COVID-19: Standards for Electricity Distribution
On May 16th, 2020, Resolution No. 35/2020 (the “Resolution”) was published in the Official Gazzette, in which the Electricity Regulatory Authority–in Spanish Ente Nacional Regulador de la Electricidad–(“ENRE”) authorizes certain EDENOR and EDESUR users reached by the mandatory isolation measures established by Decree No. 297/2020 (as amended) to either suspend payments or make partial payments on account of the contracted capacity through supply agreements; or otherwise, to terminate the contract or require an amendment.
1. Benefited users and periods comprised
EDENOR and EDESUR users belonging to categories T2, T3 and Toll (i.e. medium to large users) whose power demand was reduced in 50% or more as a result of isolation measures, may resort to the alternatives provided in the Resolution for payments accrued since March 20th, 2020 and pending subsequent periods.
2. Benefit’s extension and payment facilities
For users which have opted to whether suspend or make partial down payments, this benefit will terminate when the demand recovery reaches 70% of its contracted capacity. In addition, users who resort to this option shall pay debt accrued pursuant to criteria to be determined by ENRE.
3. Distribution companies’ obligations
Distribution companies shall communicate to users the extent of the different options authorized and refer a weekly report to ENRE with the contractual suspensions, modifications and/or terminations based on the Resolution.
For further information, please contact Nicolás Eliaschev and/or Javier Constanzó.
In the following link, you can access the Firm’s statement on COVID-19.
For information concerning COVID-19 legal implications, please refer here.
COVID-19: Extension of the Limitations to the Interruption of Telecommunication Services
On May 1st and 4th, 2020, Decree No. 426/2020 (the “Decree”) and Resolution No. 367/2020 (the “Resolution”), respectively, were published in the Official Gazette. Both rules further supplement Decree No. 311/2020, which bans providers from ceasing to supply services comprising fixed or mobile telephony, Internet and cable television to certain users (listed therein), in case of delay or lack of payments up to three (3) consecutive or alternate bills with due dates as from March 1st, 2020.
Below is a summary of the regulations’ most relevant aspects.
1. Decree No. 426/2020
The Decree extends until May 31st, 2020, the obligation placed upon the providers of telecommunication services to offer limited services capable of guaranteeing connectivity to users who fail to pay top-up fees to access consumption, and the resulting impossibility to shut-off the service due to such cause.
2. Resolution No. 367/2020
The Resolution has been issued by the National Communications Agency (“ENACOM”, for its Spanish acronym), with the purpose of supplementing certain provisions included in Decree No. 311/2020 and Resolution No. 173/2020, issued by the Ministry of Productive Development, with regards to telecommunication services’ providers.
The Resolution imposes the following additional obligations over those companies:
- The obligation to provide, within a maximum term of three (3) days, the following data: 1) List of all users whose service is registered prior to March 26th, 2020, that may be subject to shut-off caused by lack of payment, or keep ongoing shut-off notices; and whose invoices were due as of March 1st, 2020; and 2) List of all the users with pre-paid services who have required a top-up on February and/or March, 2020. This information has to be entered as a Sworn Affidavit in accordance with Appendix No. 1 of the Resolution, available at the following link.
- The prohibition to suspend or shut-off services due to lack of payment from users not included in the lists prepared by the Coordination Unit created via Resolution No. 173/2020.
- The obligation to report to the ENACOM within the first (15) days as of the Resolution, all prices established for the limited services comprised by article 1 of Decree No. 311/2020 and the terms and conditions and/or forms of the financial facilities offered to users and their information process. Those financial facilities should at least prescribe the possibility for the service to be paid in three (3) monthly installments, to which no interest will accrue, nor penalty will be applicable.
- The obligation to publicly disclose these regulatory provisions not only through providers’ web pages, but also via the social networks used and/or advertisement.
Failure to comply with these will result in penalties being imposed under Law No. 26,522 and 27,078, as applicable.
For further information, please contact Nicolás Eliaschev and/or Javier Constanzó.
In the following link, you can access the Firm’s statement on COVID-19.
For information concerning COVID-19 legal implications, please refer here.
Renewables and Distributed Generation: Between Promises and Reality During COVID-19 Times
As the worldwide oil prices volatility show, the energy industry has not been left unaffected by the global crisis caused by COVID-19 pandemic.
During these hard times, it is worthwhile to wonder about the present and the future of the Argentinian electricity sector and the potential to turn the crisis into an opportunity.
In the attached report, we argue that price volatility of energy commodities and the current and future presence of health and environmental disruptive threats, advice to keep betting for diversification of the electricity mix as the best path to ensure security and continuity for long-term power supply.
