I OVERVIEW OF TRADE REMEDIES
Argentina has actively used trade defence instruments in support of various economic policies over the past decade. Initially, the broad goal of Argentina's international commercial policy was the promotion of national industry. Between 2011 and 2015, however, Argentina used trade restrictions to maintain a positive trade balance in the interest of preserving foreign currency reserves. Following a change in government in December 2015, Argentina abolished many of these restrictions to ease towards a return of previous trade policies aimed at promoting domestic production. During 2016 and 2017, Argentina continued its rollback of restrictions on foreign trade, which has made evident the inability of most Argentine exporters to produce goods at competitive prices. Policies to maintain the value of the peso relative to the US dollar also harmed competitiveness and generated a trade deficit of US$8,500 in 2017.
The government of Argentina has initiated several anti-dumping and safeguard investigations intended to mitigate the economic impact of imported industrial and textile products. Most investigations in train (there are 40 ongoing processes according to the National Commission of Foreign Trade) involve products originating from China, Indonesia and South Korea. Other processes involve goods exported from the United States, Brazil, Chile and Peru. As a sign of Argentina's willingness to await results before taking action on these processes, the government has not implemented countervailing measures (such as anti-subsidy duties) during the pendency of the proceedings.
II LEGAL FRAMEWORK
Argentina is a member of the GATT and WTO Agreements. In 1995, the Argentine Congress passed Law No. 24,425 ratifying the agreements creating the World Trade Organization signed at Marrakech in April 1994, known as the Final Act of the 1986–1994 Uruguay Round of trade negotiations. This ratifying legislation also incorporated trade remedies into Argentina's internal regulations based on the following: the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994; the Agreement on Subsidies and Countervailing Measures; and the Agreement on Safeguards. Concurrently, the Argentine Congress supplemented these remedies with distinct domestic procedures.
i Anti-dumping procedures
The Argentina Executive branch issued Decree No. 1,393/08 (replacing Decrees No. 1,326/98 and 1,088/01) to regulate and supplement the government's procedures in connection with the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement) and the Agreement on Subsidies and Countervailing Measures.
The Ministry of Production is responsible for carrying out the investigative process and determining whether to apply countervailing measures provisionally, during the course of the investigation, and, definitively, upon its conclusion. Investigations into dumping or subsidies are carried out by the following agencies: the Secretary of Commerce (the Secretary), the Undersecretariat of Foreign Commercial Policies (the Undersecretariat) and the National Commission of Foreign Trade (the Commission). Investigations may commence with a complaint filed by an importer or producer or with ex officio investigations initiated by the Secretary. The Commission and the Undersecretariat may assist complainants in obtaining product information for investigation from foreign domestic markets and in satisfying the formal requirements of a claim.
All claims must satisfy the formal and substantive requirements set forth in Article 5 of the Anti-Dumping Agreement. These requirements include statements on: (1) the complainant's identity and the industry on behalf of which the complaint is made; (2) background information concerning the allegedly offending goods; and (3) how these products are alleged to adversely affect domestic commerce. The complaint must also furnish the Undersecretariat with specific evidence substantiating dumping (as defined by the Anti-Dumping Agreement), specific economic harm to the complainant and causation. Section 4 of the Decree authorises complainants to furnish a wide range of evidence (e.g., expert reports or general documentary evidence regarding pricing and costs, etc., in the country of origin) tending to prove these requirements.
Upon the filing of a complaint by an importer or producer, the Undersecretariat and Commission review the formal aspects of the filing and, if any formal errors are found, request amendments to the filing within five days. Within 10 days of filing or as soon as all formal requirements are satisfied, the Commission is to inform the Undersecretariat that the claim may proceed. The Commission's report also identifies similar products manufactured in Argentina and opines on the complainant's representativeness of the relevant industry sector.
Within two days of receiving the file from the Commission, the Undersecretariat shall notify the complainant of the acceptance or denial of its claim. Within 10 days of accepting a claim, the Undersecretariat makes an assessment regarding whether the evidence offered is sufficient to justify commencement of a dumping investigation. If the assessment is affirmative, the Undersecretariat then requests the Commission to complement its report with data regarding the extent of harm inflicted on the relevant domestic industry and the causal link between the alleged dumping and injury.
Upon receiving a complete report recommending commencement of an investigation from the Undersecretariat, the Secretary must affirm or deny the recommendation within five days. If the recommendation is denied, the Secretary must notify the complainant of the grounds for the denial.
