Treaty for the establishment of the of Bi-National company Brazil-Argentina

1. 2ed edition
Sao Paulo, 2013
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TREATY FOR THE ESTABLISHMENT OF THE STATUTE FOR
BINATIONAL COMPANIES BRAZIL- ARGENTINA
MECOSUL TREATIES
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The Government of the Federate Republic of Brazil and The Government of the
Republic of Argentina.............................................................................................................. 3
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Article 1. Definitions ................................................................................................................. 3
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Article 2, Object ......................................................................................................................... 5
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Article 3. Legal Form ................................................................................................................. 5
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Article 4. Funding ...................................................................................................................... 5
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Article 5. Treatment ................................................................................................................... 7
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Article 6. Transference’s Abroad ............................................................................................... 7
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Article 7. Transference of Personnel ......................................................................................... 8
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Article 8. Procedures .................................................................................................................. 8
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Article 9. Application Authority .............................................................................................. 10
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Article 10. Implementation of the Binational Companies Statutes.......................................... 11
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Article 11. Entrance into force ................................................................................................. 12
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Article 12. Validity and Denunciation ..................................................................................... 12
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Article 13. Transitory Disposition ........................................................................................... 12
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OUTLINE OF THE REGULATION FOR THE BRAZILIAN-ARGENTINEAN
BINATIONAL COMPANIES STATUTE........................................................................... 13
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Article 1. .................................................................................................................................. 13
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Article 2. .................................................................................................................................. 13
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Article 3. .................................................................................................................................. 14
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Article 4. .................................................................................................................................. 15
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Article 5. .................................................................................................................................. 16
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Article 6. .................................................................................................................................. 17
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Article 7. .................................................................................................................................. 17
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2. 35
Article 8. .................................................................................................................................. 17
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Article 9. .................................................................................................................................. 18
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Article 10. ................................................................................................................................ 19
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Article 11. ................................................................................................................................ 20
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Article 12. ................................................................................................................................ 20
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Article 13. ................................................................................................................................ 20
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Article 14. ................................................................................................................................ 21
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Article 15. ................................................................................................................................ 21
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Article 16. ................................................................................................................................ 21
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Article 17. ................................................................................................................................ 22
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Article 18. ................................................................................................................................ 22
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Article 19. ................................................................................................................................ 23
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Article 20. ................................................................................................................................ 23
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Article 21. ................................................................................................................................ 23
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Article 22. ................................................................................................................................ 24
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Article 23. ................................................................................................................................ 24
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Article 24. ................................................................................................................................ 25
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PERMANENT BINATIONAL COMMITTEE FOR THE IMPLEMENTATION AND
FOLLOW-UP OF THE STATUTE FOR BRAZILIAN- ARGENTINEAN
BINATIONAL COMPANIES .............................................................................................. 25
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THE PURPOSE ............................................................................................................... 25
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THE COMPOSITION ..................................................................................................... 26
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THE COMPETENCIES................................................................................................... 27
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THE MEETINGS............................................................................................................. 28
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REGULATION OF THE ATTRIBUTIONS AND FUNCTIONS OF THE
AUTHORITY FOR THE APPLICATION OF THE STATUTES OF BRAZILIANARGENTINEAN BINATIONAL COMPANIES ............................................................... 30
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THE PURPOSE ....................................................................................................................... 30
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THE CERTIFICATION........................................................................................................... 32
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THE TRANSFERENCE OF SHARES AND PARTICIPATION .......................................... 36
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THE PENALTIES ................................................................................................................... 37
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THE GENERAL DISPOSITIONS .......................................................................................... 37
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3. 70
Date of Conclusion 1990-06-06
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The Government of the Federate Republic of Brazil and The
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Government of the Republic of Argentina
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CONSIDERING:
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The integration and economic cooperation process between the Federate
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Republic of Brazil and the Republic of Argentina started in 1986 with the
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signature of the Minutes for the Brazilian-Argentinean Economic Integration
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and Cooperation and the accordance on November 29,1988 of the Integration,
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Cooperation and Development Treaty consolidated same process;
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The approval of referred statute by both Congresses on August 16,1989 and its
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subsequent enforcement;
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The priority objective to promote the integration and complementation on a
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company level to assure the success of referred process;
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HAVE AGREED as follows
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Article 1. Definitions
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The State Parties establish the statute which will regulate the companies of
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Binational character constituted according to it.
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For the purposes of this statute, a Brazilian-Argentinean binacional company,
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hereinafter Binational Company, is the one that simultaneously fulfills the
following conditions:
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 that at least 80% of the corporate capital and the votes are owned by
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national investors from the Federate Republic of Brazil and Republic of
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4. Argentina, assuring them the real and effective control of the Binational
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Company;
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 that the participation of the conjoint of national investors of each of the
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two countries be of at least, 30% of the company’s corporate capital; and
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 that the conjoint of national investors of each of the two countries is
entitled to vote at least one member of each administration organ and
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one member of the internal fiscalization of the company.
