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ESG Latin America & the Caribbean Guide 2024 | Charting Sustainable Futures

Argentina
(Latin America/Caribbean) Firm Marval O’Farrell Mairal

Contributors Pablo Gayol
Luciano Ojea Quintana
eleonora hayzus

Updated 22 May 2024
ESG Regulation related to climate change prevention or mitigation, specifically concerning carbon footprint or pollution measurement, decarbonization strategies, and/or mandates and strategies to achieve local carbon neutrality commitments

Laws/regulations concerning climate change prevention or mitigation include: 

  • Law No. 25,841 (approves the MERCOSUR framework agreement re. environmental matters)
  • Law No. 25,675 - Achievement of sustainable management, preservation and protection of diversity and implementation of sustainable development principles
  • Law No. 27,566 - adherence to the Regional Agreement re: Access to Environmental Information, Public Participation and Access to Justice in Latin America and the Caribbean ("Acuerdo de Escazú")
  • Law No. 27,520 and Regulatory Decree No. 1030/2020 - establishment of minimum conditions to protect the environment in order to guarantee actions, instruments and adequate strategies to adapt and mitigate climate change
  • Resolution No. 146/2023 of the Ministry of Environment and Sustainable Development ("MESD") approves the second national plan of adaptation and mitigation of climate change
  • Resolution No. 218/2023 of the MESD approves a sustainable development strategy to lower emissions in the long term (by 2050) and creates the National Program for Long-Term Scenarios (“Programa Nacional de Escenarios de Largo Plazo”)
  • Resolution No. 385/2023 of the MESD approves national strategy for carbon market development
  • Resolution No. 2/2023 of the MESD and the Ministry of Health approves the national strategy for health and climate change
  • Law No. 26,190 (as amended by Law No. 27,191 and as further regulated by Decree No. 531/2016): National Regime to promote the use of alternative sources of energy destined to the production of electrical energy ("Regime for the Promotion of Alternative Energy")
  • Resolution No. 281/2017 of the former Ministry of Energy and Mining regulating the renewable electrical energy sources market
  • Resolution No. 47/2018 of the National Agency of Access to Public Information regulates sustainability aspects of data storage and transfers
  • Articles 36, 37, 62 and 102 of Decree No. 1030/16 establish and incorporate specific sustainability criteria that must be taken into account by the State for tenders / public projects - Among other aspects, it establishes a 5% preference incentive for candidates that comply with the sustainability criteria.

The Argentine Civil and Commercial Code establishes that environmental and sustainability matters are collective rights and imposes liability rules with respect to environmental torts.

At an international level, the Argentine government has adhered the following international conventions:

  • Law No. 24,295 approves the UN Framework Convention on Climate Change
  • Law No. 25,438 approves the Kyoto Protocol
  • Law No. 27,270 approves the Paris Agreement

The Argentine legal framework also tackles specific types of pollution measurements and emissions re: air, water, land, dangerous residue, radioactive substances, nuclear waste, industrial/domestic waste management and import/export, chemical substances, phytosanitary elements, wildlife preservation, etc.

With respect to administrative (state-wide) regulations re. tender procedures and public projects - in addition to the sustainability criteria incorporated by Decree No. 1030/16, certain provinces (Mendoza, Chubut and the City of Buenos Aires, amongst others, established preferential criteria based on sustainability factors when assessing tender candidates for specific projects.

The scope of the applicationis Federal.

Reference:
ESG Regulation regarding energy transition (requirements or promotion and use of new second-generation renewable energy sources such as solar, wind, tidal, H2, geothermal, among others).

Laws/regulations concerning energy transition(requirements, promotion and use of new second-generation sources) include:

See previous response re. Regime for the Promotion of Alternative Energy. Also:

  • Resolution No. 319/1999 of the Secretariat of Industry, Commerce and Mining re. electrical machinery and devices for domestic use
  • Decree No. 140/2007 - declaration of interest and national priority of the rational and efficient use of energy
  • Resolution No. 171/2015 and No. 126/2015 of the Ministry of Economy and Public Finances + the Ministry of Federal Planning, Public Investment and Services - Adopting the Program of Promotion of the Production and Commercialization of Electrical Appliances with Energy Efficiency
  • Resolution No. 418/2023 of the Secretariat of Energy - National Program for Energy Efficiency Measurements and Qualifiers
  • Law No. 27,640 Bio Fuels - Regulatory Framework
  • Disposition No. 25/2023 re. adoption of the Manual for Public Sustainable Purchases and Public Sustainable Hiring

The scope of the application is Federal.

