time the “ICE BRENT PRIMERA LÍNEA” price exceed US$ 45 per barrel for ten days in a row, the domestic price established by the Decree shall cease to be in effect.
2. Obligations of the producing companies
While the domestic price is in force, producing companies are compelled to:
- Sustain the activity and/or production levels registered during 2019, taking into consideration current local and international demand shrinkage, and always within the adequate and economic operation parameters established in article 31 of Law No. 17,319.
- Comply with the regional services contracts and maintain the employee payroll which was in place in December 31st, 2019.
3. FX restrictions
During the validity term of the domestic oil barrel price, the producing companies which benefit from such price, shall not be able to access the FX market for the structuring of foreign assets nor have the ability to operate in the blue chip swap market.
4. Refining and trading companies’ obligations
The refining and trading companies shall purchase the total crude oil demand to local producing companies, considering the crude quality required by the refining processes and in accordance with the price established in the Decree. For integrated companies, the purchase shall be held with 2019-standards if the crude acquisition exceeds their own production and the subsidiary ones.
Companies shall not be able to import products available in the local market.
5. Export duties for oil and derivatives
For the calculation of the rate applicable for export duties, the Executive Power sets the following “ICE Brent primera línea” values: a) Base Value (“VB” in Spanish): US$ 45 per barrel; b) Reference Value (“VR” in Spanish): US$ 60 per barrel; and c) International Price (“PI” in Spanish): the one published the last business day of every month by the Secretary of Energy, based on the last (5) “ICE Brent primer línea” prices” taken from the “Platts Crude Marketwire” with the “Future Settlements” heading.
For those purposes, the last business day of every week, the Secretary of Energy shall assess the monthly average prices and, if the difference between that price and the actual valid price were to exceed 15%, it shall establish a new price, which shall enter into force the following business day.
Accordingly, the Decree stipulates a 0% rate for duty exports when the International Price is equal or lower than the Base Value.
On the contrary, if the price is equal or higher compared to the Reference Value, the duty rate shall be set forth in 8%. Otherwise, if the International Price were to be higher than the Base Value and lower than the Reference one, the rate shall be determined through the following formula: Duty rate = {PI-VB/VR-VB} x 8%.
6. Taxes.
The increase on Liquid Fuel and Carbon Dioxide Taxes pursuant the updates corresponding to the first and second trimester of 2020 shall enter into force for unleaded and virgin oil, and gas oil as of October 1st, 2020.
7. Updates on fines values
Fines that may be imposed by the concession grantor under Law No. 17,319 have been updated, whereby the new fine values established are the following: minimum amount equivalent to the value of 22 m3 of the national crude oil in the local market and a maximum amount equivalent to 2.200 m3 of the same hydrocarbon for every breach.
8. Delegation of powers to the Secretary of Energy
The Executive Power has awarded the Secretary of Energy the authority to modify the crude oil prices foreseen in the Decree on a quarterly basis, as well as to periodically revise the extent of this measure pursuant the production volume and levels of activity and investment.
Likewise, the Secretary of Energy shall verify the non-realization of monopolistic conducts by every subject of the oil chain of production. To exercise this supervision authority, this public body shall consider objective standards of production and shall consider the consequences provoked by COVID-19 pandemic.
An interview made by the Law Journal of Universidad San Andres (Revista Jurídica de la Universidad de San Andrés) to our partner Nicolás Eliaschev including further analysis and opinion about the Decree can be accessed by clicking or tapping here (in Spanish).
For further information, please contact Nicolás Eliaschev and/or Javier Constanzó.
In the following link, you can access the Firm’s statement on COVID-19.
For information concerning COVID-19 legal implications, please refer here.
COVID-19: Standards for Electricity Distribution
On May 16th, 2020, Resolution No. 35/2020 (the “Resolution”) was published in the Official Gazzette, in which the Electricity Regulatory Authority–in Spanish Ente Nacional Regulador de la Electricidad–(“ENRE”) authorizes certain EDENOR and EDESUR users reached by the mandatory isolation measures established by Decree No. 297/2020 (as amended) to either suspend payments or make partial payments on account of the contracted capacity through supply agreements; or otherwise, to terminate the contract or require an amendment.
