Solutions in Mexican Law for Canadians

New Federal Code of Criminal Procedure for Mexico

2011-10-20T15:56:00.001-04:00

Due to the Constitutional reform of June 18th, 2008, an initiative for a new Federal Criminal Code prepared by the Executive branch was presented to the Mexican Congress on September 21st. This project is divided in two Books, General Provisions and Guidelines for Criminal Proceedings. The first Book regulates core principles and procedural rights including guidelines for the accusatory system, presumption of innocence, publicity, contradiction and continuity principles; proceedings conducted by a judge, onus on the prosecutor and due process.

The Second Book regulates the three different stages of the criminal proceedings including: a) initial investigation, b) the criminal process, including, preliminary hearings and oral trials conducted before a judge, and c) appeal proceedings.

If the project is passed by Congress Mexico will have a dynamic and more effective Criminal Justice System.

www.memocruz.com

New Amparo Law for Mexico

2011-10-20T15:16:00.000-04:00

On October 11^th, Mexican Senate has passed a new Amparo Law with broader powers to protect citizens against illegal acts committed by official agents; including human rights violations. This new law regulates articles 103 and 107 of the General Constitution, reformed on June 6^th, 2011, and some of its highlights are:

It allows collective actions; in other words, several petitioners could file and also adhere in Amparo actions;
Those proceeding related to unconstitutional laws shall have general effects if the Supreme Court renders three decisions in the same sense;
It protects social and environmental rights; Amparo actions could be exercised by communities, including agrarian and indigenous people, and no-for-profits organizations;
Human Rights Violations could be fought through the Amparo action; and
A statutory limitation of 8 year to file Amparo actions against unconstitutional acts in criminal proceedings affecting the defendant to avoid miscarriage of justice.

This proposal must be pass by the Chamber of Representatives, Cámara de Diputados, to get into force.

Oil Industry in Mexico is Opening for Private Participation

2010-12-03T20:17:00.006-05:00

On November 24th, 2010, PEMEX’s board of Directors, State-owned oil company, approved the Mexican Exploration and Performance Contracts MEPC (previously known as Performance Contracts) and it opened the door for private companies to actively participate in this industry.

In Addition, on December 2nd, 2010, the Mexican Supreme Court of Justice, in an unanimous decision, voted that article 62 of the PEMEX Law rules related to proceedings and remuneration of MEPC is in accordance with the General Constitution. In other words, local and foreign companies with financial capacity and expertise in oil operations would be able to play an actively role with one of the most prestigious companies world-wide.

Mexico as Key Player for the Aerospace and Aviation Industry

2010-10-12T15:51:00.000-04:00

Today Mexico is a key player for the aerospace and aviation industry for the following reasons:

More than 190 companies specialized in this field are based within Mexican territory taking advantage of communication and distribution channel to North America and Europe;
Agreements such as the Bilateral Air Safety Agreement with US to certify aerospace and components, and the agreement signed with the EU to manufacture aviation parts that are directly exported to Europe;
High qualified manpower with more than 800,000 engineering and technology professionals
Double digit growth in the last 5 years
Mexican companies fulfill high standards requirements, such as regional and global certifications.

Getting in to Business with Ejidos in Mexico

2010-09-30T17:56:00.000-04:00

Formality is essential in any transfer, lease, joint venture or partnership regarding land owned by ejidos, agrarian and indigenous communities; therefore, if legal proceedings are not fulfilled, those agreements or contracts will be void. According to article 27 of the Mexican Constitution communal land shall be protected as setting for human settlement and to perform productive activities. In addition statutory law shall preserve its integrity; hence, the Agrarian law describes proceeding to be followed in order to ensure protection for those communities and allow individuals and corporation to get into business with them.

