Argentina: Doing Business In Argentina
The Legal System
The Argentine Republic consists of 23 provinces and a federal capital, the Autonomous City of Buenos Aires. The Argentine Constitution divides the federal government into executive, legislative, and judicial branches.
While the federal constitutional system is similar to other modern republics like the United States, the Argentine legal system claims its heritage from the continental European civil law system. Among other characteristics, this means that case law may not be binding or necessarily persuasive to a court. The system is founded on the judge’s application ofcodified legal principles and is largely freed from the constraints of stare decisis. Judges and lawyers first look to the relevant statute, then legal scholarship, commentary, and, finally, case law.
In the civil sphere, the Argentine Civil and Commercial Code (Código Civil y Commercial de la Nación or “Civ. & Comm. Code”), effective August 2015, provides the backbone of private obligations. The Civ. & Comm. Code incorporates well-established interpretations of the previous code, as well as modern trends in various areas of the law. The Civ. & Comm. Code codifies a vast array of civil obligations and regulates several business forms, including franchise, concession, agency, distribution, joint venture, and supply contracts.
Foreign Investment in Argentina
Facing diminishing reserves, a chronic fiscal deficit, and a struggling economy, since September 2019, the Argentine Government has resorted to increasing measures of financial repression to stem the outbound flow of U.S. dollars. These measures are generally embodied in currency restrictions ordered by the Central Bank (collectively, the “FX Regulations”), but are also found in the tax and trade approvals required to pay for imports. These measures purposefully hinder the cross-border flow of funds, and any person considering a business presence in Argentina should carefully consider these currency restrictions.
The Argentine Companies Act (Ley General de Sociedades) requires foreign companies to register with the relevant public registry of commerce before they can exercise any rights as a holder of equity that is not publicly traded. In the City of Buenos Aires, the public registry of commerce is the Inspección General de Justicia or Superintendency of Corporations. Registration involves filing charter documents, designating an individual as legal representative of the foreign legal entity, and filing other corporate documents, including a certificate of good standing and a corporate resolution (or similar document) approving registration in Argentina.
While registered, foreign legal persons must annually satisfy an information disclosure regime to prove a genuine business activity outside Argentina. Natural persons holding equity are not required to register with the Superintendency.
Remittance and Repatriation of Profit
Until January 1, 2018, Argentina did not tax corporate dividends. As part of its tax reform passed at the end of 2017, congress changed the rules and applied a withholding tax on dividends. The current withholding rate on dividends is 13%.
The FX Regulations allow local companies to repatriate dividends declared pursuant to audited financial statements and approved by the shareholders. Nonetheless, distribution of dividends to persons outside Argentina currently requires prior Central Bank approval. This approval process is largely illusory, instead operating as a de facto prohibition of cross-border remittances.
Restrictions on Foreign Investment
The Argentine Constitution guarantees foreign investors shall be treated as equals under the law. As a result, Argentina generally does not restrict foreign investment, foreign financing, or the percentage of foreign ownership of an Argentine entity. Noted exceptions to this policy are found in the broadcasting industry and with respect to land ownership. As to real property, a foreign investor must obtain government approval before acquiring land in a “security zone” (which includes land bordering territorial limits or large bodies of water). Applicable law also restricts foreign ownership of rural land. A maximum of 15% of all rural land in Argentina, measured at a local (provincial and municipal) level, is allowed. Additionally, foreign persons of the same nationality are prohibited from owning or possessing more than 30% of the total 15% of rural land in any jurisdiction.
Forming a Subsidiary
Foreign companies can invest directly in Argentina by forming an Argentine entity or by registering a direct presence (branch) with the relevant registry of commerce. Forming an Argentine entity limits the investor’s liability, and is relatively simple, usually taking only one to two weeks. Nonetheless, when the equity holders are foreign legal entities, the qualification process to register the legal entity typically adds two to four months to a timeline. See “Foreign Investment in Argentina—Required Registration” above.