If the recommendation is affirmative and the desired investigation relates to subsidies in the exporter's country, the Undersecretariat must furnish the relevant national government with notice of the decision. This notice must include a request that the foreign government respond with information clarifying the situation and an invitation to reach an agreement on the same in accordance with Section 13.1 of the Agreement on Subsidies and Countervailing Measures.
If the Secretary decides to commence an investigation, it must issue a resolution for publication in the Official Gazette to effectuate its determination. As the resolution must contain substantive and procedural information pertinent to the investigation (e.g., the relevant time frames), issuance of the resolution is more than a perfunctory administrative act. The resolution must contain the following data:
- the product and the country of origin;
- the period to which the investigation applies;
- a description of the dumping practices or existing subsidies;
- a summary of the injury and the causal link to the dumping activity;
- the name of the third country qualified as a market economy, for comparative purposes, when the investigation involves a non-market economy (as qualified by Argentina consistent with Decree No. 1,219/06); and
- the start date of the investigation and the agency charged with carrying out the process.
Next, the Undersecretariat notifies all interested parties and countries involved in the alleged dumping practice of the resolution and commencement of the investigative process.
As to the import transactions subject to investigation to prove dumping, the Undersecretariat will investigate alleged dumping practices or subsidies existing up to 12 months prior to commencement of the investigation. With respect to the existence of economic harm, however, the investigation may extend to operations performed up to three years prior to commencement of the investigation.
Within 10 days of the investigation's initiation, the Undersecretariat and the Commission send questionnaires to interested parties (including producers, exporters and importers), to which they are to respond within 30 days, pursuant to certain requirements set out in Decree No. 1,393/08.
The subsequent steps involve the Secretary's preliminary determination as to the facts under investigation. To start this process, the Undersecretariat has 100 calendar days from the investigation commencement date to issue a preliminary assessment on the evidence related to dumping or subsidies. Next, within 110 calendar days of commencement, the Commission is required to issue a report as to its preliminary assessment on the economic harm and causal link with the relevant dumping activity or subsidy. The Undersecretariat's report may include a recommendation that the Secretary adopt countervailing measures to mitigate the harm caused by the dumping or subsidy. If the Secretary decides to implement countervailing measures during this preliminary phase, it must issue a resolution confirming its decision. The resolution must contain the following information: product descriptions and the name of the exporter; details of the dumping activity, the injury and the causal link; the justification for instituting countervailing measures; a description of the measures taken (generally an increase of import duties) and their duration; and instructions to the customs authorities. At any time, the Secretary may suspend or conclude countervailing measures if the relevant exporters or foreign governments offers to engage voluntarily in procedures to reduce anti-dumping pursuant to Section 8.4 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 and Section 18.1 of the Agreement on Subsidies and Countervailing Measures.
After completing their preliminary assessments, the Undersecretariat and the Commission serve notice of their reports on the interested parties. Once they receive service, these parties have 10 days to propose evidence to be offered in support of their positions, which the Undersecretariat and the Commission must then admit or deny, on a relevance basis only, within 10 days. The interested parties then have up to 80 days before the respective final determinations of the Undersecretariat (as to the evidence on dumping or subsidies) and the Commission (as to injury and the casual link between the dumping or subsidy and the injury) to produce the proposed evidence admitted. Both the Undersecretariat and the Commission may investigate the facts in the country of origin after notifying the interested parties of their intention to do so.
On conclusion of the evidentiary stage, all interested parties have 10 days to file their final arguments on the evidence. Conclusion of this period ends the investigatory process.
To issue their final determinations on the evidence of dumping or subsidies and causation, the Undersecretariat and the Commission may take up to 220 and 250 calendar days respectively (from initiation of the investigation). The decisions shall be published in the Official Gazette and served on the interested parties. If either assessment concludes that the claimant has not proved its allegations, the Secretary will close the investigation.
If both assessments conclude that the allegations are proved, the Undersecretariat will send the Secretary a report recommending the application of anti-dumping or compensatory duties. The Secretary then makes its own recommendation to the Ministry of Production, which makes a final determination to be published in the Official Gazette and served on the interested parties.
The Secretary may apply definitive anti-dumping or compensatory duties retroactively to import operations performed up to 90 days before the Ministry of Production's approval. The maximum term for the prospective application of anti-dumping or compensatory duties is five years.
The anti-dumping or compensatory duties assessed should equal the economic harm inflicted by the dumping or subsidy to neutralise its effect. Exporters that have not sold products into Argentina during the relevant term may file a request for a reduction of any anti-dumping duties with the Undersecretariat. The Undersecretariat must evaluate the request within 120 days and send a report on the same for the Secretary's review. Within 10 days of receiving the report, the Secretary must issue a recommendation for a final decision of the Ministry of Production, which shall confirm its decision within 20 days.
