On October 14, the Customs Law Congress was held at the Universidad Austral, in the City of Buenos Aires, Argentina. This event brought together prominent national and international specialists, recognized for their professional and academic career, who were invited to analyze customs control in the context of globalization.
El Dr. Alejandro Altamirano, Director of the Tax Law Department at Universidad Austral, chaired the opening ceremony of the conference organized by the Diploma in Customs Law under the direction of Dr. Horacio Alais and the coordination of Santiago Alais. He expressed the importance of the event and his gratitude towards all the collaborators who made this edition of the conference possible.
El Dr. Horacio Alais The conference was opened by emphasising the importance of customs control in the face of recent global changes. This topic was raised during a presentation by a representative of the European Union at a conference in Berlin on integrated customs control in the EU, planned for 2038. Alais stressed that globalisation has transformed this control, which previously required the physical presence of officials. Today, the demand for fast and cheap deliveries has changed the “rules of customs collection”. Technology plays a key role in this process, facilitating traceability and the exchange of information, which forces a rethinking of customs procedures and related professional activities. This paradigm shift, according to Alais, is “making the role of customs invisible”, as Kunio Mikuriya, former Secretary General of the WCO, had indicated.
In that line, the Mr. Andrés Rohde Ponce, President of the International Academy of Customs Law, offered an introduction on the challenges that globalization faces today. As he highlighted, both the WTO and the World Bank and other institutions have identified that many of these challenges come from “major calamities” that interrupt trade flows. These events include pandemics such as Covid-19, war conflicts such as Russia's invasion of Ukraine, natural disasters and other situations that affect global supply chains. Added to the aforementioned factors are “trade conflicts” between major powers, such as China and the United States, which impact the availability of key inputs such as microchips. Another challenge pointed out by Rohde Ponce is that of the “economic ideologies” that sustain globalization, such as the free market, foreign investment, the protection of intellectual property and the free convertibility of currencies. In this context, protectionism and nationalism emerge as threats to this model, especially visible in recent political campaigns in the United States.
In this context, Rohde Ponce added the “dichotomy” between customs control and trade facilitation, as well as the need to reduce costs and times. Added to this is the growing challenge of international crime, which has managed to infiltrate trade flows. The situation has forced the tightening of control measures at border crossings. “In this scenario, it is increasingly urgent to strengthen collaboration between academia and customs authorities, an approach supported by the current Secretary General of the WCO, Ian Saunders, to improve security and facilitate trade flows for the benefit of the international community,” concluded Rohde Ponce.
To this end, Santiago Alais invited students to train in the Diploma in Customs Law, a program with ten years of experience that has evolved to offer a virtual campus with synchronous and asynchronous activities. It is aimed at lawyers, accountants, brokers and other professionals, and is organized into four theoretical-practical modules.
Below are the experts' key contributions.
1 panel «Customs Control Today, WCO Recommendations and the Globalized World»
This is how the interesting panel entitled "Customs Control today, the WCO recommendations and the globalized world" began, in which the Dr. Héctor Juárez, Member of the Tax Court of the Nation.
During his speech, he addressed “What is recommended in the Trade Facilitation Agreement"This agreement established by the WTO has a customs component of 95%, which implies that its implementation corresponds predominantly to Customs, and consequently, at an international level, to the World Customs Organization (WCO).
Addressing the “vision of facilitation and control,” Juarez also referred to the WCO SAFE Framework of Standards, implemented in 2005 (revised on 2007/10/12/15/18/21). This resolution implemented a true “paradigm shift” at a global level by adopting an approach that encompasses “the control of the entire logistics chain” instead of focusing solely on borders. This comprehensive and systemic approach to the control of goods introduced modern customs procedures, technology and risk management.
After presenting this vision of facilitation and control, Juárez paused to clarify that these are not antinomic terms, but rather complementary. What is sought is an “adequate balance” between the two. To illustrate, he referred to the philosophy of “happy medium» by Aristotle, who advocates a balance between the extremes of excess and deficiency. In other words, applying it to the customs field, an “effective system” must adequately balance control and facilitation: avoiding excessive regulations that hinder trade (excessive control) as well as the relaxation of measures that would compromise security and regulatory compliance (defect of control).”
