M U EXICO

ABA ● Section of International Law ● Mexico Committee
MEXICO UPDATE
Message from the Mexico Committee
The June 2012 Mexico City program of the American Bar Association’s Section of
International Law, organized through our Mexico Committee, benefitted from the
collaboration and presence of the Barra Mexicana and of ANADE (Asociación
Nacional de Abogados de Empresa ), each a leading bar association in Mexico. Their
journals report in a warm light the experiences shared at the program among their
members and ours, experiences of leading lawyers discussing current challenges and
developments with the benefit of transnational perspectives.
Citations to the articles, complementing the October 2012 MEXICO UPDATE, are:
Angelina Hernández, La American Bar Association en México, ABOGADO
CORPORATIVO 102-107 (September-October 2012)
Diego Valadez Ortega, Presencia de la ABA en Mexico, LA BARRA 13-15 (AugustOctober 2012)
Angelina Hernández, concluding her article, captured our motivation in organizing
the program with our friends and colleagues of the Barra Mexicana and ANADE:
Por último, en ese evento se destacó que la American Bar Association se mantiene entusiasta y
abierta para trabajar muy de cerca con Colegios de abogados serios –como es el caso de ANADE
Colegio– y de esta manera coadyuvar en el fortalecimiento del regimen jurídico y la impartición de
justicia de ambos países. (Lastly, in this event it stood out that the American Bar
Association maintains itself enthusiastic and open to work closely with serious bar
organizations, as is the case of ANADE, and in this manner to collaborate in the
strengthening of the legal system and the delivery of justice in both countries.)
Issue 39, March 2013
Contents
The Mexico Committee–
Nurturing Committee
Activity and Diversity
4
Mexican Labor Law; A
Reform Much Needed in
Mexico
8
Customs Review 2012
11
Recent Developments in 12
Mexico: An Update on
CKDS and FIBRAS
Interaction of Civil Law
and Common Law
Notaries: The Mexican
Experience
14
We share these goals with our peer organizations, and in striving through our
Mexico Committee to advance them, look forward to renewed engagement with our
friends.
Patrick Del Duca, Mexico Committee Immediate Past Chair
A Note from the Editors
This issue of MEXICO UPDATE includes publication of an essay by current co-chair
Juan Carlos Velázquez de León Obregón, immediate past co-chair Patrick Del
Duca, and prior co-chair Alejandro Suárez on their prioritization of the inclusion
of women in the leadership and activities of the Mexico Committee. Fernando de
la Garza overviews the 2012 reform of Mexico’s Federal Labor Law. Héctor
Arangua L. and Gunter A Schwandt report on the launch of new securities
instruments. Juan Francisco Torres Landa R. and María Angélica Nieves S.
set forth challenges of the effective use of notarial services in transnational matters.
Alejandro Suárez ([email protected]), Ana Patricia Esquer Machado
and Rodrigo Soto Morales, Editors
© 2013 ABA all rights reserved.
Issue 39
Page 2
MEXICO UPDATE
About the Mexico Committee
Anchored by coordinators in nine cities in Mexico and the United States, the Mexico Committee seeks
to grow its members’ involvement in dialog on current and potential developments of Mexican,
United States and other law relevant to their practice of law and to the establishment of sound
policy. Current substantive focuses of the committee’s work include arbitration, antitrust law,
criminal procedure reform, data privacy, environmental law, legal education, secured lending, and
trade law. The Committee contributes to the annual Year in Review publication, publishes its
newsletter in partnership with a leading Mexican law faculty, maintains its website, and actively
organizes programs at the spring and fall meetings of the International Law Section.
The Mexico Committee’s membership is its most important asset. We encourage all Committee
members to be involved in Committee activities and to communicate freely suggestions and ideas.
Upcoming Events — Save the Date
Washington DC Spring 2013 Meeting
April 23 –27
Mexico Committee sponsors the panels,
What’s in a Name? That Which We Call a
Notary, Is It the Same?
Tuesday, April 23, 2:45-4:00. Civil law notaries
have responsibilities distinct from those of
common law notaries, but even among civil law
countries the roles of notaries vary relative to
matters such as real property conveyance,
establishment of lien priorities, memorialization of
matters in contemplation of litigation, privilege
and confidentiality of information, and generation
of tax revenues, as well as the allocation of
responsibilities among notaries and lawyers. The
panel will work through a series of typical
transactions in the United States, France,
Germany, Italy and Mexico to highlight the
distinct contributions of notaries.
Program Chairs
Francesca Giannoni-Crystal/Crystal & Giannoni
-Crystal, LLC
Juan Francisco Torres-Landa/Barrera, Siqueiros
y Torres Landa, S.C.
Moderator
Susanna K. Fuchsbrunner/Sibeth Partnerschaft
Speakers:
Patrick Del Duca/Zuber Lawler & Del Duca
Hans-Michael Giesen/ Giesen Heidbrink
Stéphane de Navacelle, Navacelle Avocats
Juan Francisco Torres-Landa/Barrera, Siqueiros
y Torres Landa, S.C.
Ethical Red Flags in International
Law Practice: Advising Clients and
Protecting Your Reputation
Tuesday, April 23, 2:30 PM - 4:00 PM How do
you know your clients if they are located
overseas? What do you do when you depend
on your client for fact based submissions?
What do you do when conflicts of interest,
disagreements with clients, and unforeseen
dilemmas arise in international representation?
What are counsel’s ethical obligations in
exercising due diligence? What are the limits
and when can counsel withdraw
representation? This knowledgeable panel will
this timely and challenging topic.
Program Chair/Moderator
Sergio Karas/Karas & Associates
Program Chair
Cyndee Todgham Cherniak/LexSage
Speakers
Marcy Stras/Cozen O’Connor
Carlos Velazquez de Leon/Basham, Ringe y
Correa
Committee Leadership
2012-2013
Patrick Del Duca
Immediate Past Chair
Alejandro Suárez
Senior Advisor
Carlos Velázquez de Leon
Leslie Alan Glick
Co-Chairs
Barbara Aldave
Vice-Chair
Ana Patricia Esquer
Vice-Chair
Alonso Gonzalez-Villalobos
Vice-Chair
Joaquin Rodriguez
Vice-Chair
Benjamin Rosen
Vice-Chair
Carlos A. Sugich
Vice-Chair
Eddie J Varon Levy
Vice-Chair
Ernesto Velarde
Vice-Chair
Steering Group
Francisco Cortina
Efren Olivares
Jose Sanchez-Gil
Javier Soto
Rodrigo Soto-Morales
DISCLAIMER The materials
and information in this newsletter
do not constitute legal advice.
