Legislation for Foreign Investment Statutes in Countries in the Americas
Comparative Study
1. Legal bases for foreign investment
Objective: Indicate if there is a Foreign Investment Statute and describe it. In the paragraphs below, indicate the legal rank of the norms contained in the Statute, i.e., regulations for expropriation fall under which rank?
1.1 Constitutional
Article 20 of the Argentine Constitution establishes the principle of equal rights and treatment of foreigners and nationals, in the following terms:
Foreigners enjoy in the territory of the Nation all the civil rights of a citizen; they may engage in their industry, commerce or profession; own real property, purchase it and alienate it; navigate the rivers and coasts; freely practice their religion; make wills and marry in accordance with the law. They are not obliged to assume citizenship nor to pay forced extraordinary taxes. They may obtain naturalization by residing two continuous years in the Nation; but the authorities may shorten this term in favor of anyone so requesting, on asserting and proving services to the Republic.
Article 25, and Article 75 Section 18 are also applied as general principles of a constitutional rank over foreign investment. These Articles establish instructions for the development and promotion of what is now termed foreign investment (the following Articles date from 1853):
Article 25. The Federal Government shall encourage European immigration; and may not restrict, limit or burden with any tax whatsoever, the entrance into Argentine territory of foreigners who arrive for the purpose of tilling the soil, improving industries, and introducing and teaching the arts and sciences.
Article 75, Section 18. [It is the responsibility of Congress] to supply whatever is required for [...] the colonization of state land, the introduction and establishment of new industries, the importation of foreign capital [...].
Finally, it is necessary to mention among constitutional laws all valid treaties in force that were signed by Argentina with respect to the Promotion and Mutual Protection of Investment, since the Argentine Constitution grants them precedence over federal laws:
Article 75, Section 22 [It is the responsibility of Congress] To approve or repeal treaties concluded with other nations and with international organizations and concordats with the Vatican. Treaties and concordats take precedence over laws. That means that foreign investment regulations contained in the treaties shall in no case be modified by laws passed by the National Congress since the Constitution has expressly recognized that they hold a higher rank in the juridical structure. This Article, the text of which was incorporated by the constitutional reform of August 1994, puts a definitive end to the old doctrinal dispute on the regulatory hierarchy of treaties vis-à-vis federal laws, establishing the so-called "monist" criterion.
1.2 Legal
The legal regime for foreign investments in Argentina, the text of which was revised on Sept. 8, 1993, is recorded in Law No. 21,382 on Foreign Investments. This is a very liberal regime that seeks to implement the constitutional principles outlined above, equating the rights of foreign and local investors in all fields, while liberalizing the entry and outflow of capital. The legal and tax treatment is virtually the same for Argentine citizens and foreigners.
Decree 1853/93 regulates the text of Law No. 21,382, and is completely consistent with the spirit of Argentine regulations on foreign investment, equalization of rights, and liberalization of the applicable regime.
Prior approval is not required from the executive authority, nor is an investment registry or any other formality in a public office required. In that manner, foreign investment remains enshrined in the sphere of private will, with total liberty to invest and to repatriate capital and profits. The regulatory decree establishes in Article 2 that "Foreign investors may invest in the country without any prior approval, on the same terms as investors domiciled in the country."
Article 5 provides that "the rights of foreign investors to repatriate their investment and to remit net profits abroad may be exercised at any time."
1.3 Administrative
It must be pointed out that there is no law whatsoever at the administrative level with respect to the foreign investment regime. That is in keeping with an express policy not to obstruct in any way the entry and outflow of foreign capital, on the understanding that such a stance will create optimal conditions for business and therefore satisfy the constitutional mandates in respect of the "importation of foreign capital."
2. Concept and subject of foreign investment
Objective: It is essential that both the investor and the nature of the investment be identified, so as to determine to which activity and to whom the regulations will be applied. This is also essential at the international level, especially in case of dispute and arbitration.
2.1 Is foreign investment in your country legally defined or conceptualized?
Article 2 of Law No. 21,382 establishes the following definitions:
Article 2 - For the purposes of this law:
1. Foreign investment is:
a) All investments of foreign capital used in the economic activities in the country.
b) The purchase by foreign investors of shares in the capital of an existing local company.
2. The foreign investor is: Any individual or corporation domiciled abroad, who had invested foreign capital, and the foreign capital local firms defined in the next paragraph, when they have investments in other local firms.
3. Foreign capital local firm: any firm domiciled in Argentina, in which individuals or corporations domiciled abroad, own, directly or indirectly, more than 49% of the capital or possess directly or indirectly a majority vote in shareholders meetings or in the meetings of partners.
