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 in 2017. A currency crisis in May 2018 ended in an abrupt slide (about 100 per cent relative to the US dollar) of the peso and prompted the government's return to export duties on goods and services in September 2018. These measures somewhat eased the commercial deficit that had reached US$3.88 billion in 2018.
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 19 ongoing processes according to the National Commission of Foreign Trade) involve products originating from China, Chile, Brazil and Italy. 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, with the exception of four proceedings involving China, Italy, Brazil and Mexico.
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 and Labour Matters 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 Foreign Commerce (the Secretary), the Undersecretariat of Foreign Commerce (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 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 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 the following information:
- 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;
- 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 and Labour Matters 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 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 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 and Labour Matters 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 and Labour Matters 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 and Labour Matters 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 and Labour Matters 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.
On 22 January 2018, Argentina ratified the Trade Facilitation Agreement (TFA) drafted within the framework of the WTO, which had taken 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. On 19 January 2017, Mercosur and the EFTA (European Free Trade Association) executed a joint statement announcing the finalisation of the exploratory dialogue leading to the execution of a free trade agreement (FTA). The eighth round of negotiations took place in Buenos Aires in May 2019.
After more than 20 years of negotiations, on 28 June 2019, the European Union and Mercosur reached a trade agreement, which includes tariffs and customs duties reductions on international trade between the two blocs. The agreed tariff reduction is likely to impact on EU and Mercosur industrial and agribusiness sectors. The agreement includes provisions to facilitate trade between small companies operating in countries of both regions. Governments and parliaments for both regions (and their member countries) will now undertake the legal review and ratification of the agreement.
Argentina and Chile executed an FTA on 2 November 2017. On 11 January 2019, the Chilean Congress ratified the FTA, which entered in force in April 2019. The FTA refers to government purchases of goods and services, improved efficiency in bilateral trade operations, harmonisation of customs regulations, services, investments, e-commerce and bilateral cooperation.
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, the abolition of most restrictions on foreign currency purchases by Argentine residents, and the adjustment of Argentine customs regulations to the new international trade policy.
Nevertheless, a sustained and deepening economic crisis prompted the government to reinstate export duties (which it had eliminated in 2016) and halt the reduction of duties on soybean exports at 18 per cent plus the export duties described in Section V.
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 Authorised economic operator
On 1 April 2019, Customs issued General Resolution 4,451 to regulate the authorised economic operator (AEO) system consistent with the World Customs Organization (WCO) Framework of Standards. According to the WCO, AEOs are importers, exporters and related parties (e.g., brokers, carriers, intermediaries, warehouses) that comply with supply chain security standards approved by the customs authorities. This new system adapts the original customs systems of reliable operators, launched in 2017, to meet WCO standards to secure and facilitate global trade.
ii Export duties on goods and services, and increase of statistics tax
On 4 September 2018, the Executive Branch issued Decree No. 793/2018 to establish a 12 per cent export duty to be levied on exports for consumption of all goods listed in the Mercosur Common Classification (i.e., all exports from Argentina). The duty was made effective immediately but is scheduled to sunset automatically on 31 December 2020.
The Decree capped the duty at 4 pesos for every US dollar of the taxable base or the official FOB price and at 3 pesos for every US dollar of the taxable base or the official FOB price for goods exported are those included in Annex I of the Decree. The goods listed in Annex I include (agricultural livestock and its raw material, chemical and organic products, manufactured and industrial products, and artwork. The Decree removed the 2016 reduction (0.5 per cent) of the customs duty for soybean products, applying new rates on soybean and related-product exports of 11 per cent to 18 per cent, with certain exceptions.
The Decree's validity was challenged on constitutional grounds based on the non-delegability of legislative powers to the President (Article 76 of the Argentina Constitution). In filing their challenge, the plaintiffs relied on the 2014 Supreme Court case Camaronera Patagónica v. Ministerio de Economía y otros s/ amparo. Final ruling on the case remains pending.
