New Resolutions of the Federal Mining Secretariat

The following is a summary of the recent resolutions issued by the Federal Mining Secretariat ("FMS"):

FMS Resolution 50/2022 - Deadline extensions

Resolution No. 50/2022 of the FMS, published in the Official Gazette on 10/31/2022, extends for 180 days the deadline set for the rendering of the funds received by the Provinces, in connection with the Projects set up under the "Plan Nacional de Minería Social", under the "Plan Nacional de Huellas Mineras" and the scope of other social programs or initiatives of different fiscal years.

The Resolution reaches the Provinces that have funds which have not been allocated to each project submitted within due deadlines. The Resolution authorizes the Provinces to: (i) return those funds; or, (ii) declare their intention to reallocate those funds to a new project that is compatible with the guidelines of the regulations in force.

FMS Resolution 53/2022 - Launch of the Federal Project

Resolution No. 53/2022, published in the Official Gazette on 10/31/2022, establishes the Federal Project on Strengthening Capacities for the monitoring of environmental variables in Mining (the "Federal Project").

The Federal Project’s objectives are: (a) to cooperate and assist all the provinces of Argentina in the assessment and environmental control of mining projects; (b) to promote training actions aimed at strengthening the agents in charge of carrying out such control; (c) to promote inter-institutional agreements aimed at fostering cooperation in infrastructure, knowledge, and control and diagnostic tools; (d) encourage greater participation of communities, academic entities and other interested parties in the planning and execution of mining environmental monitoring actions; (e) generate a framework for greater disclosure of the results of mining environmental monitoring, through instruments that guarantee greater transparency in the sector; and (f) contribute to financial assistance mechanisms for the incorporation of the necessary infrastructure to establish better control.

 

For further information, please contact either Dolores Reyes, Marcos Moreno Hueyo, or Nicolás Eliaschev.

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Our Firm adds new Partner and Practice Area


Marcos Moreno Hueyo joins Tavarone, Rovelli, Salim & Miani as Partner, bringing his expertise in the Mining Industry to an already established and leading Natural Resources, Energy and Infrastructure practice comprising ten lawyers fully dedicated to this area to which Marcos will join.

This step is another milestone in the Firm’s long-term growth strategy. A strategy that focuses on building up practices which add value to clients by providing dedicated advice to businesses and industries requiring intensive and timely legal support with the highest quality standards.

Marcelo Tavarone, the Firm’s Managing Partner states: “We see a strong opportunity for growth in the Mining Industry, an area where Argentina’s natural resources availability are unparalleled and where there is a policy consensus that such resources need to be fully developed.”

Nicolas Eliaschev, a partner with a focus on Energy and Infrastructure, further affirms: “At the Firm we see a natural synergy between our already burgeoning Energy Practice and the addition of a Mining Industry expertise. The Mining Industry is both an Energy large consumer as well as a provider of key raw materials to support the Energy transition. From this standpoint, adding Marcos to our partner roster is a logical step.”

Furthermore, synergies between the Firm’s leading banking and corporate teams and the new Mining Practice will also be relevant to the Firm’s growth and full-service capabilities.

Marcos Moreno Hueyo graduated as lawyer from the Universidad de Buenos Aires (2004). He earned his LLM in Comparative Law from Northwestern University School of Law (Chicago, 2008) and, additionally, he achieved a Postgraduate Degree in Mining Law from the Universidad Finis Terrae, graduating with the highest distinction of his class (Santiago de Chile, 2015).

He focuses his practice on the Mining Industry. Prior to joining the firm, Marcos worked for several years in the Mining Industry Practice of other renowned Law Firms, both in Argentina and in Chile, advising international mining companies. During his years in Chile, he was also General Counsel of the mining company Orosur Mining Inc.

He specializes in advising senior and junior mining players, mainly in complex transactions, as well as corporate governance matters related to TSX listed mining companies.

Marcos has been recognized as leading Mining Law professional by Chambers Latin America, The Legal 500 and Who's Who Legal.