MEXICO UPDATE is a publication
that is made available solely for
informational purposes and
should not be considered legal
advice.
The opinions and
comments in MEXICO UPDATE
are responsibility solely of each
author/contributor and do not
necessarily reflect the view of the
ABA, its Section of International
Law, the Mexico Law Committee
or the Universidad Panamericana.
© 2013 ABA all rights reserved.
Issue 39
Page 3
MEXICO UPDATE
Mexico standalone program
November 7 to 9, 2013
Save the Date!
Following up on the
Mexico Committee’s
June 2012 standalone
program in Mexico
C i t y,
Mexico
Committee members
are working towards a
program to be held
November 7 to 9, 2013
in sunny Cabo San
Lucas, at the tip of Baja
California.
Arrangements have
been made to conduct
the program at the
Sheraton Hacienda del Mar
Golf Spa Resort Los
Cabos, a venue designed
to enable Committee
members and friends to
visit with each other
not only in the course
of working sessions,
but also through social
activities in a uniquely
beautiful
natural
environment.
Consistent with the
resort venue, themes
p l a n n e d
f o r
programming of the
meeting include Foreign
Investment, Trade, Real
Estate, Hospitality, and
Tourism.
Committee members
interested to participate
in the planning of the
program are urged to
contact any of the
Mexico Committee CoChairs and Section staff
members Audrey Lamb
and Jessica Smith who
are facilitating the
Committee’s work.
Contributors
for this edition:
Héctor Arangua L.
Nader, Hayaux y Goebel, S.C.
Mexico City
Fernando de la Garza
Bryan, González Vargas &
González Baz
Mexico City
Rogelio Cruz Vernet
Basham Ringe y Correa
Mexico City
Patrick Del Duca
Zuber Lawler & Del Duca
Los Angeles
María Angélica Nieves S.
Barrera, Siqueiros y Torres Landa
Mexico City
Gunter A Schwandt
Nader, Hayaux y Goebel, S.C.
Mexico City
Alejandro Suárez Méndez
Suarez International Law PLLC
Houston
Juan Francisco Torres Landa R.
Barrera, Siqueiros y Torres Landa
Mexico City
Juan Carlos Velázquez de León
Obregón
Basham Ringe y Correa
Monterrey
DISCLAIMER: The materials and information
in this newsletter do not constitute legal advice.
MEXICO UPDATE is a publication made available
solely for informational purposes and should not
be considered legal advice. The opinions and
comments in MEXICO UPDATE are those of its
contributors and do not necessarily reflect any
opinion of the ABA, their respective firms or the
© 2013 ABA all rights reserved.
editors.
Issue 39
Page 4
MEXICO UPDATE
The Mexico Committee–Nurturing Committee
Activity and Diversity
by Patrick Del Duca, Alejandro Suárez Méndez,
and Juan Carlos Velázquez de León Obregón
“Women are not focused on transnational business
matters”; “It is difficult to recruit women of sufficient
practice seniority”. Obviously, we disagreed. The
success of the Committee over the period of our
stewardship of it is founded squarely on embrace of
diversity in all the ways that our Section celebrates it,
including gender diversity. From no women involved
in Mexico Committee activities, the Mexico
Committee has achieved significant engagement of
women in all phases of its activities and leadership.
Patrick Del Duca, Alejandro Suárez Méndez, and Juan
Carlos Velázquez de León Obregón, authors of this
contribution, served as co-chairs of the Mexico
Committee of the ABA Section of International Law
during a four year period of dramatic upswing in its
activities, capped by a Section of
International Law award for Although we had no active female members, we also had far
“Most Improved Committee”. fewer than the desired number of male members as well. The
The Mexico Committee’s upward secret of what we did to achieve a dynamic committee is simply
trajectory is more fully evidenced
to follow the well trod path of implementing the classic elements
by the issues of Mexico Update,
Our
t h e M e x i c o C o m m i t t e e of a Section of International Law committee.
newsletter, available on the implementation of this path was to value every member,
Mexico Committee webpage. investing the effort to understand how the Committee could best
Not by accident, the participation avail itself of the unique contributions that each could make.
of women in the leadership and
work of the Mexico Committee grew dramatically as The broad challenge that we faced was to create a
well in this period. Indeed, as co-chairs of the community in which lawyers, male and female, would
Committee we committed to gender diversity as a key be eager to take part. Although we had no active
female members, we also had far fewer than the
foundation of the vitalization of the Committee.
desired number of male members as well. The secret
Our Section celebrates diversity in its work along many of what we did to achieve a dynamic committee is
dimensions, including but not limited to, under- simply to follow the well trod path of implementing
represented minority groups, gender, seniority in the classic elements of a Section of International Law
practice, practice context, jurisdiction and nationality. committee. Our implementation of this path was to
As we began our stewardship of the leadership of the value every member, investing the effort to
Mexico Committee, the ebb of the Committee’s understand how the Committee could best avail itself
activity nonetheless had left glimmers of diversity on of the unique contributions that each could make.
each of these dimensions, except gender. In plain Much like an American university generously claiming
words, we were entirely male.
its alumni as eligible for fundraising outreach, we
Some of our members did not see this as a priority sought to claim every prospective member as one of
challenge. Indeed, some of our members did not our own, a valued member of our community. In
appreciate the importance of the celebration of
DISCLAIMER: The materials and information in this newsletter do not
diversity to our Committee’s work. Affirmations constitute legal advice. MEXICO UPDATE is a publication made available solely
included: “We inherently count as ‘diverse’ because we for informational purposes and should not be considered legal advice. The
are predominantly Mexican lawyers”; “Parochial US opinions and comments in MEXICO UPDATE are those of its contributors and do
necessarily reflect any opinion of the ABA, their respective firms or the
notions of diversity do not apply internationally”; not
editors.
© 2013 ABA all rights reserved.
