Argentine customs jurisprudence is not known for its boldness. Generally, it advances cautiously, fearful of clashing with the Supreme Court's music or invoking the name of the GATT in vain. But on rare occasions, amidst the shadows of technicalities and procedural ritualism, a glimmer of lucidity creeps in. Such is the case of Dr. Miguel N. Licht's dissenting opinion in the "World Sport SRL" case, whose conceptual density and literary elegance place it—without exaggeration—among the most brilliant judicial essays on customs valuation that this country has produced in decades.
The controversy, which at first glance might seem like just another among many—the discussion about whether certain royalty payments should or should not be added to the customs value of imported goods—transforms, in the ruling, into a complete x-ray of the evidentiary deficiencies of Customs, the evasive tricks of importers and, more importantly, the argumentative weaknesses of a jurisprudence that has, for years, confused the principle of contractual literality with objective legal truth.
What Dr. Licht argues, with prose unafraid of irony or theatrical analogies, is that the analysis of the "condition of sale" can no longer be reduced to a one-sided reading of the license agreement. What Article 8.1.c of the WTO Valuation Agreement requires is a substantive analysis of the actual economic relations. To claim that the existence or nonexistence of a "condition of sale" depends exclusively on an explicit clause would, in his words, "attribute to the legislator an unreasonable inconsistency."
Their vote also introduces an interpretive method forgotten by customs doctrine: that of hypothetical suppression. Could the importer have acquired those goods had the royalties not been paid? If the answer is negative—as it was in "Wabro," "DD SA," and, with nuances, in "Philips"—then the royalty is part of the price, even though the sales contract and the license agreement view each other with suspicion and never mention each other.
Dr. Licht's reading of the contractual clauses in all these rulings is not only philological, but structural. He doesn't limit himself to translating them from English: he interprets them in their economic architecture. He notes that wherever the supplier is required to be pre-approved by the licensor, where subcontracting is prohibited, where the destruction of stock is stipulated upon termination of the contract, there is an unequivocal indication of functional control. And if there is control, there is subordination. And if there is subordination, there is conditioning. And if there is conditioning, there is adjustment.
But the most notable aspect of his position is not his criticism of the plaintiff's lack of evidence, but of the courts' leniency. Since when, he asks, is it enough for the importer to say that he is free for us to consider him free? Since when does the omission of an express clause prevent us from seeing the tacit, structural, economic, and unavoidable condition?
This line of reasoning reaches its culmination in the majority vote in the "Avon Cosmetics" case, where the full G Chamber—now without dissent—concluded that marketing, sales, and accounting services do not constitute royalties under Article 8.1.c of the Agreement. What changed? Was it the type of contract? The company's profile? Or perhaps the conviction—increasingly difficult to sustain—that the brand and sales method do not determine value, even though without them there would be no product, no sale, no business?
The "Avon" ruling likely marks a new beginning. And not because of what it says, but because of what it omits. The technical analysis is impeccable, but sterile. It boils down to stating that consulting fees do not constitute royalties and that marketing could have been done without them. But it doesn't ask—as a good economic analyst would—whether Avon's business model, based on direct sales and a network of resellers who must adhere to brand policies, can survive without the know-how that the contract euphemistically calls "technical assistance."
The "Philips" ruling echoes this logic: in the absence of an official translation of the contract, the Court proceeds from the parties' arguments. But the majority, once again, resorts to the absence of evidence to avoid the discomfort of thinking. Only the Licht ruling attempts to reconstruct the underlying business, understanding that the general services contract was actually a compensation mechanism for trademark use and not genuine consideration for technical or accounting services.
In short, the jurisprudence of Chamber G, with all its nuances and dissents, has revealed a structural tension that runs through modern customs law: the one between the contractual form and the economic substance. Between the document and the transaction. Between the contract and the condition. Between what is said and what actually happens.
And in this area, Article 8.1.c of the Agreement is not just another rule: it is the mirror in which all XNUMXst-century customs policy is reflected. Because where the value of goods no longer depends solely on the tangible—the object—but also on the intangible—the brand, the technology, market access—the challenge is to interpret not only what is signed, but also what is hidden.
Dr. Licht's dissenting vote has devoted itself to that task with admirable consistency. And it would be an intellectual waste—as well as a legal error—to ignore his warning: that when Customs acts as if there were no controls, and the Court decides as if there were none, the only one who celebrates is the astute importer. And the victim is the tax system.
It's no small thing.
(*) The article presents a joint analysis of the files "Avon SACI Cosmetics.» (File No. 39.492-A), «World Sport SRL» (File No. 36.642-A), “DDSA” (File No. 34.643-A),Wabro SA.» (File No. 37.884-A) and “Philips Argentina SA.” (File No. 37.064-A), whose respective sentences are available for consultation and download.
Lawyer (UB) and Master of Business Administration (MBA) from WHU – Otto Beisheim School of Management and the University of San Andrés. Master's student in Tax Law at Austral University.
He works as an independent professional, with experience in team building and leadership, focusing on conflict management and strategic project management.