In view of this, “customs control” should not be so rigorous as to create unnecessary barriers, but neither can it be so lax as to allow smuggling or fraud. At the same time, “trade facilitation” must coexist with the necessary controls to guarantee security and regulatory compliance.Finding that middle ground between the two is crucial for efficient customs administration.”, Juárez remarked. And he quoted Aristotle, who, in his work Nicomachean Ethics, defines virtue as “an intermediate state between two extremes: excess and defect”. According to the philosopher, “each virtue is situated at a midpoint between two vices, which are the excesses or deficiencies of that same virtue”.
Juárez said that in 1999, the WCO included “Trade Facilitation” as one of its key objectives along with customs control. In line with this trend, in 2020 MERCOSUR also made an important step forward by renaming TECHNICAL COMMITTEE No. 2 from “Customs Affairs” to “Customs Affairs and Trade Facilitation”. This change responds to the essence of the WCO’s SAFE Framework, which marks a “paradigm shift” in customs control worldwide by incorporating into its name the 2 concepts: the Framework of Standards to Secure and Facilitate Global Trade.
From then on, reference was made to the historical evolution of the Trade Facilitation Agreement, which dates back to April 1994, with the reformulation of the World Trade Organization (WTO) in Morocco. It was approved in 2013, entering into force in 2017 after ratification by two-thirds of the members.
The TFA clarifies and improves 3 relevant articles of the General Agreement on Tariffs and Trade (GATT) concerning Freedom of transit (Art. V), Fees and formalities relating to importation and exportation (Art. VIII) and Publication and application of trade regulations (Art. X).
Furthermore, the Trade Facilitation Agreement is divided into three sections. Section I sets out guidelines to expedite customs clearances and foster customs cooperation in 12 articles. Section II offers favourable treatment to developing and least-developed countries, allowing them to implement the agreement in three categories: A (immediately or within one year), B (after a transition period) and C (with technical support and a transition period). Section III provides for the creation of an international Trade Facilitation Committee and national committees to monitor the Agreement.
Juárez stressed that the aspects regulated in the Trade Facilitation Agreement are predominantly customs-related in nature (Figures 13 and 14). Therefore, “the role of Customs is fundamental to its development and implementation.” In this regard, the Mercator Programme of the World Customs Organization (WCO) is intended to provide support to Members in the uniform application of the TFA, using the WCO instruments and tools, such as the Compendium on Coordinated Border Management, the WCO Data Model, the Compendium on Single Window, the revised Arusha Declaration, the Compendium on Customs Valuation, the Compendium on Risk Management, the Guide on Customs Laboratories, the SAFE Regulatory Framework, among others.
What is the situation in Argentina? Argentina approved the Trade Facilitation Agreement (TFA) through Law No. 27.373 in 2017 and ratified it on January 22, 2018, granting it constitutional status according to Article 75, paragraph 22. In addition, the country has been a member of the World Customs Organization (WCO) since July 1, 1968, which has allowed it to participate in a diagnostic assessment within the WCO Mercator Program. However, Argentina still faces challenges in meeting certain standards, such as the full implementation of a single window (with an extension requested until 23/01/2026), the implementation of the Time Release Study (TRS) and the implementation of the WCO Mercator Program (MRS). https://aduananews.com/el-estudio-de-tiempos-de-libramiento-una-valiosa-herramienta-para-cronometrar-el-flujo-del-comercio-exterior-nacional/), the effective implementation of the National Trade Facilitation Committee, among others.
In this context, Juárez returned to the Framework of Standards to Secure and Facilitate Global Trade (SAFE Framework), explaining its basic principles and pillars, and recalling the importance of WCO Members - including Argentina - adopting these standards as a fundamental basis for successful trade facilitation and control, emphasizing the use of new non-intrusive control technologies. In this regard, he suggested the implementation of satellite customs control (he recalled that Argentina has 39 satellites in orbit). https://aduananews.com/el-control-satelital-aduanero/), controls through the use of drones and a more intensive use of “Big Data” and Risk Analysis and Management (https://aduananews.com/las-aduanas-y-el-poder-de-la-informacion/)
Juan Manuel Francia – Ezeiza Customs
Juan Manuel Francia, Director of the Ezeiza Customs, presented his analysis on "The operational facilitation of customs routines in import and export by air and adequate control«. He explained what he calls a “safe legal ecosystem”, based on guidelines and work protocols that seek to regulate certain operational situations that, in many cases, are not clearly regulated, all within the framework of trade facilitation.