Issue 39
Page 5
MEXICO UPDATE
doing so, we made certain not to neglect the but also in cities such as Ciudad Juarez/El Paso,
This realization created
recruitment and consideration of women for all phases Phoenix and Seattle.
opportunities
ranging
from
the convening of a simple
of our activities.
brown bag lunch to allow our local members to greet
We began by holding monthly Committee calls, making each other, to organizing a formal presentation at the
a display of keeping them to a half hour to avoid headquarters of the Organization of American States
volunteer fatigue, and we always made sure that we had in Washington, DC on the occasion of the visit of a
some topic to address, even if attendance was limited. senior Mexican official, accompanied by commentary
On the poorly attended calls, we attempted to from locally-based members expert in the relevant
understand the practice focus of the participants, so as subject matter.
to suggest ways attractive to them, for them
to participate in the committee activity. More We made sure to find roles for everyone who desired
particularly, we tried to leave each participant to have a role. . . . As co-chairs we coached our
on a call with a specific initial opportunity to
members in every aspect of Committee opportunity.
contribute to the Committee that would leave
the participant feeling supported and spotlighted,
without more than modest effort on the part of the We also made the effort to incorporate and recognize
individuals whose position arose elsewhere in our
participant.
Section, but somehow related to the work of our
Apart from the monthly calls, we asked each of the committee. Thus, we made sure to involve our
Committee vice-chairs to take responsibility for some Section’s liaison to the Barra Mexicana in the heart of
aspect of the Committee activity. Concurrently, we the Committee’s work, and we established close
made sure that each of the basic committee roles was relationships with the ABA Rule of Law Initiative staff
covered. Thus, we found someone other than the co- focused on Mexico.
chairs to serve as the Committee webmaster. We
found a member willing to provide the notices of the As co-chairs we coached our members in every aspect
monthly calls and to handle the related logistics. And, of Committee opportunity. We started with coaching
we found an editor for the Committee’s Year in our members on how to propose and organize
Review contribution. This left us as co-chairs the time seasonal meeting panel presentations. The panel
to focus on recruitment and integration of active presentations at seasonal meetings sponsored by the
Mexico Committee over the last several years have
Committee members.
consistently shared the stage between men and
We made sure to find roles for everyone who desired women. Women in senior roles at law firms,
to have a role. Thus, in addition to the standard roles international organizations, and multinational
of officers for communications, membership, corporations have participated as panel co-chairs,
newsletter editor, special projects and policy, we moderators and speakers, as have women in the start
established a point person for the Committee’s “City up phases of their careers.
Moreover, as the
Coordinator Initiative”, a “government relations” Committee co-chairs have coached lawyers new to
officer, and a liaison from the Committee to another committee activities, lawyers on the cusp of law firm
Section. By way of example of the effort to find roles partnership, lawyers early in their careers, senior
for everyone, the city coordinator initiative arose from lawyers, and lawyers seeking to develop new law firms,
the realization that we had clusters of members in cities among others, on the benefits and art of navigating
such as Mexico City, New York and Washington, DC, the seasonal meeting program proposal and
© 2013 ABA all rights reserved.
Issue 39
Page 6
MEXICO UPDATE
Mexico Update, our Mexico Committee newsletter.
The partnership enabled us to maintain a flow of high
quality content for publication, focused on the
significant emerging developments of Mexican law. It
also offered an interactive marriage of audience and
content for practitioners and academics, for US and
Mexican lawyers, all of whom valued the publication
We created numerous, varied opportunities for our of cutting edge content, presented in high quality
members to meet at the seasonal meetings, on the English.
thought that breaking the ice and coming to know
friendly faces would facilitate collaboration throughout Although we made sure never to have a negative
the Committee’s work, but also give Committee interaction with any member of our committee, not
members additional reason to attend the seasonal everything worked immediately. However, enough
meetings of the Section. We also
designated Committee members as We also, as we had the opportunity to extend invitations to
“reporters” to attend any panel at a members and prospective members, to participate in committee
season meeting featuring a Mexican activities, e.g. participation in a panel as a moderator or
lawyer.
The reporter’s duty
included to meet the speaker and to speaker, made certain that we identified well-qualified women,
write a short review for the Mexico as well as well-qualified men, for such opportunities.
Committee newsletter.
The
designated members appear to have appreciated the did take root that we began to attract active members.
honor of the mission, and the speaker constituted a As some of these new participants were women, we
further recruit for the Committee. Of course, both made sure that they, like every other new recruit, were
women and men have benefited from serving in the made to feel welcome and valued, and as consistent
with their interest, able to take up leadership roles.
reporter roles.
We also, as we had the opportunity to extend
We brought the collaboration of our Committee to invitations to members and prospective members, to
appropriate events that our members were organizing participate in committee activities, e.g. participation in
in the context of other organizations. Our members a panel as a moderator or speaker, made certain that
involved in such organizations felt supported, and our we identified well-qualified women, as well as wellCommittee’s visibility and contacts increased. We qualified men, for such opportunities. In the annual
abounded in the creation of informal, issue or task cycle of committee leadership appointments, we
focused working groups, exercising what we benefited from the active support of our then
considered our inherent powers as committee co-chairs Division Chair, Mark Wojcik, who readily supported
to confirm the appointment of committee members as our efforts to recruit and assure the appointment of
participants in such groups or as conveners of them.
diverse Committee leaders from the increasingly deep
Many tasks we recognized that we could not effectively bench of active Committee members.
undertake on our own. We launched a newsletter We celebrated all our members’ achievements
effort to afford our members writing opportunities. whenever we could, taking care not to overlook the
To do so, we established a partnership with a leading achievements of our female members and the models
Mexican law faculty to collaborate in the production of of success offered by women prominent in the subject
presentation process, we have taken care to include
women as the targets of the recruitment and leadership
roles for such programs, and we have been unstinting
in our efforts to assure the introduction to prospective
program co-chairs of women who would enrich the
program offering.
© 2013 ABA all rights reserved.
