ARGENTINA Law and Practice Contributed by: Santiago J. Mora, Nicolas Garfunkel, Milagros Caneda and May Steward, GPG Advisory Partners
10.12Non-Fungible Tokens (NFTs) NFTs have not yet been subject to specific regu - lation in Argentina. In this context, pre-existing rules and generic standards will apply (see 2.2 Regulatory Regime , 2.11 Implications of Addi- tional, Non-Financial Services Regulations and 10.3 Classification of Blockchain Assets ). 11. Open Banking 11.1 Regulation of Open Banking As mentioned in 5.1. Payment Processors’ Use of Payment Rails , during 2022 the BCRA began to regulate PSI along with “pull” trans- fers, empowering PSIs and PSPCPs to initiate payments. Draft legislation on personal data protection exists (which, to a certain extent, replicates the EU’s General Data Protection Regulation). This draft legislation incorporates the right to per - sonal data portability, thereby allowing for the consolidation of open banking. However, little progress has been made towards enacting this legislation. In recent years, both the BCRA and the UIF have incorporated some provisions allowing banks to share their clients’ information at their request within the framework of digital onboarding pro - cesses. However, these rules have not yet been fully implemented and adopted in practice by the industry and the absence of sufficient regula - tions prevents open banking’s full deployment. In practice, some fintech providers have imple - mented platforms that allow clients to access all their bank account information in different entities through individual agreements with the different entities involved.
In 2024, during the Argentina Fintech Forum, the three regulatory bodies (BCRA, CNV, UIF) announced that Open Finance is on their agenda. In this regard, the BCRA recently communicated that it is working on a project to implement Open Finance and has also developed and made avail - able the API (Application Programing Interface) of Principal Variables, the first in a series that will form a catalog providing efficient access to the information produced by the institution. Through these APIs, developers will be able to create pro - grams or automate frequent analyses. 11.2 Concerns Raised by Open Banking There is general agreement that this process could expose clients’ personal data due to the increase in information flow. It is in this context that a full open banking exercise will require that the protection of personal data is strengthened and reviewed. Also, market players are concerned about com - pensation models, cybersecurity measures and how liability would be allocated among the dif - ferent parties in the event of a breach. The elements of fraud in the context of financial services and fintech are similar to those applica - ble to traditional financial institutions. The main law governing and punishing perpetrators of crimes related to fraud is the Criminal Code of Argentina (the “Criminal Code” ), which applies to the entire country. Fraud can also give rise to civil liability for the involved companies. Fraud and scams are punished by law. Cyber fraud was incorporated into the Criminal Code in 2008. Cyber fraud punishes the crime of altering an online system with the purpose of defrauding 12. Fraud 12.1 Elements of Fraud
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