The tenth Customs Law Conference at the University of Buenos Aires has concluded, leaving a mark on all its attendees. This edition, which commemorated the 30th anniversary of the GATT of 1994, was held on October 25, 2024, in a context of significant changes in the Argentine customs field, marked by the recent establishment of the Customs Collection and Control Agency (ARCA).
During this session, the challenges and opportunities that arise in the field of customs law were expressed, at a time when Argentina, the region and the world are facing transformations in their economic and commercial structures. The new national regulatory text, which is established after 27 years of Decree 618 of 1997, promises to redefine the dynamics of customs management in the country.
In that context, the Dr. Harry Schurig, coordinator of the event, began his inaugural presentation by expressing his gratitude to those who made the development of the Conference possible. He highlighted the participation of prominent exhibitors and the Dr. Eduardo Mallea, who, until that night, had served as Director General of Customs. He explained that that same Friday, decree 953/2024 had been issued, which dissolves the AFIP and replaces it with the new ARCA. Although Dr. Mallea was in Europe for official reasons, he sent a message to the attendees that was received with great interest. The coordinator of the Conference also highlighted the high participation of academics and professionals from Brazil and Uruguay, as well as the collaboration of various committees and publishers that contributed to the success of the event. Without a doubt, one of the most significant moments was the recognition of the crucial role of the Dr. Catalina Garcia Vizcaino in the Creation of these academic days, who is a consulting professor at the institution. Total support was expressed for her, especially given her current delicate situation.
Dr. Schurig also highlighted that the GATT, established in 1947 and ratified in 1948, regulated international trade after World War II, albeit with a limited focus on agricultural and textile products. Its limitations led to the creation of the WTO in the Uruguay Round, introducing principles such as non-discrimination and dispute resolution mechanisms. Subsequently, the Trade Facilitation Agreement, negotiated in the Doha Round and in force since 2017, aims to simplify customs processes, reducing trade costs by 14%. According to Schurig, this represents an opportunity for Argentina to modernize its customs institutions and improve its competitiveness.
Then the Dr. Horacio Corti, Director of the Center for Studies of Financial Law and Tax Law, He pointed out Argentina's challenges in its external public credit operations, due to the influence of foreign courts, especially in New York, which limit the participation of the Argentine Supreme Court. This situation arises from the difference in the interpretation of debt, considered an act of public law in Argentina and a commercial transaction in the US. In addition, since 1990, investment protection treaties have allowed disputes over national services and resources to be taken to international courts, such as the ICSID, restricting access to Argentine justice and facilitating recourse to arbitration by foreign investors. Regarding foreign trade, he stressed that the creation of an international body to resolve disputes since 1994 impacts the public budget, since it covers tax and customs issues that should be resolved in the legislative sphere. He also warned about the influence of the IMF in the renegotiation of debts, which limits the country's financial autonomy. He concluded by inviting people to reflect on the growing foreignisation of resources and its possible link to the need to adopt a foreign currency.
Meanwhile, Dr. Miguel Licht, President of the Tax Court, When he took the floor, he expressed his concern about the debate in the Court, recognizing the difficulty of contributing something new in a context of long history (60 years). His intervention focused on the subject of royalties, in which he highlighted the concept of "condition of sale."
In this regard, Licht argued that the tax base is constructed not only directly, but also through a "reconstruction" of the contractual relationship, suggesting that indirect factors should be considered in determining the tax base. In this regard, he questioned the buyer's flexibility and the seller's influence in setting prices, arguing that the reconstruction of facts on indirect bases is often overlooked in customs law.
He also stressed the difficulty of establishing proven facts, comparing this process with that of the criminal justice system, where the burden of proof is significant and costly. Licht concluded by inviting reflection on the relationship between certainty in the facts and the costs associated with their reconstruction.
In his message, the Dr. Eduardo Mallea He stressed the importance of the WTO in the recent transformation of global trade, highlighting its role in trade facilitation. In line with these principles, he said that Argentine Customs has focused its efforts on four pillars: facilitating trade, ensuring proper customs control, promoting global openness and strengthening institutional integrity.
To achieve its objectives, Customs has fostered collaboration with the private sector through “Spaces for Dialogue”. The first steps have been taken in implementing artificial intelligence in the customs field, simplifying regulations and expanding benefits for authorised economic operators. The issuance of advance rulings has strengthened legal certainty, while coordinated border management and the incorporation of procedures in the Single Window have improved. The number of inspections in the red channel has also been reduced. Currently, WCO integrity tools are being integrated and progress is being made on an agreement with the Maritime Anti-Corruption Network. Mallea valued the efforts of customs officials, highlighting the “honour of working with them”.
