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Doing Business in Argentina: Overview
Practical Law Country Q&A 2-517-8389 (Approx. 21 pages)
Doing Business in Argentina: Overview
| Law stated as at 01 Nov 2011 • Argentina |
A Q&A guide to doing business in Argentina.
This Q&A gives an overview of the legal system; foreign investment, including restrictions, currency regulations and incentives; and business vehicles and their relevant restrictions and liabilities. The article also summarises the laws regulating employment relationships, including redundancies and mass layoffs, and provides short overviews on competition law; data protection; and product liability and safety. In addition, there are comprehensive summaries on taxation and tax residency; and intellectual property rights over patents, trade marks, registered and unregistered designs.
To compare answers across multiple jurisdictions, visit the Doing business in... Country Q&A Tool.
This article is part of the multi-jurisdictional guide to doing business worldwide. For a full list of contents, please visit www.practicallaw.com/about/doingbusinessin-mjg.
Foreign investment
2. Are there any restrictions on foreign investment (including authorisations required by central or local government)?
Generally, foreign citizens investing in Argentina have the same status and rights as local investors. However, the following restrictions exist:
- Aviation: foreign citizens are not allowed to own the majority of the shares.
- Broadcasting: foreign ownership of Argentine broadcasting companies is limited to 30%.
- The purchase of land in frontier zones and other security areas requires prior governmental approval.
- Rural Land: non-nationals must not own more than 15% of the total rural land in each Argentine province or municipality and must not own land that comprises or is located beside permanent and significant bodies of water. The foreign owner must not have more than a specified number of hectares, which varies according to location (for example, 1,000 hectares for the principal agriculture area in the north of the province of Buenos Aires), although there are some exceptions applicable to foreign individuals (Law 26,737).
Approval by regulatory agencies is needed for acquisitions in the following industries:
- Banking.
- Utilities.
- Insurance.
- Communications.
There are restrictions on the transfer of funds in and out of Argentina, including a 30%, one-year non-remunerated deposit (released on expiry of the term or the filing of documents) in certain foreign exchange transactions if prescribed documents are not filed before the foreign currency is converted into Argentine currency (Argentine Central Bank Communications "A" 445 and 435).
Exemptions from the 30% deposit can apply to:
- Direct investment of capital in local companies by non-Argentine residents if the contribution is capitalised in accordance with current legal requirements, and evidence of the registration procedure before the Public Registry of Commerce (the Registry) is filed (code 447).
- The sale of shares of local companies to direct investors, if the acquisition of the share capital resulting from the transaction qualifies as a direct investment and is evidenced by the relevant share purchase agreement and a copy of the filing with the Registry or a copy of the transfer of the shares' entry in the corporate books of the local company (depending on the type of company) (code 453).
Foreign exchange receipts from goods exports must be settled through the foreign exchange market (Ministry of Economy (Executive Order Nº 120/03, as amended)). In addition, the Central Bank has provided that the exporter has 120 additional business days to settle foreign exchange receipts though the foreign exchange market, extended to 180 business days when the purchaser fails to pay the transaction costs and to provide the foreign exchange receipts resulting from export credit insurance.
There are several promotional schemes and tax incentives run by the government, and by the provinces and municipalities to promote investments, mainly in the industrial parts of Argentina, but none of them are aimed specifically at foreign investors, they include:
- An incentive for the production of capital assets, which aims to promote the production of capital assets through tax breaks (for example, value added tax (VAT) and income tax).
- A regime for importing goods that are part of a large-scale investment project. This regime assists companies that are willing to invest in a project that will increase the competitiveness of industrial products, among other things. The project must be approved by the Secretary of Industry & Commerce (ex Secretary of Industry, Commerce and Mining) and grants a reduction of import duties to 0% as well as an exemption from the payment of other taxes.
- The provincial industrial promotion regime. Several provinces have an industrial promotion regime by which companies whose project are approved may obtain an exception, reduction or deferral of provincial taxes (for example, turnover tax, land tax and business activities tax) for up to ten years.
- Municipal benefits. Several municipalities grant tax breaks (for example, cleaning and hygiene tax, safety inspection and health tax, building rights, rights of occupation or use of public spaces) for local investment projects.