According to the 2007 Ejidal Census, in Mexico more than 35,518 ejidos, agrarian and indigenous communities are based in a extension of 105.9 million hectares, 54.1% of the total of Mexican soil, also, the presence of communal land in states such as Oaxaca, Baja California and Nayarit, represents more than 80% of their territory; therefore, it is highly recommendable to pay attention to those formalities describes by statutory regulations if you are considering to buy a property or conduct business in Mexico.

As general rule, communal entities, are composed by the assembly integrated by women and men with communal rights, a board or comisariado which is leaded by a president, secretary and treasurer and, a supervisory body. Those communities are considered as legal entities with property rights over their land and entitled to getting in to contracts, agreements and partnership with third parties, either individuals or corporations. Also, they are allowed to transfer their property to create partnerships as long as 30 years with a renewal option.

Some formalities to be observed are that the assembly must authorize any agreement, contract or joint venture related to communal land; proxy votes are not allowed in decisions dealing with transfer of land; if Ejidal or communal land is transferred to a corporation, a Notary Public and a officer from the Attorney General´s Office for Agrarian Affairs must act as witnesses; an opinion about the viability of the partnership must be issued by the Attorney General´s Office for Agrarian Affairs and all decisions taken by the Assembly must be recorded at the National Agrarian Register Office in order to have legal effects before the public.

As it was mentioned above, before closing any deal is essential to keep in mind that parties are entitled to full disclosure in order to review and check that titles, certificates, minutes and deeds are in good standing. Following formalities and dealing with the right people are mandatory elements in your do-list to achieve success in business in Mexico.

New Steps to Protect Intellectual Property in Mexico

2010-06-28T17:02:00.000-04:00

Mexico is taking strong steps to improve its legal frame regarding intellectual property in order to promote confidence among the business community and improve foreign investment. A clear example is the decree published today on the Diario Oficial de la Federacion (Mexico’s National Gazzette) with a law reforms to articles 429 of the Federal Criminal Code and 223 Bis of the Intellectual Property Law.

Some of the highlights of this reform are: a) piracy will be prosecuted as operation of law, in other words, the federal attorney general office will be entitled to investigate and prosecute these offences directly and without waiting for a formal complain filed by the owner of the rights affected; and b) anybody who sells unauthorized merchandise protected by copyrights laws to final costumers or in public places will be liable to imprisonment for a term no less than two years and up to six years and fine from 100 to 10,000 times the minimum wage.

This new set of rules to investigate, prosecute and punish offences related to intellectual property is an important step to create confidence among inventors and investors that their ideas and works are respected and protected by Mexican law.

Mining in Mexico: New Sources of Financing

2010-06-04T10:44:00.002-04:00

Access to capital could be the main difference between success or failure of a mining project. Therefore, Mexico is taking concrete steps to create new sources of financing for mining companies. For instance, a joint found up to 360 million dollars between the Mexican government and private capital for middle and small companies and advanced negotiations between the TSX and the BMV (Mexican Stock Exchange) to allow companies to list in Toronto and Mexico are two actions to take advantage of more than 25 thousands concessions granted in that country.

The first action is designed to small and middle companies with projects close by the production stage and in each case funds up to 15 to 20 million will be available. Eligible candidates are those companies recently started-up in Mexico with foreign capital, such as Canadian companies conducting exploration projects in that country.On the other hand, it is highly possible that a double listing would be available in Mexico and Toronto. This as result of advanced talks between the TSX and the BMV; negotiations are on track and a decision is expected by the end of this summer.

Presumption of Innocence in Mexico

2010-06-03T10:20:00.001-04:00

According to the Constitutional reform of June 18, 2008 the presumption of innocence is considered a fundamental warranty for the accused facing criminal trial; in other words, an accused is innocent until she has exercised her right of defense before and impartial court of law and she was found guilty. In addition, other positive changes were established with this reform, for example, the method of inquiry in Mexican courts to asserting the facts will be adversarial and oral rather than written and inquisitorial; a judge must lead the proceedings in order to receive and hear the evidence produced by the defendant and the prosecutor and the most important, the onus of the accusation is upon the prosecution and before a reasonable doubt the accused must be acquitted.