After the opening, the Dr. Maria Noel Lascano coordinated the Panel 1 titled General principles of GATT. Origins and current impact.
In this Panel, firstly, a keynote speech was given by the Dr. Enrique Barreira, who played a decisive role in drafting the Argentine Customs Code. He analysed the evolution of international relations and trade after World War II, starting with the concept of bilateralism. Before the war, interactions between states were predominantly one-on-one, and war was often seen as a solution to conflicts. However, the devastation caused by World War II led to a new awareness of the need to avoid future armed conflicts.
Following the war, the United States and the United Kingdom worked to establish a system that would promote peace and stability, resulting in the creation of the United Nations Charter and the Security Council, where five permanent members played a crucial role. In addition, the creation of the World Bank and the International Trade Organization were discussed at conferences in 1944.
He also mentioned internal tensions in the US over trade policy, reflecting the country's historic protectionism. The Havana Charter and the provisional protocol were attempts to establish an international trade system that would help prevent wars by promoting free trade.
Barreira said that this scenario is characterized by constant challenges, including the re-emergence of dictatorships and conflicts that threaten global stability. In a current world where nuclear weapons represent a significant threat, the urgency of avoiding wars becomes even more pressing. Despite efforts to promote peace, the violation of agreements and persistent instability call into question the effectiveness of international institutions in mediating conflicts.
Dr. Raquel Segalla Reis, a distinguished Brazilian lawyer and founding partner of Reis Gonçalves Asociados, is the author of the book Risk Management in Customs Import Clearance: Artificial Intelligence as an instrument and control agent, published by Caput Libris. During his speech, he spoke about the principle of transparency and digitalisation in customs.
To this end, the specialist addressed various definitions of transparency, highlighting that this principle governs the activity of the GATT of 1994 and the constitution of the WTO, with special emphasis on the Trade Facilitation Agreement. She considered that the principle of transparency has become increasingly relevant in international trade relations, encouraging States to provide broader cooperation. “Greater availability of information on goods and services reduces costs and fosters a favorable business environment.”
The transparency principle was described as an “instrumental principle” and its relevance is intensified in both tariff and non-tariff discussions. It becomes a “substantive principle” in negotiations. According to the study Doing Business According to the World Bank, the lack of transparency in customs procedures, the absence of clear deadlines and the lack of electronic systems are elements that hinder trade. Therefore, the introduction of electronic tools can facilitate trade. This principle relates not only to the obligation to notify trade regulations, subsidies, tariff reductions, and any quantitative restrictions adopted, but also to control techniques.
Indeed, this principle of transparency vivifies the entire GATT system and allows the application of the rules of international competition that the GATT itself tries to arbitrate. In fact, the principle of transparency is established in Article X.1 - Segalla Reis specified - clarifying that its origin is based on American administrative law. The importance of this principle increases when it appears implicitly in other norms such as the Trade Facilitation Agreement, where it constitutes one of its fundamental pillars.
Transparency in the Trade Facilitation Agreement refers to legal clarifications as well as control techniques. In this regard, he addressed the importance of transparency in control and inspection systems in customs administration, and shared some of its effects, paying particular attention to the problem of information asymmetries.
He stressed that transparency should not be limited to the legal, but should also encompass oversight techniques and access to clear information for users. Analyzing a study by the Portuguese Antonio Lobo Martínez, Segalla Reis stressed that, although theory suggests that international agreements are beneficial for all parties, in practice, information asymmetry generates inefficiencies in the market, which are related to the availability of data and the ability to appropriate it.
The speaker commented on the experience of Brazil, where asymmetry in access to information has been a historical challenge in the relationship between economic agents and the administration, a situation that adds a new challenge with the use of artificial intelligence algorithms in customs selection systems where automated decisions can affect transparency. This raises questions about the advertising algorithms and criteria used.
Finally, he presented the concept of anticipatory technological governance as an essential element to prevent late regulation from generating unknown consequences. In his opinion, multi-sectoral and multidisciplinary participation is key to achieving adequate regulation of artificial intelligence in the customs context, which is also promoted by organizations such as the WTO. He concluded with an optimistic message, suggesting that this disruptive reality can be managed in a “transversal” way with adequate and participatory regulations.
