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Idealex – COVID-19 and international trade

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DETAILS

DATE: 15-05-2020

CORRALROSALES IN THE NEWS: 

-Andrea Moya

MEDIA: Idealex

The world is facing a health, human and economic crisis without precedent. The measures taken to reduce the effects of the pandemic, such as isolations and social distancing, have direct impacts on the supply and demand. The suspension of commercial and productive activities generates a global recession and higher unemployment.

In 2019, the global economy recorded its worst performance since 2009, with a grow rate of 2.5% and with global GDP grow projections for 2020 revised downwards. In 2019, the volume of world trade goods fell by 0.4% against 2018 and it is projected that in 2020 it would contract even more. COVID-19 appeared in this scenario.

According to the Economic Commission for Latin America and the Caribbean (ECLAC), COVID-19 is affecting the region for the following reasons:

  1. The decline in the economic activity of the region’s main trading partners.
  2. The drop in commodity prices.
  3. The interruption of global value chains.
  4. Lower demand for tourism services.
  5. Greater risk aversion and worsening global financial conditions.

According with ECLAC, the value of Latin America and the Caribbean exports will fall at least 10.7% by 2020 due to lower prices by 8.2% and volume in 2.5%.

table-international-trade-andrea-moya-01

In the case of Ecuador, given that its main commercial partners China and the United States are the countries with the most infections, it is foreseeable that the value of non-oil exports reduces. This fact added to the fall of the oil prices will generate a significant fall on the value of Ecuadorian exports.

Under these circumstances, the country’s trade policy must facilitate a prompt answer to this crisis. The reduction of non-tariff barriers to import and exports, especial procedures for the release and clearance of goods, simplified mechanisms for the reimbursement of taxes and payment facilities for taxes on foreign trade are measures that would allow companies to overcome the challenges derived from the pandemic.

The Ecuadorian Customs Authority has made and efficient work in order to facilitate foreign trade operations during the state of emergency, it has maintained its services in all customs districts through electronic channels, it has implements specific procedures for the inspection of goods and it has suspended the terms applicable for the abandonment of good through the duration of the emergency.

However, the following measures are needed urgently:

  1. The Law for Simplification and Tax Progressivity issued on December 31, 2019 amended the Production, Commerce and Investment Code adding article 157.1. This article establishes a simplified procedure for reimbursing any taxes applicable to foreign trade (drawback). The amount of the reimbursement is equal to a percentage of the FOB value of the export and must be done automatically after the export customs forms are definitive. This process must be put into place in an effective and immediate manner.
  2. The Law for Tax Equity establishes that the foreign exchange tax (ISD) paid on the import of raw materials, capital goods and other goods to be incorporated in production processes may be regarded as tax credit for the payment of the importer’s income tax within the following five years. The importer is able to request a reimbursement of the foreign exchange tax that has not been credited against its income tax. However, the reimbursement request procedure is slow and bureaucratic. It is necessary to adopt simplified reimbursement processes that are effective and resolved on a timely manner.
  3. Article 116 of the Production, Commerce and Investment Code establishes that the importers are able to request payment facilities on foreign trade taxes derived from the import of capital goods. This benefit must by applicable to the payment of foreign trade taxes on the import of raw material and similar goods.
  4. The third general provision of the Law for the Development of Production, Investment Attraction, Employment Generation and Fiscal Stability establishes that the investment incentives included in such law will be applicable for 24 months, this deadline expires in August 21, 2020. The President is able to extend this deadline for 24 additional months. It is importer to extend this deadline in order to stimulate local and foreign investment which may generate employment. It is also important to simplify the processes needed to access certain benefits such as the exemption of tariffs and foreign exchange tax on the import of raw material and capital goods needed for the development of investment projects.

These measures will contribute to protect the cash flow of the taxpayers which is a fundamental issue in order to keep companies’ operating and avoid, to the extent possible, its closure and the subsequent loss of jobs and default with its creditors.