It is necessary to clarify that these definitions are completely irrelevant in practice since there is no discrimination between nationals and foreigners, nor between firms with local capital and those with foreign capital. These definitions remain in the law as a remnant of its old text.
2.2 Are there registered records or mechanisms to clearly identify both the foreign investor and the nature of the investment?
No. Foreign investment may be made in Argentina without authorization. There is no registry of foreign investment at present, nor a requirement to inform any institution or government agency, whether provincial or federal. There are no mechanisms that make it possible to identify investors or foreign investment at any level.
2.3 Is it possible for a natural person to resort to the foreign investment legislation?
Yes. As provided in Article 2 of Law No. 21,382 transcribed above, a foreign investor may be a natural or juridical person, both equal in treatment with national investors:
Article 1. - Foreign investors who invest capital in the country to promote economic activities, or to expand or improve existing activities in any one of the forms described in Article 3, shall have the same rights and obligations as those granted in the Constitution and by other legislation to national investors, subject to the provisions of this law and of special or promotional regimes.
2.4 Is it possible for a citizen or resident to resort to the foreign investment regime?
Yes, provided that the Argentine national maintains his domicile abroad. Regulatory decree 1852/93.
Article 3.- For the purposes of the provision of paragraph 2 of Article 2 of Law No. 21,382 (1993), the concept of foreign investor includes individuals and corporations domiciled abroad.
2.5 Can a recipient company funded with both domestic and foreign capital resort to foreign investment regulations? Is this subject to restrictions?
In view of the express equality of rights of nationals and foreigners, any question as to whether national investors, individuals or corporations, may resort to the regime is merely rhetorical. But it is possible, commensurate with the foreign participation or domicile abroad.
Companies with "mixed" capital are in no way restricted, since there are no areas of economic activity reserved exclusively to national capital. The only potential exception is ownership of real estate in border areas, where purchase by foreign capital is subject to approval by the National Superintendency of Borders.
2.6 Is there a time limit for a foreign investor to be considered as such?
No.
2.7 Are restrictions imposed on the executive body or other staff of an enterprise. Are there nationality quotas? Under what conditions can the executives or other staff hired abroad send their earnings to their country of residence?
There are no nationality requirements to work in Argentina. Submission of an employment contract with a company located in Argentina is sufficient to obtain a visa authorizing work and legal residence in the country.
Executive staff and workers enjoy total freedom to purchase and remit foreign exchange abroad, a procedure that is not subject to approval or any type of formality. Transactions of this type done in banks are covered by bank secrecy and therefore confidential.
3. Scope of foreign investment activities
Objective: Define the legal scope of foreign investment in your country, as well as their conditions and limitations.
3.1 Describe the regulating principles of economic activity in your country
a) Describe how economic freedom is guaranteed
Constitutional guarantees of the free exercise of trade, profession or legal business have pervaded the entire legal system (in view of the complete deregulation of the economy), and have, in particular, inspired a number of laws to guarantee economic freedom, chief of them being the following:
Law No. 22,262 on Protection of Competition: This law controls conduct that limits, restricts or distorts competition or constitutes an abuse of a dominant position in a market. Article 1 establishes a general model which provides a general set of acts that may give cause for administrative or criminal penalties. It provides for a long prior administrative procedure under a Commission on the Protection of Competition chaired by an Under-Secretary of State and comprising four other members: two lawyers and two economists. The commission is also responsible for the preliminary investigation. The law also expressly regulates criminal penalties applicable to those acts defined in the Article. Criminal penalties are reserved for those cases which could not be settled by the administrative procedures referred to above.
Law No. 22,802 on Fair Trade: This law refers to the identification and advertising of goods, real estate and services. It protects the consumer while facilitating the merchant’s knowledge of the applicable laws. With respect to the identification of merchandise, compulsory labeling instructions are established for all goods that are to be traded. It also tends to avoid errors or deception with respect to the origin of goods to be traded. It is also intended to protect producers in specific regions or areas where they have, over time, acquired a certain reputation or prestige and the usufruct thereof by other than the legitimate originators would therefore be unfair.
Law No. 24,240 on Consumer Protection: The objective of this law is the legal protection of the consumer and the guarantee of a balance between consumers and suppliers in the market. Its aim is to benefit consumers by establishing their rights as well as their obligations, providing them with the necessary instruments to enforce those rights in case of violations. It establishes that the State must intervene to inform, orient and educate consumers as economic agents. This law perfects current regulations, determines the role of the state, and provides the consumer with an instrument to promote and protect his interests in the market.
b) Is the principle of economic nondiscrimination guaranteed? Describe how
c) Public and private enterprises (local and foreign): do they compete on equal terms, or does the State have higher benefits?