Business vehicles
5. What is the most common form of business vehicle used by foreign companies in your jurisdiction, and what are the main applicable formalities, rights, restrictions and liabilities?
The corporate entities most commonly used for business enterprises in Argentina are the:
- Stock corporation (Sociedad Anónima) (SA), in which the capital is divided into shares. Stock corporations can also publicly offer their shares and be listed on the stock exchange (listed companies).
- Limited liability company (Sociedad de Responsabilidad Limitada) (SRL), in which the capital is divided into quotas.
Registration formalities
Foreign companies intending to own shares or participate in the incorporation of an Argentine company must register with the Inspection of Corporation of the province in which the foreign company will be based (Inspection General de Justicia) (IGJ) (Section 123, Companies Law). The time between the date of filing with an IGJ and the date of registration varies between 15 and 40 days. Each IGJ has specific requirements as to the necessary documentation for registration, but it generally includes:
- A copy of the foreign company's bye-laws and articles of incorporation.
- Evidence of the foreign company's valid incorporation in its home jurisdiction (issued by the relevant foreign authorities).
- A copy of the board meeting minutes where relevant details are discussed.
Additionally, stock corporations are incorporated by a deed executed before a notary public or a private instrument with notarisation of all the signatures and filed before the companies' local IGJ. The company must register before the tax office (Administración Federal del Ingresos Públicos) where the company will obtain a tax number (Clave Única de Identificación Tributaria). Additional registration is necessary for certain industries such as Central Bank registration for financial institutions.
The documentation to be filed for stock corporations generally includes the following:
- The original, and two copies of the incorporation public deed or private instrument.
- Payment of the IGJ fee.
- A copy of the Official Gazette in which it is announced that the company is being incorporated and in which relevant information about the new company and its shareholders and board members is provided.
- Evidence that at least 25% of the capital has been paid in.
- The pre-qualification report issued by the notary public or a lawyer in which they certify that the documents filed comply with the corporate applicable legislation.
- Where it is indicated that a company is part of a foreign entity group, the existence of the foreign company must be proved and documentation provided proving consent to be associated with the foreign company.
Share capital
The capital of a company must be reasonable for the activities that it plans to undertake. The minimum capital for corporations is ARS12,000 (as at 1 November 2011 US$1 was about ARS4.3) but certain sectors have a much higher minimum capital (such as, financial institutions and insurance companies). There are no maximum capital requirements.
Non-cash consideration
Shares can be issued for non-cash consideration such as property and intangible assets. Non-cash consideration must be valued by a third party. Labour cannot be contributed as consideration.
Rights attaching to shares
Restrictions on rights attaching to shares. The bye-laws may include restrictions on rights attaching to shares, and tend to regulate the way in which the company will be managed including:
- The establishment of voting procedures for the board of directors and the shareholders.
- The establishment of a special procedure to transfer shares to third parties.
- Dispute resolution mechanisms.
Shareholders or partners may decide not to reflect the restrictions in the bye-laws and enter instead into a shareholders' agreement.
Automatic rights attaching to shares. Shareholders have the right to:
- Be heard at the shareholders meeting.
- Vote at the shareholders meetings.
- Participate in the company's profits.
- Participate in the company's assets in case of liquidation.
- The first refusal right in case of new subscription of shares.
- Withdraw from the company in certain circumstances.
Foreign shareholders
There are no restrictions on foreign shareholders, except in certain activities (see Question 2).
Management structure
Generally there is a unitary management/board structure. However, in some situations, there is a two-tiered structure.
The managers of an SA are referred to as the board of directors while the managers of an SRL are referred to as the board of managers. The company's bye-laws can allow the board to form an executive committee to manage the day-to-day business of the company, so forming a two-tiered board structure. The bye-laws can also provide for a supervisory body (Síndico o Comisión Fiscalizadora) to be set up. This is mandatory in certain companies (for example, public companies, companies with a minimum capital of ARS10 million and companies that provide public services).
A surveillance council (Consejo de Vigilancia) (a body formed by shareholders whose constitution is determined by the shareholders) can also be established. The surveillance council has supervisory powers over the board and can appoint directors, but is rarely used.
In addition, the board of directors can appoint general or special managers (who may or may not be directors), to whom they can delegate executive administrative functions. In the case of SRLs, management powers can be distributed among the individual members of the board of managers.