Reference:
ESG Regulation concerning electricity markets, carbon markets, or similar.

Laws/regulations concerning electricity markets, carbon markets, etc. include: 

See above re. Regime for the Promotion of Alternative Energy, MESD's National Strategy for Carbon Market Development and the Ministry of Energy and Mining regulations for the renewable electrical energy sources market.

The CNV is making an effort to promote green or sustainable financing by way of a series of indicative guidelines that were recently published in order to establish a simplified and guaranteed regime for the issuance and assessment of negotiable bonds with social impact.

Also, as established in the preceding column, BYMA provides a list of green bond issuances, fiduciary funds with sustainability criteria and other relevant investment products with an environmental / ESG focus. It has also published guidelines for ESG bonds following the parameters established by the CNV.

Reference:
ESG Regulation in the realm of green or sustainable financing, including taxonomies, provisions for mandatory reporting of material financial information on environmental or social matters, as prerequisites for issuing thematic bonds (green, sustainable,

Laws/regulations concerning the realm of green or sustainable financing include: 

  • Securities Exchange Commission (CNV) Regulation No. 885/2021 - ESG collective investment and sustainable mutual funds
  • CNV Resolution No. 896/2021 - Guidelines for ESG bond /security issuance (modifies the CNV Rules to incorporate ESG bonds to the list of investment products)
  • CNV also published soft law guidelines for ESG bond assessment / external auditors and another guideline for ESG investors for sustainable capital market investments (see Social Section #1 - Resolution No. 788/2019)
  • CNV Resolution No. 940/2022 - establishes a simplified information regime for ESG financial product issuance
  • CNV Rules re. ESG disclosure and corporate governance (including informative regime for third parties and internal disclosure).
  • As a general rule, CNV establishes that issuers that offer ESG related investment products must disclose the sustainability-related information in their websites and include ESG information in their annual reports + prospectuses.
  • The National Procurement Office has also issued regulation to apply ESG criteria to purchases of goods and services by entities and jurisdictions within the orbit of such Office.
  • The Anti-corruption Office is seeking to broaden the applicability and use of the Integrity and Transparency Register for Companies and Entities ("RITE"), launched in December 2022. The objective of the RITE is to collect and disclose information on corporate anti-corruption compliance programmes (but this is mainly focused on governance aspects) and it is now under review to include information about gender, human rights, data protection and other social-related matters.
  • The Argentine Stock Exchange (Bolsas y Mercados Argentinos - "BYMA") also provides a list of green bond issuances, fiduciary funds with sustainability criteria and other relevant investment products with an environmental focus. It has also published guidelines for ESG bonds following the parameters established by the CNV.
  • BYMA's ESG guideline: https://www.byma.com.ar/wp-content/uploads/dlm_uploads/2019/08/BYMA-BonosSVS-Guia.pdf
  • BYMA's rulebook to publish ESG bonds / financial instruments: https://www.byma.com.ar/wp-content/uploads/dlm_uploads/2019/08/BYMA-BonosSVS-Reglamento-2020-08.pdf
  • BYMA's list of ESG bonds: https://www.byma.com.ar/productos/bonos-svs/

The scope of the application of these laws is Federal.

The CNV is making an effort to promote green or sustainable financing by way of a series of indicative guidelines that were recently published in order to establish a simplified and guaranteed regime for the issuance and assessment of negotiable bonds with social impact.

Also, as established in the preceding column, BYMA provides a list of green bond issuances, fiduciary funds with sustainability criteria and other relevant investment products with an environmental / ESG focus. It has also published guidelines for ESG bonds following the parameters established by the CNV.

Resources:
ESG Regulation for preventing greenwashing.

Not applicable.
Regulation on ESG Due Diligence applicable to value chains (MRV protocols to ensure the environmental integrity of products and services, etc.).