Under this context, the report summarizes the main aspects of laws and regulations targeting renewable distributed generation which have shown strong consensus in the country as we further claim that fostering renewable distributed generation such as our current policy does, seems convenient under existing circumstances.
The report also includes preliminary remarks regarding the following issues:
1. Short-term relevant needs of the electricity sector
- Preservation of payment cash flow and short and mid-term economic and financial sustainability of all industry players.
- Termination of emergency under Law 27,741 during the legal period provided thereof and operation of the electricity sector under the rules of Law 24,065.
- Short-term focus for renewables
- Possibility of extending commercial operation dates and intermediate milestones in power purchase agreements corresponding to projects under structuring and/or advanced construction affected by the health crisis and measures adopted consequently either in Argentina or abroad.
- Assessing on a-case-to-case basis opt-outs and/or voluntary renegotiation of power purchase agreements for projects with no activity prior to March 12, 2020 (date under which the health crisis was declared), using uniform and non-discriminatory approaches.
- Long-term decisions
- Definition of transmission infrastructure expansion structure and planning for deployment for additional capacity of renewables for complying with the goal of 20% of consumption for 2025.
- Technical and financial evaluation of expanding such consumption target beyond 2025.
- Continuity of the electricity mix diversification, evaluating the role of efficient thermal, nuclear and hydropower technologies.
- Assessment of new technologies to strengthen the system and supplement the development of Distributed Generation, including power storage, smart metering, demand management and electric mobility.
- Assessment of opportunities to boost regional integration and cooperation for spot and long-term exchanges of natural gas destined to power generation and, power itself, with nearby countries.
In the following link, you can access the Firm’s statement on COVID-19.
For information concerning COVID-19 legal implications, please refer here.
Coronavirus (COVID-19) and the fulfillment of contracts
As it has become widely known, the spread of Coronavirus COVID-19 and the regulations issued as a consequence by the Executive Branch have threatened the normal development of economic and production activities, making it difficult or even impeding the normal fulfillment of different contractual obligations.
In this context, we understand that is vital a thorough analysis of the provisions agreed among the parties, and of the facts and circumstances that affect each agreement in particular, to allow its adequate assessment under the legal framework provided by the Civil and Commercial Code (“CCC”).
1. Main legal concepts
- Force Majeure/act of God: the CCC equalizes both concepts and defines them as the fact which could not be foreseen or that, if foreseen, could not be prevented.
When the force majeure/act of God is final, its occurrence exempts the debtor of the obligation from liability and sets forth the termination of the obligation, unless agreed otherwise.
When the impossibility to fulfill an obligation as a consequence of an event of force majeure/act of God is temporary, the obligation will terminate only if time is of the essence or when its duration frustrates irreversibly the intention of the creditor. - Unforseeability and readjustment: the CCC allows total or partial termination or adequation (readjustment) of an agreement as a consequence of an extraordinary change in the circumstances, prevailing at the time the contract was executed, that turns the obligation excessively burdensome, to the extent beyond the control of the parties and the risk assumed by the damaged party.
Those remedies can be invoked under the scope of commutative contracts of permanent or deferred execution. - Frustration of the purpose of the contract: the CCC also authorizes the damaged party to terminate the agreement if the frustration is due to an extraordinary change in the circumstances, prevailing at the time the contract was executed, beyond the control of the parties and that exceeds the risk assumed by the injured party. If the frustration is temporary, the injured party will only have the right to terminate the agreement only if the fulfillment of an obligation is prevented within a certain timeframe that is of the essence.
Despite specific cases and what has been agreed in each contract, we consider that both the COVID-19 spread and the governmental measures that have been adopted as a consequence, could determine the existence of a force majeure/act of God event, as long as it can be demonstrated that the impossibility to fulfill is derived directly from the occurrence of those events.
As regards unforeseeability and frustration of the purpose due to COVID-19 and/or the legal regulations issued as a consequence, they could also be validly invoked by the damaged parties, if there is a link between those facts and the supervening burden or frustration, to the extent beyond the risk inherent to the agreement.
Effectiveness of the contractual provisions agreed between the parties and/or the application of one or more of the legal concepts described above may vary in each case.
Some of the issues that may have an impact are, among others, the existence of provisions limiting the liability of a party and/or waiving rights, public policy regulations that may affect a contract, and an eventual imbalance in the bargaining power of each party.
The contractual rights and obligations must be exercised and fulfilled, respectively, in good faith and, hence, any reasonable measure that may prevent or reduce or limit any damage must be adopted.
In any case, the exercise of a contractual right shall not be abusive and may be subject to judicial review to obtain its reparation or re-adequation.