Types of Legal Entities
Foreign investors may choose from a number of familiar business forms to conduct business in Argentina. The most common forms are the stock corporation (sociedad anónima or “SA”) and the limited liability company (sociedad de responsabilidad limitada or “SRL”). The SA requires initial minimum capital of AR$100,000. Foreign individuals (natural persons or companies) may hold any amount of capital in an SA or SRL, and a shareholder (SA) or member (SRL) need not be an Argentine resident.
Residency—though not nationality—does become relevant for board members (SA) and managers (SRL), as the majority of SA board members and SRL managers must be Argentine residents.
In recent years, Argentine law has endorsed other business forms. These include the single-shareholder corporation (sociedad anónima unipersonal or “SAU”) and the simplified corporation (sociedad por acciones simplificada or “SAS”). The SAU is functionally like the SA, though subject to enhanced oversight, including the requirement to appoint a supervisory committee of statutory auditors. The SAU is the only entity that can be formed with a single owner. Still, it is often criticized as administratively cumbersome and expensive.
The SAS was originally intended as a “DIY-entity” that would be subject to less regulation and maintained through electronic filings. Its form and function were supposed to attract entrepreneurs, particularly in the information and technology space. The current administration has sought to discourage the SAS, and it has fallen short of its early promise to eliminate or reduce physical record books and corporate paperwork. The SAS cannot have a shareholder holding or controlling more than 30% of its shares.
In conjunction with the Argentine Financial Intelligence Uni, Argentine corporate persons are also required to disclose any “ultimate beneficial owner” of their equity. The definition of a UBO is any natural person owning, directly or indirectly, 10% or more of the Argentine entity. If no natural person qualifies under the definition, the Superintendency of Corporations requires disclosure of personal data for a person deemed head of the parent company (e.g., CEO, Chair of the Board).
Corporations domiciled in Argentina are taxed on worldwide income and may claim a tax credit for taxes paid abroad on foreign-source income. The place of incorporation or management does not determine a corporation’s residence in Argentina. Rather, a corporation’s center of activity is considered its permanent establishment and determines residency.
The current corporate tax rate ranges from 25% to 35%. This rate varies depending on the company’s earnings and whether the company is an Argentine resident. If the company is an Argentine resident, the same rate applies to net income from Argentina and abroad. For a foreign company that does not have a deemed permanent establishment in Argentina, the rate applies only to net income on Argentine sources.
As part of the government’s financial suppression efforts, importers of goods must obtain an online approval for each import transaction through the Import Monitoring System (Sistema Integral de Monitoreo de Importaciones or “SIMI”). There are three SIMI categories (A, B, and C) and each category determines the timing of payment for an import. Categories A and C allow advance payment or payment upon shipment, but are becoming increasingly scarce. Category B imports impose a payment delay of 180 days after nationalization of goods (90 days for certain fertilizers or agribusiness products), except in limited cases.
Since 2020, the Argentine Government has imposed annual import quotas for importers. These import quotas are determined by the importer’s track record and conomic and financial capacity. After nearly three years of sustained macroeconomic policy to limit outbound currency flows, importers today are largely restricted to importing goods essential to health care and manufacturing, while the import of finished goods is almost non-existent.
Import duties in Argentina generally range from 0% to 35%. Countries party to bilateral and multilateral trade agreements with Argentina, including Mercosur, benefit from preferences.
Argentine residents are required to repatriate and convert to local currency all proceeds from the exports of goods and services. In the case of goods, the deadline to repatriate and convert varies from 60 to 360 calendar days of payment, depending on the specific good. In the case of services, proceeds must be repatriated 5 business days from the time of payment.
Export duties are currently applied in Argentina to both goods and services. Export duties on goods range from 0% to 45%. Since January 1, 2019, export duties are levied on services at a 12% rate but capped at a specified limit.
