As filed with the Securities and Exchange Commission on April 27, FORM F. Commission file number: Exact name of Registrant as specified in its charter. Republic of Argentina. Jurisdiction of incorporation or organization.
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Palavras-chave: Direito Internacional. Imunidade do Estado estrangeiro. Bancos centrais. Abstrac t : During the last decades, one of the most debated aspects of State immunity has been the degree of this defence recognized to separate governmental agencies, among them the Central Banks or similar monetary authorities.
Argentina and China followed a diverse path on the rule of sovereign immunity: while the former embraces the restrictive approach, the latter still adheres to the traditional doctrine, rejecting to exercise its jurisdiction without a waiver by the foreign State. Despite these differences, they enacted similar regulations concerning foreign Central Banks and its monetary reserves, first in China and more recently in Argentina Keywords: International law.
Foreign State immunity. Central Banks. Monetary reserves. Immunity from execution. Palabras-clave: Derecho Internacional. Inmunidad del Estado extranjero. Bancos Centrales. Reservas monetarias. The Argentine standpoint regarding the immunity of foreign States. Immunity of foreign Central Banks. General considerations. Immunity from jurisdiction. Immunity from attachment and execution. The principle of reciprocity.
The problematic implementation through agreements. In contrast, the signature of treaties notably increased its pace since , reaching nowadays almost bilateral texts. Specifically in the last four years, China and Argentina entered into a new round of negotiations in several fields of reciprocal interest, including cooperation on the pacific uses of outer space, nuclear technology, foreign trade, extradition, economic development and investments.
Among these, one of the most interesting topics in the bilateral agenda was the proposal to exchange part of the monetary reserves in both Central Banks, allocating them in each foreign territory. In this way, the two countries could have an alternative destination to place their reserves, instead of delivering them to the traditional international financial centers, as the United States of America, the United Kingdom or Switzerland.
As China had already passed a Law regarding this topic,  the Argentine Executive Power urged to have a similar statute. Additionally, the South American country sought to render its opinion regarding the independence of a monetary authority and the immunity enjoyed by its reserves, in the light of the controversy before the courts of the United States and the attachments suffered by the national Central Bank. The practice of the Argentine Republic concerning the immunity from jurisdiction and execution of a foreign State can be analyzed from two different but concurring aspects: the legislative regulations and the case-law perspective.
The first legislation regarding this topic was Law No. The relevant passage in the aforesaid Law is Article 24, section 1, paragraph 2, which provides that no lawsuit shall be brought against a foreign State without prior consent given by its diplomatic representative accredited in Argentina. In May , Law No. As for the case-law, three different periods can be identified, which follow in a relative pace the legislative evolution. Although some lower courts in the Judicial Branch tried to diverge this position, the Supreme Court was very strict in this topic: without acceptance of the Argentine jurisdiction the lawsuit ought to be dismissed.
The third period starts in December , when the Supreme Court shifted its previous opinion in the now famous Manauta controversy. Having sent the Embassy a notification to accept the Argentine jurisdiction, and after some months with no answer, the lower court and the Appeals Chamber dismissed the claim. In so deciding, the judges considered that the Russian Federation was implicitly rejecting the waiver, thus benefiting from the principle of sovereign immunity.
However, the Supreme Court reversed the decision invoking a change in the customary rule of the jurisdictional immunities of foreign States. The Tribunal stated that the general principle, as laid out in Decree-Law No. After citing State practice, international instruments, case-law and doctrine from different countries, the Supreme Court decided that the current customary rule prevented a respondent State to enjoy immunity in labour cases, where no sovereign activities were involved.
Accordingly, it decided that the trial ought to be held, accepting the jurisdiction of the Argentine courts in this type of controversy. Briefly, it can be stated that twenty years after the decision in the Manauta case and the passing of Law No. On the contrary, until there were no regulations for the immunity from attachment or execution. The case-law in Argentina on this issue, limited in number,  is coherent with the principles of customary international law.
The claimant has the burden of proof concerning the characteristics of the assets to be attached, avoiding those connected with a government non-commercial purpose. However, the Tribunal never mentioned that those measures of constraint were absolutely forbidden in Argentina. In this regard, the passing of Law No. As will be explained further on, this regulation must be interpreted in a complementary way to the general rules on State immunity, to avoid erroneous conclusions about its possible extension to any foreign property located in Argentina.
The bill that became Law No. The modifications proposed in the Senate made some improvements but, at the same time, introduced other mistakes. The outcome is a Law with a brief unintelligible text as well as controversial when compared to the local regulations already in force regarding the jurisdictional immunity of foreign States. The Chinese Law fulfilled a very particular purpose, only similar to the Argentine statute from the point of view of a political and economic necessity.
Until that year, China did not have any specific stipulation on sovereign immunities and was considered a supporter of the traditional rule, as the only accepted exception was a waiver by the defendant State. Therefore, it was quite natural for China to adhere to the principle of absolute State immunity.