Issue 39
Page 7
MEXICO UPDATE
matter focus of our Mexico Committee. Thus, for Mexico Committee member Rene Alva represented
example when a longtime member of our Section’s the Mexico Committee at the ABA Women’s Caucus
leadership, Carol Mates, was honored with the Mayre gathering held at the 2012 ABA annual meeting. His
Rasmussen Award for the Advancement of Women in report to the Committee of the issues there addressed
International Law, we made sure to share the good will inform the ongoing efforts of the Committee.
news with the Mexico Committee membership The activity of the Mexico Committee has prospered.
through the Committee newsletter, claiming her as one Diversity, in respect of gender and otherwise, has been
of our own. Likewise, when the Mexico Committee essential to this prosperity. The community created
held its June 2012 standalone program in Mexico City, within and around the Mexico Committee is attractive
we had the honor of Justice Olga Sanchez Cordero, a to its members because it is diverse in many
member of Mexico’s Supreme Court, not only dimensions, including gender as well as many more.
accepting our invitation to serve as a keynote speaker And, without the attractiveness of the high level and
for the gathering, delivering a substantive address on
the globalization of law and the roles of
The community created within and around the Mexico
national and international courts in that
process (published in a recent issue of Committee is attractive to its members because it is diverse
Mexico Update, available on the Mexico in many dimensions, including gender as well as many
Committee web page—we are proud of more. And, without the attractiveness of the high level and
our Committee’s newsletter and hence quality of the Mexico Committee activity, that community
mention it again), but also generously
and its diversity would not be able to continue to prosper.
sharing her experiences on the
challenges facing women undertaking In our view, nurturing diversity is the sound path towards
building a successful committee.
careers in the law in Mexico.
The organization of the Mexico City June 2012
standalone program offered a further opportunity for
the affirmation of gender diversity in the Mexico
Committee’s activity. The Mexico Committee CoChairs early in the planning process undertook that the
program reflect gender diversity. The results of the
program as conducted demonstrate the progress in
respect of gender diversity within the Committee, but
also of the opportunity for further progress. Of the 55
names mentioned in the definitive program, twelve are
of women. Each panel of the eight panels was
scheduled to include at least one woman. Four of the
panels each included two women. As mentioned, the
opening night keynote speaker for the event was
Justice Olga Sanchez Cordero of Mexico’s Supreme
Court. Her remarks have inspired the Committee’s
launch of a women’s initiative, that we enthusiastically
support. As an initial step in respect of that launch,
quality of the Mexico Committee activity, that
community and its diversity would not be able to
continue to prosper. In our view, nurturing diversity
is the sound path towards building a successful
committee. And, assuring the quality of member
interactions with, through and on behalf of a
committee optimizes the ability to achieve diversity.
We were privileged to have had the opportunity to
lead the Mexico Committee in a period of growth and
enriched by the diversity of its leadership and
membership that grew with it.
Reproduced from ABA SECTION OF INTERNATIONAL
LAW DIVERSITY NEWSLETTER 7-10 (Fall 2012)
© 2013 ABA all rights reserved.
Issue 39
Page 8
MEXICO UPDATE
Mexican Labor Law; A Reform Much Needed in 2. The concepts of harassment and sexual harassment
are defined and added as grounds of termination of
Mexico
the work relationship.
by Fernando de la Garza
3. Employment Outsourcing Services. Employment
On November 30, 2012 the then President of Mexico, Outsourcing Services are newly regulated to avoid
Felipe de Jesus Calderon-Hinojosa, published a decree evasion of an employer’s observation of its obligations
in the Federal DIARIO OFICIAL that amended to employees and to reduce employee rights. The new
Mexico’s Federal Labor Law (“Labor Law”). This rules may impose joint responsibility for labor and
“new” Labor Law became effective day following its employment obligations on the outsourcing service
publication.
provider and the beneficiary of the services. Such
The current reality and conditions of Mexico are outsourcing may not cover activities equal or similar
distinctly different than those that prevailed in the to those that occur in the workplace, must be justified
1970’s when the Labor Law was last subject to by its specialized nature, and may not be used to cover
substantial legislative revision. One of many purposes of the new law, and certainly a very
The minor amendments to it
since then failed to make it important one, is to establish more flexible hiring conditions so as
relevant to the current global to promote the creation of more new jobs. With this reform,
numerous circumstances that were common practice but not
economic context.
The new amendment to the expressly addressed in the law are now expressly regulated and
Labor Law seeks to strengthen included in the Labor Law.
Mexico’s labor market by
establishing a more flexible legal framework to permit the entire workforce of the company beneficiary of
growth and to reduce unemployment by introducing the services. Failure to comply with the new rules will
new forms of employment and increasing the training cause the beneficiary of the outsourcing services to be
and productivity of employees. One of many purposes deemed an employer, including for purposes of social
of the new law, and certainly a very important one, is security obligations.
to establish more flexible hiring conditions so as to B. Individual Labor Relationships
promote the creation of more new jobs. With this 1. New forms of employment are defined, namely:
reform, numerous circumstances that were common a) Seasonal Contracts are contemplated for periodic
practice but not expressly addressed in the law are now work that is not continuous and related to a specific
expressly regulated and included in the Labor Law.
time of the year. Such contracts generally pertain to
The principal changes of this reform to the Labor Law, the agricultural sector.
relevant to any employer in Mexico, are here reviewed. b) Thirty-day trial periods are allowed in connection
A. General Principles
with contracts for permanent employment and for
1. Principles of the dignity and decency of work are work relationships meant to exceed 180 days. For
defined and include prohibition of discrimination in workers engaged in managerial positions or
employment based on ethnic or national origin, DISCLAIMER: The materials and information in this newsletter do not
legal advice. MEXICO UPDATE is a publication made available solely
disability, condition of health, immigration status, constitute
for informational purposes and should not be considered legal advice. The
opinions, sexual preferences, marital status or any opinions and comments in MEXICO UPDATE are those of its contributors and do
not necessarily reflect any opinion of the ABA, their respective firms or the
other ground that violates human dignity.
editors.
© 2013 ABA all rights reserved.
Issue 39
Page 9
MEXICO UPDATE
performing administrative tasks, the trial period may be the event of the employee’s death, the calculation of
back wages ceases from the date of death.
extended up to 180 days.
c) An initial training period on an employer’s first hire 5. New grounds for an employee to end employment
of an employee for a definite term of employment is without loss of rights include: i) the employer, relatives
allowed so as to enable the employee to acquire skills or any of its representatives commits in the course of
required for the job. This contract may have a the employment acts of harassment or sexual
maximum duration of three months, increased to up to harassment, and ii) the employer requires conduct that
six months in the case of administrative or undermines or threatens the employee’s dignity.
management positions.