Indirect Foreign Investment
The Civ. & Comm. Code codifies decades of judicial interpretation to layer a largely protectionist framework onto distribution agreements. This translates into specific protections for the distributor, especially with termination rights. Manufacturers must give a minimum notice of termination. This minimum is a number of months equal to the number of years the distribution agreement has existed (which may be longer than any express term acknowledged in writing). Failure to give sufficient notice exposes the manufacturer to claims for recoupment of investment and for lost profits.
The Civ. & Comm. Code generally requires manufacturers to furnish the goods to be sold and to provide technical support to the distributors of those goods. Manufacturers must allow distributor to use advertising material and intellectual property associated with selling the goods. The Civ. & Comm. Code imposes a minimum four-year term for distribution contracts, which may be reduced to two years if the manufacturer allows the distributor to use its facilities. Unless agreed otherwise, distributors have the exclusive right to sell the manufacturer’s products and goods in the specified territory.
The Civ. & Comm. Code’s protectionist framework similarly applies to agents. An agent charged with business growth that is terminated for reasons other than poor performance is afforded remedies for damages and recoupment. An agency agreement is deemed indefinite in term unless the parties specify otherwise.
Argentine law recognizes two types of franchises: The “wholesale” franchise (franquicia mayorista) and the “development” franchise (franquicia de desarrollo). The wholesale franchise grants the franchisee a territory in which it may, subject to any agreed-on terms and conditions, appoint sub-franchisees and control the use of the rights granted under the franchise agreement. A development franchise confers on the franchisee an exclusive right to open multiple establishments within a particular region, the right to appoint sub- franchisees, and imposes a minimum five-year term on the franchise agreement. Argentine franchise law requires the franchisor be the exclusive holder (or legitimate intermediary of the holder) of the rights granted to the franchisee. Franchisors cannot own any controlling interest in the franchisee.
Employment law in Argentina is based largely on the assumption that the employee is a vulnerable party requiring protection of the law. Many of the legal protections afforded are deemed matters of public policy and cannot be altered or waived. As a result, much of an employment relationship is governed by statutory rules and leaves little to the parties’freedom to contract.
Most of these rules are embodied in the Employment Contract Act (Ley de Contrato de Empleo). These rules may be supplemented by specific industry or job description regulations. As defined by the Employment Contract Act, the standard work week in Argentina is 8 hours per day or 48 hours per week. Subject to certain exceptions based on industry, jurisdiction, and other factors, overtime pay during the week is 50% (halftime) and 100% (double-time) during weekends (Saturdays after 1:00 p.m. and Sundays) or holidays.
Collective bargaining agreements supplement statutory terms, particularly regarding minimum wage levels, the frequency and amount of cost-of-living adjustments, vacation pay, leaves of absence, and other benefits. In addition, the Argentine Constitution and Argentina’s adoption of various international treaties inform labor relations. The Convention 95 of the International Labor Organization (“ILO”) on the Protection of Wages (which was ratified by Argentina) prohibits employers from limiting the employee’s freedom to spend wages as the employee sees fit.
Labor unions, particularly truckers and certain trade unions, wield significant power over the economy. Collective bargaining agreements and union health plans apply to employees by industry and job description. An employee is not required to join a union to enjoy union benefits and the employer is required to pay union dues regardless for all employees covered by the collective bargaining agreement.
The benefits of a collective bargaining agreement supplement the statutory benefits of the Employment Contract Act. As a practical matter, the negotiation of a collective bargaining agreement and, particularly, the cost-of-living adjustments is a processed reserved to the union and the largest industry participants. All other industry participants have no choice but to accept the outcome and apply the negotiated benefits to their payroll.
An employer intending to hire non-resident employees must first register with the National Registry of Foreign Labor (Registro Nacional Único de Requirentes de Extranjeros or “RENURE”) by locally filing corporate documents. After registration, the foreign employee must obtain a work visa. This process is not particularly difficult but is generally time consuming. The process also varies if the employee is a resident of a MERCOSUR country.