Not applicable.
Regulation in the field of circular economy.

Not applicable.
ESG Regulation related to stakeholder well-being and social impact.

There are no specific stakeholder protection laws or regulations aside from general criteria related to informative regimes and special majority/veto rights granted to stakeholders by the Argentine Companies Law No. 19,500.

Nonetheless, please note that the Argentine Securities Exchange Commission (Comisión Nacional de Valores - "CNV") published certain soft-law guidelines and manuals for investors, establishing certain principles and parameters to take into account when dealing with/assessing ESG investment portfolios (and the corresponding duty of issuers to include the referred-to information/criteria in the financial instruments they offer).

Reference:
ESG Regulation concerning non-discrimination.

Laws/regulations concerning non-discrimination include: 

  • General Resolution No. 7/2015 issued by the Public Registry of Commerce of the City of Buenos Aires (Inspección General de Justicia - "IGJ")
  • Law No. 27,636 to promote formal access to employment for the LGBTQ+ community “Diana Sacayán - Lohana Berkins”
  • Decree No. 721/2020 establishing LGBTQ+ employment quotas for the public sector
  • Article 43 of the Constitution of the City of Buenos Aires establishing employment quotas for handicapped individuals
  • Resolution No. 286/2021 of the Ministry of Labor, Employment and Social Security
  • Law No. 26,653 and its Regulatory Decree regarding the accessibility of information on webpages
  • Law No. 23,592 of Discriminatory Acts

Corporate bodies of civil associations (asociaciones civiles) shall not violate the acquired rights of the associates nor produce effects of discrimination thereof based on sex, nationality, religious and political beliefs, age, race, social condition, or any other situation of unjustified inequality (IGJ General Resolution 7/2015 - Section 407).

Resolution No. 286/2021 establishes that individuals can choose "they" pronouns in their Argentine IDs and Tax IDs.

The Federal government has also adhered to the Yogyakarta Principles 12 and 13.

Also, Argentina has adopted ONTI Guidelines re. Accessible Multimedia.

Arts. 2 and 3 of Law No 23,592 Concerning Discriminatory Acts establishes specific crimes and misdemeanors associated with discriminatory acts and introduces an aggravation for crimes committed with a discriminatory purpose (for example, hate crimes).

The scope of the application is Federal.

References: 
ESG Regulation pertaining to the prevention of modern slavery.

Laws/regulations concerning the prevention of modern slavery include: 

  • Prevention of Modern Slavery: Law No. 26,842 for the Prevention and Sanction of Human Trafficking and Victim Assistance.
  • Prevention of Child Labour: Law No. 26,390, Law No. 26,847 and Regulatory Decree No. 1117/2016 for the Prohibition and Penalization of child labor and protection of adolescent labor.
  • Penal Code - Articles 140, 141, 142, 145, 145 bis and 145 ter.

Law No. 26,842 introduces amendments to the Argentine Penal Code re: human trafficking sanctions.

Also, the Argentine government has adhered at a federal level to the parameters pertaining to forced labor incorporated in the International Labour Organisation's Conventions C029 and C105.

Laws No. 26,390 and Law No. 26,847 regulate the concepts of child and adolescent labour and introduce amendments to the Argentine Penal Code to incorporate them as sanctionable crimes. Regulatory Decree No. 1117/2016 describes and defines "dangerous" employment situations and exposure for children and adolescents.

As established above, the Argentine government has also adhered to the International Labour Organisation's Conventions No. 182 and the Child Rights Convention.

The scope of the application is Federal.

Reference: 
ESG Regulation regarding Diversity, Equity, and Inclusion - DEI.

Laws/regulations concerning DE&I include:

  • IGJ General Resolution No. 34/2020
  • Law No. 24,156 and Administrative Resolution No. 1744/20 - establishing gender diversity and gender equality parameters for businesses with state participation.
  • Decree No. 1771/15
  • Law No. 25,689 concerning the integral protection of handicapped individuals
  • Decree No. 254/98 re. plan to provide equal opportunities and rights between men and women
  • Law No. 26,485 to prevent, sanction and eradicate violence against women in the sectors in which they develop their interpersonal relations
  • Law No. 27,499 "Ley Micaela" - introduces mandatory courses and training re. gender and violence against women for employees of the public sector
  • Argentine Central Bank Communication "A" 6639 (and amendments introduced by Communication "A" 7465) - establish corporate governance parameters for financial institutions
  • Argentine Securities Exchange Commission ("CNV") published sample corporate governance codes and principles to be incorporated in stock companies' internal codes - they tackle diversity, equity and inclusion policies.