Those changes will have positive connotations to the criminal justice system in Mexico, because it would produce certainty and accountability in proceeding and a more balanced relationship between the prosecutor and defendant. However, according to the second article of the reform decree, those changes will be enforced within 8 years after of June 18, 2008 until the secondary legislation is changed. But what does it mean? It means that until the federal and locals Criminal Codes and Code of Criminal Proceedings are amended this reform will not have a direct effect and it will be a list of good intention with lack of enforceability.

Planning for Success: Key Legal Aspects of Mining in Mexico

2010-06-02T17:39:00.001-04:00

Mining is a sophisticated industry that requires planning to achieve success. Mexico represents a promissory and fertile field for Canadian mining companies because its strategic location, solid infrastructure and the quality and abundance of mining materials; however, conducting business there signifies a double challenge because foreigner must deal with different legal systems, languages and cultures of doing business.

Technical studies, such as geological and engineering, are essential to measure the viability of a project and predict if it could be attractive for investors; however, failure could be an imminent result if key legal aspects are not observed; for example the proper terms of M&A or clauses of partnership contracts, environmental issues, land tenure problems and labour relationships. Therefore, legal planning is fundamental to ensure that a foreign investment will be translated in a profitable and smooth operation without unreasonable delays and over-costs caused by fines, penalties and law suits.

Mining activity is exclusive for Mexican nationals, individuals or companies; nevertheless, Mexican law allows foreign investors to own up to 100% of equity of a Mexican corporation. Therefore, several options are available for Canadian mining companies to operate in Mexico, such as set-up a brand new corporation, establish a joint venture with Mexican partners or buying equity of a Mexican corporation. Each case is different as its legal consequences; nonetheless, it is important to keep in mind that any agreement must be supported by a written contract sanctioned by legal counsel and notary public. In any case, an authorization from the Ministry of Foreign Affairs must be granted and the transaction must be record at the Foreign Investment Register Office. If those requirements were not observed the investment could be lost.

Environmental issues have substantial impact to mining, for example, if regulatory provisions are not observed the consequences could be suspension of operations, fines and criminal charges to operative and executive staff. According to statutory provisions, the environmental authority is entitled to conduct domiciliary inspections to corroborate that environmental law is observed; nonetheless, it has to follow a specific procedure and produce specific information, such as a motivated and written order. For that reason it is highly recommendable to fulfill the legal requirement on time and provide training to employees to avoid unpleasant results.

Mexico has a strong tradition to protect agriculture producers and indigenous people generally known Ejidos; therefore, according to law, they have preferential rights for tenure and ownership of land. This special regime provides specifics formalities to be fulfilled to transfer ownership rights or participate in a partnership with a third party; if those formalities were not followed any investment done could be claimed by the Ejido. Unfortunately some groups have abused of this prerogative and have taken advantage of foreign companies that are not familiar with these issues. That is why before any real state transaction is closed or any partnership is sealed is important to fulfill the legal requirements established by the Agrarian law and the Mining Law.

Other important aspect is labour relationships because they follow a different logic that in Canada. For instance, the labour law is tilted in favour of the employee: no need of written contract mere provision of service creates employment relationship of indefinite duration and mandatory benefits and severance must be given to the employee. For that reason outsourcing became very popular for foreign companies conducting business in Mexico in order to avoid their labour obligations. Nevertheless, this formula is not effective any more because the tax authority is conducting investigation a prosecution against those using that structure. For these reasons, companies must have a tailor-made contract to protect themselves from unreasonable claims.

Mexico offers remarkable opportunities to foreign investor such as location, solid infrastructure and access to important markets. On the other hand, conducting business represents a double challenge as result of language and legal system; therefore, in order to have a profitable and smooth operation is highly important to planning in regards of key legal issues related to the mining operation in order to prevent fines, penalties and legal suits that at the end of the day would be translated into a unnecessary over-costs.