This crisis has worsened the country’s fragile economy, particularly for the fiscal imbalance that has been occurring for several years, and the lack of contingency funds to be injected in an economic recession. The alternative is not the “deglobalization”, but an international cooperation policy that allows each country to develop its best capacities. Ecuador urgently requires structural changes in the labor and tax areas, along with a clear foreign trade policy.

If you want to read this article in Spanish, click here

Table’s source: Special Report COVID-19 issued by the Economic Commission for Latin America and the Caribbean (ECLAC) – https://repositorio.cepal.org/bitstream/handle/11362/45351/1/S2000263_en.pdf

Negotiable commercial invoices in Ecuador

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The most frequent criticisms to the Commercial Code (C. Com.) might be over-regulation, lack of dissemination and discussion. Composed of 1348 articles, 3 general provisions, 1 transitional provision, 5 derogatory provisions and 1 final provision, the Commercial Code (C. Com.) entered into force on May 29, 2019. This was the awakening of a new set of norms that regulate a significant portion of the commercial activity in Ecuador. However, the legislator, irresponsibly, failed to grant a transition period prior to its entry into force, as done with other regulatory bodies. This, in one way or another, prevented traders and businessmen from having a reasonable period of time to inform themselves adequately about the new contract types and to anticipate the impact that it could generate in the development of their business.

Negotiable commercial invoices (FCN, for their acronym in Spanish) are not new. Article 201 of the 1960 Commercial Code, as subsequently amended, provided that: “Commercial invoices containing an unconditional payment order, acceptance of which is signed by the purchaser of goods or his delegate, with the express statement that these have been received satisfactorily, shall be called “negotiable commercial invoices” and shall have the nature and character of securities.”

But, in market practice, few traders issued FCNs, possibly out of ignorance, because they considered them to be too stringent (in terms of their issuance requirements) or impractical.

In recent years, some traders have used the issuance of FCNs as a mechanism to obtain liquidity, including for trading through the country’s stock exchanges. Reports from the Quito Stock Exchange show that FCNs have acquired importance in the local market. According to the information of said institution, in 2018, US$271,777,234 FCNs were traded, as of June 2019 this amounted to US$184,297,068 and in January 2020 US$115,066.25.

Currently, FCNs are (i) sales vouchers, (ii) negotiable and executive securities “when they contain an unconditional payment order, acceptance of which is signed by the purchaser of goods, interests or services or his delegate, with the express statement that these have been received satisfactorily, or that have been tacitly accepted” (Art. 203 C. Com.)

FCNs can be issued in physical, electronic or dematerialized form. If in physical form, 3 copies must be produced, namely, the original for the buyer or purchaser, and two copies for the issuer. Only the first copy is negotiable; the others contain the phrase “NON-NEGOTIABLE”.

For electronic issuance, the issuer shall mandatorily “send or make the electronic voucher available to buyers or purchasers under the conditions, in the timing and by the means established by the country’s internal tax administration entity. Not sending these vouchers, their unavailability or inaccessibility are equivalent to withholding them.” (Art. 204 C. Com.)  The dematerialization of FCNs must be done in accordance with the provisions and regulations of the securities market. This implies a book entry in a system for the registration or booking of the securities. In other words, there is no cardboard representation of the document, as it will be supported by electronic accounting records.

Please note that physical and electronic invoices are traded by endorsement, while for dematerialized invoices the transfer is perfected with registration in the respective bookkeeping system and that, in addition to the requirements determined in the tax regulations, the FCNs must compulsorily contain the following:

  • Be identified as “NEGOTIABLE COMMERCIAL INVOICE”
  • The payment date and place. If payment by installments is established, the number of installments, the due date and the amount to be paid for each of them, as well as the unpaid balance, shall be indicated. The term of payment may not exceed 360 days from the issue of the invoice. (short term security)
  • The unconditional order to pay a certain amount of money
  • The clear specification, in figures and in writing, of the amount to be paid and the currency in which it will be done
  • The express statement by the buyer or purchaser to receive the goods, interests or services to his or her full satisfaction
  • The physical or electronic signature of the issuer of the invoice or of the respective delegates
  • The physical or electronic signature of the buyer or purchaser of the goods, interests or service or their respective delegates
  • The signature of the acceptor contained in the invoice or attached document, except in the case of tacit acceptance, which we will review later.
  • In the case of a physical commercial invoice, information on the endorsements with the identification requirements will be incorporated on the back of the document or attachment