When Hong Kong reunited with China in , the existing regulation on this topic, the UK State Immunity Act, ceased to be in force in that territory. As commented by ZHU , p. Only a month before this Law was approved, another political and juridical decision was taken in this field: China signed — but did not ratify- the UN Convention in September This international instrument, not yet in force, considers the immunity from jurisdiction as a general principle Article 5 , limiting it with a number of exceptions Articles 7 to Additionally, Article 21, section 1, paragraph c , expressly stipulates that the property of a Central Bank shall not be considered to serve a commercial purpose.
FG Hemisphere controversy, arising from measures of constraint to enforce arbitral awards. In the judgment, the majority of the Court regarded the immunity as an absolute rule, unless a waiver was given by the respondent State.
After these general considerations, and starting the analysis with the Argentine regulation, Law No. This first Article establishes the general rule of immunity from jurisdiction of foreign Central Banks or other monetary authorities, along with three exceptions.
The logic of the provision is to preserve the jurisdictional immunity as a right for the foreign entity. Certainly, this privilege can be waived. In a preliminarily perspective, it is evident that the legislative technique is slightly incorrect. In accordance with Law No.
In that way, a second article could have been entirely devoted to the three exceptions, in a more orderly fashion. From the point of view of a judicial proceeding, considering the immunity as a general rule implies that the plaintiff must prove the existence of a valid exception to allow the intervention of the local jurisdiction.
The first one arises when the defendant has expressed its consent to the jurisdiction of the Argentine courts, either before or after a dispute has taken place.
Furthermore, if the foreign entity is sued in the judicial or arbitral sphere, it can accept such dispute resolution forum through a written statement, apart from any existing obligation. The third exception is perhaps the most troublesome because, unlike the preceding ones, is not directly linked to an explicit or implicit waiver by the foreign entity.
This exception provides that the procedural defence may not be invoked when the claim is connected with an activity beyond the scope of the specific functions of the Central Bank, and the jurisdiction of the Argentine courts arises from the contract alleged or international law. If a particular controversy arises, it should be necessary to identify the specific functions of the respondent entity, and from that starting point determine whether the activity in question goes beyond the habitual tasks or may be inconsistent with them.
The specific powers of each Central Bank undoubtedly arise from its organizational statute or other related provisions. To some extent, these functions are described in Law No. However, its applicability may give rise to certain difficulties. For instance, if a foreign Central Bank recruits local staff to meet the needs of a bureau in the Argentine territory, a labour lawsuit should be dismissed, since there is a link between the employment contract and the entity's functions.
Another difficulty connected with the carrying out of commercial acts can arise, e. According to Law No. When interpreting this provision, the Argentine Supreme Court determined that a commercial activity should be defined taking into account the nature of the act in question. From the two examples above it can be appreciated that Law No. The second requirement for this exception is that the jurisdiction of the Argentine courts arises from the specific contract or international law.
Firstly, notice should be taken that if a waiver is given in a contract, the assumption would be similar to the one discussed in the first exception to this Article. The second possibility takes place if the jurisdiction of the Argentine courts arises from international law. While interpreting the equivalent provision in Law No. In that regard, international law imposes the principle of reasonableness of contacts, allowing either the conventional or municipal systems of private international law to determine the individual connections.
This means that, for the purposes of this exception, and in the absence of a contract between the parties, the tribunal must determine whether international law renders an authorization to settle the merits of the controversy, seeking a reasonable connection with the contentious case.
This first Article of the Argentine Law has no equivalent in the Chinese regulation. As will be commented further on, the latter only deals with immunity from attachment or execution. Consequently, the rule of jurisdictional immunity is subject to the specific interpretation given by the Chinese courts in each particular conflict.
According to QI , p. In this regard, the differences between both countries are evident, as Argentina explicitly regulated the traditional rule on jurisdictional immunity in ,the courts adopted the restrictive approach in and the specific legislation was passed in The second Article of the Argentine Law, consisting of two distinct paragraphs, reads as follows:. As in Argentina, the opinion of the Executive Branch on the subject matter should be quite relevant to reach a judicial decision.
A particularly interesting detail about this Article is the extension of the immunity to the monetary authority of a regional economic integration organization. Continuing the analysis of Law No. Certainly, it is reasonable to interpret that any foreign Central Bank enjoys in Argentina, as a minimum standard, the same protection due to its own State.
On the contrary, the provision in Article 2, second paragraph, mentions that no enforcement action can be taken against the specific assets involved.
Immunity of foreign Central Banks: a comparison between the legislations in Argentina and China
Zolozahn You can enter several keywords and you can refine them whenever you want. The second possibility takes place if the jurisdiction of the Argentine courts arises from international law. The subject matter of this controversy had a well-known precedent in in the case Republic of Argentina v. A Guide for the Perplexed, London: With the premise of avoiding an illogical result, Article 4 must be interpreted in a coherent fashion with the other three clauses in Law No. Ley argentina pdf files When independent prices are unavailable or unreliable, ley argentina securities may be valued utilizing pricing methodologies which consider similar factors that would be used by third party pricing vendors. To some extent, these functions are described in Law No. Sakree Ley argentina pdf writer jolnaoh The claimant has the burden of proof concerning the characteristics of the assets to be attached, avoiding those connected with a government non-commercial purpose.
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