In the meantime, the government resolved the constitutional issue by enacting, on 4 December 2018, the Budget Law (Law No. 27,467). As of 2 January 2019, duties on exported goods and – for the first time in history – services entered into effect. The duties apply to all persons providing services and to those assigned the contractual rights for payment of those services. The Budget Law tracks the earlier Decree to tax the amount of the invoice (or similar document) at a rate not exceeding 12 per cent. Decree 1,201/18 published on 2 January 2019 likewise capped the export duty to 4 pesos for every US dollar of the taxable base for services, again calling for the end of the duty on 31 December 2020.
Finally, on 6 May 2019, the Executive Branch issued Decree 332/19 increasing the statistics tax (an ad valorem tax to finance Customs' services) from 0.5 per cent to 2.5 per cent and increase the US$500 cap for this tax to US$125,000. This increase will be in force until 31 December 2019.
VI TRADE DISPUTES
According to WTO reports,2 Argentina has currently initiated 21 cases as complainant, mostly against the European Union, Chile and the United States in connection with various import barriers faced by Argentine agricultural products and biodiesel at those countries' ports. On the other side of the coin, Argentina was 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 62 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 settlements in 2018 and 2019 follow.
i DS572: Argentina v. Peru – Anti-dumping measures on import of biodiesel3
On 29 November 2018, Argentina requested consultations with Peru concerning certain anti-dumping and countervailing measures imposed by Peru on biodiesel from Argentina. Argentina's claim remains in the consultation stage.
ii DS537: Canada – Measures governing the sale of wine
On 12 January 2018, Australia requested consultations with Canada concerning measures maintained by the Canadian government and the Canadian provinces of British Columbia, Ontario, Quebec and Nova Scotia governing the sale of wine. This request for consultations follows earlier requests for consultations submitted by the United States (DS520 and DS531) pertaining to measures maintained by the Canadian province of British Columbia governing the sale of wine in grocery stores.
On 17 January 2018, New Zealand requested to join the consultations, followed by the United States on 19 January 2018, Argentina and the European Union on 25 January 2018, and Chile on 26 January 2018. Subsequently, Canada informed the dispute settlement board (DSB) that it had accepted the requests of Argentina, Chile, the European Union, New Zealand and the United States to join the consultations.
On 13 August 2018, Australia requested the establishment of a panel. At its meeting on 27 August 2018, the DSB deferred the establishment of a panel.
At its meeting on 26 September 2018, the DSB established a panel. Argentina, Chile, China, the European Union, India, Israel, Korea, Mexico, New Zealand, Russia, South Africa, Taiwan, Ukraine, the United States and Uruguay reserved their third-party rights.
On 25 February 2019, Australia requested the Director General to compose the panel. On 7 March 2019, the Director General composed the panel.
On 24 April 2019, the chair of the panel requested the DSB in separate communications to circulate to members the panel's working procedures, as well as a partial timetable.
The December 2015 elections harboured a major shift in Argentina's trade policies. Nevertheless, in this final year of the government that was elected in 2015, Argentina is enduring a prolonged economic crisis, worsened by the currency crisis in May 2018 that forced the government to borrow money from the International Monetary Fund and agree to major adjustments to its economic plan. The three bugbears of Argentina's past – inflation, recession and devaluation – have forced the government to abandon the path of 'gradualism' toward budget reform comprising the increase of revenue and reduction of spending. Forced to close the government's increasing budgetary gap, the president announced the need to sustain export duties on soy and other commodities and to levy similar duties on all other exports, reversing government policy. This eventually led to the 2018 decision to tax not only exports of goods but also, for the first time in Argentina's history, services.
Continuous devaluation of the peso responded partially to international competition. Even though in 2018 the trade deficit was reduced compared with 2017 (from US$8.47 billion to US$3.88 billion), this has not changed Argentina's continuing thirst for hard currency such as the US dollar.
This volatile context has been further exacerbated by the looming 2019 national elections in which the incumbent conservative coalition is faced with serious challenge from the same populist party that governed between 2003 and 2015. The uncertainty about the outcome has the international trade community in jitters, many convinced that a change in the government will quickly return Argentina to the foreign trade policies of the first 15 years of this century.
1 Alfredo A Bisero Paratz is head of the tax and customs group of Wiener.Soto.Caparrós.