Public and private enterprises (both Argentine and foreign) compete on completely equal terms. The distinction between the two types of enterprises has lost importance as a result of the extensive privatization process through which all national public services and most state enterprises have passed into private ownership which almost invariably includes foreign enterprises.
3.2 Indicate the scope of foreign investment, i.e., does it include movable and immovable property, assets, concessions, claims to money, intellectual property, industrial property, leasing, technology, etc
Foreign investment is found in virtually all activities and sectors of the economy, since there are no restrictions or reserved areas, as will be seen in the following paragraph.
3.3 Reserved sectors
a) Indicate the sectors or economic activities reserved exclusively for the state in your country. Explain the regulations pertinent to these areas
Nuclear power generation may now be developed either by the state or by the private sector. That is, the former regulation has been modified with the approval by Congress of Law 24,804, which allows private sector participation and abolishes the state monopoly on nuclear power generation. In addition, this law permits the privatization of existing nuclear plants which generate electricity. The nuclear energy sector is regulated in Decree 22,498 of 1956 and Law 14,467.
b) Indicate the sectors or economic activities in which only foreign investment is excluded, restricted or limited in your country. Explain in what consists said exclusion, restriction or limitation
The National Constitution enshrines the principle of equal rights of nationals and foreigners, including the right to work, to operate any legal industry, to trade, and to associate freely.
These principles expressed in Law 21,382 on Foreign Investments, in addition to privatization of the services provided by the State that have all included the participation of foreign enterprises, clearly determine that no sectors are excluded from foreign investment.
There is only a partial limitation on the purchase of real estate in border areas. For national security purposes, foreign investors must obtain approval from the appropriate authority to purchase such property. This law is being studied with a view to reforming it.
c) Does the Principle of International Reciprocity exist in the legislation of your country?
No. The application of the principle of equal treatment of Argentine and foreign investors makes the consideration of reciprocity irrelevant since any other action would violate Article 20 of the National Constitution transcribed above.
Law No. 21,526 on Financial Institutions includes the requirement of reciprocity for the establishment of banks and foreign financial institutions in Argentina, but this requirement was eliminated (Decree 146/94, which also reaffirmed the principle of equal treatment of and requirements for foreign and national applicants related to the opening of banks and financial institutions in Argentina) because it was incompatible with the constitutional principles commented upon above, and the government’s plan approved by the Argentine Congress in 1989, as set forth in Law No. 23,697 on Economic Reform and related laws.
d) Is foreign investment subject to performance requirements?
There are no performance requirements generally applicable to foreign investments. The only exception refers to those performance requirements imposed on enterprises in contracts for concessions in privatized public services and arise exclusively because of the very nature of public services.
e) Can foreign investors take part in the privatization processes of your country?
Yes, completely. The typical concession or licitation contract for a public service contains terms and conditions related to prior experience and technology which only foreign enterprises have, thus making their participation necessary. In this connection, we may mention some of the foreign corporations which have invested in privatization in Argentina, listed by sectors:
Telecommunications:
Stet (Italy), France Cable et Radio (France), Telefónica de España (Spain)
Airlines:
Iberia (Spain)
Electricity:
Endesa (Spain), Electricité de France, PSI (United States), Chilectra (Chile), Chilgener (Chile), Houston Light & Power (United States), The Southern Co. (United States), Duke Power (United States), Dominion (United States), Iberdrola (Spain), Camuzzi (Italy), Energy Transener (United States), CMS (United States)
Water:
Lyonnais des Eaux (France), Anglian Water (UK)
Gas:
Enron (United States), Novacorp (Canada), Transcogas (Canada), Camuzzi (Italy), Tractebel (Belgium), Soc. Italiana per il Gas, (Italy) British Gas (UK), Gas Natural (Spain)
Petroleum Areas:
Total Austral (France), Oxy (United States), Repsol (Spain), Marc Rich (Switzerland), Amoco (United States), Santa Fe Oil (United States)
Maritime Transport:
Constante Shipping (Italy), Global Marketing Systems (India), Seabound Maritime (Greece)
4. Rights and protection of foreign investment
Objective: Identify the type of treatment granted foreign investment i.e. its rights, protection and incentives.
4.1 Treatment granted to the foreign investor and the investment
a) National treatment or Most-Favored-Nation clause (Refer to paragraphs 3.1 and 3.3)
The aforementioned principle is valid for this area, that is, the principle without exception is national treatment of foreign investors independent of the existence of a bilateral convention related to investments with the country from which the investment is provided.
The most favored nation clause is found in all the agreements for the promotion and reciprocal protection of investments (see the list of conventions signed).