Employment
for
an It is newly established that workers may be required to participate in
indefinite term must in tasks related or complementary to their primary work description.
general be continuous, but
may be agreed otherwise when services are required for D. Work Conditions
a fixed or periodic work that is not continuous, for It is newly established that workers may be required to
seasonal activities or for activities that do not require participate in tasks related or complementary to their
primary work description.
services for the entire week, month or year.
Trial and Initial Training Periods cannot be extended. E. Salary
1. Hourly Pay: Employees may be paid by the hour,
C. Termination of employment
1. The following additional grounds of justified provided, however that the number of hours not
termination are established: i) the employee commits exceed the maximum legal work shift and the wage
actions against customers and suppliers of the paid is not below the wage corresponding to such
employer ii) the employee commits acts of harassment work shift.
or sexual harassment against any person in the work 2. Wages may now be paid by deposit in a bank
place, and iii) the employee fails to deliver documents account, by debit card, by wire transfers or by any
other electronic means.
legally required in connection with the services.
2. Termination Notice: The employment termination 3. It is expressly contemplated that the employer must
notice shall be personally delivered to the employee at notify the judicial authority and beneficiaries of
the moment of the dismissal or notified to the Labor alimony when an employee leaves the employment,
within five days following the departure.
Board.
3. Severance pay must be calculated based on the F. Profit Sharing
complete compensation of the employee.
The Ministry of Finance and Public Credit is required
4. Back wages: Should the employer fail to establish to respond in writing to comments on an employer’s
ground for termination in a labor trial, the right of back tax returns made by a relevant union or the majority
wages is limited to twelve months of salary as of the of employees.
date of termination. However, if the trial is not G. Employer Obligations and Prohibitions
concluded within such twelve months or the employer 1. Employers must circulate and make visible in the
fails to comply with a judgment issued; an interest rate workplace the regulations and the Official Mexican
of 2% per month over the amount equivalent to fifteen Norms on safety, health and work environment, and
months of salary must also be paid to the employee. In the complete text of the Collective Bargaining
© 2013 ABA all rights reserved.
Issue 39
Page 10
MEXICO UPDATE
Agreement.
They must also circulate among necessary changes in machinery, work organization
employees information concerning the risks and and labor relationships to increase productivity and to
dangers to which they may be exposed to due to improve the preparation and the training of workers,
as well as to monitor the undertakings for
employment.
productivity.
2. When more than fifty persons are employed, an
employer must have adequate facilities for persons J. Women's Work
with disabilities to access the employment and to 1. In the event there is a declaration of health
contingency, no woman pregnant or breastfeeding
perform their activities.
3. Employers must register the work center with the may be employed.
National Fund for the Consumption of Workers 2. Under certain circumstances, it may be possible to
transfer up to four of the six weeks of leave prior to
(FONACOT).
4. Employers must grant paid paternity leave of five child delivery, to be enjoyed after such date. The leave
working days to male workers upon the birth of a child may be for up to eight weeks after the birth in the
event there is proof that the child was born with a
and in case of adoption of a child.
disability or requires medical hospital care. Adoption
5. An employer may not: i) perform, allow or tolerate
of an infant affords a six-week leave period.
any act of harassment or sexual harassment against any
worker or person in the workplace, or ii) An employer may not: i) perform, allow or tolerate any
require the submission of medical
certificates of non pregnancy for hiring, act of harassment or sexual harassment against any
continuation or promotion in employment. worker or person in the workplace, or ii) require the
Likewise, an employer may not dismiss a submission of medical certificates of non pregnancy for
worker or coerce the worker to resign due hiring, continuation or promotion in employment.
to pregnancy, change of marital status or
3. A maximum of six months is established for
taking care of underage children.
purposes of the nursing period, during which the
H. Worker Obligations and Prohibitions
employer and employee may agree to reduce the
Workers may not sexually harass any person or working day by one hour.
perform immoral acts in the workplace.
K. Underage Employment
I. Productivity, Preparation and Training of Workers
Additional prohibitions for the employment of minors
1. The new law establishes the obligation of every are established. In the event of declaration of a health
employer to provide its employees preparation or contingency, as well as whenever the authority so
training for their work in accordance with plans and determines, minors less than age sixteen may not be
programs formulated by mutual agreement with the employed.
employer and the relevant union or the majority of the
2. Minors under age fourteen may not be employed
workers.
except within the family circle.
2. Joint Committees of Preparation, Training and
L. Health Contingency
Productivity, should be established in companies with
more than fifty employees, to monitor among other Section XXXI of the new law establishes regulation
matters, the implementation and operation of the for health emergencies related to the suspension of
system and procedures established and to propose work.
© 2013 ABA all rights reserved.
Issue 39
Page 11
MEXICO UPDATE
Customs Review 2012
M. Field Workers and Mine Workers
by Rogelio Cruz Vernet
New rules on work conditions for agricultural and
mine workers are established to provide more suitable Long gone are the days when discussions about
labor shifts and to ensure that they have the same customs and foreign trade in Mexico were always in
reference to opening borders and to policies to
benefits granted by the employer.
promote Mexican industry’s development in a global
N. Trial Procedure
economy. Today focus is more and more on new
1. Mediators are now contemplated, including with
topics concerning security of the supply chain and
training and skills to render conciliation in labor
customs compliance as the key elements that
litigation more effective.
determine the success of business. Therefore, during
2. The legal personnel of Conciliation and Arbitration 2012 one of the most relevant topics has been the
Boards, and attorneys practicing in labor matters, are implementation of new regulations issued by the
newly required to hold a law degree and an attorney Ministry of Economy to accomplish export controls,
license.
in accordance with the Mexican government’s
3. New means of evidence are allowed, such as international commitment to non-proliferation of
photographs, films, dactyloscopic records, audio and weapons of mass destruction and their delivery
video recording , and various information and systems, and restrictions on the transfer of
communication technologies, such as computer conventional arms and dual-use goods, software and
systems, optical electronic, fax, e-mail, digital technologies within the framework of the Wassenaar
document, digital signature or password and, in Agreement and other related international treaties.
general, new technology media.
On the same track, Mexico has
4.
