Foreign Legal Opinion Consultant Argentina

Foreign Legal Opinion Consultant Argentina

Foreign Legal Opinion Consultant Argentina

Foreign Legal Opinion Consultant Argentina

To begin with, a foreign legal opinion in Argentina (or foreign law opinion) is an opinion of an Argentinian law firm issued in cross-border commercial transactions certifying the efficacy of the transaction under the applicable foreign law. Foreign legal opinions have become highly standardized over time, and most foreign legal opinions follow a fairly regimented format. The issuance of such opinions has become something of a sub-legal specialization in itself, and books and articles are written on the subject of foreign legal opinions. A number of organizations issue template format opinions to indicate issues which are intended to be covered by such opinions, or standard form checklists for contents.

Foreign Legal Opinion Consultant Argentina

Argentine foreign legal opinions now abide by international standards. Typically such opinions will confirm the jurisdiction which they relate to, confirm the documents that they reviewed, list certain assumptions of fact, and then set out various opinion statements. After the opinion statements, they will typically make certain standard, generally applicable qualifications.

The opinion will ordinarily state the conclusions of law, but will not provide reasoning. This reflects the role of foreign law opinion as a risk assessment tool. The opinion is normally issued in the format of an unqualified favorable statement of the effectiveness of the transaction (hedged in by appropriate assumptions of fact and general qualifications of law).  Where there are areas of legal uncertainty or issues which require clarification and analysis, the foreign legal opinion will often remain in the standardized format, but will be supplemented with a second, reasoned, opinion. In cross-border transactions, the negotiation and discussion of the format of the foreign law opinions elucidate areas of legal stress or risk in relation to the proposed transaction and foreign legal systems.

Similarly, standard assumptions normally require the corresponding law firm reviews the documents and records. Additionally, all the copies they review are true copies. Moreover, no provision of any other law may adversely affect their legal opinion.

For instance, in certain countries, it is also standard to assume the genuineness of signatures and seals. However, in other countries, the foreign Argentine law firm should verify the accuracy of such signatures.

Foreign Legal Opinion Consultant Argentina

The substantive opinion statements a foreign legal opinion will make will ordinarily include:

  1. that the relevant obligations be recognized as constituting valid and binding obligations of the foreign party;
  2. which person or organ has power on behalf of the foreign entity to enter into the transaction;
  3. the proper method of execution of documents by the foreign party;
  4. that the transaction does not breach the Argentine constitutional documents of the foreign entity, or the laws of the foreign country (and, sometimes, any agreements which are binding upon the foreign entity and its assets);
  5. that no approvals or licenses are necessary for the foreign country in relation to the transaction;
  6. that the transaction documents are not subject to stamp duty or registration requirements in the foreign country (Argentina);
  7. that no withholding or other taxes apply to the transaction in the foreign country;
  8. that the foreign entity does not have sovereign immunity under the laws of the foreign country (Argentina);
  9. that there are no exchange control regulations in the foreign country -Argentina- which would affect the transaction;
  10. that the foreign entity is in good standing and is not subject to winding-up or dissolution;
  11. to what extent judgments or arbitral awards from another country would be recognized and enforced in the foreign country (without re-examination of the merits);
  12. the efficacy of choice of law clauses and jurisdiction clauses in the foreign jurisdiction;
  13. whether any terms of the transaction contravene public policy in the foreign country; and
  14. whether any of the other parties to the transaction (other than the foreign entity) would be treated as carrying on business or subject to tax in the foreign country by entering into the transaction.

Foreign Legal Opinion Consultant Argentina

Moreover, standard qualifications are usually matters of general law. However, they might undermine the effectiveness of the enforceability of the transaction. For example, most opinions will indicate that if the foreign party goes into bankruptcy that will limit the ability to enforce obligations against it. In certain countries, enforcement of obligations may be subject to obligations of good faith and fair dealing, and the foreign legal opinion will normally point this out by way of qualification.

Foreign Legal Opinion Consultant Argentina

To sum up, the original grounds of foreign legal opinion refers to the historical doctrine of ultra-vires. In fact, proper due diligence required that a legal opinion should guarantee that the relevant foreign company had the necessary capacity and power to enter into the transaction and that it would be binding upon it. Over time opinions expanded to cover related aspects of foreign law, such as whether payments might be subject to exchange controls or usury laws, whether it was necessary for any of the other parties to hold any licenses or permits under the regulatory laws of the foreign country, whether there would be adverse tax consequences under the laws of the foreign country, whether foreign judgments were recognized and enforced in that country other collateral matters.

During the 1970s and 1980s, there was a significant expansion in cross-border lending by financial institutions. Thus, banks requested the borrowing foreign companies to provide a foreign legal opinion. In other words, they had to certify the legal validity of the loan transaction. It also applied to the enforceability of the banks’ rights (including any security interests).

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