1. Benefited users and periods comprised
EDENOR and EDESUR users belonging to categories T2, T3 and Toll (i.e. medium to large users) whose power demand was reduced in 50% or more as a result of isolation measures, may resort to the alternatives provided in the Resolution for payments accrued since March 20th, 2020 and pending subsequent periods.
2. Benefit’s extension and payment facilities
For users which have opted to whether suspend or make partial down payments, this benefit will terminate when the demand recovery reaches 70% of its contracted capacity. In addition, users who resort to this option shall pay debt accrued pursuant to criteria to be determined by ENRE.
3. Distribution companies’ obligations
Distribution companies shall communicate to users the extent of the different options authorized and refer a weekly report to ENRE with the contractual suspensions, modifications and/or terminations based on the Resolution.
For further information, please contact Nicolás Eliaschev and/or Javier Constanzó.
In the following link, you can access the Firm’s statement on COVID-19.
For information concerning COVID-19 legal implications, please refer here.
The Superintendence of Corporations Continues to Tighten Controls on Simplified Companies
Following the trend adopted by the Superintendence of Corporations (“Superintendence”) this year regarding Simplified Companies (“SAS”), on May 6, General Resolution 22/2020 (“RG IGJ 22/2020”) was published in the Official Gazette, which tightens the level of supervision for this type of company.
The RG IGJ 22/2020 provides mechanisms for obtaining information and measures to determine the business development of the SAS, registered both in the public registry of the City of Buenos Aires ("CABA") and other local jurisdictions, in relation to the ownership by this type of companies of property rights over real estate located in the CABA. The intention of the regulator would be to be able to determine if said ownership is alien to the corporate purpose. For this, the resolution provides for collaboration between the Superintendence and the Registry of Real State of the City of Buenos Aires, to obtain information on the existence of transactions regarding real estate rights in which the acquirers, creditors or assignees, fully or acting as trustees, are SAS.
If, based on such information, the regulator determines that those properties are not related to the development or financing of an organized economic activity of production of goods and services conducted by the SAS, the Superintendence will promote -or entrust the Public Ministry Prosecutor- the corresponding legal actions to declare the disregard of the legal entity. In turn, the Superintendence will be empowered to adopt additional measures if it deems it necessary.
In the same sense, note that on May 4, the Superintendence published General Resolution 20/2020, through which it modified article 38 of General Resolution 6/2017, establishing that for the registration of the appointment of administrators, those who are domiciled abroad must file the powers-of-attorney granted to their representatives, which may only be granted in favor of the directors of the residing in the Argentine Republic.
We also refer to our other Newsletters (see General Resolution IGJ 9/2020 and General Resolution IGJ 17/2020) in relation to the latest regulations applicable to SAS.
For further information, do not hesitate to contact Juan Pablo Bove, Federico Otero, Julián Razumny, Pablo Tarantino, Agustín Griffi, or corporateteam@salmon-meerkat-189985.hostingersite.com.
In the following link, you can access the Firm’s statement on COVID-19.
For information concerning COVID-19 legal implications, please refer here.
COVID-19: Extension of the Limitations to the Interruption of Telecommunication Services
On May 1st and 4th, 2020, Decree No. 426/2020 (the “Decree”) and Resolution No. 367/2020 (the “Resolution”), respectively, were published in the Official Gazette. Both rules further supplement Decree No. 311/2020, which bans providers from ceasing to supply services comprising fixed or mobile telephony, Internet and cable television to certain users (listed therein), in case of delay or lack of payments up to three (3) consecutive or alternate bills with due dates as from March 1st, 2020.
Below is a summary of the regulations’ most relevant aspects.
1. Decree No. 426/2020
The Decree extends until May 31st, 2020, the obligation placed upon the providers of telecommunication services to offer limited services capable of guaranteeing connectivity to users who fail to pay top-up fees to access consumption, and the resulting impossibility to shut-off the service due to such cause.
