ARGENTINA: NEW FOREIGN EXCHANGE REGULATIONS IN EFFECT JULY 1ST, 2017

By DLA Piper on June 21, 2017

Guest Post by Richards, Cardinal, Tutzer, Zabala & Zaefferer s.c. Abogados, an independent law firm in Argentina, www.rctzz.com.ar for further information at camarero@rctzz.com.ar

In furtherance of the federal government’s quest to increase the flexibility of the foreign exchange regulations (FX Regs), to facilitate FX transactions and to promote the transparency of the local single and free foreign exchange market (the FX Market), the Central Bank of Argentina (CBA) has issued Communication A 6244 (5/19/17).

Com. 6244 abrogates all regulations:

(i) on foreign exchange transactions

(ii) on financial institutions’ (FIs) foreign exchange general positions

(iii) related to Executive Order Nr. 616/05 and

(iv) on remittances of exports’ proceeds into the FX Market and its oversight by FIs through the Exports’ Collections Tracking System (SECOEXPO), effective as from July 1, 2017.[1]

Com. 6244 keeps the validity of the reporting regimes related to such matters and also includes an annex with a set of new FX Regs that will become valid and binding as of July 1. It is worth noting that not all Com. 6244 provisions are crystal clear in some of the aspects they cover; therefore, this rule has raised some questions and doubts within the financial and banking community that may be resolved once the law is up and running.

Com. 6244’s annex lists the topics addressed by the new regulation, as follows: (i) general rules; (ii) other rules; (iii) operational guidelines for entities licensed to operate in FX (especially with regards to KYC and AML controls, clients’ identity in FX transactions); (iv) a glossary of FX and foreign trade frequently used terms; (v) rules on exports of Argentine goods; (vi) tracking of collections of proceeds of goods’ exports; and (vii) tracking of advances and other financings of goods’ exports.

In this article, we briefly review the most significant changes introduced by Com. 6244.

General rules

Freedom to transact in FX: Com. 6244 reaffirms that all physical and juristic persons as well as universalities (estates and trusts) may freely operate in the FX Market at the FX rates freely agreed by the relevant counterparties. FIs may freely fix the level and use of their general foreign exchange position. All FX transactions, swaps and arbitrages pursuant to FX Regs should be executed through an FI or FX-licensed entities.
Obligation remains to transfer proceeds of goods’ exports (inclusive of ancillary services included in FOB and CIF values) into the FX Market: in fact, this is not new. The term to do so is 10 years from the goods’ loading date (cumplido de embarque). [2]

Other rules

Freedom to operate in the FX Market without mandatory business hours: current business hours for entities licensed to operate in the FX Market are 10 am to 3 pm. From July 1, 2017, these entities may transact in foreign exchange with extended business hours, previously reported to the CBA by the relevant FX-licensed entities.
Compliance with reporting regimes: the corresponding subjects should continue to comply with the foreign liabilities reporting regime (CBA Com. “A” 3602, as amended) and/or the direct investments regime (CBA Communications “A” 4237 and ancillary).
Automatic credit of foreign transfers of funds: Com. 6244 introduces the possibility of automatic credit of fund transfers coming from abroad in the beneficiary’s local account – when the transfer includes the local account information – without the client’s participation, unless otherwise instructed by the client.
Paperless FX transactions: CBA is taking another huge leap towards doing away with tons of paperwork that clients had to file with the banks every time they wanted to access the FX Market, except for FX transactions related to goods’ exports and reporting regimes, as indicated above. FX transaction slips and affidavits will be no longer be necessary; this will be a relief for many businesses and especially for those licensed to operate in the FX Market. Electronic and digital signatures are allowed, subject to specific requirements.

Operational guidelines for entities licensed to operate in FX

Global FX transactions daily records: The entities authorized to operate in FX transactions may carry a global ledger for certain kind of FX transactions insofar as much all conditions required for each case are met. These transactions are (i) collections and payments in consideration of retirement and pensions; (ii) clients’ personal transfers (residents and foreigners human and juristic persons); and (iii) transactions of payments’ processing companies.