The
issued its first stage of its own
structure During 2012 one of the most relevant topics has been AEO Program under the umbrella
of
the the implementation of new regulations issued by the of the former Empresa Certificada
Ministry of Economy to accomplish export controls.
first
framework. Indeed, the Mexican
hearing in
Customs Administration has published and put into
the ordinary procedure is modified to comprise solely operation its new voluntary security program, Nuevo
conciliation, complaint and exceptions, followed by a Esquema de Empresas Certificadas (NEEC), that allows
second hearing, for offer and admission of evidence.
importers and exporters to be certified and to receive
O. Social Security Individual Conflicts
trade-related benefits in return as they adopt a security
A summary procedure is created to process disputes profile covering their supply chain. Mexican
concerning social security benefits, housing manufacturers already certified under the US C-TPAT
contributions and benefits from the system of program, are deemed already in compliance for NEEC
during this first stage, continuing the benefits granted
retirement savings.
by CBP, while they are also sheltered with additional
P. Sanctions
benefits such as prioritization of cargo during an
The reform increases employer fines for non
The materials and information in this newsletter do not
compliance with the Labor Law, now up to the DISCLAIMER:
constitute legal advice. MEXICO UPDATE is a publication made available solely
equivalent of 5000 minimum daily salary, for informational purposes and should not be considered legal advice. The
approximately $311,000 Mexican Pesos, corresponding opinions and comments in MEXICO UPDATE are those of its contributors and do
not necessarily reflect any opinion of the ABA, their respective firms or the
to about US$24,000.
editors.
© 2013 ABA all rights reserved.
Issue 39
Page 12
MEXICO UPDATE
incident, non-intrusive inspections and “extraordinary Recent Developments in Mexico: An Update on
CKDS and FIBRAS
services” from Mexican Customs.
by Gunter A Schwandt and Héctor Arangua L.
Another relevant development put into action by
Mexico’s Customs Administration during 2012 is the During 2012 several developments in Mexico have
recently launched Single Window for Trade (Ventanilla contributed to strengthen the nascent market for
Unica, VUCE), adopted to facilitate trade and insert the CKDs and FIBRAS.
country’s economy in global trends. This tool allows As a general matter, FIBRAS (fideicomisos de inversión en
exporters and importers to meet government bienes raíces) represent a vehicle for the public issuance
regulations on trade by instantly sending relevant of real estate trust certificates (certificados bursátiles fiduciinformation such as type of product, volume, arios inmobiliarios) that grant their holders a pro rata right
destination, and mode of transportation at one time. in the assets and revenue of the FIBRA. FIBRAs are
This confirms the new philosophy adopted by Mexican the Mexican equivalent of real estate investment trusts
Customs in the sense that “promoting trade is not just (REITs). The FIBRA allows investors to participate in
about reducing or eliminating tariff and non-tariff commercial real estate development with a favorable
barriers, but also about moving increasing volumes of tax regime, along with the transparency and access to
goods through the borders faster”. The Single Window information and disclosure enjoyed by investors in
for Trade replaces the need for
accomplishing 165 proceedings and FIBRAs are the Mexican equivalent of real estate
submitting more than 200 different pieces investment trusts (REITs). . . . CKDs (certificados de
of data, such as importing or exporting capital de desarrollo) are structured notes offered
licenses, certifications of origin for publicly that essentially allow the creation of private
products, invoices, and shipping
verification orders, that formerly created a equity funds through which institutional investors, such
as Mexican pension funds (afores), may invest.
mountain of paper work.
Last, but not least, while Mexico is negotiating entering
into the TPP (Trans-Pacific Strategic Economic
Partnership Agreement), a FTA that will drive trade in
the Pacific region, including North America, Mexican
Customs increased NAFTA origin audits during 2012.
Senior Mexico customs officers indicate that this
crusade will continue over 2013. Thus, it is important
for traders in both sides to strengthen compliance
policies toward NAFTA origin calculation and record
keeping; otherwise, the enjoyment of NAFTA benefits
may be disrupted by assessment of duties, taxes and
fines along with findings of the invalidity of certificates
of origin.
Mexico’s Stock Exchange (Bolsa Mexicana de Valores).
FIBRAs invest in ongoing, income-producing real estate assets that offer annual dividend-like payments
and growth potential.
CKDs (certificados de capital de desarrollo) are structured
notes offered publicly that essentially allow the creation of private equity funds through which institutional investors, such as Mexican pension funds
(afores), may invest. The funds obtained through CKD
issuances are invested in projects or companies in acDISCLAIMER: The materials and information in this newsletter do not
constitute legal advice. MEXICO UPDATE is a publication made available solely
for informational purposes and should not be considered legal advice. The
opinions and comments in MEXICO UPDATE are those of its contributors and do
not necessarily reflect any opinion of the ABA, their respective firms or the
editors.
© 2013 ABA all rights reserved.
Issue 39
Page 13
MEXICO UPDATE
cordance with investment policies specifically laid out
in the issuance documents. Although CKD issuances
have been generally targeted at the real estate and infrastructure sectors, the regulations allow for these types
of issuances in any other industry.
According to Mexican Stock Exchange information,
close to US$4.5 billion has been raised through twenty
four CKD issuances since 2009. In 2012 alone, eight
CKD issuances have come to market for an aggregate
approximate amount of US$1.4 billion. There are currently a number of CKD issuances that are in the review process before the Mexican securities commission (Comisión Nacional Bancaria y de Valores) that are
expected to launch during the end of 2012 and the
first semester of 2013.
The emergence of FIBRAs and CKDs regulations during the past few years is arguably the most significant
change in structured financing that has occurred in
Mexico since the year 2000. The use of FIBRA and
CKD structures has become increasingly popular in
recent years as they provide financing alternatives that The groundbreaking FIBRA Uno was the first FIBRA
may be highly structured and allow sponsors to create to successfully issue certificates in the Mexican market
for an approximate amount of US$250 million in
tailor-made solutions for their capital needs.
2011. Earlier this year, FIBRA Uno made a follow on
Although CKD issuances and FIBRAs are completely issuance for approximately US$700 million that was
functional schemes in Mexico, there are still some re- comprised of simultaneous offerings in Mexico and in
finements that will be necessary or convenient to be
made to the regulatory framework in the The emergence of FIBRAs and CKDs regulations during
coming years, as the market continues to
develop and mature. Among other matters, the past few years is arguably the most significant
it would be helpful if the securities offered change in structured financing that has occurred in
through FIBRAs were independently rec- Mexico since the year 2000. . . . In August 2012, the
ognized by law as a specific instrument and first issuance of CKDs with a capital call structure
the law were reformed to permit FIBRAs occured. . . By the summer of 2013 there should be at
to issue more than one series of trust certificates. This would allow, inter alia, the least four new FIBRAs in addition to FIBRA Uno, with
transfer of mortgaged properties to the FI- many more to come.