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 Shall be considered national investors:
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 the individuals domiciled in any of the two countries;
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 the legal entities of public law of any of the two countries; and
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 the legal entities of private law of any of the two countries, in which the
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majority of the corporate capital and of the votes, and the effective
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administrative and technological control, is hold, directly or indirectly,
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by the investors indicated in the above letters "a" and "b".
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The legal entities referred to in letter "a" of paragraph 3 of this Article ,
independent of having their seat in the Federate Republic of Brazil or in
Republic of Argentina shall integrate, for the purposes of letter "b" of
paragraph 2 of this Article , the conjoint of national investors of the country to
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whom their controllers belong.
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The capital funding of the Investment Fund referred to in Protocol n.7 of the
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Integration and Cooperation Program between the Federate Republic of Brazil
and the Republic of Argentina shall be considered performed by national
investors for computation purposes of the participation foreseen in this Article
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The investments in Binational companies made by individuals or legal entities
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not having the characteristics mentioned in paragraph 2 of this Article , shall
not be considered as done by national investors, for the purposes of this
Statute.
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Article 2, Object
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The object of Binational Companies may be any economic activity permitted in
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the legislation of the heading country, exception made to the limitations
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established in constitutional dispositions.
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Article 3. Legal Form
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The Binational Companies shall necessarily have their seat in the Federate
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Republic of Brazil or in the Republic of Argentina, within the legal forms
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admitted by the legislation of the country chosen to be the head office, and
shall aggregate to their denomination or corporate name, the words:
"Brazilian-Argentinean Binational Company" or the initials "E.B.B.A" or
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"E.B.A.B".
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In case the chosen form is a corporation, the respective shares shall mandatory
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be nominative and not subject to transference per endorsement.
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The Binational companies with head offices in one of the two countries, may
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establish branches, agencies or subsidiaries in the other, following the
respective national legislation regarding the objective, form and register.
Article 4. Funding
The following funding may be made to the capital of the Binational Company:
 funding in local currency of the origin country of the investor;
 funding in freely convertible currency;
 funding in capital goods and equipment of Brazilian and/or Argentinean
origin, with no exchange coverage in the receiving country;
 other funding permitted by the legislation of each country; and
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 capital goods or equipment originating from third countries, as long as
entered in Federate Republic of Brazil or in the Republic of Argentina,
up to the signature date of this statute and paid up to the corporate
capital up to two years after its entrance into force. From this last date
on, the capital goods and equipment originating from third countries
shall be subject to the fiscal treatment in force in the Federate Republic
of Brazil and in the Republic of Argentina.
Upon verification of the accomplishment of the constitutive requirements of
the Binational Company, the Application Authority of the heading country
shall issue a Provisory Certificate necessarily recording the amount of the
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corporate capital, the nature and the percentages of the respective funding.
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Through presentation of the Provisory Certificate indicated in prior paragraph
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to the other country’s Application Authority, it shall automatically be
authorized the transference of the capital funding individualized in referred
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Certificate
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Once the corporate capital is paid off, the Application Authority of the heading
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country shall issue the Definitive Certificate and communicate such act to the
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Application Authority of the other country.
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For the effects of disposal in letter "c" of this Article , both Governments shall
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take the necessary steps for the entrance mentioned funding in their respective
territories according to the Binational Trade Agreements, subscribed between
the Federate Republic of Brazil and the Republic of Argentina in the ambit of
the Latin-American Integration Association (ALADI), to exempt them from any
tariffary or non-tariffary restriction ( be it fiscal, administrative, quantitative
or other) according to each national legislation applicable in both countries
for the entrance or exit of such funding.
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Article 5. Treatment
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The Binational Companies shall have in their operating country, the same
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treatment established or to be established for the companies with national
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capital of same Country, even though the majority of the corporate capital
belongs to investors of other countries, according to Article I of this Statute, in
matters of:
 internal taxation;
 access to internal credit;
 access to incentives or advantages for promotion of national, regional or
sectorial promotion; and
 access to acquisitions and public sector agreements.
The goods and services produced by Binational Companies shall profit from
priority treatment equivalent to the one of companies with national capital in
the implementation by both Governments of bilateral initiatives developed
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within the context of the integration process and economic cooperation.
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The treatment foreseen in this Article reaches branches, agencies and
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subsidiaries of the Binational Companies, being observed when applicable, the
dispositions of Article I of this Statute.
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Article 6. Transference’s Abroad
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The investors of each of the two countries in a Binational National Company
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established in the other country, once having paid all due taxes, are entitled to
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freely transfer the profits resulting from their investment to their respective
origin countries, as long as the distribution is proportional among its investors
as foreseen in Article I, paragraph 2 of this Statute, and to repatriate its
participation in the corporate capital, observing in this last case, the legal
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dispositions applicable in each country. The branches, agencies or subsidiaries
of the Binational Companies shall be entitled to the same rights with regard to
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their net profits.
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Even in cases of difficulties in external payments, the Government of both
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countries shall not impose restrictions to investors of Binational Companies for
the free transference of the net profits to which they are entitled.
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Article 7. Transference of Personnel
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Both Governments shall take the necessary measures to facilitate the
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transference of the personnel employed in both countries of the Binational
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Companies, including:
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facilities for the obtention of temporary or definitive authorization permit; and
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the reciprocal recognition of professional titles.