Glossary

Uniform terms used in FX transactions: the glossary includes such terms as resident, economic group, cash transactions (operaciones al contado), time transactions (operaciones a término) and other FX-related terms.

Rules related to Argentine goods’ exports

Comprehensive set of rules: Com. 6244 unifies these rules in a single comprehensive chapter, ordering them in a clearer way, in benefit of exporters, financial institutions and even foreign lenders – trade finance – demanding the match (hedge) of the collections of exports’ proceeds by the resident exporter with their loans and facilities’ schedule of principal and interests’ payments. Current rules on this topic are included in several communications that since 2001 have been issued by the CBA and that constitute a very complex and specific regulatory regime.
Exports’ proceeds may not come from foreign importers: Upon or prior to the expiry of the 10-year term to transfer the exports’ proceeds into the FX Market, the local exporter may opt to transfer its own funds deposited abroad and not necessarily those effectively paid by the foreign importer. This allows the local exporter to freely use the proceeds collected within such term, easing the burden of being bound to seek interim financing until the expiry of the term to remit the proceeds into Argentina.
Exports’ proceeds may not be credited in the exporter’s local bank account: this was a former requirement that shall no longer apply from July 1, 2017.
Increases threshold for exports without consideration: Certain goods’ exports may not include a monetary consideration (e.g. inter alia goods without commercial value, samples not for commercial use, gratuitous goods) or which net consideration is lower than the amount stated in the export deed. In these cases, in order to show the CBA that there was no duty to remit a collection from abroad into the FX Market or that any shortfall thereof is justified (e.g. banking transactional expenses), exporters should meet certain requirements. One of these requirements is that the FOB or CIF value of the export deed does not exceed US$25,000, a new threshold amount.

Tracking of advances and other financings of goods’ exports

General amendments to the SECOEXPO: the tracking system’s rules were generally reviewed and modified to adapt them to the new regulations.

Since the FX control still applies in Argentina – i.e. although the system was substantially amended and simplified it was not abrogated – any infringement to FX Regs shall still be punished under the foreign exchange criminal regime. Likewise, standard anti-money laundering and know-your-customer statutory controls by FIs and FX-licensed entities remain in place and should be complied with.

The trend towards full liberalization of FX controls in Argentina continues to move forward as one of the current Administration’s goals. However, Com. 6244 may require some further amendments by the regulator in order to avoid unclear provisions that may hinder the fulfillment of such ambitious target.

Simplifying FX controls restores foreign trade in Argentina to internationally-used and standard practices, with less intervention of the state in private transactions, allowing local importers and exporters to bargain with their counterparties’ the habitual commercial and business terms and conditions for trade-related operations.

The reduction of bureaucratic steps in the execution of FX transactions will be beneficial to FIs, which in the last 15 years have been overwhelmed by the quantity of information and documentation they were required to collect prior to giving access to the FX Market.

These regulatory changes will be very appreciated by international direct investors wishing to set their business operations in Argentina, either as a first-landing investment or by acquiring local ongoing business and assets.

Please do not hesitate to contact the author at Richards, Cardinal, Tutzer, Zabala & Zaefferer s.c. Abogados, an independent law firm in Argentina, www.rctzz.com.ar for further information at camarero@rctzz.com.ar.

Hernán D. Camarero, Partner in Richards, Cardinal, Tützer, Zabala & Zaefferer’s Corporate/M&A, FX Controls, Banking and Finance practices

[1] For further information about the changes to and evolution of the foreign exchange controls introduced by President Mauricio Macri’s Administration, see Hernán D. Camarero, “Winds of change in Argentina: New reforms in foreign exchange controls,” International Financial Products & Services Committee Newsletter, American Bar Association, Section of International Law, Volume 5, Issue 1, March 2016; and “Untying the Gordian Knot: Progressive liberalization of foreign exchange controls in Argentina,” International Financial Products & Services Committee Newsletter, American Bar Association, Section of International Law, Volume 5, Issue 4, , December 2016.

[2] Resolution Nr 47 –E/2017, Secretariat of Trade, Jan 20 2017 sets a 3,650 calendar days-term to transfer the exports’ proceeds to the FX Market.