Management restrictions
No nationality requirements apply to directors, although the majority of directors must reside in Argentina.
Directors' and officers' liability
Directors and officers must act honestly and in good faith with and in the best interests of the company. Directors and officers can be held personally criminally or civilly liable to the company, shareholders and third parties if they fail to comply with their general or specific legal duties (including for theft and fraud, environmental and tax liability and anti-trust offences).
Parent company liability
In principle, a parent company has its liability limited to its contribution to the company's capital. However, a parent company can be held liable in certain circumstances. For example, if the parent company votes that the company undertakes a particular course of action for its benefit, it will be jointly and severally liable for any damage caused to the company.
Reporting requirements
Companies incorporated in Argentina must file the following with the IGJ:
- Any modification of the bye-laws.
- Details of any restructuring or liquidations.
- Appointment, ceasing and resignation of directors and syndics.
- Capital variations (increases or reductions).
- Financial statements on an annual basis (limited liability companies do not have to file their financial statements unless their capital is ARS10 million or higher).
- Annual corporate fee for stock corporations (the amount is related to the capital of the company. Limited liability companies pay a fee every time they submit a filing.
- Foreign companies must file evidence or swear a statement annually that they comply with an informative regime that seeks to prove that the main business of the foreign company is performed abroad.
Employment
The main laws governing labour relations in Argentina are the following:
- The Argentine Constitution and national laws.
- International treaties (including International Labour Organizsation conventions ratified by Argentina).
- National business activity collective bargaining agreements.
- Company, factory or establishment collective bargaining agreement.
- Individual employment contracts.
- Law 20,744 of Labour Contract (LCL) (does not apply to public employees and agricultural employees).
- Law of Employment 24,013.
- Rules of collective labour law such as 14,250, 23,551 and 23,546.
Argentine Law applies whenever the work is performed in Argentina, regardless of the nationality of the parties (Article 3, LCL).
When the employment contract is performed in multiple jurisdictions (including Argentina), the parties can choose the law used in the contract. Employee's temporarily seconded to another jurisdiction when the employer is the same, will be covered by Argentine law. When the contract is performed in another jurisdiction on a permanent basis, the foreign law will apply.
7. Is a written contract of employment required, and if so, must it contain any particular language? Are any agreements and/or implied terms likely to govern the employment relationship?
A written contract is not mandatory and a labour contract can be established in any form or language, including in writing, orally or even tacitly (Article 48, LCL), and without specific terms or language unless it is a fixed term employment contract or temporary contract which must be in writing. However, in the even of litigation written contracts must be in Spanish and therefore are normally created in Spanish.
If a foreign employee is required to work in Argentina, a written contract is required as a condition for obtaining the necessary work permits.
The rights and duties under the LCL apply to all labour contracts, regardless of the will of the parties. Collective bargaining agreements establish rights and duties for employees covered by those agreements. The parties can agree in a labour agreement matters more favourable to the employee than those provided by law or collective bargaining agreement or matters not covered by the law but cannot agree terms less favourable.
Foreign employees require residence permits to work in Argentina. They must present their:
- Original passport (with seal of entry).
- Original birth certificate.
- Criminal record certificate from the country of origin.
- Argentine criminal record.
- Work pre-contract.
- Tax bureau registration (Administración Federal de Ingresos Públicos) (AFIP).
Documentation must have the apostille or legalisation of the Argentine Consulate of the issuing country. Documentation in a foreign language must be translated into Spanish by a national public translator.
The company hiring the foreign employee must be registered as an employer with the National Immigration Office, which can approve the labour residence on the basis of the labour contract (see Question 7) and the documentation that proves the identity of the worker.
A precarious residence is granted if the residence permit has been filed including all the required documentation, which allows the foreign employee to work for a period of two to three months until the residence permit is granted. This procedure must be renewed annually.
9. Are employees entitled to management representation and/or to be consulted in relation to corporate transactions (such as redundancies and disposals)?
Workers are not entitled to management representation or to participate or be consulted in corporate transactions.
In cases of transfer of ownership of a company, mergers and spin-off, the working conditions of the employees cannot be affected. An employee may terminate the labour contract if they prove that the transaction caused them significant harm. For example, the employee is entitled to terminate the contract when his job specification is altered, or when the new employer is insolvent.