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Article 8. Procedures
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For the obtention of the Temporary Certificate foreseen in this Statute, the
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investors in Binational Companies shall present to the Application Authority of
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the head country referred to Article IX, the following documents:
1. an agreement stipulating the conditions for Binational Companies
constitution and operation, mandatory including following information:
 objectives and activity programs of the Binational Company;
 structure of the corporate capital;
 name, nationality and domicile of the partners; nature and value of
respective capital funding of the Binational Company;
 distribution of functions and administration positions between the
investors of each country;.
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 rules for the distribution of the Binational Company results;
 rules for the commercial operations between the investors and its
Binational Company;
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 preference rules for sale of shares and corporate capital increase cases;
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 rules on the liquidation of Binational Companies; and
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 rules for the solution of controversies, including the election of
jurisdiction for such effects.
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2. copy of the project of Bylaws or of the social contract for the
constitution
of
the
Binational
Company.
The Application Authority of the constitution country of the Binational
Company, shall issue the Definitive Certificate referred to in Article IV of
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this Statute, whereby the interested parties shall present the following
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documents:
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 inscription receipt of the company’s constitution acts with competent
register;
 receipt of corporate capital integralization;
 copy of the statute, agreement or social contract, or equivalent
documents; and
 sworn declaration of the directors or managing partners, according to
the case, stating that the capital composition of the company, complies
with rules established in Article I of this Statute.
 The Definitive Certificate shall assure the benefits foreseen in this
Statute.
 Only companies complying with the requests and formalities established
in this Statute are entitled to use the designation of "BrazilianArgentinean Binational Company", according to paragraph 1 of Article
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3. The transference of shares or participation in Binational Companies,
requires previous consent form the Application Authority of the heading
country to control the fulfillment of the conditions foreseen in Article 1
of this Statute.
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Article 9. Application Authority
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The Application Authority of the heading country shall be responsible for the
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certification of the constitution and functioning of the Binational Companies,
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according to Article VII and connected Article s of this Statute.
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The Application Authority of each country shall constitute and keep an
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updated Register of Binational Companies of both countries, open to public
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consultation.
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In case of proven infractions to this statute or to the legislation of the
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respective country, perpetrated by one Binational Company, the Application
Authority may consider ineffective the Binational qualification of such
company, notifying the Application Authority of the other country. In this case,
from the moment the infraction takes place, the company shall loose the
support of present Statute dispositions, without prejudice to other applicable
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legal sanctions.
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The Application Authority of each country shall be designated by their
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respective Foreign Relations Minister within (thirty (30) days from the date
this Statute enters into force and same designation shall befall on an organ or
entity already existing in their respective central administrations.
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Article 10. Implementation of the Binational Companies Statutes
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It is constituted though this Statute a Permanent Binational Committee for the
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Implementation and FOLLOW-UP of the Binational Companies Statutes,
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integrated by two representatives of the Public Sector of each State Party being one from the Foreign Relations Minister and the other from the
Application Authority - and two representatives of the Private Sector of each of
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the two countries.
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The representatives of the Private Sector shall have a two-year mandate,
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renewable up to two times. Each member shall have a substitute.
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The Committee shall develop its activities in any of the countries and shall
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convene every six months or when called by one of the Parties. The Committee
is responsible for stimulating and supervising the implementation and full
validity in both countries, of measures to facilitate the formation and
functioning of the Binational Companies that guarantee the complete access to
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the benefits granted by this Statute.
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The Committee shall also act as a consultation organ for the national
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governments with regard to all questions arising from the instrumentation and
complete application of this Statute, being responsible for the interpretation of
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the contents and the range of its Dispositions.
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The Committee shall establish its own Functioning Regulation during its first
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meeting, which shall be held no later than sixty (60) days following the
entrance into force of this Statute.
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12. 290
Article 11. Entrance into force
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Present Statute shall enter into force on the date the respective ratification
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instruments are exchanged.
Article 12. Validity and Denunciation
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Present Statute shall have indefinite duration.
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Present Statute may be denounced by any of the State Parties through
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diplomatic means.
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The denunciation shall take effect one year after the date of its notification to
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the other State Party.
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Article 13. Transitory Disposition
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The Governments of the Federate Republic of Brazil and of the Republic of
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Argentina upon entrance into force of this Treaty shall review within four
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months the Convention between the Federate Republic of Brazil and the
Republic of Argentina destined to avoid the Double Taxation and Prevent Fiscal
Evasion in Income Tax Matters, signed on May 17,1989 to adjust it to the
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disposals of present Treaty disposals.
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SIGNED in Buenos Aires, on July 6, 1990 in the Portuguese and Spanish
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languages, being both texts equally authentic.
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13. 310
OUTLINE OF THE REGULATION FOR THE BRAZILIAN-
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ARGENTINEAN BINATIONAL COMPANIES STATUTE
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CHAPTER
I
THE DEFINITIONS
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Article 1.