Decree No. 1,393/08 also authorises measures and procedures to neutralise exporters' manoeuvres to elude anti-dumping or compensatory duties (e.g., through the export of products similar to those investigated). Definitive anti-dumping or compensatory duties may be reviewed two years after their application or once the established term has elapsed.
Administrative resolutions issued during the process as to the suspension, denial or conclusion of the investigation and any provisional or definitive anti-dumping or compensatory duties are subject to administrative appeals. At the conclusion of the administrative stage, final administrative decisions are subject to appeals before the Federal Courts.
ii Safeguard regulations
Decree No. 1,059/96 regulates and supplements the Argentine government's implementation of domestic safeguards under the Agreement on Safeguards.
The investigative procedure to determine whether an increase in imports of a given product is causing or threatens to cause serious injury to an industry is carried out by the Secretary, the Undersecretariat, the Commission and the WTO Committee on Safeguards.
The complainant can be an industrial chamber, an individual company or a group of companies representing at least 30 per cent of the national production of the given product to be protected by this procedure. Along with the claim, complainants must file an adjustment plan containing proposed actions to make the relevant industry more competitive and productive.
After receiving the complaint, the Secretary requests technical reports for delivery within 50 days of the Undersecretariat and the Commission analysing whether an increase in imports of a product is causing or threatening to cause serious harm to the industry. The Commission's report must contain a description of the facts giving rise to the complaint, an analysis of the import increase harming or threatening to harm national production, and the current or potential effects on national production.
The Undersecretariat's report must contain the following information:
- an assessment of the change in the trade balance for the product in the relevant period;
- a comparison of the imported product's share of the market relative to national production;
- the existence of any commercial agreements with the country of origin;
- an evaluation of the industrial sector with respect to investments, personnel and gross income; and
- an evaluation of the expected results of the safeguards.
Within 20 days of receiving said reports, the Secretary shall decide whether to open an investigation. The Secretary's decision to commence the investigation shall be published in the Official Gazette and notice of publication shall be sent to the WTO Committee on Safeguards. The resolution must contain the following: the name of the complainant; a description of the imported product subject to investigation; the name of the country of origin; the causal connection between the import increase and the injury or threat of injury; the date of the hearing prior to the close of the investigation period in which interested parties may give their opinion on the necessity and impact of the safeguard measures proposed to protect the public interest; and details of any provisional measures to be taken.
As a provisional safeguard measure, within 15 days of receiving the Secretary's opinion, the Ministry of Production may apply increased import duties for a term not to exceed 200 calendar days. If any provisional safeguard measures are revoked, the Customs Administration will reimburse the additional import duties charged.
The time limit for an investigation is nine months; however, this term may be extended for two additional months. During the above-mentioned term, the Undersecretariat and the Commission are charged with gathering evidence from importers, businessmen, producers and consumer associations on which to base their final report. The final report may revise or ratify the initial reports or broaden the arguments contained therein. During the regular or extended term, the Secretary may close the investigation by publishing its decision to do so in the Official Gazette.
Once the Secretary receives the final reports of the Undersecretariat and the Commission, it has 10 days to invite governments of the countries whose exports are involved in the investigation to participate in a consultation process lasting 60 days. After conclusion of this period, the Secretary issues a report to the Ministry of Production recommending approval or denial of the requested safeguard measures and addressing the adjustment plan proposed by representatives of the relevant domestic industry sector.
The Ministry of Production must make a final decision on the proposed safeguard measures within 15 days of receiving the Secretary's report. The decision shall be published in the Official Gazette and all interested parties along with the WTO's Safeguards Committee shall receive notice. The Ministry of Production may implement the following safeguard measures:
- increased import duties;
- total or partial import restriction on the relevant products; and
- any other measures.
Safeguards measures may apply to a product for a period of no more than four years; however, this term may be extended for an additional term up to a maximum of four years. Along with any safeguards to last for a period of more than one year, the Ministry of Production must concurrently issue a progressive liberalisation programme, the development of which the Secretary is responsible for overseeing. Decisions adopting safeguard measures are not subject to administrative or judicial appeals.