The employer can terminate an employment contract with or without cause.
One to two months' prior notice must be given when the dismissal is without cause (Article 231, LCL). Alternatively compensation (salary) in lieu of notice must be paid. Severance payments must be made, based on the employee's seniority and remuneration, with a maximum of one month's salary for each year of seniority (Article 245 LCL).
An employer can dismiss a worker with cause if they violate the obligations arising from the employment relationship, and provided that the injury and its severity does not allow the continuation of the labour relationship. In these cases there is no obligation to give prior notice or pay severance.
Mass layoffs are regulated (Law 24,013 and Decree 265/02). Mass layoffs involve:
- More than 15% of the employees in a company of up to 400 employees.
- Over 10% in companies with between 400 and 1,000 employees.
- More than 5% in companies with more than 1,000 employees.
The company must give prior notice to the Ministry of Labour of any mass layoffs, giving the economic reasons for the layoff. The Ministry of Labour will supervise the negotiation between the company and any labour union over at least ten working days. The agreement must be approved by the Ministry of Labour.
Tax
13. What income tax or social security contributions must be paid during the employment relationship?
Tax resident employees
A tax resident's monthly salaried income earned in Argentina is subject to withholding for:
- Income tax at progressive rates which takes into account facts including whether the employee is single or married, with or without children. For example a single employee is taxed on income above ARS88,128 at a rate of 9% for the first ARS10,000 and 35% for any amount in excess of ARS120,000.
- Social security contribution at 17% of gross salary, (capped at ARS16,213.72 as of November 2011).
Non-tax resident employees
Generally, non-tax resident employees working for up to six months do not have to register with the Argentine tax authorities or to file income tax returns as their income tax liability is withheld by the Argentine employer. The withholding rate for non-tax resident employees is currently 35% but it is applied on a presumed net income basis. As a result, salaries, fees, wages and similar compensation paid to individuals temporarily present in Argentina for up to six months and performing personal services are subject to an effective withholding rate of 24.5%.
Foreign employees temporarily performing activities in Argentina and receiving salaries, fees, wages and similar compensation for more than six months are considered tax resident.
Employers
In addition to the employer's withholding obligations (see above, Tax resident employees), employers must also generally pay:
- An amount equivalent to 17% of its gross payroll to the Social Security Institute.
- Monthly contributions to Accident Risk Insurance (Seguro de Riesgos de Trabajo) between 0.5% and 4% of its gross payroll depending on the nature of the activity, risks involved and the accident prevention factor.
- Monthly contributions to Social Medical Insurance (Obras Sociales) equal to 6% of the employees' gross salary.
The employer must file a monthly social security return.
15. What are the main taxes that potentially apply to a tax resident business vehicle (including rates)?
Business vehicles are taxed on their worldwide income. Taxes can be national, provincial or municipal.
The main taxes applicable to business vehicles in Argentina are:
- Income tax (Impuesto a las Ganancias). Resident companies are liable to income tax on worldwide income at 35%, paid in monthly advances, based on the previous years' tax obligations.
- Presumed minimum income tax (Impuesto a la Ganancia Mínima Presunta). This is a federal direct tax that applies to tax resident corporations and non-residents that maintain a permanent establishment in Argentina. It is triggered on the holding of income-generating assets by the corporation and it is levied on the taxpayer's total income-generating assets value (with certain exceptions).The applicable rate is 1% on the total value of assets, above an aggregate amount of ARS200,000. If total assets do not exceed this value or the income tax paid is higher than 1% of the total value of assets, no presumed minimum income tax is payable. The amount paid towards presumed minimum income tax can be used as a tax credit against future income tax for up ten years.
- Personal assets tax (Impuesto a los Bienes Personales). The tax applies when the value of the assets owned by the taxpayer as of the end of the calendar year exceeds ARS305,000. The rate varies from 0.5% to 1.25%. The tax applicable on shares and other equity participations in Argentine companies is 0.5% on the net equity value of the company and is payable by the Argentine company (this tax is inapplicable due to double-tax treaties, such as with Spain).