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A Brazilian-Argentinean Binational Company - hereinafter Binational
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Company - is the one that simultaneously fulfills the following conditions:
i.
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that at least eighty per cent of the corporate capital and of the votes
belong to national investors of the Federate Republic of Brazil and the
Republic of Argentina, assuring them the real and effective control of
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the Binational Company. Effective control of the company means the
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ownership of majority of the voting capital and the lawful and effective
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exercise of the decision power to administrate its activities.
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ii.
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iii.
that the participation of the conjoint of national investors of each of the
two countries, be of at least thirty per cent of the company’s corporate
capital; and
that the conjoint of national investors of each of the two countries have
the right to elect, at least, one member for each of the administrative
organs and one member of the internal fiscalization organ of the
company.
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Article 2.
Shall be considered national investors:
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14. 333
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i.
ii.
iii.
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the individuals domiciled in any of the two countries;
the legal entities of public law of any of the two countries;
the legal entities of private law of any of the two countries, in which the
majority of the corporate capital and its votes, and the effective
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administrative and technological control are directly or indirectly hold
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by the investors indicated in item I or II of this Article ;
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iv.
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to Protocol n.7 of the Brazil-Argentina Economic Integration and
Cooperation Program.
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the Brazil-Argentina Investments Fund, as minority partner, according
First Paragraph -The legal entities referred to in item III of this Article shall
integrate for the effects of item II of second Article , the conjoint of national
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investors from the country to which their controllers belong.
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Second Paragraph- The capital funding from the Brazil-Argentina Investments
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Fund shall be considered accomplished by national investors, for the
computation of the participation foreseen in item I of first Article .
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CHAPTER
II
THE BINATIONAL COMPANY
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Article 3.
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The Binational Companies shall have one of the legal forms admitted by the
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legislation of the country chosen to be the head-office and:
i.
the head-office must be necessarily in the Federate Republic of Brazil or
in the Republic of Argentina;
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ii.
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iii.
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iv.
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v.
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the object may be any economic activity permitted by the legislation of
the country’s head-offices, except for the limitations established in
constitutional dispositions;
branches, agencies or subsidiaries may be established in the other
country, complying with the national legislation referring to the object,
form and register of a national company;
they shall aggregate to their denomination or corporate name the words:
"Brazilian-Argentinean Binational Company" or the initials "E.B.B.A" or
"E.B.A.B"; and
their corporate capital shall be expressed in the currency of the country
of the company’s head-offices.
Sole paragraph - When the chosen form is a corporation, the shares shall
obligatory be nominative and not subject to transference by endorsement.
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Article 4.
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The following capital funding may be performed to the Binational Companies:
I.
II.
III.
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IV.
in local currency from the country originating the investment;
in freely convertible currencies;
in capital goods and equipment’s of Brazilian and /or Argentinean
origin, with no exchange coverage in the receiving country;
in capital goods and equipment’s originating from third countries,
provided they entered in the Federate Republic of Brazil or in Republic
of Argentina until July 6, 1990 and were paid up to the corporate
capital until June 26,1994. From this last date on, the capital goods and
equipment’s originating from third countries shall be subject to the
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16. taxation treatment in force in the Federate Republic of Brazil and in the
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V.
Republic of Argentina.
others permitted by the legislation of each country.
Sole Paragraph - For the purposes of item III of this Article , both Governments
shall take the necessary steps to assure that the ingress of funding in their
respective territories is made according to the Bilateral Commercial
Agreements, subscribed between the Federate Republic of Brazil and the
Republic of Argentina in the ambit of the Association for Latin-American
Integration (ALADI) releasing them from any tariffary or non-tariffary
restrictions, according to the national legislation for the entrance or exit of
such funding applicable in both countries.
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Article 5.
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Financial institutions shall be governed by pertinent legislation applicable to
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each country.
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CHAPTER III
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THE APPLICATION AUTHORITIES
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17. 400
Article 6.
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The Application Authorities are the Secretary of Industrial Policy of the
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Industry, Commerce and Tourism Ministry of the Federate Republic of Brazil
and the General Justice Inspection of the Argentine Republic.
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Article 7.
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The Application Authority of the heading country shall be responsible for the
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certification of the Binational Companies constitution and functioning.
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Sole Paragraph -The Application Authorities shall jointly define the rules for
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the operational certification procedures of the Binational Companies
constitution and functioning.
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Article 8.
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The Application Authority of each country shall constitute and maintain a
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Register of Binational Companies of both countries for public consultation.
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Sole Paragraph -The Register of Binational Companies shall obligatorily
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contain the following information:
 Corporate name;
 Date of constitution;
 Place of the head-offices;
 Social object:
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 Sector of economic activity;
 Responsible for contact;
 Function in the company;
 Telephone;
 Fax;
 Composition of the capital;
 Shareholders, quotaholders;
 Nationality;
 Participation percentage;
 Branches (localization);
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CHAPTER IV
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THE CERTIFICATION
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Article 9.
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The certification of the constitution and functioning of the Binational
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Companies shall be made through the issuance of Temporary and Definitive
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Certificates.