III TREATY FRAMEWORK
Since 1991 Argentina has focused its international trade efforts on the Mercado Común del Sur (MERCOSUR), a treaty between Brazil, Paraguay and Uruguay and, more recently, Venezuela, the aim of which is to form a customs union. The MERCOSUR parties agreed the Common External Tariff (CET) on 1 January 1995. Generally, the CET ranges from zero to 20 per cent depending on the product (with an average of 16 per cent). MERCOSUR will gradually eliminate non-tariff restrictions and other limitations on trade among member countries. With some notable exceptions, MERCOSUR countries apply no duties to imports from other member nations for approximately 85 per cent of traded goods. Within the context of MERCOSUR, Argentina is negotiating regional agreements with other Latin American countries, the European Union and other countries.
Argentina, as a MERCOSUR member, abides by a general system of preferences on goods produced and traded within the MERCOSUR area. Additionally, Argentina has executed free trade agreements with several Latin American countries, including Bolivia (Acuerdo de Complementación Económica (ACE) No. 36 in 1996), Chile (ACE No. 35 in 1996), Peru (ACE No. 58 in 2005) and Israel in 2007. MERCOSUR has also executed agreements with India (2004), Egypt (2010) and the Southern African Custom Union (2008). To date, only the MERCOSUR–India agreement is in force, and none of the other non-MERCOSUR agreements are yet in force.
Additionally, Argentina has executed preferential trade agreements with Mexico (ACE No. 6 of 2006), Uruguay (ACE No. 57 of 2003), Paraguay (ACE No.13 of 1992), Chile (ACE No. 16 of 1991) and Brazil (ACE No. 14 of 1990). Argentina has further agreements within the context of MERCOSUR: Colombia, Ecuador, Venezuela – MERCOSUR (ACE No. 59 of 2004); MERCOSUR – India (2004); and MERCOSUR – Mexico (ACE No. 55 of 2002, related to the automotive industry).
For goods not covered by the above-mentioned agreements, Argentina also provides certain duty exemptions or reductions to members of the Latin American Integration Association. General and special tariff rates are published in the Official Gazette, each publication providing notice of the relevant country, products and tariffs.
Argentina and Chile have undertaken preliminary negotiations on a free trade agreement (FTA). The FTA will refer to government purchases of goods and services, improved efficiency in bilateral trade operations, harmonisation of customs regulations, services, investments, e-commerce and bilateral cooperation. Between March and June 2017, three negotiation rounds took place, and the FTA was executed on 2 November 2017.
On 19 January 2017, MERCOSUR and the EFTA (European Free Trade Association) executed a joint statement announcing the finalisation of the exploratory dialogue to execute an FTA. The first round of negotiation took place in Buenos Aires in June 2017.
On 22 January 2018, Argentina ratified the Trade Facilitation Agreement (TFA) drafted within the framework of the WTO, which took effect on 22 February 2017. The TFA is a multilateral agreement aimed at expediting the movement, release and clearance of goods, including goods in transit.
IV RECENT CHANGES TO THE REGIME
On 10 December 2015, the election of a conservative government brought several changes to foreign exchange laws and administrative regulations, including tax and customs rules, which have had a significant impact on foreign trade. These changes included the repeal of nearly all capital controls, the devaluation of the Argentine peso to unify it with several official and black market dollar-peso exchange rates prices and the abolition of most restrictions on foreign currency purchases by Argentine residents.
The new government also kept the policy of relaxing and eliminating rules requiring Argentine exporters to repatriate export proceeds. The elimination, in 2016, of customs duties previously imposed on agricultural and mining exports, except for soybeans (the export duty for which was lowered from 35 to 30 per cent; it has been further reduced at a rate of 0.5 per cent per month since January 2018, and will continue to be reduced until it reaches 18 per cent in December 2019), is still in force.
V SIGNIFICANT LEGAL AND PRACTICAL DEVELOPMENTS
Other than the trade defence instruments applied by Argentina within the framework of the WTO treaties, the Argentine government has implemented the rules and regulations discussed below, many of which will have effects on international trade by Argentina.
i Tax and Customs reform
On 28 December 2017, Congress passed Law 27,430, which sets out a broad tax reform including internal taxes and customs procedures. Excise tax rates, levied on the import of specific goods (cars, boats, tobacco and alcoholic beverages), were increased for the import of tobacco and beer. Additionally, three items within the Customs Code were modified:
- import and export of goods with defects, allowing a party to cancel the transaction and seek reimbursement of any duties;
- facts and cases considered to be misdemeanour offences of contraband (specifically in relation to tobacco); and
- changes in procedures to simplify notice, terms and the production of evidence in disputes with the customs authorities and in the tax and customs administrative and judicial proceedings.
ii De-bureaucratisation law
On 18 June 2018, Congress passed three laws partially ratifying Decree No. 27/18 issued in January 2018 to reduce bureaucratic obstacles and legal regulations that delay business activities reliant on government approvals. Law No. 27,445 sets forth measures to promote and speed up the transit of goods through Argentine air and sea ports (e.g., supplies for carriage may be stored at the ports under more favourable terms). Law No. 27,446 generalises the use of electronic filing and digital signatures in all government offices, affording them the same validity as physical filings, consolidating a process started by the customs authorities in 2015.