4.2 Protection of Property
a) Constitutional or legal grounds that may lead to expropriation of, or limitations to property
The Constitution of Argentina dates from 1853 (and was amended in 1994). It contains the rules governing the form of government and the individual rights and guarantees of all the inhabitants of the country. Its focus is very wide and generous since it grants foreigners the same rights to work, trade, buy and sell goods, exercise property rights, and so forth, as those granted to Argentineans, and establishes in Article 17 that property is inviolable and no inhabitant of the Nation can be deprived thereof except by virtue of a sentence founded on law.
The Expropriation Law 21,499 governs everything related to this subject and establishes the possibility for the State to expropriate on prior declaration that a good is subject to public purpose. The law also leaves open the possibility of an agreement between the State and a private party and establishes a special judicial procedure in case such an agreement is not reached.
b) How is compensation determined? Which value is it based on? How is it settled?
Compensation must be set by agreement between the private party and the State or, if an agreement cannot be reached, the Expropriation Law provides a judicial procedure for that purpose. Compensation is calculated based on consequential damage plus up to 10% of that amount. Other categories, such as loss of profits and moral damages, are not included since, by virtue of the Constitution and Law 21,499, state activity is lawful, and they are therefore considered not to apply because of their remedial nature.
Article 10 of the Expropriation Law establishes that compensation shall include the actual value of the property and the damages that are an immediate and direct consequence of the expropriation.
With respect to the manner of payment, this must be in cash (unless the owner of the expropriated property expressly accepts another form of payment, as specified in Article 12). The property is appraised by an agency created for that purpose, namely the Court of Appraisal (see Article 13).
c) Can the authorities take possession of expropriated assets prior to paying compensation?
No, the law mentioned establishes that compensation must be made prior to expropriation. The only situation which could constitute an exception to the principle of prior compensation is the temporary possession of the property provided in special cases of sudden and urgent need for public utility (see Title IX of the Law).
d) Is property of both corporal and incorporeal assets equally guaranteed?
Yes, with the peculiarities described below for trademarks, patents, and copyrights.
The legislation corresponding to trademarks (Law No. 22,362) provides protection for trademarks in the National Industrial Property Registry. Registration is subject to the payment of a fee. Trademarks may consist of one or more words, designs, emblems, monograms, engravings, seals, vignettes, reliefs, color combinations in a predetermined spot on products or containers, wrappings, combinations of letters and numbers, letters and numbers in special designs, advertising slogans, distinctive reliefs, and any other type of sign used to distinguish goods or services. Whenever a trademark is registered, it is protected for a maximum of 10 years, but registration may be renewed indefinitely, provided that the trademark has been in use during the last five years. The Republic of Argentina has adopted the international classification of goods and services used by the World Intellectual Property Organization (WIPO).
National Law 24,425, published on January 5, 1995, approved the Final Act for the incorporation of the results of the Multilateral Trade Negotiations of the Uruguay Round of the GATT, where it is incorporating the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), "ADPIC", in Spanish. Accordingly, and consistent with international harmonization principles, domestic legislation has been modified through the new Patent Law No. 24,481 whose text was ordained through Decree No. 260/96, published on March 22, 1996. This law creates the NATIONAL INSTITUTE OF INDUSTRIAL PROPERTY (NIIP) which is the organization in charge of the implementation of laws on patents, trademarks, industrial models and designs and technology transfer. The same patent protection of the term of 20 years from the presentation of the non-renewable application until its expiration remains. It recognizes the priority resulting from the Paris Convention ratified by our country. Patents are granted for products and processes. It incorporates pharmaceutical products since the current law is under way. It is foreseen that patents will grant only since the fifth year of the publication of Law N
° 24,481 of anticipated changes arising from the publication of the Law No. 24,481. Patents are susceptible to transfer, ceding, discharging and the establishment of obligatory licenses under some circumstances. It grants consent for additional patents and their improvement. With respect to the models utilized, protection is granted for a ten year, unextendible term.With respect to the registration process, it is expected that interested parties could make observations and/or challenges to the application for up to 18 months afterwards. It is required that the National Patent Administration complete a background check on the applicants. If three years elapses without any statement on the application, it is considered waived. In a case where the application is denied, the interested party is able to choose between an administrative recourse and opting for the judicial route. In cases where there are conflicts between individuals, they are able to request before a judge preventative or previous measures to guarantee their rights.
The National Intellectual Property Registry grants copyrights on request, subject to the payment of a fee, and gives authors life-long protection, and protects their heirs for an additional 50 years.