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First Paragraph -The Temporary Certificate granted to national investors, is
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the necessary document for the authorization of the capital funding
individualized in it, and must necessarily contain the amount of the corporate
capital, nature and percentage of respective funding, in compliance to Article
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22.
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Second Paragraph- The Definitive Certificate shall qualify the company as
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Binational.
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19. 445
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Article 10.
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For obtention of the Temporary Certificate, the investors in Binational
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Companies shall present to the Application Authority of the heading country,
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the following documents:
I.
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a. objectives and activity programs of the Binational Company;
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b. structure of the corporate capital;
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c. name, nationality and partners domicile;
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d. nature and value of the respective funding to the Binational
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Company capital;
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e. distribution of functions and administration offices between the
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investors of each country;
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f. rules for the distribution of results of the Binational Companies;
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g. rules for commercial operations between the investors and their
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Binational Company;
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h. preference rules for cases of shares sale and increase of corporate
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capital;
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i. rules on the liquidation of Binational Companies;
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j. rules for the solution of controversies, including the jurisdiction
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constitution and operation, obligatorily including information on the
following:
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agreement stipulating the conditions of the Binational Companies
II.
election for such effects; and
copy of the project of the Bylaws or social contract for the constitution
of the Binational Company.
470
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20. 471
Article 11.
472
Upon verification of the fulfillment of the constitutive requirements for a
473
Binational Company, the Application Authority of the heading country shall
474
issue a Temporary Certificate.
475
476
Article 12.
477
By presentation of the Temporary Certificate to the Application Authority of
478
the other country, it shall automatically be authorized to transfer the capital
479
funding individualized in the Certificate.
480
481
Article 13.
482
The Application Authority of the constituting country of the Binational
483
Company shall issue the Definitive Certificate through presentation by the
484
parties of the following documents:
485
I - copy of the social contract with the constitution minutes, statute and
486
subscription bulletin filed at the competent registry; and
487
II - receipts of the corporate capital integralization.
488
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21. 489
Article 14.
490
The presentation of the Definitive Certificate shall assure the rights to the
491
492
493
494
495
benefits foreseen in this Statute, releasing the Binational Company from
presenting any other additional document for its qualification.
Sole Paragraph - Upon the issuance of he Definitive Certificate, the
Application Authority of the heading country shall communicate such
act to the Application Authority of the other country.
496
497
Article 15.
498
The change of denomination or of the corporate name of the Binational
499
Company shall require the emission of a new Definitive Certificate from the
500
501
502
Application Authority of the country heading the company, being enough in
this case, the evidence of the inscription of changing acts with the competent
registry.
503
504
Article 16.
505
The transference of shares, participation’s, assignment of quotas, capital
506
507
508
increase or reduction of Binational Companies, shall require the agreement of
the Application Authority of the heading country, for the purpose of
controlling fulfillment of Article 1 disposal.
509
Establish Brazil | R. Peixoto Gomide, 445 - Jardim Paulista, São Paulo, CEP 01409-001- Brazil
Page 21 of 41

22. 510
Article 17.
511
The Application Authority, upon confirmation of infractions to the Statute of
512
the Brazilian-Argentinean Companies or to the legislation of respective
513
514
country, may declare ineffective the Binational company qualification of the
transgressing company.
Sole Paragraph - Once disclassified as Binational, the company shall
515
loose the support of this Statute’s dispositions, from the moment the
516
infraction took place, without prejudice of other applicable legal
517
sanctions. In this case, the Application Authority shall notify the other
518
country and the register organ of its constitutive acts, as well as shall
519
publish the disqualification act in the Official Gazette.
520
521
522
CHAPTER v
523
THE TREATMENT
524
525
Article 18.
526
The Binational Companies shall have in their acting country, the same
527
528
529
530
531
treatment established or to be established for companies of national capital of
such country, even if the majority of the corporate capital belongs to investors
of the other country, according to Chapter I, in the following matters:
I.
II.
internal taxation;
access to internal credit;
Establish Brazil | R. Peixoto Gomide, 445 - Jardim Paulista, São Paulo, CEP 01409-001- Brazil
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23. 532
III.
access to incentives or advantages for the promotion of national,
IV.
access to acquisitions and agreements in the public sector.
533
534
regional or sectorial industry; and
535
Article 19.
536
The goods and services produced by the Binational Companies shall benefit
537
538
539
from priority treatment equivalent to the companies of national capital, in the
implementation by both Governments of bilateral initiatives developed in the
context of the integration process and economic cooperation.
540
Article 20.
541
The treatment foreseen in this Chapter comprises branches, agencies and
542
subsidiaries of Binational Companies.
543
544
545
CHAPTER
VI
TRANSFERENCE’S OVERSEAS
546
547
Article 21.
548
The investors of each of the one countries of one Binational Company, once
549
having paid their due taxes, are entitled to freely transfer the profits arising
550
551
552
from their investments to their respective origin countries, provided they are
proportionally distributed between the investors and also to repatriate their
participation in the corporate capital, observing the applicable legal
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24. 553
554
555
dispositions of each country. Branches, agencies or subsidiaries of the
Binational Companies are entitled to same rights with regard to their net
profits.