Tavarone, Rovelli, Salim & Miani is proud to have Marcos among its members, as his joining strengthens the Firm and bolsters its long-term growth strategy.

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EOI request for renewable energy and storage infrastructure projects

On May 9th, 2022, Resolution 330/2022 (“Resolution 330”) was published in the Official Gazette. This resolution launched an EOI request for development of certain energy projects which include renewables and, for the first-time at the utility scale level, storage.

1. Context and importance

The goal stated by Resolution 330 is to contribute to improve sustainability and reliability in the electricity sector within the Paris Agreement and local renewable portfolio standards which further implies:

  1. A ratification of the commitment by the Republic of Argentina towards fighting climate change and the promoting renewables.
  2. The first-time that storage is considered as a technology solution at the utility scale level. While preliminary and too early in the process this has game-changing potential.

2. EOI scope

The EOI includes two main types of projects:

  1. Renewables
  2. Battery installation and/or other storage systems in renewable power plants and/or at transmission interconnection points or distribution networks that improve operational management and reduce forced generation.

The EOI does not require an interested party to be an existing player in the Argentine power market to submit a proposal.

3. Formalities

The EOI presentation must be filed digitally by June 30th, 2022. The presentation must be sent to an email to be timely informed by CAMMESA (the Argentinean ISO).

Also, the EOI must include the following information:

  1. Address, telephone, email, and contact person.
  2. Brief description of the interested party. Background in similar projects if any.
  3. Description of the preliminary project, including technology, capacity, location, interconnection point, biomass fuel (if applicable) and any other relevant information.
  4. Indicative cost and compensation.

 

For further information, please contact either Nicolás Eliaschev, Tomás Villaflor or Luciana Tapia Rattaro.

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Expansion of Natural Gas Transport Capacity

On February 14th, 2022, Decree No. 76/2022 (“Decree 76”) was published in the Official Gazzette. The aim of the Decree is to regulate the “Transport.Ar National Production” Program (“Transport.Ar Program”) for the construction and expansion of several natural gas pipelines established by the Secretary of Energy through Resolution No. 67/2022 (“Resolution 67”).

Pursuant to its provisions, Decree 76:

  • Entrusts the state-owned company Integración Energética Argentina S.A. (“IEASA”) to build and operate and new pipeline which would enable to expand of transport capacity from the Vaca Muerta reservoir.
  • Regulates the Transport.Ar Program established by Resolution 67.
  • Incorporates a trust fund -Argentine Gas Development Fund (“FONDESGAS”, for its acronym in Spanish)- to manage investments and raise debt to fund the works.

1. IEASA transport concession

Decree 76 grants a hydrocarbon transport concession to IEASA concerning a new natural gas pipeline to be built which would enable to significantly expand transport capacity from the Vaca Muerta reservoir (the “Pipeline”).

The concession is granted for a period of thirty-five (35) years, which may be extended according to current regulations.

Additionally, the rates related to the transport capacity agreed regarding the Pipeline will be determined by Gas Regulatory Authority (“ENARGAS” for its acronym in Spanish).

However, to achieve the construction of the gas pipeline expansion, the Decree also allows IEASA to execute any contract related to the transport capacity with producers or users. The rates of those contracts will not be regulated by ENARGAS.

2. Transport Capacity Priority

The Decree 76 awards priority for the resulting expanded transport capacity to the partially state-owned company Yacimientos Petrolíferos Fiscales S.A. (“YPF”).

Nonetheless, regarding the non-contracted transport capacity, IEASA must provide access to third parties.

3. Incorporation of FONDESGAS

To manage investments under the Transport.Ar Program, the Decree 76 creates the Argentine Gas Development Fund (FONDESGAS). The fund is entitled to issue debt instruments and participation certificates to fund the Pipeline construction.

 

For further information, please contact either Marcelo Tavarone, Nicolás Eliaschev, Tomás Villaflor or Luciana Tapia Rattaro.

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Recent Developments in Renewables and Natural Gas in Argentina

In the past few months, certain regulations have been adopted by the Secretary of Energy (“SE”) dealing with renewables and natural gas transport.