Anonymous works belonging to juridical entities and individuals are protected for 30 years. The Argentine Republic has signed the Berne Convention (and the subsequent amendments thereto, including the 1971 Paris Convention), the 1946 Inter-American Convention of Washington, and the 1952 Geneva Copyright Convention.
At present, Congress is considering a bill that will govern the intellectual property system applicable to computer software which has not yet been the subject of specific legislation in Argentina (at present, the general copyright regulations detailed above are used). The Executive Power has also tabled another bill before Congress that will permit the patenting of drugs and pharmaceutical processes which are at present subject to wide, intense and controversial debate.
4.3 Transfers of investment, remittances of capital and benefits
a) Under what conditions may investments in the form of foreign exchange, capital goods, technology, associated credits, etc., be brought into the country? Are there specific regulations for each item?
Entry of investments, regardless of the mechanism used, is free and exempt from government approval or specific formalities. The Foreign Investment Law establishes that:
Article 3 – Foreign investments may be made in:
1. Freely convertible foreign currency
2. Capital goods, spare parts and accessories
3. Profits or capital in local currency which are the property of foreign investors, provided they can be legally transferred abroad
4. Capitalization of foreign loans in freely convertible foreign currency
5. Intangible assets, in accordance with the specific legislation
6. Other forms of investment approved in special or promotional regimes
This list has no meaning in practice and must be considered as merely descriptive and without regulatory intent. The application of the principle of equal treatment together with the extensive deregulation of the Argentine economy makes it possible to have freedom without exception to the mechanisms for the entry of foreign investments.
b) Are there restrictions to the remittances of capital, benefits, debt service, or other remittances derived from foreign investment?
None whatsoever. Profits may be remitted and/or capital repatriated at any time without prior approval or administrative formality of any kind. There is no need to notify any agency of the intention or act of remitting or repatriating capital.
Law No. 21,382 on Foreign Investments establishes:
Article 5 - Foreign investors may transfer abroad, the net and liquid profits obtained from their investments, and may repatriate their investments.
In that connection, Regulatory Decree 1853/93 of the same law provides that:
Article 5 - The right of foreign investors to repatriate their investment and remit abroad the net and liquid profits may be exercised at any time.
The application of both these Articles indicates that there are no restrictions on nor prior approval for capital repatriation and/or profit remittances nor any obligatory waiting periods for such repatriation or remittances. Free access to a free, deregulated foreign exchange market guarantees the normal transfer for both foreign investors and Argentine nationals.
c) Are there different kinds of exchange rates? To which does the foreign investor have access?
There is one currency exchange market without exchange controls of any kind that permits free access to foreign exchange without approval or any type of formality. This single free market is guaranteed by the Convertibility Law that establishes that each peso is freely convertible into US dollars and therefore into any other currency.
Any national or foreign individual or corporation is free to hold foreign currency, to open and maintain bank accounts in foreign currency in local and foreign banks, receive interest in foreign country and to buy and sell movable property and real estate and any product or service in foreign currency.
4.4 Taxes and incentives to foreign investment
a) Explain briefly the taxes that foreign investments are subject to
As a result of the equal treatment principle, foreign investors are subject to the same tax burden as local investors. There exists no type of discriminatory treatment. Most taxes are levied on consumption and imports; other are levied on profits, value added, and property such as real estate and vehicles (although the latter tend to be irrelevant because of their amounts).
The two main taxes in Argentina’s tax structure are capital gains and value added taxes, which are applied identically to Argentine nationals and foreign investors.
Profits, benefits, dividends
1. Companies (corporations or limited partnerships)
Are taxed at 33% of net profits, without distinction as to capital composition, national or foreign; the same applies to branches of foreign enterprises.
With respect to distribution of dividends, whether to individuals or corporations, resident or non-resident, dividends are not taxed.
2. Other companies (limited liability, de facto, proprietorship)
Taxes are on each partner. Once the net profit subject to tax is determined, tax is allocated to each partner based on his share in the capital stock.
3. Individuals
Are taxed based on a progressive scale of 11% to 30%. Taxes are levied on the profit minus the expenditure needed to obtain and maintain it plus other deductions established by law.
The criterion of taxed income refers to gross income, in other words individuals resident in the country and companies incorporated in the territory, are taxed on income from both Argentine and foreign sources. Non-resident individuals and companies incorporated abroad, are taxed exclusively on their profits from Argentine sources.
Reinvestment of profits
Taxed profits are mentioned under the preceding point, whether distributed or invested
Remittances abroad. Interest on loans obtained abroad
Royalties. Services contracted abroad
When paying beneficiaries abroad sums for the purposes indicated below, tax is withheld at the source:
13.22% on interest paid on loans from any source obtained abroad. Interest on development loans granted by international organizations or official foreign institutions is exempt from withholding.
