Published in the Global Arbitration Review, the chapter on the Enforcement of Foreign Arbitration Awards in Key Latin America Jurisdictions summarizes the arbitration law and practice of certain jurisdictions that have experienced an important development in the past 20 years in their arbitration landscape; they are also countries with significant economic growth. The countries in question are Brazil, Colombia, Mexico and Peru. This chapter focuses on the legislative efforts and the attitude adopted by the courts in these countries in regards to the recognition and enforcements of foreign arbitral awards. For full text, please click here. Continue Reading
Official Start of NAFTA Renegotiation: The renegotiation will set the tone for the administration’s trade policy
The first round of renegotiating the North American Free Trade Agreement (NAFTA) will take place August 16 – 20 in Washington. The United States Trade Representative (USTR) will host a press conference to begin negotiations and will report out daily to the Industry Trade Advisory Committees (ITAC). The mechanics of the rest of the first round remain fluid – some working groups may table proposed text and engage throughout the week, while others may meet only briefly to establish a scope of work. The second round of talks is tentatively scheduled for September 10 in Mexico City. Continue Reading
Convention for the Avoidance of Double Taxation between Brazil and Russia || Convenção para Evitar a Dupla Tributação entre Brasil e Rússia
On August 1st, 2017, it was published the Executive Decree no. 9,115/2017, which internalized the Convention for the Avoidance of Double Taxation between Brazil and Russia (“Brazil-Russia Treaty” or “Convention”), signed in Brasilia on November 22nd, 2004. We have focused on the most relevant points, considering most usual queries of taxpayers.
According to article 2 of the Convention, the rules to avoid double taxation shall apply to the Brazilian income tax of individuals and corporations and the Russian tax on profits of organizations and Russian income tax on individuals. There is no mention regarding Brazilian Social Contribution on Net Profits (CSLL), but it can be interpreted that the aforementioned contribution is covered by the Brazil-Russia Treaty by virtue of section 11 of Law no. 13,202/2015.
(Portuguese language full content below) Continue Reading
Looming Crisis in Venezuela
Authored by The Cohen Group
- On July 26, the Department of Treasury’s Office of Foreign Assets Control (OFAC) designated 13 current and former Venezuelan government officials, including: Elias Jaua, former foreign minister; Tibisay Lucena, president of the National Electoral Council; and Simon Zerpa, vice president of finance of state oil producer PDVSA. The sanctions are part of increased pressure by the United States to stop the Venezuelan government from holding elections on July 30 for a “constituent assembly” that would re-write the country’s constitution. We expect the Venezuelan government will move forward with the vote, prompting the United States to escalate with possible sectoral sanctions.
More implications of the current crisis, please read below. Continue Reading
EL BANCO CENTRAL DE CHILE PUBLICA SU NUEVA NORMATIVA SOBRE EMISIÓN Y OPERACIÓN DE TARJETAS DE PAGO CON PROVISIÓN DE FONDOS
Below is an update from Chile on the new provisions concerning fund processing.
La Ley N° 20.950, que autoriza la emisión de tarjetas de pago con provisión de fondos (prepago) por entidades no bancarias, encomendó al Banco Central de Chile, el adelante el “BCCh” el establecimiento de normas aplicables a las empresas que emitan y operen estas tarjetas.
Brazil Oil & Gas Sector Update
Please read the Q&A with members of our network firm, Campos Mello Advogados, in the recent issue of Latin Lawyer discussing the Oil & Gas Sector in Brazil. You may access the full content of the interview here.
By David L Meiler and Barbara Bittencourt
Campos Mello Advogados (in Cooperation with DLA Piper)
ARGENTINA: Financial Information Unit’s New AML Regulations for Financial Institutions
Guest post by Hernán D. Camarero, Partner in Richards, Cardinal, Tützer, Zabala & Zaefferer, an independent law firm
Argentina’s Financial Information Unit (FIU) – the authority that enforces the law on prevention of money-laundering activities and terrorism financing Nr. 25,246, as amended (the AML Act)[1] – has issued Resolution Nr. 30-E/2017 for financial institutions (FIs) and foreign exchange entities as obliged subjects –FIU’s reporting agents – under the AML Act.[2] Res. 30 replaces and abrogates former FIU Resolution Nr. 121/11. It represents another important move by Argentina in its further integration into the international financial and banking systems. Continue Reading
ANVISA Simplifies Licensing Procedures for Life Sciences Companies
ANVISA – Brazil’s National Health Surveillance Agency – has taken a significant step in strengthening its regulatory framework.