Below is a brief summary of such resolutions.

1. New conditions for termination and amendment of PPA under the RenovAr Program

On December 27th, 2021, the SE issued the Resolution No. 1260/2021 (the “Resolution 1260”), which provide opportunities for projects companies to terminate or amend power purchase agreements executed under the RenovAr Program (“PPA”).

The goal of Resolution 1260 is, on one hand, to facilitate exit for projects which have not been built, in order to regain transmission capacity. This should enable additional transmission capacity to be freed-up for the corporate PPA market.

On the other hand, Resolution 1260 allows project companies to request an extension of three hundred and sixty-five days to reach the commercial operation date (“COD”), subject to the fulfilment of certain requirements (such as a reduction of both supply period and price).

2. Amendments to regulations in the Renewable Energy Term Market (Corporate PPA Market)

On January 21st, 2022, the SE issued Resolution No. 14/2022 (“Resolution 14”) which amends certain regulations applicable to the Renewable Energy Term Market established by Resolution No. 281/2017 as amended.

Essentially, Resolution 14:

  • Simplifies the tie-break mechanism for dispatch priority awarding by removing tie-break for commercial operation term, dispatch factor, tax benefits and toss. Resolution 14 adds the submission of a Magnification Factor successively until tie-break is reached as only requirement and proceeding.
  • Establishes restrictions for those projects which do not comply with the payment of dispatch priority maintenance charges or with terms proposed for COD.

This regulation is regarded as a way of further accelerating development in the corporate PPA market which currently has projects under commercial operation for nearly 900 MW and projects approved during 2021 for an additional 467 MW and a strong interest of large consumers in expanding electricity procurement needs from renewables.

3. Expansion of the Natural Gas Transport System

On February 9th, 2022, the SE enacted Resolution No. 67/2022 (“Resolution 67”), which creates the “Transport.Ar National Production” program (“Transport.Ar Program”) for the construction and expansion of several natural gas pipelines, including new facilities as well as upgrades of existing facilities.

Resolution 67 entrusts the state-owned company Integración Energética Argentina S.A. (“IEASA”) with the construction and expansion of the pipelines indicated therein, which may be executed by IEASA itself or awarded to other companies.

Strong priority is given to the construction of a new pipeline which would enable to significantly expand transport capacity from the Vaca Muerta reservoir.

Further details regarding construction and funding of this infrastructure are pending and expected to be known soon.

 

For further information, please contact either Nicolás Eliaschev or Tomás Villaflor.

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Limits on the Duration of Commercial Companies

On February 1, 2022, the public registry of commerce (the "IGJ") published General Resolution No. 1/2022 (the "Resolution"), by means of which established that the maximum duration term for commercial companies will be of 30 years.

The Resolution established that all articles of incorporation to be registered with the IGJ must include the term of duration of the company, which may not exceed 30 years from the date of its registration with such entity. According to customary and usual practices, said term used to be for a maximum period of 99 years, therefore, the Resolution forces the corporate renewal in a substantially shorter term.

The Resolution applies to all companies organized in the jurisdiction of the Autonomous City of Buenos Aires after the publication of the Resolution in the Official Gazette.

 

For further information, please do not hesitate to contact corporate@trsym.com.

 

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More benefits for our team: New maternity & paternity policy

We officially launched our new maternity and paternity policy aimed to grant more benefits to the members of the Firm during their first years of parenthood. This new policy looks to support those parents that work at the Firm in their professional careers and accompany them to boost their possibilities to the top.

The new benefits' policy is based in three main phases:

  • Immediately after the birth or adoption of a child: An additional month to the mothers´ -or primary caretaker- paid leave, aside from the three months granted by law and without detriment of the leave of absence option. Two weeks paid leave to the partner of the primary caretaker.
  • Soft landing during the child´s first two years: An ad hoc system to grant work flexibility combining remote work and office time, and a flexible schedule to take care of unexpected daily family situations.
  • From the 2nd year until the end of elementary school: Wide schedule flexibility to attend children's needs (education, health, etc) and contingencies.
  • Pumping room: The incorporation of an exclusive space within TRSyM offices with the adequate hygiene and comfort conditions to promote breastfeeding.