The speaker, in line with Juárez, pointed out that "there is a tension between facilitation and control, which highlights the need to find a balance between the two."
In this context, the World Customs Organization, which brings together more than 160 customs administrations and manages a large part of international trade, has played a fundamental role in establishing standards that promote trade facilitation. In addition, following the terrorist attacks in 2015, the WCO adopted a resolution in Punta Cana, urging governments to cooperate through their customs to confront terrorism as a global threat.
In addition, the WCO has worked closely with other international organizations. Examples include its collaboration with the OECD to address illicit trade and tax fraud, as well as its work with the International Civil Aviation Organization (ICAO) on aviation safety issues and with the World Trade Organization (WTO) on trade facilitation.
France stressed the use of technology and canine intervention as tools for operational facilitation. It highlighted working protocols to ensure “transparency and predictability” in customs operations. In this regard, it cited the WCO guidelines of 2017, which recognise these principles as fundamental to guide trade actors on what can be done, when and how.
In this regard, France mentioned the methodology for the selection of aircraft and its control, the entry of biological material for reproductive purposes through baggage, the entry circuit for merchandise of national origin for ranching, and the transfer circuit. He also mentioned the regulations that govern the selection of aircraft for inspection, the joint work with the Ministry of Health to ensure that travel authorizations are processed correctly, even in the event of computer failures. And he added General Instruction DGA No. 22/2023, which establishes procedural guidelines for the clearance of merchandise when the commission of a crime is verified, this following the provisions of Decree of Necessity and Urgency No. 70/2023 (amendment of articles 245 and 343 CA).
As regards baggage control, France highlighted the improvement in risk management through the identification of passengers according to their risk profile and the exchange of information with other customs, and recalled that the "traffic light" is not a selective control, which reinforces the importance of having specific alerts.
Gladys Morando – DGA
Cdora. Gladys Morando, who serves as Director of Customs Operational Coordination and Evaluation, referred to the “Implementation of the WCO recommendations and the Trade Facilitation Agreement”. On this subject, he stressed that, within the framework of the WCO recommendations, Customs has implemented various initiatives, such as the Authorized Economic Operator (AEO) program. This program recognizes those companies that have been qualified through an exhaustive audit process, in which their administrative and financial processes and their relationship with members of the logistics chain are evaluated. This recognition has also been extended to customs brokers and transport agents, among others.
Another instrument mentioned was the Single Window, which is defined as a computer system that centralizes all the interventions of the organizations that participate in foreign trade. This system covers the management of certificates, quotas, authorizations and licenses, with the objective of avoiding duplication of procedures for those who wish to import or export. In this way, Morando clarified that commercial processes are streamlined and the discretion of officials when requesting documents is reduced.
He referred to the use of the WCO Data Model, which allows for the standardization of the information needed to authorize foreign trade operations, thus facilitating the exchange of data with other countries. As for the time required for clearance, this measure seeks to make countries more competitive, stipulating that each nation publishes the clearance time. The tool evaluates the performance of all the agencies involved in this regard.
He also mentioned the study conducted by Procomex, requested by the Technical Committee 2 of MERCOSUR, as an example of the problems that arise at border points, where Customs and other agencies intervene. To address the challenges raised, Customs has already formed a working group that will be responsible for implementing the proposed improvement solutions.
Morando referred to the assistance of the WCO with its MERCATOR Program in 2018, which resulted in Argentina having 26 recommendations to implement in Customs in the short, medium and long term. For example: coordination for the implementation of the single window, the support of the WCO for the formation of the Facilitation Committee and the requirement for the Time of Release Study.
As a result of this assessment, he said, officials have been trained and recognized as WCO experts in the single window and in reducing the time taken to clear goods. In this context, they work together with the authority responsible for the single window (which does not belong to Customs).
Regarding this work, he mentioned recommendations on issues related to advance rulings, the comprehensive implementation of the Authorized Economic Operator (AEO) program, the elimination of the use of paper and the use of electronic means for the management of summary charges. In addition, Morando recalled that the certificates necessary for the import of batteries and chemical products, as well as those related to the wine sector, are already being managed through the single window.