Posted in Elections Mexico Political Risk

Mexico State Election: Setting the Tone for July 2018 Presidential Election

By DLA Piper on June 14, 2017

This is a guest post from The Cohen Group

Alfredo del Mazo of the ruling Institutional Revolutionary Party (P.R.I.) is the presumptive winner of Sunday’s

election for governor of the State of Mexico, an important battleground state that will set the stage for the July

2018 Mexican presidential contest. The narrow win for the P.R.I. on President Enrique Peña Nieto’s home state

highlights the current weakness of the ruling party’s political machine, which won the state in 2011 with 60

percent of the vote. It also rescaled the overall popularity of populist presidential candidate Andres Manuel

Lopez Obrador (AMLO) who was able to pick the relatively unknown Delfina Gomez Alvarez as the candidate

for his National Regeneration Movement (MORENA) and almost win one of Mexico’s most coveted and

powerful elected offices. Going forward, how AMLO manages his party’s challenge of the election results

could impact his presidential ambitions. Continue Reading

Posted in Financial Services Incentives Puerto Rico Tax tax exemptions

Tax incentives in Puerto Rico: a quick introduction: Handbook

By DLA Piper on June 13, 2017

To promote, attract and develop key industries, sectors and activities, Puerto Rico offers a spectrum of economic incentives, among them low fixed income tax rates, partial and/or total tax exemptions, income tax credits and special deductions.

The manufacturing, tourism, construction, telecoms, export services, renewable energy, film, banking and financial services industries are among the sectors that may enjoy the benefits provided under Puerto Rico’s incentives laws.

DLA Piper’s new handbook Tax Incentives in Puerto Rico: A Quick Introduction aims to help businesses understand this broad array of incentives. In it, we provide an overview of ten of the most significant of these tax incentives – and, for each area, we take a quick look at the legislative groundwork, the process of applying for an incentive and the nature of the available incentives.

Download HERE

By:

Posted in Brazil Intellectual Property

INPI publishes Normative Instruction establishing new procedures for the registration of computer programs || INPI edita Instrução Normativa estabelecendo novos procedimentos para registro de programas de computador

By DLA Piper on June 5, 2017

See below for Portuguese

The National Industrial Property Institute (INPI) has published Normative Instruction (NI) No. 71/2017, establishing new procedures for the submission of computer program registrations.

The NI 71/2017 was created in order to serve as a transition between the current (physical) model and the new electronic system, which is expected to be implemented in the upcoming months, replacing the former paper deposit procedure. Continue Reading

Posted in bid contracts bidding Brazil Energy Oil and Gas privatization

New Rules for Bidding Rounds of Production Sharing Agreements – Regulation of Petrobras’ Priority Rights

By DLA Piper on May 24, 2017

Brazil’s Decree No. 9,041/2017, which is now in force, regulates Law No. 13,365/2016, which changed the current criteria for investments and operations in the Brazilian pre-salt areas.

Such alterations came at a critical moment and it is expected that they will help to attract foreign investments. The Brazilian government recently authorized and defined the areas which will be the subject of the next bidding rounds to be held by the National Agency of Oil, Natural Gas and Biofules (ANP), among them the pre-salt areas, to be offered during the Second and Third Bidding Rounds for the Production Sharing Regime, scheduled to occur in October 2017.

As a matter of introduction, in summary, before the alterations introduced by Law 13,365/2016, Petróleo Brasileiro S.A. – Petrobras, the Brazilian national oil company, would necessarily be the operator, holding a minimum stake of 30 percent in any consortium formed with oil companies that win the public bid proceedings for the pre-salt and strategic areas, upon the execution of production Sharing agreements, with the ANP.

With the aforementioned alterations, Petrobras no longer has the obligation to act as the operator. Accordingly, although Petrobras will always be granted a “right of first refusal” to hold a 30 percent stake and/or to be the operator in the pre-salt and strategic areas’ developments, it will no longer be obligated to do so.