Compensation and Benefits
Employees in Argentina are generally paid monthly. In addition to the monthly salary, employers must pay a statutory bonus known as the “13th Salary” or “aguinaldo.” This bonus is generally equal to one month’s salary and is paid one-half with June wages and one-half on December 15. Employees are also entitled by law to paid vacation days. These vacation days number 14 (after 1 year of employment), 21 (after 5 years), 28 (after 10 years), and 35 (after 20 years). The Employment Contract Act further entitles employees to paid time off for childbirth (2 days for men, 90 days for women), for marriage (10 days), for death of an immediate family member (1-3 days), for, working students, up to 10 days for academic study. Sick leave and disability range between three, six and twelve months per non-work- related illness or injury, depending on seniority and whether the employee has dependents. The applicable collective bargaining agreement may provide additional benefits.
Argentina’s employment laws require the employer to pay severance to any employee terminated without cause. In addition, the employer must give notice of termination or pay the equivalent wages in lieu of notice. After 90 days of employment, an employee is entitled to 30 days’ notice during the first five years of employment and 60 days’ notice thereafter.
Severance depends on seniority and equals the number of years of employment multiplied by a compensation basket equal to the highest monthly wages and recurring benefits during the last 12 months of employment. After one year, the “highest monthly wage” is generally capped at 67% of the highest wage category under the applicable bargaining agreement. “Years of employment” means a full year or fraction thereof greater than three months. In addition to wages, the compensation basket includes discretionary employee bonuses, recurring commissions, and benefits, including car allowances, cell phone plans, and food or housing stipends. Enhanced termination benefits apply in special cases, including termination during pregnancy or during maternity or disability leave.
Argentine copyright law protects musical, cinematographic, architectural, and scientific works, as well as software, writings, drawings, paintings, sculptures, maps, photographs, and integral parts of works thereof such as titles and characters, etc. The law protects authors for life and the author’s heirs for 70 years thereafter. Foreign authors may enjoy local protection of proprietary work if their country of residence is party to a treaty with Argentina, as in the case of the Paris Convention or the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
Trademark law in Argentina provides protection for those who register a mark with the Argentine Trademark Office (Instituto Nacional de la Propiedad Industrial or “INPI”). The INPI identifies marks by using the International Classification of Goods and Services of the Nice Agreement. Upon registration, trademarks are protected for 10 years and, when used continuously and in association with the sale of the corresponding product or service, they may be renewed indefinitely. Trademark owners must file a sworn declaration of use between the five and six-year anniversary of the date of registration. Argentine law allows a trademark owner to file for a preliminary injunction to prevent infringement and file suit for damages when infringed upon.
An individual or company may file a patent application with the INPI. Argentine patent law protects inventions that (i) are considered a novelty, (ii) possess an inventive step, and (iii) have an industrial application. Protection lasts for 20 years from the date the patent is filed. Patent owners can prevent others from using, manufacturing, importing, and offering to sell, and selling their protected invention. This protection also applies to use of processes. Patent rights may be assigned in whole or in part. Argentina adheres to the Paris Convention, the TRIPS Agreement, and the International Convention for the Protection of New Varieties of Plants. Argentina is not a party of the Patent Cooperation Treaty.
Both federal and local governments are charged with regulating most sectors, except for trade between provinces, which may be regulated only by the national congress. In most cases, regulation is federal, as most local governments have not enacted separate legislation. Certain sectors of Argentine industry (e.g., broadcasting, natural resource extraction, and energy) are highly regulated.
Argentine law and international treaties to which Argentina is party protect investment. In most cases, foreign investors looking to acquire an existing Argentine business do not need government approval; however, some exceptions apply. Examples of these exceptions include government concessions and contracts, public utilities, and public services.