26.4% on the amounts paid for benefits from the assignment of rights or licenses to develop patents of invention.
19.8% on the amounts paid for benefits received from technical, engineering or advisory assistance services not obtained in the country. In case of non-compliance with the law on technology transfer, 27% is withheld.
Those who are subject to the tax are normally those who sell mobile things, those who lease or rent property and those who import things which are mobile. The rate of the value-added tax (VAT) is 21%, which generates a fiscal credit for the receiving company and a fiscal debit for the individual which sold it.
All the aforementioned taxes are applied equally to national and foreign investors.
b) Are there special tax rules for foreign investment?
No. Tax treatment for foreign investors is virtually identical to that for national investors, by virtue of the equal treatment principle enshrined in Article 20 of the National Constitution and related laws, which in the relevant Section establishes that foreigners "are not obliged [...] to pay forced extraordinary taxes."
c) Has your country signed agreements with other countries in the Americas to avoid double taxation? If yes, list those countries
INTERNATIONAL AGREEMENTS TO AVOID DOUBLE TAXATION IN RESPECT OF INCOME AND ASSETS (GENERAL AGREEMENTS)
Agreement to avoid double taxation on income, profits or benefits, capital and assets: Austria: signed May 18, 1992, Law No. 22, 589, entered into force January 18, 1993; Bolivia: signed October 30, 1976, Law No. 21,780, entered into force on June 4, 1979; Brazil: Signed May 17, 1980, Law No. 22.675, entered into force December 7, 1982; Chile: signed December 19, 1985; Finland: signed December 13, 1994, Law No. 24, 654, entered into force December 5, 1996; France: signed December 19, 1980, Law No. 22, 357, entered into force January 1, 1981; Germany: signed July 3, 1979, Law No. 22,025, entered into force November 25, 1979; Italy: signed February 21, 1983, Law No. 22, 747, entered into force December 15, 1983; Spain: signed July 21, 1992, Law No. 24, 258, entered into force July 17, 1994; United States: signed May 7, 1991, not in force.
Agreement to avoid double taxation on transportation materials: Belgium (Maritime) 1949; Canada (Maritime-Air), August 6, 1949, (exchange of notes); Colombia (Maritime-Air), 1967, (exchange of notes); Cuba (Maritime), 1978, (exchange of notes); Chile (Maritime-Air) 1950, (exchange of notes); Ecuador (Air) 1981, Law No. 22, 688; Denmark (Maritime–Air) 1948, (exchange of notes); Greece (Maritime) 1950, (exchange of notes); Iran (Maritime) October 11, 1989, Law No. 23, 725; Israel (Maritime-Air), Law No. 22, 596; Japan (Maritime-Air) December 29, 1975, Law No. 21, 386; The Netherlands (Maritime-Air) 1949; Norway (Maritime-Air) 1948, (exchange of notes); Peru (Maritime-Air) 1948, (exchange of notes); Poland (Maritime) 1950; Portugal (Maritime-Air) 1948, (exchange of notes); Switzerland (Maritime-Air) 1950, (exchange of notes); United Kingdom (Maritime-Air) 1949, (exchange of notes); United States (Maritime-Air) 1950, (exchange of notes); Uruguay (Maritime-River-Air) 1950; USSR (Maritime-Air) January 19, 1981, Law No. 22, 378; Venezuela (Air) 1987, not in force; Yugoslavia (Maritime-Air), 1948.
d) Are there other incentives to foreign investment, such as access to domestic credit, investment insurance, industrial parks, customs exemptions, etc.?
In Argentina, there are no differences between national and foreign investors. As a result, existing incentives do not provide exclusive benefits to either national or foreign investments. There are no differences in taxes or tariffs and there is free unrestricted access to credit. There is equal access to industrial parks and there are no special regimes for insurance, personnel training, or any other differences.
All existing incentives for an Argentine investor may be used by a foreign investor on the same terms.
Nevertheless, the general economic policy of the Argentine government is to eliminate special incentives since they are considered to distort market conditions and free competition.
In Argentina, there was a large number of promotional regimes that created, at the sectoral or regional level, fiscal incentives for industries to locate in specific areas but they have been gradually eliminated.
Since December 1, 1992, decree 2054/92 instituted the regime to replace the tax benefits applicable to approved industrial promotion companies that had been created by Law No. 23,658 (published in January 1989), partially regulated by decree 1033/91.
The main characteristics of the substitution regime are the following:
Companies benefiting from industrial promotion regulations (exemptions, and so forth) must pay their taxes in the same manner and time as taxpayers in general.