BRA with their associated financing.
the United States via Rule 144A and abroad via ReguOne of the most significant amendments to CKD lation S. It is anticipated that in 2013 FIBRA Uno will
regulations occurred in mid-2011. Mexican regulators return to the market for an additional offering.
enacted certain amendments to allow for capital calls In addition to FIBRA Uno there are currently three
and commitments. This new modality, that did not ex- FIBRAs that are expected to come to market towards
ist in the original CKD regulations, has been embraced the end of 2012 or in early 2013. Two of them are foby both sponsors and investors since it will no longer cused in the hotel sector and the third in the infrarequire investors to fund the full amount of their in- structure and real estate sector. By the summer of
vestment at closing, but rather operate under a more 2013 there should be at least four new FIBRAs in adtypical private equity fund structure. In August 2012, dition to FIBRA Uno, with many more to come.
the first issuance of CKDs with a capital call structure
occured.
© 2013 ABA all rights reserved.
Issue 39
Page 14
MEXICO UPDATE
Interaction of Civil Law and Common Law
Notaries: The Mexican Experience
by Juan Francisco Torres Landa R. and
María Angélica Nieves S.
Here we consider how the differences between the
Mexican civil law notary and the figure of notary public
prevailing in the United States can trigger some
difficulties in international transactions. We will list
some examples of what happens in our daily activities
where these differences materialize and what may be
some practical recommendations.
International Agreements:
a.
The Hague Apostille Convention (the “Convention”):
The Hague Convention Abolishing the Requirement for
Legalisation for Foreign Public Documents, known as
the Apostille Convention, has 72 member countries.
The Apostille replaces the formalities of a full legislative/
domestic certification process and is only valid when
issued by a competent authority in each member
country. The Apostille is used to certify the authenticity
of public documents, such as birth, marriage and death
certificates, extracts from commercial registers, patents,
court rulings, notarial acts and notarial attestation of
signatures, and academic diplomas issued by public
institutions, among other documents listed in Article 1 of
the Convention.
The Convention’s Article 3 states that the Apostille
certifies: (i) the authenticity of the signature; (ii) the
capacity in which the person signing the document has
acted; and (iii) the identity of the seal or stamp which it
bears. It does not extend so far as to attest to the
contents in the document.
notarial act. Once this difference is recognized, the
Mexican practitioner must assure that the inbound
document meets the required certifications, even before
the foreign notary provides the notarization, so that
upon receipt in Mexico it will meet the local needs
because the mere participation of the notary will likely
not suffice. In the case of outbound documents, the
foreign practitioners must know that the document will
be lengthier and more complicated than usual, precisely
due to the Mexican notary’s full involvement in the legal
contents and accuracy.
b.
Protocol on Uniformity of Powers of Attorney which are to
be Utilized Abroad (the “Protocol”):
Countries that are parties to the Protocol are the PanAmerican Union, including the United States, Brazil,
Colombia, El Salvador, Mexico and Venezuela, but not
Canada.
The Protocol’s Article 1 sets out the procedure to be
followed in the preparation of a power of attorney on
behalf of a natural person, third person, or a judicial
person. This article states that the official (notary,
registrar, clerk of court, judge, or any other upon whom
the law of the respective country confers such
functions) must certify from personal knowledge the
identity of the appearing party and also that party’s legal
capacity to execute the relevant instrument.
If the certification of the power of attorney involves a
third party representing the signer, or a legal entity, then
further requirements must be fulfilled, such as certifying
that: (i) the third party has the authority to represent
such legal entity; (ii) the legal entity’s name, organization,
home office and legal existence; and (iii) that the
The usual problem that emanates from the use of
The usual problem that emanates from the use of the Apostille is that the certification will not cover
the Apostille is that the certification will not cover
the actual contents of the document being the actual contents of the document being certified.
certified. The difference is material when it comes
DISCLAIMER: The materials and information in this newsletter do not
to notarized documents because in the common law constitute legal advice. MEXICO UPDATE is a publication made available solely
informational purposes and should not be considered legal advice. The
tradition notaries usually do not certify anything but the for
opinions and comments in MEXICO UPDATE are those of its contributors and do
identity of the persons appearing, whereas civil law not necessarily reflect any opinion of the ABA, their respective firms or the
notaries will actually certify the contents, accuracy and editors.
legality of the information included in the respective
© 2013 ABA all rights reserved.
Issue 39
Page 15
MEXICO UPDATE
purpose of the instrument is within the scope of
purposes or activities of the legal entity.
Moreover, the Protocol’s Article 5 which states that the
powers granted in any of the member countries of the
Pan-American Union, executed in accord with the rules
of the Protocol, must be given full faith and credit,
provided, however, that they are legalized in accordance
with the special rules provided for that purpose. This
provision also recognizes that notaries duly
commissioned as such under the laws of their respective
countries must be deemed to have authority to exercise
functions and powers equivalent to those accorded to
native notaries by the laws and regulations of other
member nations without prejudice. This last part can
cause some problems, since, on this basis, the validity of
an inbound power of attorney granted by a non-lawyer
U.S. notary public in principle should not be challenged
in Mexico.
details of the corporate chain of authority and thus the
other nations will, in most circumstances, not have a
problem recognizing full compliance with both the
Protocol and other associated requirements to confirm
the authority of the person granting the power of
attorney.
c.
Practical Problems in Notarial Practice of Mexico and
Abroad:
Concerning a legal entity, the Protocol requires that the
power of attorney contain a statement as to the
authority of the Board of Directors to grant powers of
attorney, which is a problem for common law countries,
since powers of attorney are less customarily used, and
as such, company by-laws will rarely make specific
reference to the authority of the board to grant powers
of attorney. This limitation normally leads a common
law notary to either omit the topic altogether (creating a
problem for an inbound power of attorney) or to make
legal conclusions concerning whether the by-laws
express general powers sufficiently broad to grant the
authority to the Board, which is something that a nonattorney notary public rarely does and is probably not
legally trained to do so, or in some jurisdictions of the
United States even prohibited from so doing.