A transaction between two or more companies may also be subject to merger review in Argentina by the Argentine Antitrust Commission. This review is required if (i) the transaction causes actual or potential effects in the country and (ii) the total volume of business of the group of affected companies in Argentina exceeds 100 million “Variable Units” (unidades móviles, which is a unit of reference that will be adjusted periodically). Based on the current Variable Unit, that threshold is presently around US$69 million. Nonetheless, the Argentine Antitrust Act contemplates several exceptions to the mandatory clearance, even if the thresholds are met.
Being a member-country of the Mercosur trade bloc, Argentina is a member of the World Trade Organization (the “WTO”). Accordingly, Argentina observes the international classification of goods and WTO regulations regarding valuation, labeling, fair-trade practices, anti-dumping, as well as safeguard and anti-corruption measures. Goods entering Argentina from non-Mercosur countries are subject to an external tariff; however, businesses in Mercosur countries enjoy a free-trade zone with respect to most goods. Certain goods entering Argentina, such as food, chemicals, and medicine, may require specific authorization from the appropriate regulatory body.
Litigation and Alternative Dispute Resolution
Parties to a dispute are typically required to formally submit to a mediation process before a complaint can be filed. While litigation is not discovery-driven and generally less costly than in the more developed economies, a judicial tax, local currency devaluations, and high pre-judgment interest rates often impact a party’s capacity or desire to pursue a claim in lieu of settlement. Civil cases typically last at least four years. In a judicial system not bound by precedent and with wildly varying degrees of quality, it is often difficult to predict an outcome.
Private and public parties may use arbitration to resolve various disputes. The Civ. & Comm. Code authorizes a binding arbitration agreement if the parties make clear their decision to submit a dispute between them to binding arbitration. An arbitration agreement must be in writing and its terms and conditions cannot violate public policy.
Generally, disputes over monetary matters, which could otherwise be resolved by a settlement, may be arbitrated. The Civ. & Comm. Code bars arbitration of disputes involving family matters, employment claims, government disputes, civil status, and mental capacity. Parties may submit their own rules to govern the arbitration proceeding or agree to those of the arbitral institution. Parties may seek judicial review of their outcome and are prohibited from waiving the right to challenge awards that are contrary to Argentine laws of public policy (orden publico).
Law N° 27.449, the International Commercial Arbitration Law, came into effect in Argentina in July 2018. The regulation, mainly based on the UNCITRAL Model Law, contributes to the further development of international arbitration as a means of dispute resolution within Argentina.
Argentina is party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 and the Inter-American Convention on International Commercial Arbitration of 1975. Institutions commonly used for international arbitration include the International Chamber of Commerce, the American Arbitration Association’sInternational Center for Dispute Resolution, and the Arbitral Tribunal of the Buenos Aires Stock Exchange.
Anti-Corruption Law and Compliance
Since 1997 Argentina has been a party to the Inter-American Convention Against Corruption and a party to the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. In addition, Argentina has enacted laws imposing criminal business liability. These laws hold liable private entities that directly or indirectly commit a crime against the public interest. These crimes include bribery, extortion, unlawful enrichment, and fraud. If found guilty, sentencing may include sanctions, suspension of activity, and a fine amounting up to five times the unjust enrichment received as a result of the criminal activity.
Argentina designates government authorities to regulate certain industries. For example, the Argentine Central Bank and the Argentine Financial Intelligence Unit (Unidad de Inteligencia Financiera or “UIF”) regulate the investment banking industry. These regulations require investment banking firms to take steps to avoid illegitimate activity. For example, they must maintain regularly updated compliance manuals and report suspicious activity and referrals. The objective of these regulations is to prevent investment banking firms from being used as vehicles for money-laundering, transactions financing terrorism, and other illicit purposes. These regulations are also intended to ensure cooperation with enforcement and prosecution efforts to prevent criminal use of the economy.
This article is not comprehensive and should not be used or taken as specific legal advice. For further information on these matters, you may contact Wiener.Soto.Caparrós: Laurence Wiener (email@example.com), Gonzalo Soto (firstname.lastname@example.org), Mariela Caparrós (email@example.com).