2. Possible causes of action.
Any of the legal alternatives described in 1. above can be invoked both judicially and extrajudicially.
In cases of final or temporary force majeure, the CCC allows to suspend contractual obligations on one part until the other party is in a condition to perform under the contract.
Depending on the specific case and the relationship among the parties, a preventive measure could be filed to preserve a determined law or factual situation or to suspend certain acts or the exercise of certain rights, until the issue is solved in the judicial process.
There are already some precedents under which for purposes of preventive measures the COVID-19 spread has been considered as a force majeure/act of God event, outside of the control of the parties. This criterion may be expanded while the courts resume their intervention in the different cases that are pending to be solved as well as the cases that will be initiated as a consequence of the pandemic.
For further information, please do not hesitate to contact Mariano Rovelli, Eugenia Pracchia, Juan Pablo Bove, Federico Otero, Pablo Tarantino, Julián Razumny, and/or Agustín Griffi, or litigios@trsym.com y corporate@trsym.com.
In the following link, you can access The Firm’s statement on COVID-19.
For information concerning COVID-19 legal implications, please refer here.
COVID-19: Complementary Rules to Public Utilities’ Ability to Interrupt their Services and LPG Price Caps
On April 18th, 2020, Resolution No. 173/2020 (the “Resolution”), enacted by the Ministry of Productive Development (“MDP”), was published in the Official Gazette. The Resolution has regulated the terms of Decree No. 311/2020 (the “Decree”) related to restrictions over public utility operators’ ability to interrupt the supply of services such as electricity supply, gas, running water and sewage, fixed or mobile telephone and internet, and cable television, linked by satellite or radio-electricity, to certain users in case of delay or lack of payments up to (3) consecutive or alternated invoices with due dates since March 1st, 2020, and enforced price caps liquefied petroleum gas (LPG) by fixing prices for 180-days.
Below you may find a summary of the Resolution’s most relevant aspects:
1. Creation of a coordination unit
A coordination unit is incorporated, entrusted to elaborate a report which shall indicate the number of users comprised by the Decree. This unit will be staffed by members of the MPD and representatives of ministerial bodies with powers on these matters, as well as authorities from the regulatory entities of each public utility.
2. Obligations of the public utilities’ providers
Public utilities’ providers must provide a list of all the users that may be subject to service interruption, in order to allow the coordination unit to prepare the report referred above and determine whether such cuts should be left without effect.
In turn, electricity distribution companies must inform to national and provincial regulatory entities, the federal Secretary of Energy and the coordination unit, the number of users with electricity pre-paid service, whose recharge corresponding to March, 2020 period and/or subsequent ones were not carried out in time, and will have to be provided of a normal service during a (180) day-term. The same obligation goes for companies providing telecommunications, Internet, and cable television service, whilst in this case, the report must be referred only to the Coordination Unit on a (15) running days term, counting since the Resolution’s publication.
Should there be any reasonable doubt regarding a user’s capacity to become a beneficiary of the Decree’s terms, the Resolution establishes that the providing company must faithfully compel the user to prove such condition before the corresponding regulatory body on a (5) day term. Within the subsequent (5) days, the authority will notify the company if that user is a beneficiary of the Decree and Resolution’s dispositions.
Moreover, article 6 of the Resolution bounds the public utilities to report before the relevant enforcement authorities the conditions of the payment facilities provided to users. In the case of telecommunications, Internet and television service providers, the payment facilities will have to be paid in at least (3) monthly consecutive and equal installments. No interest of any type will be charged.
Lastly, the Resolution imposes the obligation for public utilities to identify in the invoices and web pages the following aspects: the entire Decree’s operative section and the communication channel provided by the regulatory bodies in order for the users to make enquiries and/or require to be a beneficiary of the regime.
3. Flexible communication channels
Service users are enabled communicate by e-mail, Whatsapp and/or other communication channels enabled to that extent, in the context of the current mandatory social isolation.
4. LPG price cap
Finally, the Resolution allows LGP prices to fluctuate below the levels established by article 6 of the Decree, as long as LGP prices fixation mechanisms enable it.
For further information, please contact Nicolás Eliaschev and/or Javier Constanzó.
In the following link, you can access The Firm’s statement on COVID-19.
For information concerning COVID-19 legal implications, please refer here.
COVID-19: Argentine Securities and Exchange Commission Extends Deadlines for Filing Annual and Quarterly Financial Statements
Due to the preventive and compulsory social isolation set forth by Decree No. 297/2020, and extended by No. 325/2020, the Argentine Securities and Exchange Commission (“CNV”) issued its General Resolution No. 832/2020, dated April 7, 2020 (the “Resolution”) extending the deadline for filing the annual and quarterly financial statements of: (i) corporate issuers of shares and securities listed under CNV’s control; (ii) closed mutual investment funds; (iii) financial trusts under the public offering regime; and (iv) small and mediumssized enterprises registered before CNV (“PyMES CNV”).