VI TRADE DISPUTES
According to WTO reports (see www.wto.org), Argentina has currently initiated 20 cases as complainant, mostly against Chile and the United States in connection with various import barriers faced by Argentine agricultural products at those countries' ports. On the other side of the coin, Argentina is involved in 22 disputes as respondent. For the most part, these disputes were initiated by the European Union and the United States. They relate principally to measures taken by Argentina to protect the shoe industry, peaches and other agricultural products. Finally, Argentina is currently participating in 60 disputes as a third party.
There have been no new dispute settlements in the past year involving Argentina as correspondent, which reveals the new trade policies adopted by the country are characterised by compliance with WTO regulations.
The most relevant dispute in 2017 and 2018 follows.
i Dispute Settlement: Dispute DS473: Argentina v. European Union. Anti-dumping measures on import of biodiesel2
On 19 December 2013, Argentina requested consultations with the European Union regarding (1) temporary and permanent anti-dumping measures imposed on biodiesel originating in, inter alia, Argentina, as well as the investigation underlying the measures and (2) Council Regulation (EC) 1225/2009 of November 2009, which refers to the adjustment or calculation of costs associated with the manufacture and sale of products under investigation in determining dumping margins.
On 18 December 2015, the Chair of the Panel informed the Dispute Settlement Body (DSB) that, due to the complexity of the legal and factual issues of the dispute, the Panel expected to issue a final report by the end of February 2016.
On 29 March 2016, the panel circulated its report. The DSB upheld some of Argentina's claim regarding anti-dumping measures adopted by the European Union but rejected the claim for adjustment or calculation of costs associated with the manufacture and sale of products under investigation in the determination of dumping margins.
On 20 May 2016, the European Union notified the DSB of its decision to appeal certain findings of the panel report. On 25 May 2016, Argentina notified the DSB of its appeal to different findings.
On 6 October 2016, the Appellate Body report was circulated to members. At its meeting on 26 October 2016, the DSB adopted the Appellate Body report and the panel report, as modified by the Appellate Body report.
At the DSB meeting on 23 November 2016, the European Union informed the DSB that, pursuant to Article 21.3 of the DSU, it intended to implement the DSB's recommendations and rulings in this dispute. On 9 December 2016, the European Union and Argentina informed the DSB that they had agreed that the reasonable period of time to implement the DSB's recommendations and rulings would be nine months and 15 days. Accordingly, the reasonable period of time is set to expire on 10 August 2017 (extended until 28 September 2017). On 23 October 2017, the European Union advised of its adoption of DSB's recommendations and Argentina expressed its satisfaction. Nevertheless, Argentina iterated its concern about the European Biodiesel Board's intention to submit a petition to the EU Commission to initiate a subsidy investigation against Argentine biodiesel imports.
The December 2015 elections harboured a major shift in Argentina's trade policies. The changes in law and regulation, analysed in Sections IV and V, have been accompanied by Argentina's settlement with its 'holdout' creditors and by a return to compliance with WTO commitments. These policies have enabled Argentina to return to the international credit market and , together with a well-timed tax amnesty and moratorium programme, to increase foreign currency reserves during 2016 and 2017. Nonetheless, Argentina's foreign trade continues to lag and has one of the lowest shares of GDP as compared with other countries.
Monetary policy (devaluation) applied by Argentina in December 2015 responded partially to international competition because during 2016 and part of 2017 the exchange rate remained stable, and the inflation rate was high (approximately 40 per cent in 2016 and 25 per cent in 2017). These two processes prompted debate about the increase of internal costs of exportable products and the efficiency of exporters to sell products at competitive prices. Although two of Argentina's largest trading partners (Brazil and China) ended their recession in 2017, the government-supported dollar–peso exchange rate and inflation erased the trade surplus in 2016, which became, in 2017, another record trade deficit of US$8,471 million (the highest commercial deficit since 1995).
1 Alfredo A Bisero Paratz is head of the tax and customs group of Wiener-Soto-Caparrós.