Another measure highlighted by the Director was the promotion of the AEO in its different categories, and currently provisions are being evaluated to make this figure more attractive. Customs dialogue spaces have been implemented and the decree that will form the Facilitation Committee is expected. “This committee is essential to debate and implement measures that not only involve Customs, but also other border agencies,” she concluded.
Christian Muraca – AFIP
Cristian Muraca, who works in the area of AFIP International Taxation, The panel continued by referring to international customs cooperation. “The agreements, conventions and guidelines established in this area seek to promote the exchange of information between customs, in order to guarantee the veracity of operations and optimize processes,” he said. He clarified that “this exchange is carried out under strict principles of confidentiality, ensuring that sensitive data is handled in a safe and responsible manner.” Consequently, the proper management of information in customs is an “indispensable element.”
However, in the current context, information management brings with it new responsibilities and risks for customs administrations, especially with the introduction of advanced technologies such as artificial intelligence, massive data analysis and predictive algorithms. These tools – while powerful – present inherent risks, both due to the possibility of improper manipulation of information and vulnerability to cyberattacks.
Muraca’s experience in customs auditing led him to analyze these processes from a “risk management” perspective. A risk is defined as any event that, if it occurs, could negatively affect an organization, and in this context, the confidentiality of information is a “primary risk.” Muraca noted that “massive data manipulation and globalization require a balance between confidentiality and transparency, respecting both international and national guidelines.”
To this end, he stressed that local regulations seek to mitigate the risks associated with confidentiality, while promoting transparency and the publicity of data. A key example is Law 17.622, which regulates the national statistical system and enables the publication of customs information, always for statistical purposes and in an aggregated manner, avoiding the individualization of persons or entities. This law guarantees that the publication of data does not compromise commercial or property secrecy.
Another relevant regulation is Law 27.275 on Access to Public Information, which also reinforces the idea of not individualizing subjects, promoting transparency without compromising confidentiality. In addition, Provision 302/2018 establishes specific procedures for the protection of customs information, aligning these procedures with international cooperation agreements and with national and international criteria of publicity and confidentiality.
In summary, Muraca said that the balance between confidentiality of customs information and transparency is one of the greatest current challenges. Customs must respect international and national guidelines while facilitating trade through the availability of data. In this context, he said that the creation of organizations such as the Artificial Intelligence Committee and the implementation of the World Customs Organization Data Model are steps in the search for initiatives that ensure the protection of information, while promoting transparency.
2 panel: Customs Control in the areas of Valuation. Risky Goods and People. Evaluation of Efficiency and Effectiveness
Jose Luis Scarfo – DGA
Mr. Scarfó, Head of the Department of Nomenclature Technique and Tariff Classification of the DGA, gave a presentation entitled "Advance rulings on Classification: adaptation to the Facilitation Agreement, interaction with users and experiences in other countries in the Americas.”
The Engineer explained the early consultation process, a tool for those administered to request a resolution on the classification criteria before documenting an operation, in case of doubts about the tariff classification. From this, he detailed how the consultation should be started, highlighting that it is digital through the SITA system and continues in this way through the SICNEA System, allowing communication with the administered.
He also stressed the importance of the administrator providing all the elements needed to resolve the issue, i.e., technical specifications, plans, samples, catalogues, photographs. He also emphasized compliance with the deadlines established by the regulations.
An important fact. Mr. Scarfó indicated that the decisions adopted are published in order to provide information on classification. During his speech, he also answered questions from the public, providing his experience and knowledge on the implementation of these resolutions.
Dr. Juan Patricio Cotter
Cotter, a lawyer graduated from the Catholic University of Argentina (UCA) and partner at the Petersen & Cotter Moine Firm, one of the main law firms specializing in customs law in Argentina, dedicated his twenty minutes of presentation to the topic “Evolution in the field of customs valuation controlDuring his speech, he referred to the procedures established for customs valuation, highlighting the recent implementation of new measures.
He considered that although there is a logic when making the adjustments, it is not clear if it is a logic with respect to commercial uses as mandated by the GATT. He recalled that the business model, the industry being studied, whether it is a question of seasonal prices, whether these values rise or fall depending on circumstances that do not depend on Argentina, having to be prepared for these ups and downs. He indicated that it would be necessary to review these logics, these protocols, which must exist to define the eventual value adjustment, given that the success or failure of this review and its discrepancy depend on commercial uses.