With regard to the acceptance, the Commercial Code will facilitate claims, providing that the buyer-purchaser, his delegate or agent must expressly accept the contents in writing, either in the same document or in a physical or electronic attachment, which must include the date of receipt. In accordance with the provisions of the previous Code, the FCNs will be considered to have been tacitly accepted if, within 8 days of the date of receipt, no claim has been made regarding its contents.

What is important and new is that the Commercial Code recognizes 3 complaint procedures, which must be proven by whoever intends to benefit from this:

  1. The possibility of returning the invoice without acceptance, with the text “cancelled” or with the acceptance tested.
  2. Expressly claim its contents by letter, together with the return of the invoice without acceptance or with the acceptance tested or with the request for the issue of a credit note.
  3. In case of an electronic or dematerialized invoice, the claim will be made through the request for issuance of a credit note or cancellation of the invoice.

On the other hand, in the case of a legal collection action for non-payment events, a claim must be filed in executive proceedings provided that the following requirements are met:

  1. The invoice has not been returned or claimed by any of the mechanisms referred to above.
  2. Its payment is currently due, and the executive collection action has not prescribed.
  3. The obligation is clear, pure, determined and liquid.

In conclusion, the contribution of the Code of Commerce is valuable regarding the regulations that govern FCNs, as it benefits commercial practice and inserts dynamism into businesses. This has become an attractive business strategy to obtain greater liquidity and to have highly liquid securities.

 

Ramón Paz y Miño
Senior Associate at CorralRosales
rpazymino@corralrosales.com

Commercial Companies of Benefit and Collective Interest

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The Superintendence of Companies, Securities and Insurance through resolution number SCVS-INC-DNCDN-2019-0021 published in the Official Registry number 107 of December 24, 2019 issued the instructions for the operation of the Commercial Companies of Benefit and Collective Interest. Below, we summarize its most relevant aspects:

  1. Any national company under control and supervision of the Superintendence of Companies, Securities and Insurance may voluntarily adopt the status of a Benefit and Collective Interest Company, without this implying a change in the type of partnership or the creation of a new partnership.
  2. To adopt the characterof a Benefit and Collective Interest Company , and thus develop its operational activities for the benefit of the interests of its partners or shareholders and is required to create a positive material impact, in the interest of the partnership and the environment at the same time. Companies must thus approve it through the general meeting of partners or shareholders with a majority representing at least two thirds of the subscribed or paid share capital, as applicable. The corporate bylaws must be amended, incorporating specific activities into the corporate purpose, through which these companies will fulfill the obligation to generate a positive social or environmental impact. Once the amendment of the bylaws is registered in the Mercantile Registry, the Benefit and Collective Interest Company will have the obligation to send said documentation to the Superintendence of Companies, Securities and Insurance for the corresponding update in the institutional database. Additionally, if the company considers it convenient, it may formalize the corporate action to change the company name and fulfill the other requirements established in the law, adding the expression “Company of Benefit and Collective Interest”, or the acronym B.I.C. to its denomination.
  3. In the companies in which the status of Benefit and Collective Interest Company is adopted, the dissenting or non-concurrent partners or shareholders of the general meeting that made said decision will have the right to separate from it, in the terms of article 333 of the Law of Companies (reimbursement of the value of its shares in accordance with the respective prepared balance sheet)
  4. The obligation to create a positive material impact on society and the environment may cover one or more of the following areas: a) governance, b) working capital, c) community, d) customers, and e) environment. Consequently, the administrators of a Benefit and Collective Interest Company must ensure compliance with the activities set forth in the statute, in one or more of these areas, in order to achieve the specific objectives incorporated in its social purpose.
  5. The area of ​​impact on governance is related to the corporate governance of companies. For such purposes, the administrators of a Benefit and Collective Interest Company may consider, among others, the following aspects:
    • The interests of the company and its partners or shareholders;The short, medium and long term consequences of decisions related to the operational activity of the company they represent;
    • The preservation and protection of the reputation and good name of the company;
    • The need to treat, in a fair and equitable manner, all partners or shareholders; and,
    • The expansion in the diversity of the administrative and supervisory composition of the company.
  6. The area of ​​impact on working capital will allow the administrators of the Benefit and Collective Interest Companies to consider the interests of their workers, considering among others the following aspects:
    • The establishment of reasonable compensation and analysis of wage gaps to establish fair standards in the collection of compensation;
    • The establishment of grants to train and professionally develop their working capital;
    • Promote the participation of workers in society, either through the acquisition of shares or shares, or by intervening in the company’s administrative bodies;
    • Determine flexibility alternatives for workers’ working hours, teleworking, or others, without affecting their remuneration;
    • Disseminate the company’s financial statements among its workers.
  7. The community impact area will allow administrators to consider, among others, the following aspects:
    • The need to foster social relations with the company’s creditors, suppliers and customers;
    • The impact of social operations on the community;
    • The effect of the operations of the company and its subsidiaries, if any, on the local, regional, national and even international economy;
    • The incentive of volunteer activities and the creation of alliances with foundations that support social work in the interest of the community as part of its social responsibility policy;
    • The main focus on contracting  services or acquiring goods of local origin or belonging to enterprises developed by women or ethnic minorities.
  8. The area of ​​impact on customers will allow administrators to address a social or environmental problem through, among other things, the following:
    • Provision of electricity or products that provide electricity, drinking water, affordable housing and other infrastructure;
    • Products or services that allow people to focus on income-generating activities such as computer, finance, mobile technology or services that optimize / increase business activities;
    • Products or services that improve the delivery of health services, health outcomes and healthy living, such as medicines and preventive health services;
    • Products and services that have an educational focus, such as schools, textbooks, media and independent arts, or preserve local culture, in the case of artisanal trade;
  9. The area of ​​impact on the environment will allow the administrators of a Benefit and Collective Interest Company, among other aspects, to consider the following:
    • Respect for the rights of nature enshrined in the Constitution of the Republic;
    • The impact of its operations on the environment;
    • The monitoring of gas emissions that cause a greenhouse effect;
    • The promotion of recycling or waste reuse programs;
    • The increase in the use of renewable energy sources and the implementation of energy efficiency measures.
  10. Annually, the legal representative of the Benefit and Collective Interest Company must prepare a management impact report choosing the most appropriate standards. It should give an account of the activities carried out to fulfill the obligation to create a positive material impact on society and the environment, the report must have a certification issued by an independent entity specialized in the fields that apply, and it will be presented to the general meeting for the purpose of acknowledgement and approval.
  11. The status of a Benefit and Collective Interest Company can be terminated by a modification of its bylaws, undoing the changes made to acquire said status. The corresponding resolution will be adopted by the general meeting of partners or shareholders with a majority representing at least two thirds of the subscribed or paid share capital, as applicable.
  12. If in the exercise of its control and surveillance authority, the Superintendence of Companies, Securities and Insurance verifies that the Company of Benefit and Collective Interest has not fulfilled its obligation to create a positive material impact on society and the environment in accordance with the provisions of its corporate purpose, or that its administrators have failed to comply with their obligation to prepare the management impact report, or who have breached the rules of this instruction, the Superintendence of Companies will proceed to notify the company of the violations in which it has incurred, so that within six months the company can rectify these breaches or modify its bylaws undoing the changes made to acquire the quality of a Benefit and Collective Interest Company.

If after this period, the company has not taken care of the notified breaches or modified its bylaws, it may be declared dissolved.

Milton Carrera
Senior Associate at CorralRosales
mcarrera@corralrosales.com