- Gross revenue tax (Impuesto sobre los Ingresos Brutos (ISIB)). Gross revenue tax is a provincial tax calculated on a company's gross income for a company with periodic commercial activity inside its local jurisdiction. The rates are set by each province, and usually vary from 1% to 6%, depending on the activity.
- VAT (Impuesto al Valor Agregado). VAT is a federal tax on the provision of goods and services. The applicable rates are:
- 21%: the ordinary rate.
- 10.5%: sale of livestock, groceries, and providing certain types of services.
- 27%: communication services and on the sale of gas, electricity and meter regulated water.
- Excise tax (Impuestos Internos). Excise tax is levied on the transfer, by any title, of a particular type of goods and the rendering of some types of services. The applicable rates vary depending on the particular type of good transferred or service rendered, for example:
- 60% on the retail price of cigarettes.
- 20% on alcoholic beverages (more than 10% of the alcoholic graduation, or AbV).
- 10% on an automobile when its value is higher than ARS170,000 (about US$39,500).
- 20% on luxury items.
- Stamp tax (Impuesto de sellos). Stamp tax is a local tax levied on public or private instruments, executed in Argentina or when executed abroad, when their effects are produced in one or more relevant jurisdictions within Argentina. The tax rates are set by each province, and usually vary from 0.5% to 3%, depending on the nature and contents of the contract.
- Debits and credits on bank accounts tax (Impuesto a los Débitos y Créditos en Cuentas Bancarias). Debits and credits on bank accounts tax is a financial tax commonly known as tax on cheques (Impuesto al Cheque).The applicable rate is 0.6% of the gross amount of the credit or debit on bank accounts in Argentinean financial institutions. Some payments made in cash are also covered by this tax, as set out by law (for example, it is also triggered when a transfer of value should have been made through a bank account but was not). In this case, the applicable rate is 1.2 % of the gross amount of the transfer. A portion of the amount paid can be used as a tax credit towards income tax or minimum presumed income tax.
Argentina-sourced income obtained by non-resident companies is subject to income tax at a general rate of 35%, to be withheld and later paid to AFIP. The effective rate may vary according to the presumed profit, which is fixed between 35% and 90% depending on the type of Argentina- source income.
If the foreign company has a permanent commercial establishment in Argentina, it is considered a tax resident company for tax purposes (the rate of 35% is applied to actual profit, and the tax is levied on worldwide income.
17. How are the following taxed:
- Dividends paid to foreign corporate shareholders?
- Dividends received from foreign companies?
- Interest paid to foreign corporate shareholders?
- Intellectual property (IP) royalties paid to foreign corporate shareholders?
Dividends paid
Dividends distributed by Argentinean companies are not subject to income tax regardless of the shareholder's country of residence. Dividend distributions from companies which have not paid income tax at a corporate level are subject to the equalisation tax, which applies whenever accounting profits exceed taxable income at the corporate level (at 35% on the excess).
However, the impact of equalisation tax, if any, can be minimised through any applicable double tax treaties.
Dividends received
Dividends received from a foreign company must be added to the Argentine company's income tax return but the Argentine company can deduct as a tax credit any income tax paid abroad.
Interest paid
Argentine companies' interest payments to foreign entities are subject to withholding tax at the following rates (some exemptions also exist):
- 15.05% where either:
- borrowers are financial entities under Law 21,526;
- lenders are banks or financial entities that are controlled by central banks or similar authorities, and located in jurisdictions that are not considered to be low tax jurisdictions (jurisdicciones de baja o nula tributación) under the Income Tax Law and the Income Tax Law's Regulatory Decree, or have executed information exchange agreements with Argentina and do not allow, among others things, banking or stock market secrecy under their domestic law.
- Any applicable double tax treaty rates.
- 35% in all other cases.
IP royalties paid
IP royalties may be subject to a reduced effective withholding tax of 28% if the agreement is registered with the competent authority. Payments made in consideration for technical assistance not obtainable in Argentina are subject to a 21% effective withholding rate. In all other cases, a 31.5% effective tax rate applies.
A 12.25% withholding tax rate applies to software licences if the software is copyright registered with the National Author's Rights Office (Dirección Nacional de Derechos de Autor). The taxable income derives from the exploitation of the author's rights and the applicable tax directly affects the author or its assignees (derechohabientes).