Due to the above, Mexico’s Supreme Court issued a
binding precedent in relation to the formal requirements
that according to the Protocol should apply, stating
therein that the powers granted by foreign companies in
order to have effect in Mexico, must state that the
notary’s function, or its equivalent, is not limited to mere
references to the documentation used to grant the power Another common practice in Mexico is that powers of
of attorney, but rather also must involve the examination attorney must make a specific reference to Federal Civil
and legal assessment of the value of the documents Code article 2554 in order to be valid and fully
shown to the notary, so that the notary’s statement thus enforceable. This reference is sometimes objected to, as
constitutes a certification that the principal has sufficient a foreign notary public in a common law jurisdiction is
authority to deliver the instrument, and thus meets the often reluctant to make a reference that may involve
elements of the intrinsic validity of a power of attorney. having to “certify” the law of Mexico, something such a
(1) The latter means that there is a further level of notary cannot do.
requirements for inbound powers of attorney, as absent
An additional event concerning which problems
the required certification on the
corporate chain of authority, the the powers granted by foreign companies in order to have
document will either not be recognized
effect in Mexico, must state that the notary’s function, or its
or its validity will be questioned upon
equivalent, is not limited to mere references to the
use in Mexico.
documentation used to grant the power of attorney, but rather
In the case of outbound powers of
attorney, the problems are less because also must involve the examination and legal assessment of
the process in Mexico will involve full the value of the documents shown to the notary, . . .
© 2013 ABA all rights reserved.
Issue 39
Page 16
MEXICO UPDATE
Clause”, is a required covenant
inbound powers of attorney, . . . absent the required certification that must be included in inbound
on the corporate chain of authority, . . . will either not be powers of attorney for acts that
recognized or its validity will be questioned upon use in Mexico. involve the need to make such
reservation, i.e., the purchase of
real property, the creation of legal entities, etc., as
otherwise the representation process will be limited in
Mexico, and it will be necessary to re-do the power of
attorney.
In light of the foregoing, it is clear that the Convention
and the Protocol have facilitated the notarization of
documents, executed before foreign notaries for use in
Mexico and vice-versa, however, numerous problems
persist in practice. This situation merits an effort
among countries to harmonize these differences and to
facilitate international transactions among all countries,
regardless of their legal system.
frequently arise pertains to wills. While in the United
States, only the maker’s and the witness’ signatures are
necessary to validate such an instrument, in Mexico, in
addition to the maker’s signature, the validation of a
notary public is required. Moreover a will granted
abroad will not be recognized in Mexico for in rem
actions (probate proceedings related to real property)
and thus a probate proceeding in which a Mexican court
will ascertain the rightful heirs is required. A practical
solution to this problem is the use of “mirror wills”,
which are identical wills drafted in each country, so that
the non recognition is not an issue, and each will only
deals with the property pertaining to the country in
Protocol’s Article 5 . . . powers granted in any
which it is issued.
Another example of problems that have arisen in of the member countries of the Pan-American
Mexican notarial practice relates to Canada. As Union, executed in accord with the . . .
mentioned above, Canada is not a signatory to the Protocol, must be given full faith and credit . . .
Protocol. Therefore, for a Canadian individual or
corporation to grant a power to be used in Mexico, there Conclusions
are two options: (i) grant the power of attorney in Having seen the significant differences between the
Canada in accord with the laws of the province in which notarial function of civil law and common law countries,
the power is granted; or (ii) grant the power according to it is important for lawyers to gather information and
Mexican law, before an officer at the Mexican Embassy accumulate experience on the subject matter. In
or Consulate. A further limitation is that Canada is also particular, practitioners must devise practical ways to
not a party to the Apostille Convention, which creates deal with notarial problems that may arise in any type of
additional logistic problems that must be addressed. international operation, either inbound or outbound.
Because the Apostille is not an option in respect of In our experience the conflicts that exist between
Canada, such instruments must be legalized with the notarial practices around the world cannot be ignored.
Lawyers that work in cross-border transactions cannot
nearest Mexican Consulate.
Mexico has asserted a reservation in respect of the overlook to recognize the complexities that the need for
Protocol, concerning the provisions of its Article 4, notarial instruments triggers. Anticipating those issues
stating that “aliens who are required, for the and working towards preventive solutions are most
performance of certain acts, to enter into the agreement definitely advisable actions, as the consequences can be
or waiver referred to in Section I of Article 27 of the quite damaging if the conflicts materialize.
Political Constitution of the United Mexican States, must (1) Binding precedent of Mexico’s Supreme Court of Justice no.
grant a special power of attorney, expressly including as 205452, June 1994 (Poderes otorgados por sociedades en el
para surtir efectos en México. Requisitos formales que
one of its provisions the agreement and waiver above- extranjero
deben contener según el Artículo I del Protocolo sobre
2013 ABA all rights reserved.
mentioned.” This provision, also known as the “Calvo Uniformidad del Régimen Legal de los ©Poderes)..
Issue 39
Page 17
MEXICO UPDATE
ABA ● Section of International Law ● Mexico Committee
MEXICO UPDATE
American Bar Association
Section of International Law,
Mexico Committee©
Mexico Committee WEBSITE:
http://apps.americanbar.org/dch/
committee.cfm?com=IC845000
Read all our newsletters on the
website (under the newsletter
archive link)!
The Mexico Committee continuously seeks
qualified professionals prepared to contribute
their time and talents to continue developing a
more active Committee. This is a prime
opportunity to become involved with a
community of lawyers that share an interest in
Mexico and Mexican law, who are fellow American
Bar Association members.
The Mexico Committee welcomes any suggestions,
ideas or contributions to enhance this quarterly
publication. The current submittal deadline
for contributions to the spring issue is April
1, 2013.
Editorial Committee:
Mexico Committee
Patrick Del Duca
Alejandro Suárez
Juan Carlos Velázquez de León Obregón
Facultad de Derecho, Universidad
Panamericana, Guadalajara Campus
Ana Patricia Esquer Machado
Editorial Team:
Rodrigo Soto Morales
Facultad de Derecho, Universidad Panamericana, Guadalajara Campus
Ricardo Valencia Camarena
Prof. Ana Patricia Esquer Machado, law students Thaís Béjar Talavera and Brenda
Velázquez, Prof. Rodrigo Soto-Morales, and law students Carlos Padilla de Alba and
Jorge Robles Toussaint. Law students Ricardo Valencia Camarena and Lorena Martínez are not in the picture.
© 2013 ABA all rights reserved.