In place of such exemptions, companies will receive tax credit bonds, which may only be used to pay the tax obligations for which the theoretic fiscal cost had been calculated for each project promoted and based on how far the promotional objectives were achieved. Such bonds shall be imputed for each accounting period and may be used to pay taxes due during that period and the one immediately following but may not generate a balance in the companies- favor.
Bonds will not be considered payment instruments for the purposes of the rules limiting the effects of exemptions and tariff reductions that result in the transfer of income to foreign treasuries.
Law No. 23,658 suspended the authorization of new promotional benefits for industrial activities.
Decree 937/93, with effect from May 12, 1993 until December 31, 1994, established a tax refund system applicable to 15% of the sales price of new capital goods and national output allocated to investments in economic activities.
The beneficiaries of such refunds (which do not constitute the tax base for the VAT nor for the tax on profits) are the manufacturers producing and selling such goods, registered for that purpose in the Department of Industry and Commerce and the General Revenue Directorate, provided they effectively reduce the sale price by an amount equivalent to the refund. For sales made after July 1, 1993, manufacturers are also required to have a manufacturing plant located in the provinces that have eliminated specific provincial taxes on such operations.
Without prejudice to the above, two special regimes (applicable both to Argentine nationals and foreign investors, without distinction) must be mentioned as they constitute fiscal incentives.
The so-called Industrial Specialization regime is intended to facilitate the efficient reconversion of the industrial sector, stimulating exports by granting certain benefits to importation. The companies producing manufactured goods are the targets of this regime, which consist of a program-commitment assumed by these companies. This regime grants the companies import licenses with low differential tariffs which must be offset by exports. Tariff reduction certificates are granted as the programmed exports are achieved, and is therefore not a tax credit against future exports but rather on actual exports pursuant to the program submitted.
The turnkey export regime grants promotional tax benefit consisting of total exemption of import tariffs. The regime is applicable to industrial plants and engineering constructions aimed at providing services, and requires a turnkey contract that contains details of the construction of the project, provision and installation of the required elements, management and supervision of erection, and any other service required.
Finally, with respect to investment insurance, Argentina is a member of the Multilateral Investment Guarantee Agency and OPIC.
5. Dispute settlement
Objective: Because Bilateral Investment Treaties (BITs) will be part of another study, only an overview of the subject is required here.
5.1 Domestic settlements: Can the foreign investor resort to the same procedures as the national investor? Are there special forms of appeal available to foreign investors? Please describe
The application of the principle of equal treatment of foreign investors and Argentine nationals provides the foreign investor with exactly the same legal recourse available to local investors. There is no special recourse for foreign investors with the exception of those dispute settlement procedures stipulated in the investment promotion and protection treaties signed by Argentina. (A list of such treaties is attached).
5.2 International settlements: Is your country a member of ICSID or other international arbitration mechanisms on the subject of investment?
Argentina is a member of ICSID. The ICSID Convention was approved as Argentine Law No. 24,353, published in the Official Bulletin dated September 2, 1994 and in force since October 19, 1994, the date on which the corresponding instrument of ratification was deposited.
Other arbitration processes are available as a part of international investment agreements for which details are provided below.
5.3 Has your country signed BITs with other countries in the Americas? What is the present status of said agreements, i.e., approved, ratified, in effect?
Agreements in Force:
Followed by date signed, number of the Argentine law, and date of entry into force:
Armenia: April 16, 1993, Law No. 24,395, December 20, 1994
Australia: August 23, 1995, Law No. 24,728/96, January 11, 1996, July 23, 1997
Austria: August 7, 1992, Law No. 24,328, June 21, 1994
Bolivia: March 17, 1994, Law No. 24,458, May 1, 1995
Canada: November 5, 1991, Law No. 24,125, April 29, 1993
Chile: August 2, 1991, Law No. 24,342, January 1, 1995
China: November 5, 1992, Law No. 24,325, June 17, 1994
Croatia: December 2, 1994, Law No. 24, 563/ 95, June 1, 1996
Cuba: November 3, 1995, Law No. 24, 770, June 1, 1997