El Dr. Juan Patricio Cotter He examined the “Fundamental Principles of GATT” and stressed the importance of understanding its historical context to grasp its purpose. GATT was created in the post-war period, following the Havana and Bretton Woods conferences, with the mission of fostering international cooperation and preventing future wars, recognizing the high human cost of previous wars. Quoting Churchill, Cotter underlined the leaders’ intention to build a lasting peace, with future generations in mind. Over its 80 years, GATT has promoted global trade on an “unimaginable scale.” However, the question remains whether its tools are sufficient to meet current challenges, such as technological complexities and geopolitical tensions between the United States and China, which pose challenges similar to those faced in the past.
It is crucial to determine whether this framework is useful for international cooperation or whether new strategies are required, as all of this contributes to an increase in protectionism. According to Cotter, re-examining these principles can provide tools to manage these situations.
The principle of non-discrimination is the guiding principle of the GATT and ensures equal treatment for all WTO members. He highlighted the most-favored-nation clause and the national treatment clause. The first clause mentioned establishes that any benefit granted to one country should automatically extend to all others, thus promoting multilateralism and ensuring stability in world trade, as Dr. Ricardo Basaldua points out. “This regulates international trade and generates a certain stability.”
“Of course there are exceptions, and a very important exception here in MERCOSUR has to do with the most-favored-nation clause, the advantages granted between the signatory countries to an economic complementation agreement. The ALADI and MERCOSUR agreements fall into this category with exceptions,” he said.
He also spoke about national treatment, which guarantees that imported products compete on equal terms with domestic products, although there are tariff barriers that hinder its implementation.
Another principle of eliminating quantitative restrictions regulates trade through tariffs instead of quotas, which implies a surrender of sovereignty in terms of the imposition of contingent prohibitions on goods. There are exceptions, such as the safeguard measure, which allows for the protection of industries affected by massive imports, although this can lead to abuses.
Cotter stressed the progressive reduction of tariffs as an objective of the GATT, noting that the cost of trade is measured in terms of the speed of customs. He also compared the collection rates in different Latin American countries, noting that the customs agency's desire to collect taxes remains relevant. "Protection through tariff measures is evident, in what Ricardo Basaldúa calls neoprotectionism."
Finally, he raised the principle linked to the free transit of goods. This refers to the transit of goods that cross countries without a final destination in them, exempt from taxes, restrictions and tariffs for both the goods and the means of transport. This principle is protected by article 51 of the Montevideo Treaty for ALADI countries. In our region, this regulation is well established, directly affecting foreign trade with Brazil and Uruguay - especially in the coastal provinces - as well as the transit of cargo to Chile, through Mendoza.
The last principle, linked to transparency, is sui generis and has a profound impact, being perhaps the most difficult to manage. Throughout its 80 years, the GATT has governed global trade and facilitated a remarkable economic expansion. However, its application is not free of some hypocrisy. The real question is: Should we protect an inefficient industry for decades or allow the market to operate freely and focus on our competitive strengths? And he also suggested considering regulations for new challenges, such as transnational crimes, artificial intelligence, in order to face the changes that are coming.
Later, the 2 Panel to consider the Present and future in international trade facilitation, under moderation de John Manuel France.
Thus, the first lecture was given by Lorena Bartomioli, Legal advisor to the Presidency of the National Tax Court, who analyzed the “Public-Private Dialogue,” a crucial aspect to ensure the effective implementation of the WTO Trade Facilitation Agreement.
Lorena Bartomioli stressed the essential importance of collaboration between the public and private sectors in international trade, a dynamic and complex field. Although the private sector provides agility, she pointed out that it also faces first-hand delays and costs in processes. This experience is key to designing efficient reforms, as long as companies are willing to adopt an approach that is of general interest and not just individual interest.
He identified several challenges in public-private collaboration, such as mistrust, lack of communication and resistance to change. He proposed overcoming these challenges through trade facilitation committees, both at national and local levels. These committees allow for ongoing dialogue between the public and private sectors to resolve conflicts and define joint policies, promoting mutually beneficial programs such as the Authorized Economic Operators (AEO) program.
Bartomioli recalled that Decree 535/2019 created, within the scope of the Office of the Chief of Ministers, the National Committee for Trade Facilitation, with the aim of internally coordinating and implementing the provisions of the Trade Facilitation Agreement. This initiative is provided for in Article 23.2 of said Agreement. However, Bartomioli stressed that, to date, only a note has been issued by the Customs Brokers Centre and some other entities representing international trade, urging the establishment and development of the necessary guidelines for the effective functioning of the National Committee for Trade Facilitation.
