The legal saga of equal gender representation in Argentina

In August 2020, the Public Registry of Commerce of Buenos Aires (IGJ) issued Resolution 34/2020, ruling certain companies and associations in the Argentinian capital must practice gender equality within their boards of directors and statutory supervisor committees.

Official statistics show the ratio of men and women in corporate boards or supervisory bodies is 5:1. Thus, the resolution triggered significant board reorganizations for those companies that have chosen to abide by its rulings. Conversely, other entities have opted to challenge its legality.

Litigation is currently ongoing in different courts of appeals, and the constitutional aspects of the matter may require the Supreme Court’s intervention, which is the final interpreter of the Argentine National Constitution (ANC).

Legal framework and regulatory enforcement

All companies incorporated in the Argentine Republic are governed by the Argentine Companies Law 19,550 (ACL). Depending on the company's location, corporate incorporation and commercial registration can take place in any of Argentina’s 23 provinces or Buenos Aires, all of which form the Argentine Republic.

Thus, there is one federal legal framework embodied in the ACL, while there are many jurisdictional registries enforcing their own procedural rules. This duality between a federal legal framework and local enforcement powers is vital for understanding Argentina’s legal saga over gender equality.

The ACL does not lay down any provision or obligation whereby companies must guarantee a minimum quota of gender representation within their governing bodies. The only statutory requirement is the majority of the board members must be Argentine residents. Otherwise, domestic companies are free to decide how to integrate their management bodies, as long as the proposed directors are loyal, and are not subjected to conflicts or statutory prohibitions.

Prima facie this applies to all Argentine companies operating under the framework of the ACL, regardless of their province of incorporation.

In August 2020, the IGJ issued Resolution 34/2020, imposing equality of gender diversity upon certain registered entities. Its impact cannot be underestimate. From an operational perspective, it facilitated the restructuring of organizations struggling to meet its requirements. Rugby clubs, evangelical churches, military organizations, etc. publicly said they were unable to meet the new requirements.

Other entities went further than publicly announcing their discontent, and legally challenged the ICG’s regulatory powers and the legal grounds to issue the resolution. This is how the legal saga over equal gender representation in Argentine companies has begun to unfold.

A matter of controversy

The Argentine government supports gender diversity as a matter of public policy. It even set up an ad hoc Ministry within the Executive Branch – the Ministry of Women, Genders and Diversity - to promote gender equality and women rights. In the region, other countries. While gender diversity is a matter to promote and celebrate worldwide, the procedural avenue chosen by the IGJ to promote this public policy interest raises legal doubts.

The IGJ issued infra-legal regulations, Resolution 34/2020 and 35/2020, setting a mandatory gender quota, applicable to certain corporate bodies. The legal rationale behind this is gender rights emerge directly from the Argentine National Constitution and the International Treaties with constitutional hierarchy.

The key question, from a constitutional point of view, is whether such gender rights are already operational rights and by means of the resolutions, the IGJ is just regulating a constitutional right, above any legislative statute.

To date, the courts in re “Expreso Liniers” and “Fundación Apolo Bases para el Cambi” have focused on: (i) whether the IGJ has regulatory powers and legitimacy to issue the Resolutions; (ii) whether it is legal to impose private parties to set up gender quotas within their organizations.

The appeal courts have stated the IGJ has no regulatory powers to extend its jurisdiction as envisaged by the resolutions. They have given primacy to the rule of law, and to the separation of powers in a democratic system.

In regards to point (ii), association rights derive from the full exercise of the legality principle enshrined in our Carta Magna (art. 18, ACN), along with autonomy and freedom of contract (art. 9, 961, Argentine Civil and Commercial Code - CCCN). Furthermore, per our Carta Magna, the principles, guarantees and rights cannot be altered by the laws regulating them (art. 28, ANC).

In the corporate world, the legality and autonomy principle lie in the ‘affectio societatis’ recognized in the ACL. The affectio societatis is materialised through the incorporation documents or corporate by-laws, whose provisions may be fully enforceable and valid unless they are in breach of public order provisions (art. 12, CCCN; art. 54, ACL). Any rule falling foul of the affectio societatis, undermines directly the foundational premises of association, autonomy and constitutional rights of liberty, and indirectly the effectiveness of the legal vehicle and the limitation of liability.

The international experience

In countries such as Norway, France and Belgium, discussions about gender diversity and corporate board representation have occurred for more than 10 years. This even dates back to 1990 in the case of Norway.

These three countries have ruled companies must meet mandatory gender quotas within their board of directors. Women sitting in corporate boards in these jurisdictions represent more than 30 per cent. However, the global average percentage is 16.9 per cent, while in Latin America, the percentage of women who sit on boards of directors is 7.9 per cent. Within the region, Colombia has the highest female participation in business boards, with 13.9 per cent. It is followed by Brazil per cent, Chile per cent and Argentina 4.7 per cent.

Colombia (Law 581/2020), Chile (Law 21,356/2021) and Panama (Law 56/2017) have passed laws establishing gender quotas in the boards of directors. While Colombia and Chile only apply it to public companies, Panama’s public companies and regulated companies are required to comply with the quota, including, for example, banks.

Conclusion

Gender diversity should be promoted and celebrated.  At a local level, the current administration shares this view.

However, the resolutions issued by the IGJ do not seem to be the appropriate legal channel to materialize gender diversity. For this reason, they have been successfully challenged in court.

The international and regional experience tell us equal gender representation within corporate bodies, is not achieved overnight but only after thoughtful discussions culminating with a law passed by Congress.

Said discussions have not taken place in the case analyzed in this article. Public discussions were indeed needed to better align public and private interests. Unlike other countries, the Supreme Court of Justice and not Congress will decide which party wins this legal saga.

Alternatively, to achieve its public policy objectives, the IGJ could have issued soft-law regulations such as best practices guidelines or recommendations, like those already in place as part of corporate governance programs of listed entities. This would certainly contribute to raise the necessary awareness into the topic.

In this context, any company willing to operate in Argentina should carefully analyze its business strategy, to identify upfront whether the corporate place of business will be the City of Buenos Aires. And if that is the case, anticipate any potential contingency in light of the most recent public enforcements.

Lorena Aimó is General Counsel at Laboratorio Elea Phoenix SA, and she has a vast experience in corporate and business law elea.com

Sebastian Ferreyra Romea is a lawyer extensive experience on civil and commercial law, antitrust and banking and financial regulations ferreyraromea.com