Denmark: November 6, 1992, Law No. 24,397, February 2, 1995
Ecuador: December 18, 1995, Law No. 24,459/95, February 1, 1994
Egypt: May 11, 1992, Law No. 24,248, December 3, 1993
Finland: November 5, 1993, Law No. 24,614/95, May 3, 1996
France: July 3, 1991, Law No. 24,100, March 3, 1993
Germany: April 9, 1991, Law No. 24,098, November 8, 1993
Hungary: February 3, 1993, Law No. 24,335, June 2, 1994
Israel: July 23, 1995, Law No. 24,771, April 10, 1997
Italy: May 22, 1990, Law No. 24,122, October 14, 1993
Jamaica: February 8, 1994, Law No. 24,549/95, December 1, 1995
Malaysia: September 6, 1994, Law No. 24,613/95, March 20, 1996
Netherlands: October 20, 1992, Law No. 24,352, October 1, 1994
Peru: November 10, 1994, Law No. 24,680, October 24, 1996
Poland: July 31, 1991, Law No. 24,101, September 1, 1992
Portugal: October 6, 1994, Law No. 24,593/95, May 3, 1996
Romania: July 29, 1993, Law No. 24,456, May 1, 1995
South Korea: May 17, 1994, Law No. 24,682/96, September 24, 1996
Spain: October 3, 1991, Law No. 24,117, September 28, 1992
Sweden: September 22, 1992, Law No. 24,117, September 28,1992
Switzerland: April 12, 1991, Law No. 24,099, November 6, 1992
Tunisia: June 17, 1992, Law No. 24,394, January 23, 1995
Turkey: May 8, 1992, Law No. 24,340, May 5, 1995
Ukraine: August 9, 1995, Law No. 24,681, May 6, 1997
Union of Belgium and Luxembourg: June 28, 1990, Law No. 24, 123, August 26, 1992
United Kingdom: December 11, 1990, Law No. 24,148, February 19, 1993
United States: November 14, 1991, Law No. 24,124, October 20, 1994
Venezuela: November 16, 1993, Law No. 24,457, July 1, 1993
Vietnam: June 3, 1996, Law No. 24,778, June 1, 1997
Approved Congress Only:
Followed by date signed, number of the Argentine law:
Ecuador: February 20, 1994, Law No. 24.459
Hungary: February 5, 1993, Law No. 24.335
Jamaica: February 2, 1994, Law No. 24.549
Indonesia: November 7, 1995, Law No. 24,814
Senegal: April 6, 1993, Law No. 24,396
Signed only
Followed by date signed:
Bulgaria: September 21, 1993
Czech Republic, September 27, 1996
El Salvador: May 9, 1996
Finland: November 5, 1993
Lithuania: March 14, 1996
Malaysia: September 6, 1994
Mexico: November 13, 1996
Morocco: June 13, 1996
Panama: May 10, 1996
Sourth Korea: May 17, 1994
Taiwan (Inter-institutional Agreement): November 30, 1993
Under negotiation:
Algeria (Initiated May 5, 1996), Bahamas, Barbados, Belarus, Brunei, Colombia, Costa Rica (Initiated October 24, 1996), Dominican Republic, Greece, Guatemala, Honduras, Iceland, India, Indonesia (Initiated September 29, 1993), Japan, Kazakhstan, Kuwait, Lebanon, Moldova, Morocco, New Zealand, Nicaragua, Norway (Initiated April 30, 1993), Philippines, Russian Federation, Saudi Arabia, Singapore, Slovak Republic, South Africa, Slovenia, Thailand (Initiated July 7, 1996), Trinidad & Tobago, Turkmenistan, United Arab Emirates, Uzbekistan, Yugoslavia.
5.4 Where in the juridical hierarchy of your country are international treaties and specifically the Investment Protection Agreements? Analyze your response in relation to the Constitution and domestic laws
The Republic of Argentina has signed several international treaties on the protection of foreign investments. In the juridical hierarchy, those treaties, once approved by Congress, take precedence over domestic laws (Section 22 of Article 78 of the Constitution). In case of conflict of laws, general principles of law are applied, that is, higher laws take precedence over lower laws, later laws take precedence over prior laws, special laws take precedence over general laws, principles that are only applied in case of equal legal rank. Like any other rule, they are subject only to their constitutional validity.
5.5 Do said agreements have -direct effect-, that is to say, can they be invoked by the parties directly before the Courts and then applied to the case in question? If not, under what circumstances can they be invoked and applied?
On entry into force, treaties have "direct effect" and may be invoked by the parties and applied by the courts in case of dispute. Where provided in the treaty, which is usually the case, clauses submitting the matter to international arbitration are respected.
6. National authorities
Objective: To identify the agencies in charge of foreign investment, their organization and functions.
6.1 Is foreign investment handled by specially appointed offices in your country? What is their hierarchical status? How are their actions integrated? What are their main attributions?
The Department of Industry, Trade and Mining within the Ministry of Economy and Works and Public Services is the authority responsible for applying Foreign Investment Law No. 21,382. The Investments Office, an integral part of the abovementioned Department, is the government agency responsible for all matters related to foreign investments, with particular emphasis on investment promotion and the creation of the economic and legal conditions propitious to their establishment.