556
557
Article 22.
558
The capital funding and other transference’s shall be registered with the
559
competent organs.
560
561
Article 23.
562
Even in cases of difficulties in the external payments, the Governments of both
563
countries shall not impose restrictions to the investors of Binational Companies
564
for the free transference of entitled net profits.
565
566
CHAPTER VII
567
PERSONNEL TRANSFERENCE
568
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25. 569
Article 24.
570
The two Governments shall take the necessary measures to facilitate the
571
transference between both countries of the personnel employed by the
572
573
Binational Companies, including:
I.
facility for the obtention of the authorization for temporary or definitive
II.
reciprocal recognition of professional titles.
574
575
permanency; and
576
577
578
579
PERMANENT BINATIONAL COMMITTEE FOR THE
580
IMPLEMENTATION AND FOLLOW-UP OF THE STATUTE FOR
581
BRAZILIAN- ARGENTINEAN BINATIONAL COMPANIES
582
583
INTERNAL
REGIMENT
CHAPTER.
1
584
THE PURPOSE
585
586
Article 1.
587
The Permanent Binational Committee for the Implementation and FOLLOW-
588
UP of the Statute for Brazilian-Argentinean Binational Companies referred to
589
in Article 10 of the Treaty for the Establishment of an Statute for Brazilian-
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26. 590
Argentinean Binational Companies, signed in Buenos Aires on 7.6.1990 has
591
the following purpose:
592
I - to stimulate and supervise the establishment and full validity in Brazil and
593
in Argentina of the Binational Companies Statutes;
594
II - the performance as consultation organ of the national Governments
595
596
concerning all questions arisen by the instrumentation and full application of
referred Statute.
597
598
CHAPTER II
2 THE COMPOSITION
599
600
601
Article 2.
602
The Permanent Binational Committee shall be composed of:
603
I - two representatives of the public sector of each State Party, being:
604
one representative from the Foreign Relations Ministry, who shall coordinate
605
the National Section of the Permanent Binational Committee;
606
one representative of the Application Authority;
607
II - two representatives of the private sector of each State Party.
608
Paragraph 1.- The designation of the members of each country in the
609
610
Permanent Binational Committee shall be officially communicated by the
respective Foreign Relations Ministries.
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27. 611
Paragraph 2.- The representatives of the private sector shall have a two-year
612
mandate renewable up to two periods.
613
Paragraph 3.- Each member of the Permanent Binational Committee shall have
614
one substitute.
615
Paragraph 4.- The coordination of the Permanent Binational Committee shall
616
617
be performed alternatively by each Country, for a one-year period. The
Country heading the meetings shall appoint the Coordinator.
618
619
CHAPTER III
3 THE COMPETENCIES
620
621
622
Article 3.
623
It competes to the Permanent Binational Committee:
624
I - through Resolutions, propose measures to facilitate the formation and
625
functioning of the Brazilian-Argentinean Binational Companies and that
626
guarantee their full access to the benefits granted by the Statute;
627
II - interpret the contents and the attainment of the Statute’s dispositions;
628
III - opine by its own or by private individuals initiatives, on the decisions of
629
the Application Authorities and adopt respective recommendations;
630
IV - make the pronunciations about cases not foreseen in the Binationals
631
Statutes;
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28. 632
633
634
V - approve proposals of norms for the operational procedure for the
certification of the constitution for the functioning of Binational Companies, in
matters considered by common agreement, necessary or convenient by the
635
Application Authorities.
636
VI - constitute technical working groups for the treatment of specific themes;
637
Article 4.
638
It competes to the Permanent Binational Coordination Committee:
639
I - call and preside its meetings;
640
II - based on the proposals made by the State Parties prepare the guidelines for
641
the meetings and address them to the other members of the Permanent
642
Binational Committee, at least thirty days in advance;
643
III - publish in the Official Gazettes of both countries, the acts of the
644
Permanent Binational Committee;
645
IV - keep an updated file with the totality of the documentation related to the
646
activities of the Permanent Binational Committee;
647
V - receive consultations made to the Permanent Binational Committee by
648
private individuals or public organs of both Countries and start their
649
procedures;
650
651
CHAPTER IV
4 THE MEETINGS
652
653
Article 5.
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29. 654
The
Permanent
Binational
Committee
shall
meet
ordinarily
and
655
extraordinarily.
656
Paragraph 1.- The ordinary meetings shall be held every six months and
657
extraordinarily every time deemed necessary, by request of the State Parties, on
658
a place to be determined.
659
Paragraph 2. - The meetings shall be held, in principle, at one same Country
660
every year.
661
Paragraph 3.- By decision of the Committee’s National Sections coordination’s,
662
specialists may participate from the meetings of the Permanent Binational
663
Committee.
664
Paragraph 4.- The meetings of the Permanent Binational Committee shall be
665
held with a minimum "quorum" of one representative of the Foreign Relations
666
Ministry and one representative of the Application Authority of each State
667
Party.
668
Paragraph 5.- The meetings of the Permanent Binational Committee shall be
669
presided by its Coordinator.