These rates may not be applicable if there is a lower withholding rate provided under a double taxation treaty.
Interest payments can be deducted at the point at which they are paid. However, federal tax authorities can apply thin capitalisation rules on interest payments that Argentine taxpayers make to foreign related parties.
These rules provide that the debt related to the interest payments cannot exceed 200% of the Argentine taxpayer's net worth at the end of the financial year. If it does, the related interest payments must be treated as dividends for tax purposes.
Thin capitalisation rules do not apply where the:
- Argentine taxpayer is a financial entity (that is, a commercial banks or investments bank) under Law No. 21,526.
- Recipient is not a related party.
- Interest payments are subject to 35% withholding tax.
- Debts were incurred to acquire assets, leases, or to provide services, which are related to the company's business (section 121.1.2, AITL Regulatory Decree).
In addition, the non-discrimination rule established in some double tax treaties may apply against the thin capitalisation rules.
19. Must the profits of a foreign subsidiary be imputed to a parent company that is tax resident in your jurisdiction (controlled foreign company rules)?
The profits of a foreign subsidiary must be added to the Argentine parent company's taxable income. The Argentine parent company can consider as payment towards its income tax, the similar national taxes actually paid by its foreign subsidiary in the countries in which profits are obtained (Article 168, Income Tax Law).
Transfer pricing rules apply when an Argentine company enters into business transactions with a related company located abroad or a non-related company located in a low tax jurisdiction and the prices on the transaction do not reflect market prices (are not at arm's-length). To prove that the terms of the transaction are equivalent to an arm's-length transaction, Argentine companies must submit a special report to the tax authorities containing detailed information including data and supporting documentation.
Imports and exports are subject to the following tax rates:
- Exports of goods (except agriculture and oil products) are generally exempt from VAT but are subject to export duties (derechos de exportación) at 5%.
- Exports of agriculture products such as wheat, corn, soya oil, sunflower, meat and oil products are generally exempt from VAT but are subject to export duties at a rate that varies from 5% to 45%.
- Exports of services that will have no use in Argentina are generally exempt from VAT and of export duties.
Generally, no import duties are imposed on goods from Argentina, Brazil, Paraguay and Uruguay (Mercosur countries) if they meet the requirements of origin from a state member of Mercosur. The import of Mercosur goods is subject to withholding VAT and income tax.
Imports from outside the Mercosur are subject to the prior payment of duties, VAT and income tax withholding. The maximum rate is 35%, (this amount has been established for the member countries of World Trade Organisation).
Argentina has entered into tax treaties with many EU countries including the UK, Germany, France and Spain, as well as non-EU countries including Australia, Bolivia, Brazil, Canada and Chile. These treaties are based, other than those with South American countries, on the OECD Model Tax Convention on Income and on Capital. Currently, there is no tax treaty between Argentina and the United States.
Competition
It is unlawful to engage in any activity that limits, restricts, fakes or distorts competition, or involves an abuse of dominant position, adversely affecting the general economic interest (Article 1, Law 25,156).
Application of the law is focused on the actual activity within a market and not the identity of the entity undertaking the activity. Therefore, foreign entities fall within the law as long as the consequence of their activity has a local impact. Competition law is a federal law and the specific governmental agency is federal. Criminal penalties provided by competition law are fines from ARS10,000 up to ARS150 million.
Unilateral activity undertaken in abuse of that party's dominant position is prohibited. This includes:
- Applying discriminatory conditions in the purchase or sale of goods and services not reasonably grounded on commercial customs or practices.
- Making the purchase of a good or the rendering of a service subject to the additional purchase of another good or rendering of another service.
The above actions can take place in conjunction with other anti-competitive activities (see Question 23).
Mergers and acquisitions fall within the legal definition of an economic concentration.
Prior approval by the relevant governmental agency is required for mergers and acquisitions where the aggregate amount of the business of the acquiring and target companies, taking into account their business in the domestic market and their exports, exceeds ARS200 Million. The aggregate amount includes the business of the acquirer and target's corporate groups if they fulfil certain criteria.
The law does not contain specific provisions addressing foreign-to-foreign mergers and acquisitions. However, the law provides the following situations that do not require prior approval:
- Acquisition by the parent company of equity in its subsidiary in which it already owns 50%.