2. Resolution No. 367/2020
The Resolution has been issued by the National Communications Agency (“ENACOM”, for its Spanish acronym), with the purpose of supplementing certain provisions included in Decree No. 311/2020 and Resolution No. 173/2020, issued by the Ministry of Productive Development, with regards to telecommunication services’ providers.
The Resolution imposes the following additional obligations over those companies:
- The obligation to provide, within a maximum term of three (3) days, the following data: 1) List of all users whose service is registered prior to March 26th, 2020, that may be subject to shut-off caused by lack of payment, or keep ongoing shut-off notices; and whose invoices were due as of March 1st, 2020; and 2) List of all the users with pre-paid services who have required a top-up on February and/or March, 2020. This information has to be entered as a Sworn Affidavit in accordance with Appendix No. 1 of the Resolution, available at the following link.
- The prohibition to suspend or shut-off services due to lack of payment from users not included in the lists prepared by the Coordination Unit created via Resolution No. 173/2020.
- The obligation to report to the ENACOM within the first (15) days as of the Resolution, all prices established for the limited services comprised by article 1 of Decree No. 311/2020 and the terms and conditions and/or forms of the financial facilities offered to users and their information process. Those financial facilities should at least prescribe the possibility for the service to be paid in three (3) monthly installments, to which no interest will accrue, nor penalty will be applicable.
- The obligation to publicly disclose these regulatory provisions not only through providers’ web pages, but also via the social networks used and/or advertisement.
Failure to comply with these will result in penalties being imposed under Law No. 26,522 and 27,078, as applicable.
For further information, please contact Nicolás Eliaschev and/or Javier Constanzó.
In the following link, you can access the Firm’s statement on COVID-19.
For information concerning COVID-19 legal implications, please refer here.
Restrictions on Blue Chip Swaps and FX Market
On April 30, 2020, the Argentine Central Bank implemented certain restrictions to blue chip swap transactions, by Communication “A” 7001.
The key takeaways of the new resolution are:
1. Restrictions to Blue Chip Swaps.
In order to access the exchange market to purchase foreign currency (i.e. external indebtedness, imports of goods and services, savings, etc.), the following requirements shall be satisfied:
- The client shall not have made sales of securities with settlement in foreign currency or transfers of these to foreign depositary entities within the last 30 days; and
- The client shall undertake not to make sales of securities with settlement in foreign currency or transfers of these to foreign depository entities for the following 30 days.
Transactions involving sales of securities with settlement in foreign currency are those by which the client sells securities and receives dollars, either in Argentina or abroad).
2. Promotional credit lines under the COVID-19 sanitary emergency.
Clients with financings in Pesos under Communication “A” 6937 (promotional credit lines at a 24% rate under COVID-19 sanitary emergency):
- May not access the foreign exchange market to pay services of principal or interest on external indebtedness past due before March 19, 2020, or with no specified maturity.
Some clarifications:
-
- Not applicable to performing external indebtedness.
- Not applicable to indebtedness with local financial institutions.
- Not applicable to external indebtedness incurred after March 19, 2020.
- Not applicable to payments of imports of goods and services (according to BCRA newsletter dated April 30, 2020).
● May not sell securities with settlement in foreign currency or transfer those to foreign depositary entities.
3. Payments with debit or credit cards.
Clients may not purchase jewels, precious stones as well as precious metals (gold, silver, platinum, etc.) by local credit or debit cards. The following transactions with debit and credit cards were already forbidden: (a) gambling; (b) transfers to payment providers (i.e. PayPal); (c) transfers to investments accounts located abroad; (d) foreign exchange operations; and/or (e) purchases of cryptocurrencies.
4. Reporting of Foreign Exchange Operations.
The BCRA reduced the threshold of transactions that shall be reported to the BCRA with 2 business days in advance from US$ 2 million to U$S 500 thousand.
For more information please do not hesitate to contact Marcelo R. Tavarone, Federico Salim, Julieta De Ruggiero and/or Francisco Molina Portela.