670
Paragraph 6.- The proposals shall be analyzed by the members of the
671
Permanent Binational Committee, and may only be approved by consensus of
672
the State Parties.
673
Paragraph 7.- The substitutes of the members of the Permanent Binational
674
Committee may participate in the meetings together with the respective titular
675
members.
676
Paragraph 8.- The minutes shall contain, in public character, the matters
677
678
679
discussed in the meetings, as well as the resolutions adopted shall be enclosed
to the list of participants. The minutes and other working documents of the
Permanent Binational Committee shall be written in the language of the
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Page 29 of 41

30. 680
681
heading Country of the meeting and identified by the abbreviators:
CBPI/Minutes, RES or DOC. The Resolutions shall be sequentially numbered
682
and followed by the year indication.
683
Paragraph 9.- The Minutes and Resolutions of the Permanent Binational
684
Committee shall be signed at least by the Coordinator of the Meeting and by
685
one representative of the public sector of the other State Party.
686
Paragraph 10.- If no consensus is reached, the diverging opinions may be
687
registered in the minutes by request of the dissenting member.
688
689
ANNEX TO ORDER N./93
690
691
REGULATION OF THE ATTRIBUTIONS AND
692
FUNCTIONS OF THE AUTHORITY FOR THE
693
APPLICATION OF THE STATUTES OF BRAZILIAN-
694
ARGENTINEAN BINATIONAL COMPANIES
695
CHAPTER I
696
THE PURPOSE
697
698
Article 1.
699
It competes to the Secretary of Industrial Policy:
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31. 700
I - Analyze the requests for the emission or changes of Temporary Certificates
701
granted to the national Brazilian and Argentinean investors;
702
II - Analyze the requests for the emission or changes of the Definitive
703
Certificate for qualification as a Binational Company;
704
III - Issue Temporary or Definitive Certificates, observing the disposal of
705
paragraphs 1 and 2 of Article VIII of the Brazilian-Argentinean Binational
706
Companies Statute;
707
IV - Determine the Binational qualification ineffective;.
708
V - Communicate to the Application Authority of the Republic of Argentina
709
the issuance of the Definitive Certificate and its amendments, as well as, its
710
disqualification as Binational Company.
711
VI - Communicate the disqualification as Binational Company to the
712
registration organ of its constitutive acts;
713
VII - Analyze and previously express its opinion on the transference of shares,
714
715
participation’s, assignments of quotas and changes in the corporate capital,
when same imply in changes of the corporate structure of the Binational
716
Company;
717
IX - Comply with all recommendations of the Permanent Binational
718
Committee related to the interpretation of the contents and extension of the
719
Statute’s dispositions;
720
X - Coordinate with the competent governmental organs, the manner to
721
722
guarantee the simplification of the procedures for the constitution, functioning
and following of the Binational Company activities;
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32. 723
724
XI - Fiscalize the fulfillment of the qualification requirements for Binational
Companies and its actual and effective activity, requesting pertinent
725
information of the company, its investors, branches, agencies and subsidiaries;
726
XII - Authorize the transference of individualized capital funding on the
727
728
Temporary Certificate, issued by the Application Authority of the Republic of
Argentina.
729
730
CHAPTER II
731
THE CERTIFICATION
732
733
734
Article 2.
735
The certification of constitution and functioning of the Binational Company
736
shall be made through the issuance of Temporary and Definitive Certificates,
737
according to the samples of Annex A and B of this Regulation.
738
Sole Paragraph: The Temporary Certificate granted to national investors, is the
739
740
qualified document to authorize the transference of the capital funding
therein individualized.
741
742
Article 3.
743
For the obtention of the Temporary Certificate, the national investors shall
744
present to the Secretary of Industrial Policy the following documents:
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33. 745
746
747
I - Copy of the agreement establishing the constitution and operation
conditions of the Binational Company, obligatorily containing the following
information:
748
749
750
objectives and programs of the Binational Corporation activities;
751
structure of the corporate capital, with participation percentage of each
752
investor;
753
name, nationality and partners domicile;
754
755
756
757
nature and value of respective capital funding of the Binational Company,
with the precise identification of same funding, observing the disposal of
758
paragraph 1, Article IV of the Statute;
759
distribution of functions and administration offices between the investors of
760
each country, observing the disposal of letter c, paragraph 2, Article I of the
761
Statute;
762
rules for the distribution of results of the Binational Company;
763
rules for the commercial operations between the investors and their Binational
764
Company;
765
preference rules for cases of shares sale and increase of corporate capital;
766
rules for liquidation of Binational Companies;
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34. 767
rules for the solution of controversies, including jurisdiction election for such
768
effect;
769
II- Copy of the project of the Bylaws or social contract for the constitution of
770
the Binational Company.
771
Sole Paragraph: In case of participation of a legal entity of private law of any of
772
773
774
775
776
both countries, it shall be requested the presentation of a declaration from its
legal representative stating that the majority of the corporate capital, votes and
effective administrative and technological control are directly or indirectly
hold by individuals domiciled in Brazil or Argentina or by legal entities of
public law of any of both countries.
777
778
Article 4.