He also stressed the importance of these committees following the SMART principle (sustainable, measurable, achievable, realistic and time-bound) and concluded by emphasizing that instead of reinventing, it is useful to learn from successful experiences in other countries in order to apply them in the local context.
Also, the Dr. Hector Juarez Allende, Judge of the National Tax Court, examined “The Trade Facilitation Agreement. Current status of implementation in the Argentine Republic”.
During the course of his presentation, Dr. Hector Juarez surprised the audience by commenting that it would be imminent the entry into force of the MERCOSUR Trade Facilitation Agreement since the Brazilian Ambassador presented his instrument of ratification on 11/10/24 and, for its part, the Argentine Congress approved the Agreement on Monday 21/10/24 (law 27.766), so The only thing missing would be the ratification of the Argentine Executive Branch. through its Ambassador in Paraguay for it to enter into force. This is so, since this Agreement provides, in its article 21, that it enters into force sixty (60) days after the deposit of the instrument of ratification by the second State Party of MERCOSUR, and its provisions will be applicable to the States Parties that have ratified.
Dr. Juárez commented that this is a treaty that, at a regional level, deepens and complements the Trade Facilitation Agreement (TFA) of the World Trade Organization (he called it the “plus” or “recharged” TFA), since it incorporates specific and punctual actions (not so general and abstract) aimed at applying mechanisms that facilitate intra-zone trade, with the purpose of strengthening regional integration.
In this regard, and as an example, he mentioned that the Agreement encourages the dispatch of merchandise within 12 business hours following its presentation in the green channel, or 48 business hours in the orange and red channels.
Or, the use of the Clearance Time Study and the WCO Data Model, coordinated border management, digitalization (paperless customs) and the intensive use of information technologies.
The Agreement has 21 articles and was drawn up by the Technical Committee No. 2 on Customs Affairs and Trade Facilitation of MERCOSUR, a body that Dr. Juárez calls "the customs factory of MERCOSUR" (Agreement).
He also mentioned that once the Agreement enters into force in Brazil and Argentina, the next country to join could be the Eastern Republic of Uruguay, since its President, Luis Lacalle Pou, submitted the bill to its Congress on May 14, 2024.
Finally, the panel made a reference to "Trade facilitation from the perspective of Sanctioning Customs Law", by Andres Varela, Doctor of Law and Social Sciences, University of the Republic of Uruguay. The lawyer argued its analysis on the Trade Facilitation Agreement and assessed its current status in this context.
He argued that the approach to sanctions does not focus on the violations themselves, but on the responses of the legal systems. The regulations are minimal and show a basic structure, more oriented towards the retention of sanctioning sovereignty than towards the protection of guarantees for those subject to administration.
Varela concluded that there is a lack of development in fundamental concepts such as the principle of proportionality and the personality of the sanction. He also warned that arbitrary application and the disproportion between infringement and sanction can negatively affect trade facilitation. In short, despite the simplicity of the standards, their application is ignored in practice, highlighting the need for a thorough review and a dogmatic strengthening of the sanctioning regulation.
To close the important symposium, the Dr. Harry Schurig He expressed his deep gratitude to the virtual and in-person participants, highlighting the presence of Dr. Ricardo Xavier Basaldúa and the delegation of distinguished Uruguayan and Brazilian jurists who traveled institutionally to Buenos Aires to join these sessions. In an atmosphere that combined academic seriousness with a spirit of camaraderie, the event was attended by Dr. Rosado Trevisán, Auditor of the Federal Revenue Service of Brazil, and Dr. Regis Xavier Holanda, President of the Third Section of the Administrative Council of Fiscal Resources of Brazil, among other distinguished specialists.
The testimonies collected by Customs News were a faithful reflection of the days. At one of the dialogue tables, the Dr. Claudio Augusto Gonçalves Pereira, Secretary of the Latin American Academy of Customs Law, stressed the relevance of this experience for Brazilians, who enriched their perspectives on Customs Law thanks to this exchange.
“The Argentine people, together with their academics and lawyers, have done an exceptional job over the years. Thanks to their experience with the Customs Code, we aspire to develop, in the near future, our own Customs Code in Brazil,” he said.
Aduana News is the first Argentine customs newspaper to launch its digital version. With 20 years of experience, its publications and initiatives aim to provide the most relevant knowledge on customs issues in order to contribute to safe trade in the region.