The Resolution stated that all of the abovementioned must submit their financial statements on the following dates:
- For annual statements ending on January 31, 2020, February 29, 2020 and March 31, 2020: within 90 calendar days as from its ending, or within 2 days of its approval by the management body, whichever occurs first; and
- For quarterly statements ending on February 29, 2020 and March 31, 2020: within 70 calendar days as from the end of the applicable quarterly period, or within 2 days of its approval by the management body, whichever occurs first.
Finally, the Resolution established that banks and other financial entities authorized by Law No. 21,526 and registered with the CNV for capital market activities must file their financial statements for the quarterly periods ending on December 31, 2020 and March 31, 2020, within 60 calendar days of its respective ending.
The Resolution’s provisions shall be enforceable as from April 8, 2020.
For further information, please do not hesitate to contact Juan Pablo Bove, Federico Salim, Julián Razumny, Julieta De Ruggiero, or Agustín Griffi, or corporate@trsym.com.
In the following link, you can access The Firm’s statement on Coronavirus.
For additional information regarding legal consequences on the COVID-19 crisis please refer here.
COVID-19: Private Energy Infrastructure Projects
On April 7th, 2020 Administrative Decision No. 468/2020 (the “Decision”) was published in the Official Gazette, which excludes workers from private energy infrastructure projects of complying with mandatory confinement measures in force. This Decision has been issued by the Chief of Staff as the public authority entrusted to expand or reduce the list of activities and services declared essential in the context of the emergency declared because of COVID-19.
The Decision also establishes that the movement of workers subjected to these rules shall be limited to the strict compliance of this activity and, in all cases, the employers must guarantee health and security conditions instituted by the Ministry of Health.
For further information please contact Nicolás Eliaschev and/or Javier Constanzó.
In the following link, you can access The Firm’s statement on Coronavirus.
For additional information regarding legal consequences on the COVID-19 crisis please refer here.
Argentine Securities and Exchange Commission Authorizes Long-distance Corporate Meetings
As anticipated in our newsletter dated March 25, the Argentine Securities and Exchange Commission (the “CNV”) issued, on April 3rd, 2020, General Resolution No. 830/2020 (the “Resolution”), whereby corporate Issuers of shares and notes that are under CNV’s control are authorized to hold long-distance shareholders’ and board of directors’ meetings during the time that social, preventive and mandatory lockdown regulations under Decree No. 297/2020 are in force.
The CNV established certain minimum requirements that Issuers must comply with, which are incorporated to Chapter XII, Tittle VXII of the CNV regulations.
Long-distance shareholders’ meetings during the sanitary emergency
Issuers are allowed to hold long-distance shareholders’ meetings even if their by-laws do not expressly authorize them, provided the following minimum requirements are met:
- Grant free access to the meetings to all shareholders with voting rights.
- The meeting shall be hold through means that allow the transmission of sound, image and words as well as digital recording.
- The call of a meeting as well as its legal notices must contain in a clear and easy way the elected mechanism to communicate, its access and the procedure to cast long-distance votes by digital means. Moreover, an email address must be provided.
- The shareholders’ notice of assistance must be sent to the email address provided to that extent. In the case of legal representatives, they must send the power of attorney five (5) business days in advance, sufficiently authenticated for this matter.
- The shareholders’ meeting minute must identify the attendants, capacity of the long-distance participation, place where the shareholder is located and the electronic system elected to participate.
- Digital copy of the shareholders’ meeting must be kept by the Issuer for five (5) years and remain at disposal of any shareholder.
- The supervisory committee shall be able to act in accordance with its faculties to ensure full compliance with all legal, regulatory and statutory regulations, especially with the minimum requirements contained in the Resolution.
For Issuers the by-laws of which do not authorize long-distance shareholders’ meetings, the Resolution also allows holding these types of meetings if these additional requirements are met:
- Communication of the calling of the meeting shall be made by all reasonable and necessary means in order to ensure the exercise of the shareholders’ rights.
- Quorum required to hold extraordinary shareholders’ meetings shall be met and, as a specific item on the agenda, the long-distance mechanism shall be approved with a majority required to approve an amendment to the by-laws.