In this regard, the Decree provides the rules and definitions that shall be applied for the execution of such preference by Petrobras, being:

(i) Petrobras shall manifest its interest in participate as the operator of the offered areas, within 30 days counted from the publication of the National Energy Policy Council’s (CNPE) resolution establishing the technical and economic parameters of the blocks offered under the production sharing regime. For the Second and Third Bidding Rounds for the Production Sharing Regime, said resolutions were published on May 04, 2017 and April 27, 2017, respectively.

(ii) The aforementioned manifestation shall include the blocks and the participation percentage intended by Petrobras, which cannot be lower than 30 percent.

(iii) The CNPE will then propose to the Brazilian President the blocks which shall be operated by Petrobras, indicating its participation in the consortium to be formed, which may range between 30 percent and the percentage indicated by the latter.

The Decree also provides that in case Petrobras exercises its preferential rights, after the conclusion of the bidding round’s judgment phase, it must join the winning consortium as the operator, in case said winning consortium offered to the Brazilian Union the minimum percentage of profit oil previously specified in the tender rules. On the other hand, Petrobras will have the option to join the winning consortium, in case such winning consortium offers to the Brazilian Union a percentage of profit oil superior to the one previously specified in the tender rules. In the latter case, the winning consortium must indicate for ANP’s approval the operator and the percentages of participation of each of its parties.

Finally, it should be noted that if Petrobras opts not to exercise its preferential rights, it may than participate in the bid round, but in equal conditions with the other participants, having the option to do so as a party of a consortium or alone.

In any event, considering the high potential of the areas to be offered during the next pre-salt bidding rounds, massive participation byf international oil companies is expected , either in a consortium operated by Petrobras or independently.

Decree No. 9,041/2017 was published and came into force on May 2.

Authors: David L. Meiler and Bárbara Bittencourt – Campos Mello Advogados

David Meiler

Partner
T +55 21 3262 3006
david.meiler@cmalaw.com
Rio de Janeiro

Bárbara N.Bittencourt

Associate
T +55 21 2217 2070
barbara.bittencourt@cmalaw.com
Rio de Janeiro

Posted in Argentina Governance Lobbying Politics

New Draft Bill on Lobbying Activities in Argentina

By DLA Piper on May 16, 2017

Guest Post by By Richards, Cardinal, Tützer, Zabala & Zaefferer

In furtherance of President Mauricio Macri’s public statements about the need to increase transparency in the public sector in Argentina, the Executive Branch has submitted to Congress a draft bill that seeks to regulate lobbying (“gestión de intereses”) and its publicity in any office of the federal state. The law’s enforcement authority will be the Federal Agency for the Access to Public Information.

The draft bill, released in April, is has three pillars: integrity (transparency in the public decision-making process), equality of treatment (all persons soliciting contact about the same matter deserve equal treatment by public officers) and public disclosure of governmental actions (because access to information about government actions is crucial for citizens’ understanding and control of the processes).

Management of interests or lobbying is defined in the draft bill as any activity aiming to influence the decision-making process of a person who exercises a public function in favor of its own or of an alien interest. The lobbying may be remunerated or gratuitous, habitual or occasional, planned or incidental. A manager of interests or lobbyist is the person who habitually or occasionally exercises such defined activity.

The scope of the draft bill comprises, inter alia, handling and decisions in administrative files, draft bills or any other regulations, goods and services procurement proceedings, drafting and implementation of public policies and procedures for the grant of the senate’s consent.

However, meetings requested by physical persons in private matters (unless they involve material economic interests that may involve the public interest); employment interviews; meetings involving those seeking technical advice; and meetings solicited by foreign public officers in the exercise of their official functions and by diplomats of foreign states in their official functions are excluded from the definition of lobbying activity.

The draft bill applies to the following subjects, among others:

Congress: representatives (deputies) and senators; public officers at the director level and above; deputies’ and senators’ advisors; president and general auditor of the Federal General Audit Office; ombudsman and its deputies; and the penitentiary attorney.
Executive Branch: President and Vice President, Chief of Staff of Cabinet of Ministers, ministers and secretaries with ministerial rank; secretaries, undersecretaries and general directors; their direct advisors; public officers with rank similar to those indicated in this paragraph; highest public officers in decentralized entities and public utilities’ regulatory agencies; ambassadors or similar public officers; the federal general syndic and deputies of the Federal General Syndics Office.
Judiciary and Attorney General Office: judges, secretaries and officers with similar rank or hierarchy; members of the Judiciary Council and the Judiciary Impeachment Tribunal.