- Acquisition of debt securities not granting voting rights.
- Acquisition of a single company by a foreign entity that does not own Argentine assets or stock at the time of the acquisition.
- Acquisition of wound up companies not having conducted any business throughout the past year.
- Where the value of Argentine assets being acquired and the deal itself do not exceed ARS20 million individually, (unless aggregate deals were concluded during the past 12 months exceeding that figure, or during the last 36 months exceeding ARS60 million).
Intellectual property
Patents
Nature of right. Patentable inventions must be all of the following:
- Novel.
- Involve an inventive step.
- Have industrial application.
Protection. Patents are granted exclusively upon registration with the federal agency for industrial property (Instituto Nacional de la Propiedad Industrial) (INPI).
Enforcement. Patent holders are granted protection of their invention by the federal courts against third parties:
- Using the invention.
- Manufacturing the invention.
- Marketing the invention.
- Importing the invention.
Remedies include:
- Permanent injunction.
- Damages.
- Accounting for profits.
Violation of a patent may carry criminal penalties, including imprisonment.
Length of protection. Patents are granted for a term of 20 years from the date of application and cannot be renewed.
Trade marks
Nature of right. Trade and service marks must establish that their mark is distinct from other trade marks within a market.
Protection. Trade marks are granted exclusively on registration with the INPI. Non-registered trade marks are not legally protected, though certain rights have been recognised by the courts to avoid fraud and bad faith. International conventions and classifications also apply.
Enforcement. Trade mark holders can enforce their rights by petitioning before the federal courts. Remedies include:
- Permanent injunction.
- Damages.
- Accounting for profits.
- Forced sale or destruction of infringing products.
Infringement of marks may carry criminal penalties, including imprisonment.
Length of protection. Trade marks are granted for renewable terms of ten years, provided the mark was used during the second half of the term.
Registered designs
Nature of right. Registered designs include two dimensional industrial designs and three dimensional industrial models. The protection is given to the appearance or shape of an industrial product. To be registrable these designs must be of an ornamental character to it.
Protection. Industrial designs and models are granted exclusively upon registration before the INPI.
Enforcement. Right holders can enforce their rights by petitioning the federal courts. Remedies include:
- Permanent injunction.
- Damages.
- Accounting for profits.
- Destruction of infringing products.
Violation of industrial designs and models may carry criminal penalties, including imprisonment.
Length of protection. Registered designs are granted for renewable terms of five years up to an aggregate of 15 years.
Unregistered designs
Generally speaking, no right is assured to unregistered designs, unless it is a work covered by copyright law or it is confidential information.
Copyright
Nature of right. Copyright legislation includes works that are:
- Artistic.
- Literary.
- Scientific.
- Educational, regardless of the process of reproduction.
Protection. Protection is granted as from the origin of the work. Registration is not required but it does establish a presumption of authorship. Registration is administered by the authorship federal agency (Dirección Nacional del Derecho de Autor).
Enforcement. The author, his heirs and assignees, may petition any court for permanent injunctions, damages and publication of rectifying remarks.
Length of protection. As a general rule the rights are granted for life and to his heirs and successors in title for 70 years from 1 January following the author's death.
Confidential information
Nature of right. The Law on Privacy (Law Nº 24.766) regulates the circumstances under which, persons or entities, can prevent information, lawfully within their control, from being disclosed, acquired or used by others without their consent in a manner contrary to honest commercial practices (provided this information fulfills specific requirements).
Protection. The right is protected by agreement so there is no need for registration.
Enforcement. The right holder, his heirs and assignees may petition any court for permanent injunction and/or damages.
Length of protection. By law there is no specific length of protection, the right holder can decide to limit its length or not.
Plant variety rights
Nature of right. Seed and phitogenetic creations obtained by discovery or by scientific investigations, with homogenous and stable hereditary characteristics, can be registered. Farmers have the right to keep the seed for their own use. Anyone can use registered seed in developing new plant breeds if it does not require the permanent use of the registered seed.
Protection. To obtain the protection provided by law, the seed and phitogenetic creations must be registered with the National Proprietary Seed Register (Registro Nacional de Propiedad de Cultivares) run by the National Seed Institute (Instituto Nacional de Semillas) (INASE). Argentina is party to the 1978 UPOV convention (International Convention for the Protection of New Varieties of Plants).