Cotter also referred to the importance of information exchange, highlighting that Customs has this possibility, but must also give the importer the opportunity to provide all the data that can be used to study the value, because the GATT also establishes this. He considered that there should not be "a fiction", as occurred when there were previously defined adjustments.
On the other hand, one issue to be reviewed is not to place everything in an exercise of value control, when in many cases products already investigated are repeated, which does not seem reasonable if they have already been involved in investigations. This wears out the scheme itself and does not make sense. He then added that the requirement of certifications that are required from the administrator, when they are already resolved, does not make much sense, because it leads to generating costs, which end up being transferred to the prices of the products. He then reflected that whoever wants to control everything, controls nothing.
Cotter then referred to the relevance of sufficient motivation of the administrative act for the adjustment, indicating that many value issues are resolved by the lack of motivation. Although Customs has the right to doubt, it must do so in accordance with the Agreement; it cannot value by any value method. And once applied, it must justify it adequately.
Finally, Cotter spoke about the new regime recently introduced with regard to the criterion values. In reference to this issue, he pointed out that the problem is not the criterion value, but the abuse of this methodology by requiring guarantees from everyone, playing with the conformity of prices. And now, with the new regime, in his opinion, two questions arise: on the one hand, the fiscal risk and on the other, the significant discrepancy. He then asked: Who defines if there is a fiscal risk or significance for disagreeing? Is it the verifier? Which, without reference, can lead to questions. "Time will tell if this new regime is a benefit or not," he concluded.
Ricardo Torres Brizuela
Torres Brizuela is a lawyer who graduated from the Catholic University of Argentina (UCA) and is a partner at the Alais Firm, Palacios & Torres Brizuela Abogados. This firm is made up of specialists in customs law, criminal law, foreign trade and MERCOSUR law. His topic was “Adequate and successful control, considerations between efficient procedures and effective results, in light of jurisprudence.”
During his speech, the lawyer emphasized sincere dialogue, for which he first referred to the evolution that has existed from the work that has been carried out at the time of determining the preventive values, revising or correcting them in clear violation of the Customs Code. He recalled that these reference prices were not published at the appropriate time, but then they were finally published. He also highlighted the importance of the work of the Justice system, which has resolved cases where situations of non-compliance in the due exercise of the task of revising the values were noted. He also pointed out, among these deficiencies, the lack of the invoked background information or background information that did not deal with identical merchandise, observing arbitrary acts that impeded the due exercise of defense.
From this, the importance of dialogue returned, not only in matters of assessment, but in all administrative acts, which contributes to the transparency of government acts, participating in decision-making mechanisms, giving the possibility of giving an opinion on the act that is about to be issued. Hence, the importance of a balance of rights, which means sitting at a common table to try to resolve those differences. In short, "dialogue, which can be achieved by overcoming mutual distrust," he said. He also maintained that dialogue implies being heard, knowing the reason for an adjustment, on what guidelines it is established and why that value was reached.
On the other hand, dialogue involves the exchange of opinions: clearing up doubts, combining a proper interpretation; Dr. Torres Brizuela wondered if such an interpretation is proper for Customs.
He also stressed that dialogue also leads to the need for training, not only of a technical nature, but also of a legal nature, given that assessment is a legal activity. He underlined the importance of empathy, teamwork, and operational leadership, which arise from proper preparation in customer service.
Torres Brizuela concluded that the imposition of duties and obligations through regulations is not enough; the instrumental alone is not enough. While advances in data and artificial intelligence are promising, they are not enough on their own. It is not enough to delve into the threats that operators face in terms of ethics and conduct. It is essential that the dialogue be genuine and deep, based on mutual trust. It is important to recognize that people, organizations and customs operators do not only work for a community of interests, but for a community of initiatives. And he stated: “The common good is built on the deep conviction that freedoms and rights are destined to transcend.”
«Customs Control International Panel" and "Customs Control in the light of jurisprudential interpretation. Evolution, conflicts, need for reform of customs criminal offenses?" The second part of the congress in the next edition of Customs News.
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