In promulgating RDC No. 153/2017, it is reducing the amount of regulatory red tape in the licensing of companies subject to health surveillance.
The strategic goal of this ANVISA resolution is to rationalize, simplify and harmonize procedures and requirements related to health surveillance licensing. RDC No. 153/2017 brings an interesting legislative approach to the technical regulation of the subject matter by establishing degrees of risk in business development in the life sciences and health sectors in Brazil. This further strengthens standardized procedures for licensing-related safety. Continue Reading
Uruguay: Preferential Tax Scheme for International Trading Companies
Guest post by Guzmán Ramirez and Jonás Bergstein, from Bergstein Abogados, an independent law firm in Uruguay.
Uruguay is positioning itself as a jurisdiction for multinationals considering an alternative legal platform to conduct operations abroad.
The tradition of stability and democracy which characterizes the country, and Uruguay’s achievement of all relevant OECD standards − Uruguay is a member of the OECD Fiscal Affairs Committee − are the foundation for this development.
Among its business-centric policies is a special tax platform allowing companies to conduct international trading operations outside of Uruguay: specifically, the purchase and sale of merchandise and services abroad, without any physical transit of the goods or services through Uruguay.
In 1997, Uruguay’s Tax Office put into effect a special regime for international trading activities − defined as acquisition of goods from a foreign supplier for resale and delivery to another foreign acquirer, with no transit of such goods through Uruguayan territory (Tax Office Resolution No. 51/1997 dated 19 March 1997)-.
Uruguayan companies which conduct such international trading benefit from the option of assessing corporate income tax (Impuesto a las Rentas de las Actividades Económicas — IRAE) at a reduced tax base of 3 percent of the balance between the acquisition price minus the sale price.
This reduced taxable base is subject to IRAE at the rate of 25 percent, which makes an effective tax rate of 0.75 percent over the above balance.
Such tax base (the 3 percent of the balance between the acquisition price and the sale price) is deemed to be “net income,” which means that the company cannot deduct expenses.
An example may illustrate the structure. If the Uruguayan company acquires any goods from a foreign supplier at US$100, and sells the same to a foreign acquirer at US$1,000, then the taxable amount would be calculated at 3 percent of US$900 − i.e., US$27. Because the corporate income tax rate is 25 percent, the amount payable as corporate income tax would be US$6.75.
This regime is optional. The Uruguayan company may choose to pay corporate income tax under any other reasonable criterion to determine the Uruguayan-sourced income (for companies, Uruguay still adheres to the source principle: only Uruguayan-sourced income is taxed). The criterion to be proposed must be duly grounded and sustained, and it can be eventually challenged by the Tax Office. This is the reason that most taxpayers prefer to opt for the regime established under the aforementioned resolution.
Only companies organized under Uruguayan laws may benefit from this preferential tax scheme. Notably, the Uruguayan corporate system itself allows flexibility: (a) a single shareholder is allowed (whether resident or non-resident); (b) one director is sufficient (whether resident or non-resident); (c) transfer of the stock is effected by means of the physical delivery of the stock certificate; (d) re-domiciliation is admitted (inbound and outbound); (e) shelf companies are available; and (f) shareholders may be represented at meetings by proxy.
Dividends remitted abroad − which in Uruguay are subject to a 7 percent withholding − would be taxed only on 3 percent of the total dividends distributed. This is so because remittance of dividends abroad is only taxed where the dividends are distributed by a company whose income is subject to corporate income tax. Where most of the income remains untaxed, the distribution of dividends would be taxed only on a pro-rated basis: only 3 percent of the dividends distributed would be subject to the 7 percent withholding.
ARGENTINA: NEW FOREIGN EXCHANGE REGULATIONS IN EFFECT JULY 1ST, 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.
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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
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[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.