Enforcement. This right can be enforced by the right holder who may seek a permanent injunction and damages. The law grants the INASE authority to inspect, take samples and analyse seeds at any time or place to verify that the seed complies with the law including that the rights of the owner are protected.
Length of protection. They are granted for at least ten years and up to a maximum of 20 years depending on the species.
Marketing agreements
Agency
There is a lack of statutory law addressing agency agreements in particular. Court rulings consider agency agreements as a specific type of unregulated contract. Courts have applied protective legal provisions regarding prior notice termination and termination compensations in favour of agents, overruling what has been established in an agency agreement, if the provision is abusive.
Distribution
Distribution agreements are not governed by specific statutory provisions, although key features have been set out in court rulings. Courts have applied protective legal provisions regarding prior notice termination and termination compensations in favour of the distributor overruling what has been established in distribution agreements, if they understand that the provision is abusive.
Franchising
There are no specific laws governing the rights of the parties under a franchise agreement. Courts have applied protective legal provisions regarding prior notice termination and termination compensations in favour of a franchisee, overruling what has been established in franchising agreement, if they understand that the provision is abusive.
Data protection
The Personal Data Protection Law (Law 25,326) sets out requirements for entities gathering personal information and storing them for personal or third party use. Databases, such as credit rating entities, must register with the Data Protection Agency. All owners of databases containing personal information must, upon request from interested parties, provide a copy of the information stored and edit or delete it on request. Requests for deletion of information from public sources, financial institutions and from contractual relations may be rejected and the information can be retained.
Product liability
Product liability and product safety is regulated by requiring detailed information on the products and by establishing several and joint liability for manufacturers, distributors, retailers and brand name owners for the benefit of the consumer or affected parties (Consumer Protection Law (Law 24,240 as amended)).
Contributor details
John O'Farrell
JP O'FARRELL Abogados
)
T +54 11 4515 9211
F +54 11 4515 9201
E [email protected]
W www.jpof.com.ar
Qualified. Argentina, 1990
Areas of practice. Corporate; M&A; contracts; corporate reorganisations.
Recent transactions
- Represented a Uruguayan company in the sale of its shareholding interest in a gas distribution company, in the sale of an oil field and in the negotiations of an off-shore joint operation agreement.
- Represented Argentine shareholders in the sale of the majority interest in an international trade services company.
- Advising a multinational in its corporate reorganisation (merger) in Argentina.
Joaquín Zappa
JP O'FARRELL Abogados
)
T +54 11 4515 9223
F +54 11 4515 9201
E [email protected]
W www.jpof.com.ar
Qualified. Argentina, 1995
Areas of practice. Labour, social security and immigration.
Recent transactions
- Advising the chamber of chemicals and petrochemicals companies on the negotiation and execution of national business activity collective bargaining agreements.
- Advising multinationals and local companies on the negotiations and execution of company, factory or establishment collective bargaining agreements.
- Advising multinationals and local companies on day to day labour and immigration issues.
- Advising multinationals and local companies on complex labour litigation.
Ignacio Sammartino
JP O'FARRELL Abogados
)
T +54 11 4515 9212
F +54 11 4515 9201
E [email protected]
W www.jpof.com.ar
Qualified. Argentina, 1991
Areas of practice. Corporate; M&A; contracts; antitrust; corporate reorganisations.
Recent transactions
- Represented a Uruguayan company in the sale of their shareholding interest in a gas distribution company and on the competition clearance of said sale.
- Advised on the purchase of a multinational company.
- Advising multinationals on several commercial and business issues.
- Representing multinational companies at board level.
Gonzalo Ballester
JP O'FARRELL Abogados
)
T +54 11 4515 9217
F +54 11 4515 9201
E [email protected]
W www.jpof.com.ar
Qualified. Argentina
Areas of practice. Corporate; M&A; Contracts; corporate real estate
Recent transactions
- Advising an American company on setting up an Argentine subsidiary.
- Advising a multinational company in the construction of a new plant and in the update of its dealer agreement.
- Advising multinationals on real estate acquisitions and developments.
- Advising clients on several commercial and business issues.