Each of these shall maintain a Registry of Hearings of Management of Interests in which they must record, at a minimum, the location of a meeting, or if held remotely, its date and time; the full names of the hearing’s solicitors and of those who attended it; the name or corporate name of the person whose interests were represented or, if collective, of the various interests that were represented; and a brief or minutes setting out the content of the hearing. When there is more than one petitioner about the same matter, each shall be treated equally. Such registry shall be considered public information; hence, each office shall be bound to update the registry and upload it to the Internet.

Those failing to comply with the law shall be punished pursuant to applicable disciplinary (administrative), civil or criminal law.

If passed, this draft will represent an important stepping stone toward greater transparency and public oversight of the activities of public offices in the three branches of the Argentine state.

Please do not hesitate to contact the authors at Richards, Cardinal, Tutzer, Zabala & Zaefferer s.c. –Abogados-, an independent law firm in Argentina, www.rctzz.com.ar

Please contact the authors for more information camarero@rctzz.com.ar, or navarro@rctzz.com.ar.

Hernán D. Camarero, Partner in Richards, Cardinal, Tutzer, Zabala & Zaefferer’s Corporate/M&A, Banking & Finance practices

Damián Navarro, Partner in Richards, Cardinal, Tutzer, Zabala & Zaefferer’s Administrative Law/Regulatory practice

Posted in Brazil Intellectual Property

Battle of the feds: end of the conflict between INPI and ANVISA on the registration of pharmaceutical product Patents

By DLA Piper on April 21, 2017

After 15 years, the feds have finally decided to unlock the system.

In order to address certain amendments and add-ons to Law No. 9,276/96, the so-called Intellectual Property Law, in 2001 Brazil’s National Congress promulgated Federal Law No. 10,196.

Despite appointing several technical and procedural parameters related to the National Industrial Property Institute (INPI), this law also brought an interesting – and controversial – legislative approach to the economic regulation of the pharmaceutical market, since it bonded the concession of patens in this sector to “prior consent” from the National Health Surveillance Agency (ANVISA”).

The law did not answer two key questions: “What is an “ANVISA’s prior consent?” and “Which parameters and procedures should be used for granting an ANVISA’s prior consent?” This set up what can only be described as the battle of the feds – a conflict between ANVISA and INPI over registration of pharmaceutical product patents.

At the beginning of the battle of the feds, INPI took the position that “under no circumstance” could ANVISA assess and/or review patentability requirements, since it is not a competent governmental body regarding those requirements. On the other hand, ANVISA has affirmed that the scrutiny of the subject matter for granting of “prior consent” would include reassessment of patentability requirements, in addition to other factors established by current health legislation.

By mid-2008, the regulatory controversy over the subject matter was well established; since then, numerous jurisdictional conflicts have been argued before the agencies involved, and several lawsuits have been filed arguing that ANVISA’s position corrupted the system structured in Brazil by the Intellectual Property Law.

Now, after 15 years of interagency conflict, the casualties of the battle have mounted: 30,000 patent applications are pending for analysis, and the ramifications of the conflict, in terms of intangible liability, are even greater.

Delay in granting a patent automatically extends the start of the protection countdown. As an example, generic medicines do not enter the market as quickly as the already established pharmaceuticals; thus, access to the generic pharmaceutical product becomes more expensive. Moreover, although many patent applications have not yet been evaluated, pharmaceutical companies act as if their products are already protected, raising their prices and further discouraging other companies in the industry from developing similar formulas.

From a practical standpoint, this has created the same circumstance that occur in other countries under “pay for delay,” but without the benefits for manufacturers of generic drugs and SUS. Worse, this “patent extension” situation has resulted in losses of BRL2 billion to SUS so far.

Note that the practice of “pay for delay” is not even allowed in Brazil.

Both the healthcare and industrial property sectors have suffered the consequences of this long-term conflict – but it appears that the battle will soon draw to a close.