Non-lucrative entities and certain specific corporations must: 1) have the same number of women and men in their administration and supervisory corporate bodies. In the event that the number of members cannot be divided by two, it must be formed with a minimum of one-third of female members; and report the gender policy to be implemented in their annual financial statements (IGJ General Resolution 34/2020 - Section 6).

Article 81 of the National Employment Contracts Law (Ley de Contrato de Trabajo) establishes non-discrimination principles at a federal level.

At an international level, the Argentine government by way of Law No. 27,580 has ratified the International Labour Organisation's Convention No. 190 re: elimination of violence and harassment in the labor sector.

The Argentine government has also adhered to: The International Labour Organisation Convention No. C111, C159, C190 and the Convention to eliminate all forms of discrimination against women (CEDAW, 1979).

The scope of the application is Federal.

Reference: 
Regulation on ESG-linked compensation.

Laws/regulations concerning ESG-linked compensation include:

  • Argentine Constitution - Section 14. bis. establishes the principle of adequate and just compensation.
  • Sections 115; 118; 119; 120; of the National Employment Contracts Law (Ley de Contrato de Trabajo) develop these principles.
  • Employment Law No. 24,013.

At an international level, the Argentine government has adhered to:

  • The Universal Declaration of Human Rights. Equal Pay and Compensation Rights (Articles 23;24;25)
  • American Declaration of Human Rights and Duties (Arts. XIV; XXXVII)
  • International Labour Convention No. 95/1949 re. protection of wages
  • International Treaty of Economic, Social and Cultural Rights (Art. 6.1)
  • International Treaty of Civil and Political Rights (Art. 8.3.a)
  • International Convention for the Protection of Migrant Workers and their Families (Arts. 11, 25, 26, 40, 52 and 54)

The scope of the application is Federal.

Reference: 
ESG Regulation for the protection of vulnerable or minority communities.

Laws/regulations concerning the protection of vulnerable or minority communities include: 

  • Consumer Law:
    • Art. 42 of the National Constitution
    • Consumer Defence Law No. 24,240
    • Resolution No. 139/2020 of the Secretary of Commerce (establishes measures to protect vulnerable and minority communities)
    • Resolution No. 236/2021 of the Secretary of Commerce (allows minors to file consumer-related claims and participate in the procedure)
    • Resolution No. 1040/2021 of the Secretary of Commerce (adopts the Guideline for Good Consumer Practices regarding Gender and Diversity Matters)
    • Argentine Central Bank Guideline for the Protection of Users and Consumers of Financial Services
    • MERCOSUR Resolution No. 11/2021 (establishes a series of specific measures designed to protect vulnerable consumers and other minorities)

The scope of the application is Federal.

See also above - protection of the LGBTQ+ community, migrant workers, handicapped individuals and other minority communities.

Reference: 
ESG Regulation for economic development of vulnerable or minority communities or groups.

Laws/regulations concerning the economic development of vulnerable or minority communities or groups include: 

  • See above - protection of the LGBTQ+ community, migrant workers, handicapped individuals and other minority communities.
Regulation on Personal Data Protection, concerning data usage transparency, limits on data usage to prevent discrimination issues, and corporate digital responsibility.

Laws/regulations concerning Personal Data Protection include: 

  • General Resolution IGJ No. 7/2015
  • Resolution No. 18/2015 of the National Data Protection Directory approved the Guidelines for Good Practices for the Development of Apps
  • Law No. 26,653 and its Regulatory Decree regarding accessibility of information in webpages (see above)
  • Data Protection Law No. 25,326 and its Regulatory Decree No. 1558/2001
  • The National Agency of Access to Public Information also regulates privacy policies, rights of individuals re. their personal data and limits to the usage and treatment of personal data through Resolutions No. 14/2018, 15/2018, 47/2018, 4/2019.
  • Conjoint Resolution of the National Agency of Access to Public Information and the Regulatory Unit of Personal Data Regulation and Control of Uruguay - published a guideline to evaluate the impact of data protection measures.
  • "Convention 108+" (adopts the Global Privacy Standards established by the Council of Europe - Data Protection)

General Resolution IGJ No. 7/2015 adopts the general rule of publicity and transparency for the administrative decisions issued by the PRC, which shall be published on the web page of the PRC except for such data that may have an impact in the honor and privacy of any individual.