Marcelo R. Tavarone, Managing Partner, said regarding this new measure that "we are very happy to present this new policy that will support our team during their parenthood, aimed to boost their possibilities while promoting the relationship with their children, parenting, and preserving their personal wellbeing."

Juan Pablo Bove, member of the Firm's Administration Committee, stated that "the policy is focused in diversity, as it erases traditional 'mom' and 'dad' roles and is orientated to the primary caretaker of a child and to those who accompany them, without focusing in specific genre matters that aren't part of TRSyM's vision."

 

Read here the complete document with the terms of this policy.

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Amendments to Resolution No. 285/2018 of the former Ministry of Energy and Mining: COD Extension and reduction of penalties for RenovAr projects

On August 3rd, 2021, the Secretary of Energy issued Resolution No. 742/2021 (“Resolution 742”), which partially amended Resolution No. 285/2018 of the former Ministry of Energy and Mining (“Resolution 285”).

1. Main outlines of Resolution 285

Resolution 285, now modified by Resolution 742, allowed generators under RenovAr 1, 1.5 and 2 to defer Commercial Operation Date (“COD”) under their Power Purchase Agreement (“PPA”) for up to 180 days.

In addition, Resolution 285 also allowed generators to pay penalties for late COD in 12 or 48 monthly installments.

2. Context in which Resolutions 285 and 742 are enacted

Resolution 742 continues the path lay out by Resolution 285 as it is issued to allow the execution and operation of projects under RenovAr 1, 1.5, 2, 3, and Resolution No. 202/2016 of the former Ministry of Energy and Mining which have suffered delays in achieving COD.

Accordingly, Resolution 742 purported purpose is to enhance further investment in the renewable sector by providing certain relief to the projects comprised in said resolution.

Furthermore, both resolutions are issued under the scope of the Laws No. 26,191 and 27,191. Such laws aim to increase to twenty percent (20%) by 2025 the total domestic demand of renewable energy, by mandating that a portion of the country’s electricity consumption must be sourced from renewable energy.

3. Resolution 742 key takeaways

Key takeaways of Resolution 742 are:

  • Option to extend the additional term provided by Resolution 285 to achieve COD in 360 days.
  • Right to adhere to the terms of Resolution 285 (as amended by Resolution 742) at generator’s option.
  • Reduction of penalties fines based on the progress of the project’s works or, in the case of projects that have already achieved COD, with a delay greater than 180 days, such reduction is of 70%.
  • CAP to the penalties which may be offset from the PPA, amount which shall not exceed 40% of the monthly revenues.

Below is a comparison between the most significant aspects of Resolution 285 and Resolution 742.

Also, we detail certain maters introduced by the Resolution 742 which were not foreseen in Resolution 285.

Finally, we single out certain aspects of Resolution 742 which should be further clarified.

Issue Resolution 285 Resolution 742
Payment of penalties Penalties payable in 12 or up to 48 equal, consecutive, monthly installments. In the latter, an annual interest rate of 1.7% is applied. Penalties still can be paid in 12 or up to 48 equal, consecutive, monthly installments.
However, in the latter, Resolution 742 caps the monthly penalty in an amount no greater than 40% of the monthly revenue under the PPA. The unpaid balance will be offset until the total is completed, under this methodology. The purpose of this clause is to ensure generation plants maintenance and to avoid a penalty deduction greater than the monthly remuneration.
Extension of COD COD extension up to 180 days. COD extension up to 360 days, if the following criteria is met:
(i) evidences that the Project has been executed in a percentage equal or greater to seventy percent (70%) an increase of the Contract Performance Guarantee; or
(ii) the compliance bond has been increased or is increased in 30%.
Additional changes Resolution 285 provided that for the application of a daily penalty a rate of US$1,388/MW. Nonetheless, this fine could be reduced evidencing certain progress of the project. Article 3 bis is incorporated, which establishes:
(a) Projects that have achieved COD: Those that (x) reached COD, (y) with a delay of more than 180 days, and (z) that have not requested the application of Resolution 285, may postpone COD in 360 days. In this case, a reduction of penalties in 70% is foreseen.
(b) Projects that have not reached COD: Those that (x) have not reached COD, (y) did not requested the application of Resolution 285, and (z) adhere to Resolution 742; must replace the compliance bond with a bank guarantee, payable upon demand, which shall also contemplate any prior increase which may be due.
In this case, it is provided that, during the additional 360 days extension period of COD, the daily fine will be equivalent to the daily fine established in Clause 13.2. (a) or 13.1, accordingly. Such fine may be reduced based on the progress of the project.