In the following link, you can access the Firm’s statement on COVID-19.
For information concerning COVID-19 legal implications, please refer here.
Renewables and Distributed Generation: Between Promises and Reality During COVID-19 Times
As the worldwide oil prices volatility show, the energy industry has not been left unaffected by the global crisis caused by COVID-19 pandemic.
During these hard times, it is worthwhile to wonder about the present and the future of the Argentinian electricity sector and the potential to turn the crisis into an opportunity.
In the attached report, we argue that price volatility of energy commodities and the current and future presence of health and environmental disruptive threats, advice to keep betting for diversification of the electricity mix as the best path to ensure security and continuity for long-term power supply.
Under this context, the report summarizes the main aspects of laws and regulations targeting renewable distributed generation which have shown strong consensus in the country as we further claim that fostering renewable distributed generation such as our current policy does, seems convenient under existing circumstances.
The report also includes preliminary remarks regarding the following issues:
1. Short-term relevant needs of the electricity sector
- Preservation of payment cash flow and short and mid-term economic and financial sustainability of all industry players.
- Termination of emergency under Law 27,741 during the legal period provided thereof and operation of the electricity sector under the rules of Law 24,065.
- Short-term focus for renewables
- Possibility of extending commercial operation dates and intermediate milestones in power purchase agreements corresponding to projects under structuring and/or advanced construction affected by the health crisis and measures adopted consequently either in Argentina or abroad.
- Assessing on a-case-to-case basis opt-outs and/or voluntary renegotiation of power purchase agreements for projects with no activity prior to March 12, 2020 (date under which the health crisis was declared), using uniform and non-discriminatory approaches.
- Long-term decisions
- Definition of transmission infrastructure expansion structure and planning for deployment for additional capacity of renewables for complying with the goal of 20% of consumption for 2025.
- Technical and financial evaluation of expanding such consumption target beyond 2025.
- Continuity of the electricity mix diversification, evaluating the role of efficient thermal, nuclear and hydropower technologies.
- Assessment of new technologies to strengthen the system and supplement the development of Distributed Generation, including power storage, smart metering, demand management and electric mobility.
- Assessment of opportunities to boost regional integration and cooperation for spot and long-term exchanges of natural gas destined to power generation and, power itself, with nearby countries.
In the following link, you can access the Firm’s statement on COVID-19.
For information concerning COVID-19 legal implications, please refer here.
Changes Regarding Foreign Currency Held by Open-end Funds
On April 23, 2020, the Securities and Exchange Commission (“CNV”) issued General Resolution No. 835/2020 (the “Resolution”), making changes to the restrictions regarding liquidity and cash management applicable to open-end funds (the “Funds”) (with the exception of money market funds):
1) In general, all Funds may keep up to a 100% of their net worth in Argentine Pesos or invested in money market open-end funds.
2) Funds in foreign currency may keep up to a 100% of their net worth in the fund’s currency, both in local or foreign accounts.
3) Funds in foreign currency with shares that may be subscribed in Argentine Pesos, are allowed to keep up to the 25% of their net worth in the fund’s currency, both in local or foreign accounts. This restriction does not apply to those Funds authorized under Law No. 27,260 nor to amounts of shareholders not reached by the maturity extensions imposed by Decrees No. 596/19 and No. 141/20 (cuotapartistas no reperfilados).
Furthermore, the Funds in Argentine Pesos investing in foreign currency will only be able to invest up to 25% of their net worth, having to deposit the amounts both in local or foreign accounts. This restriction does not apply to amounts of shareholders not reached by the maturity extensions imposed by Decrees No. 596/19 and No. 141/20 (cuotapartistas no reperfilados).
Funds’ managers must comply with these new restrictions according to a schedule ending on May 15, 2020.
For more information, do not hesitate to contact Marcelo R. Tavarone, Federico Salim, Julieta De Ruggiero and/or Matías Otero.
In the following link, you can access the Firm’s statement on COVID-19.
For information concerning COVID-19 legal implications, please refer here.