779
In case of new funding entry, it may be requested the issuance of a Temporary
780
781
Certificate for the treatment foreseen in the Statute, under confirmation of the
shareholders or quotaholders decision on the corporate capital increase.
782
783
Article 5.
784
The authorization for the transference of funding foreseen in paragraph 3,
785
786
787
Article IV of the Statute, shall be granted by acknowledgment of the Secretary
of Industrial Policy on the original Temporary Certificate issued by the
Application Authority of the Republic of Argentina.
788
789
Article 6.
790
The capital funding shall be registered at the competent organs.
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35. 791
792
Article 7.
793
The Secretary of Industrial Policy shall issue a Definitive Certificate by the
794
presentation of following documents:
795
I - Receipt of the inscription of the company’s constitutive acts at the
796
competent register;
797
II - Receipt of the integralization of totality of the corporate capital;
798
III - Copy of the statute, agreement or social contract, or equivalent document,
799
with eventual amendments occurred between the constitution date of the
800
company and the issuance request of the Definitive Certificate;
801
IV - Sworn declaration of the directors or managing partners, according to the
802
case, stating that the composition of the company’s corporate capital complies
803
with the rules established in Article I of the Statute;
804
Sole Paragraph: Upon issuance of the Definitive Certificate, the Secretary of
805
806
Industrial Policy shall notify the Application Authority of the Republic of
Argentina and shall publish the decision in the Official Gazette.
807
808
Article 8.
809
The company already constituted in compliance with the requests foreseen in
810
811
the Statute, may be qualified as Binational Company, being entitled to the
benefits from the moment the Definitive Certificate is issued.
812
813
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36. 814
815
CHAPTER III
THE TRANSFERENCE OF SHARES AND PARTICIPATION
816
Article 9.
817
The transference of shares or participation in Binational Companies shall
818
819
request previous consent of the Secretary of Industrial Policy, to control the
fulfillment of Article I of the Statute.
820
821
822
Paragraph 1. For previous consent for the transference of shares or
participation of Binational Companies, it shall be delivered a sworn
823
declaration to the Secretary of Industrial Policy containing:
824
complete qualification of the parties involved in the transference operation;
825
that the transference shall not affect the minimum percentages required by
826
letters a) and b) of paragraph 2, Article I of the Statute.
827
828
829
830
831
832
Paragraph 2. Within 15 days from the effectiveness of the transference, the
company shall deliver to the Secretary of Industrial Policy a declaration with
the capital distribution, specifying the quantity and complete characteristics of
the shares or participation, the complete data of its titular and the percentages
corresponding to each of them.
833
834
CHAPTER
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37. THE PENALTIES
835
836
Article 10.
837
The Secretary of the Industrial Policy, upon confirmation of infractions to the
838
Statute or to the Brazilian law in force, may consider ineffective the Binational
839
qualification of the infringing company.
840
Paragraph 1. In case a company become disqualified as Binational, the
841
842
Secretary of Industrial Policy shall notify the Application Authority of the
Republic of Argentina and the register organ of the company’s constitutive
843
acts, and shall publish the disqualification act in the Official Gazette.
844
Paragraph 2. In case of disqualification, the Binational Company shall loose
845
the supporting rights of the Statute from the moment the infraction took place,
846
without prejudice to other applicable legal penalties.
847
CHAPTER
THE GENERAL DISPOSITIONS
848
849
Article 11.
850
The Secretary for Industrial Policy is authorized to issue the acts deemed
851
necessary for the application of this Regulation, observing the legislation in
852
force.
853
Article 12.
854
The Application Authority shall maintain a Register of the Binational
855
Companies with the following information:
856
Trade name;
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38. 857
Numbers of the inscription in the Commerce Registry and in the General
858
Register of the TaxPayers of the Finance Ministry;
859
Date and constitution act;
860
Name, position, number of the inscription in the Register of Individuals of the
861
Finance Ministry; Domicile and mandate of the members of the Board of
862
Directors, Administration Council and Fiscal Council;
863
Localization of he head-offices and branches;
864
Sector of economic activity;
865
Composition of the capital;
866
Shareholders/quotaholders;
867
Nationality;
868
Participation percentage;
869
Number, issuance date and publication in the Official Gazette of the Definitive
870
Certificate;
871
Responsible for contact;
872
Position in the company;
873
Telephone/fax.
874
Sole Paragraph- The communication regarding the issuance of the
875
Definitive Certificate or any change related to the functioning of the
876
877
Binational Companies, shall be accompanied by the data foreseen in this
Article , along with the copies of the documents requested by the
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39. 878
879
Application Authority of the Republic of Argentina, under reciprocity
conditions.
880
881
Article 13.
882
The Binational Companies shall send to the Secretary of Industrial Policy, a
883
884
885
886
certified copy of all acts that have been practiced in connection with the
maintenance of the fulfillment the Statutes requirements within 30 days from
the occurrence of the fact that originated it, exception made to the disposal of
paragraph 2, Article 9, of this Regulation.
887
888
Article 14.
889
In the case of financial institutions specific legislation shall be applicable,
890
besides this regulation.
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