4. Other relevant matters

Generators adhering to Resolution 742 are required to waive any prior or future administrative, judicial, administrative, or arbitral claims against the National Government, the Secretary of Energy or CAMMESA in the Argentine Republic, whether in Argentina or abroad.

If adhering to Resolution 742, generators shall manifest so in writing to CAMMESA and submit such waiver within 30 business days.

5. Matters which should be further clarified

The following matters are singled out which, from our perspective, are not entirely clear and should be further clarified.

Resolution 742 does not state whether the eventual reduction of the penalties fines up to 70% is for the entire fine accrued, or for the balance not yet accrued or unpaid.

Resolution 742 does not indicate whether the replacement of the compliance bond for a bank guarantee is for the projects covered by article 3 bis, second paragraph solely (projects without COD, which have not yet adhered to Resolution 285) or for all projects comprehended by Resolution 742.

Finally, in relation to the compliance bond increase, required by articles 3 a) (ii) and 3 b) to admit the extension of the COD, is not specified whether such increase should be for the original guarantee or for the replaced guarantee (bank guarantee).

 

For further information, please contact either Nicolás Eliaschev, Javier Constanzó, or Daiana Perrone.

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New Pricing Scheme for Legacy Power Generators, Co-generators and Self-generators: Amendment to Resolution 31/2020 of the Secretary of Energy

On May 21st, 2021, the Secretary of Energy issued the Resolution No. 440/2021 (“Resolution 440”), which most relevant aspects are singled out below:

  1. Resolution No. 31/2020 (“Resolution 31”) is abrogated by Resolution 440, including the remuneration adjustment mechanism set forth in said Resolution 31.
  2. A new pricing scheme applicable to the Wholesale Electricity Market Generator Agents of Tierra del Fuego’s (WEMGATDF) is contemplated.
  3. WEM Agents included in Resolution 440 are required to waive any prior or future administrative claim against the National Government, the Secretary of Energy or CAMMESA, regarding the implementation of the remuneration adjustment mechanism provided in Resolution 31.
  4. Finally, CAMMESA is instructed to re-settle any economic transaction starting on February, 2021, thereof.

The purported aim of Resolution 440 is to mitigate the effects of the economic situation as a result of the economic crisis and COVID-19 pandemic, as a way to ensure the sustainability of the WEM under economically reasonable and efficient conditions.

Below is a summary of Resolution 440 most relevant aspects:

1. Scope of Resolution 440

A new remuneration mechanism for conventional and renewable generation, cogeneration and self-generation, operating without a PPA, has been approved, effective as of February 1st, 2021.

2. Changes in the remuneration conditions of the Generating Agents

Resolution 440 provides for a new remuneration scheme for the WEMGATDF and WEM Agents, with increases in around 29% when compared to repealed Resolution 31, with effects starting on February 2021.

Unlike abrogated Resolution 31, Resolution 440 does not include a remuneration adjustment mechanism.

3. Waiver under Resolution 440

WEM Agents included in Resolution 440 which choose to benefit from Resolution 440 are required to waive any prior or future administrative claim against the National Government, the Secretary of Energy or CAMMESA, regarding the implementation of the remuneration adjustment mechanism provided in Resolution 31.