On April 12, 2017, INPI and ANVISA announced that they have agreed on parameters and procedures that will be used to analyze patent applications for pharmaceutical products and their proceedings. They have signed a Joint Ordinance on this matter that will be published in the coming days.

The agencies have also agreed that the regulatory bodies will establish an Inter-institutional Commission, in which representatives from both agencies will participate, with the objective of promoting the exchange of technical information and the harmonization of processes. Their goal: to end the ongoing battle over subject matter.

The regulatory model encourages the technical discretion of the regulators, besides making it clear that prior consent does not authorize, in the performance of tasks of ANVISA, the assessment of aspects unrelated to public health. The patentability requirements, in turn, remain fully established as INPI’s own competence. That is, ANVISA will certainly play an important role during the analysis of the patentability of a pharmaceutical product, but when it comes to registration, INPI will have the final word.

The applicant will therefore be responsible for filing a patent application in accordance with the conditions established by INPI, but without contradicting ANVISA’s economic and political aspirations in the field of public health.

One day soon, for the pharmaceutical sector, the battles of the feds will be in the past.

Please do not hesitate to contact the authors at Campos Mello Advogados, an independent law firm in Brazil

for further information at terence.trennpohl@cmalaw.com, paula.menabarreto@cmalaw.com, or bruna.rocha@cmalaw.com.

Terence Trennepohl, Partner in Campos Mello Advogados’ Life Sciences practice

Paula Mena Barreto, Partner in Campos Mello Advogados’ Intellectual Property practice

Bruna Rocha, Associate in Campos Mello Advogados’ Life Sciences practice

Posted in Brazil COSIT Insurance Reinsurance Tax

Taxation and Reinsurance in Brazil: Regulatory Update

By DLA Piper on April 4, 2017

COSIT CONSULTATION RESPONSE 62/2017

The following are comments to the effects of COSIT Consultation Response No. 62, published on 20 January 2017, which the General Office to Coordinate Taxation (“COSIT”) of the Brazilian Federal Revenue Service (“RFB”) expressed its position on the tax regime applicable to reinsurance companies operating in Brazil.

Portuguese language is below.

Posted in Brazil Insolvency Insurance Reinsurance

Insurance Update: Brazil Federal Regional Court

By DLA Piper on February 7, 2017

BRAZILIAN FEDERAL REGIONAL COURT: IMPORTATION AND COFINS-IMPORTATION APPLIES TO (RE)INSURANCE BUSINESS

By Campos Mello Advogados, an independent law firm in Brazil in Cooperation with DLA Piper

The Brazilian Federal Regional Court recently unanimously decided that insurance policies and reinsurance agreements are equivalent to rendering of services; therefore PIS-importation and COFINS-importation (PIS/COFINS-importation) applies to premiums remitted abroad. Pursuant to Law No. 10.865/2004, PIS-importation and COFINS-importation applies to the remittance of amounts abroad as consideration for services rendered. The basis for calculation of these taxes is 15 percent over (re)insurance premiums remitted abroad.

The lawsuit, brought against an insurance company and a local reinsurer, debates whether social contributions PIS/COFINS-importation applies on premium of reinsurance remitted abroad. Continue Reading

Posted in Brazil Real Estate

New Bill Proposal – Public Offering of Hotel Units || Projeto Regulador de Oferta Pública de Projetos Hoteleiros

By DLA Piper on January 30, 2017

Analysis by Campos Mello Advogados in Brazil (in cooperation with DLA Piper)

For more information, please contact Lynn Cadwalader (US).

The Brazilian Securities Exchange Commission (Comissão de Valores Mobiliários – CVM) has submitted for public comment a proposal for a new ruling (Instrução Normativa) (the CVM Bill) − aiming to regulate the public offering of hotel-related collective investment contracts (Hotel CICs).

A Comissão de Valores Mobiliários (“CVM”), por meio do Edital de Audiência Pública SDM Nº 08/16, submeteu à audiência pública minuta de instrução (“Minuta de Instrução”) dispondo sobre a oferta pública de distribuição de contratos de investimento coletivo hoteleiro (“CIC Hoteleiro”)