Moreover, for those Issuers that have already called for shareholders’ meetings before the approval of the Resolution, the Resolution allows holding long-distance shareholders’ meetings, in which case the Issuer must publish a complimentary notice through the legal and statutory means in compliance with the requirements under the Resolution (which may vary in case the Issuer has already provided for long-distance shareholders’ meetings under its by-laws).
Long-distance management’s meeting during the sanitary emergency
During the period mentioned in the Resolution, long-distance management’s meetings might be held even if the by-laws do not expressly provide for, provided the requirements under Section 61 of the Argentine Capital Markets Law No. 26,831, as amended, are met. Moreover, and due to the sanitary regulations applicable, it is provided that once social restrictions have been lifted, the first on-site shareholders’ meeting held must ratify the decisions adopted by the management, with the quorum required to hold extraordinary shareholders’ meetings and with approval of the majorities required to approve an amendment to the by-laws.
Finally, it is important to mention that the Resolution does not provide for any specific mechanism to hold long-distance meetings in the case of the Audit Committee in the event the Issuers’ by-laws do not provide for these types of meetings for this body.
For further information do not hesitate to contact Juan Pablo Bove, Federico Salim, Julián Razumny, Julieta De Ruggiero, and/or Agustín Griffi, or corporate@trsym.com.
For additional information regarding legal consequences on the COVID-19 crisis please refer here.
COVID-19: Mandatory Change of Maturities with Local Banks
As part of the national sanitary emergency imposed due to the Coronavirus (COVID-19), the Argentine Central Bank published today Communication “A” 6949 (the “Communication”), mandatorily extending the payment dates of financings granted by local financial institutions due between April 1st, 2020 and June 30, 2020.
The Communication establishes in point 4 that:
- Banks are prohibited to charge default interests during said period, and those financings will only accrue compensatory interests at the expected contractual rate.
- Amortizations and maturities that fall within that said period, excluding credit card payments, shall be postponed to the month immediately following the month in which the final maturity of the financing is due. In this case, it is our understanding that if the final maturity date of the financing occurs within the above-mentioned period, then such final maturity will be postponed to the same day of the immediately following month, even if such month is part of the above-mentioned period.
- Credit card payments due between April 1, 2020 and April 12, 2020 may be cancelled on April 13, 2020 for the same amount and without any surcharge.
- This Communication excludes any credit facilities granted to the financial sector entities.
Notwithstanding the foregoing, the Communication does not affect the bank's right to accelerate payments and/or initiate legal collection actions, once each financing can be considered past due according to the regulation described above.
For further information, please contact Marcelo R. Tavarone, Federico Salim, or Julieta De Ruggiero.
The Superintendence of Corporations eases certain requirements for holding remote corporate meetings
As anticipated in our newsletter published last March 25th, the Superintendence of Corporations (the “Superintendence”) published today in the Official Gazette General Resolution No. 11/2020 (“Resolution 11/2020”), by means of which it introduced lower requirements regarding remote corporate meetings, as a consequence of the social, preventive and compulsory quarantine imposed by the Executive Branch through Decree No. 297/2020 (published on 03/19/20).
Resolution 11/2020 amends Section 84 of General Resolution 7/2015, and includes the possibility of holding remote corporate meetings, for both management (e.g., boards) and governing bodies (previously, only meetings of the management bodies were allowed to be held remotely). In this same sense, the requirement to fulfill quorums with the physical presence of the majority of the members at the meeting venue was also suppressed, and it can also be met remotely.
Additionally, and although the by-laws should provide with the necessary mechanisms for holding remote meetings of the corporate bodies, it was provided that while the quarantine lasts as a consequence of the state of health emergency, companies and non-profit organizations may hold the meetings of their administrative and governing bodies remotely even if their by-laws do not include an express provision on this matter.
In any case, all meetings to be held remotely -during the quarantine or not-, must comply with all the following procedures:
- full access for all participants of the meetings;
- the possibility of participating through a platform that allows simultaneous transmission of both audio and video;
- to allow the participation with voice and vote for all the members and of the syndic, if applicable;
- meetings must be digitally recorded;
- the legal representative shall keep a digital record for a period of five (5) years, and shall make it available upon request of any shareholder;
- the meeting shall be transcribed to the corresponding book, indicating the participants, and shall be signed by the legal representative; and
- when summoning any meeting, the digital platform to be used must be specified in detail.
Finally, it should be noted that -concurrently with the provisions for other type of corporations- the requirements and possibility to hold remote meetings was also authorized for non-profit organizations (Asociaciones Civiles).
Should you require additional advice regarding the different alternatives to carry out remote meetings, do not hesitate to contact Juan Pablo Bove, Federico Otero, Julián Razumny, Pablo Tarantino, or Agustín Griffi, or corporate@trsym.com.