Such waiver shall be submitted no later than June 21st, 2021.

For those WEM Agents which chose not to submit such waiver, they shall continue receiving the remuneration set forth in Resolution 31 and forfeit they right to receive the retroactive amounts provided in Resolution 440.

If such waiver is submitted later than June 21st, 2021, they shall receive the new remuneration set forth in Resolution 440 but will not be entitled to receive said retroactive amounts.

 

For further information, please contact either Nicolás Eliaschev or Javier Constanzó.

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New limitations to Foreign Companies

On May 17, 2021, the Superintendence of Corporations (“Superintendence”) published General Resolution No. 8/2021 ("RG IGJ 8/21") which establishes limitations in reference to foreign companies registered or applying for registration pursuant to Section 118 and 123 of the General Corporations Law No. 19,550 ("GCL"), especially in relation to special purpose vehicles ("SPVS"), which are basically companies incorporated abroad for the purpose of holding shares of local companies.

Following the restrictive criterion that the IGJ had already set out in Resolutions No. 530/2020 (“SFSC”) and 33/2021 ("MERCADOPAGO"), RG IGJ 8/21 provides that:

  1. the status as SPV of the entity must be declared at the time of its registration in the Argentine Republic (and not afterwards).
  2. the registration of more than one vehicle company per group is not allowed.
  3. the registration of SPVs will not be allowed if their direct or indirect controlling company is registered in the Argentine Republic pursuant to Sections 118 or 123 of the GCL.
  4. the registration of SPVs resulting from a chain of control between successive sole proprietorships will not be admitted.
  5. the registration of sole proprietorships whose shareholder is only a company incorporated abroad as sole proprietor, whether it is a vehicle or not, will not be allowed.

Likewise, and with special practical consequences on the activity of Argentine companies owned by foreign companies, RG IGJ 8/21 establishes that companies incorporated abroad that have a principal shareholding stake in local companies with headquarters in the City of Buenos Aires must be registered with the Superintendence. Registrations in other jurisdictions of the Argentine Republic will not be enforceable in such case.

The new regulation also requires that for the purposes of the registration of a foreign company under the terms of section 123 GCL, an investment plan must be submitted along with the list of companies in which it intends to participate or incorporate in the Argentine Republic.

In case the foreign company states that there is no ultimate beneficial owner, documentary evidence must be provided to show that: a) the head of the group company has all of its shares admitted to public offering; or, b) the ownership of the shares is so dispersed among the persons holding the capital stock that none of them holds the minimum percentage of shares (currently 20%).

RG IGJ 8/2021 abolished sections 212, 217, 219, 222, 239, 240 and 249 and amended sections 215, 218, 245, 255 and 256 of the General Resolution No. 7/2015 ("RG IGJ 7/15") to reflect the aforementioned changes. These amendments entail that the Superintendence will not register companies incorporated abroad that:

  1. lack the capacity and legal standing to act in the place of their incorporation.
  2. are incorporated, registered or incorporated in countries, domains, jurisdictions, territories, associated states and special tax regimes, considered non-cooperative for tax transparency purposes and/or categorized as non-cooperative in the fight against Money Laundering and Financing of Terrorism, or of low or nil taxation, according to the criteria of the Central Bank of the Republic of Argentina, of the Financial Investigation Unit, of the Ministry of Justice and Human Rights or of organizations governed by international public law standards, such as the United Nations, the Organization of American States, the Financial Action Task Force (FATF), OECD, or, which in the reasonable opinion of the Superintendence, do not meet such standards.

Finally, as a result of the amendment to section 255 of RG IGJ 7/15, the abbreviated annual information regime of foreign companies may only be filed for a maximum of one (1) consecutive financial year.

RG IGJ 8/2021 came into force on the same day of its publication, May 17, 2021.

For further information, please do not hesitate to contact Juan Pablo Bove, Federico Otero, Julián Razumny, Pablo Tarantino, Agustín Griffi, or corporateteam@trsym.com.

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