The referred-to Guideline for Apps contains a series of parameters and good practice guidelines destined to increase the level of acknowledgment and awareness re. data privacy and personal data protection in the process of developing applications.

The scope of the application of these laws is Federal.

Reference: 
ESG Regulation regarding the integration of the board of directors, board of trustees, or management body of the company (minimum participation/representation of women or minority groups, guidelines on the composition of board members with expertise in ES

Laws/regulations concerning the integration of the board of directors, trustees, or management body of the company include:

  • IGJ Resolution No. 34/2020 - re. gender quotas for non-lucrative entities and certain specific corporations
  • Argentine Central Bank Communication "A" 6639 (and amendments introduced by Communication "A" 7465) - corporate governance parameters
  • Argentine Securities Exchange Commission (CNV) - sample corporate governance codes and principles
  • See also Social Section #2 re. LGBTQ+ employment quotas for the public sector and for handicapped individuals

The scope of the application of these laws is Federal.

IGJ Resolution No. 34/2020 states that non-lucrative entities and certain specific corporations must: 1) have the same number of women and men in their administration and supervisory corporate bodies.

In the event that the number of members cannot be divided by two, it must be formed with a minimum of one-third of female members (Section 1); and 2) report on their annual financial statements on the gender policy to be implemented (Section 6).

The Argentine Central Bank has also established certain corporate governance parameters applicable to financial institutions and other entities regulated by this authority.

The CNV has published sample corporate governance codes and principles to be incorporated in stock companies' internal codes - they tackle diversity, equity and inclusion policies.

See also Social Section #2 re. LGBTQ+ employment quotas for the public sector and for handicapped individuals.

Reference:
Regulation on fiduciary responsibility and administrators' roles in environmental and social risk management (standards or interpretations regarding the scope of fiduciary responsibility or administrator's duty concerning the company's social purpose, bas

Not applicable.

There are no specific ESG-related fiduciary responsibility/liability parameters or regulations. See Environmental Section #4 re. CNV guidelines and regulations applicable to close-end / open-mutual funds and bond assessment and criteria for external auditors.

The Argentine Companies Law No. 19,550 establishes general corporate governance parameters applicable to administrators of local companies.
ESG Regulation concerning corporate purpose.

Not applicable.
Regulation on types of Benefit and Collective Interest Companies (certifications like B Corps, specific regulations for BIC companies).

Not applicable.

There is no specific regulation in force. A bill was submitted to the National Congress in reference to the requirements to be complied with by any company that intends to become a B-company, but it has not been submitted for voting of congressmen.
ESG Regulation regarding supply chains from the perspective of ESG risk governance.

Not applicable.
ESG Regulation in the context of M&A (ESG due diligence).

Not applicable.
ESG Regulation related to Corporate Digital Responsibility.

Not applicable. There are no specific parameters applicable to Corporate Digital Responsibility, please refer to Social Section #8 re. Personal Data Protection Considerations.
Specific mandates related to national alignment with specific reporting standards.

Not applicable. As explained in the Social, Environmental and Governance Sections, the only sector that provides some ESG-oriented guidelines for internal/external reporting is the Capital Markets / Financial sector. Nonetheless, these consist generally of soft law guidelines published to provide the different capital market agents with general standardized reporting/valuation/assessment criteria. 
Standards regarding the scope and frequency of such reports.

Not applicable.

ESG Latin America & the Caribbean Guide 2024 | Charting Sustainable Futures

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Argentina

(Latin America/Caribbean) Firm Marval O’Farrell Mairal

Contributors Pablo Gayol Luciano Ojea Quintana eleonora hayzus

Updated 22 May 2024