Historic Improvement of the Mexican Highway Network

2010-05-25T18:53:00.000-04:00

With a multibillion dollars budget and an active participation of private investors Mexico is moving forward to an historic improvement of its infrastructure.

By the end of 2010 Mexico is spending more than 4 billion dollars to upgrade almost 100 roadways, including inter-state and state highways; the goal: to expand more than 2,500 kilometres its network in order to facilitate trade and interaction between Mexican producers with domestic and international markets. Private companies are playing a key role in this process either under concession contracts or joint venture structure. For example, these days, 48 on-going projects in different stages represent a direct investment of more than 7 billion dollars from public and private parties.

Other 5 majors project must be completed by 2012; therefore, the Mexican government will launch international bids to project, develop and execute them. This is a remarkable opportunity for Canadian companies with financial and logistic capacity to be part of this historic moment and take advantage of all the opportunities that Mexico is offering to international investors.

Mexico as Trusted Partner in the Automotive Industry

2010-05-24T09:20:00.000-04:00

Mexico is keeping the attention of major players in the automotive industry due to its robust legal frame, economic advantages and well-educated workforce. For example, Nissan has announced that by the end of 2010 its plant in Morelos will reach a production of 134,000 units 25% more than in 2009. In Addition, Polaris Industries, leader manufacture of all-terrain vehicles, snowmobiles and motorcycles, has formalized that by 2011 is moving its plant from Wisconsin to Saltillo or Monterrey. These are just two more samples why Mexico is a trusted partner in the global automotive industry.

Enforcement of Foreign Legal Documents in Mexico

2010-05-21T16:56:00.000-04:00

As general rule legal documents issued in accordance to foreign law would be considered valid within Mexico if they fulfill the following requirements:

- If legal proof is provided that they were granted according to the laws of the country in which they happened;

- If they were authenticated by a competent public authority in the jurisdiction of origin and legalized by the proper Mexican Consulate;

- If they were translated to Spanish;

- If international treaties or international reciprocity were observed.

Mexico as Leader Market of Bottled Water

2010-05-17T17:21:00.000-04:00

Mexico offers remarkable opportunities for Canadian companies participating in the bottled water business, either purification or packaging, because it represents the most important market worldwide. According to the “2009 the Global Bottled Water Report” issued by the Beverage Marketing Corporation, a firm based in New York and specialized on consulting and financing services related to the beverage industry, Mexico is the leader in the bottled water market with a average yearly consumption of 234 liters per person and it represents the 13 per cent of the global market. Therefore, Canadian companies participating in the bottled water business, such as exporting, bottling or developing alternative technologies should take advantage and expand their operation into Mexico.

Quick Notes About Mining In Mexico

2010-03-26T12:21:00.001-04:00

Mining is high-priority activity in Mexico

Mining is regulated at federal level, in other words, this activity is guided by the same legal frame, standards and criteria along the Mexican territory;

The Executive branch, through its Ministry of Economy, is in charge to authorize and supervise mining activity.

Mining activity encompasses exploration, operation and benefit of minerals, with some exceptions, such as oil and gas and radioactive materials.

Mining rights are described on mining titles called concessions, with duration up to 50 years, and mining allocations with up to 6 years. Both titles could be renewed; concessions could be transferred to third parties but allocations cannot.

Mexicans are entitled to obtain mining titles. Mexican law allows foreign investors to own up to 100% equity of Mexican companies participating in mining activities.

Aboriginal, first nation, indigenous and agrarian communities, known as Ejidos are entitled to acquire mining titles and they have preference before private investors.

Corporations are allowed to set-up partnership with Ejidos to participate in mining ventures.

The Mining Register Office is a public agency where information regarding mining activity, such as concession titles, projects could be found. Public is entitled to have access to that information.

Airport in Riviera Maya as Business Opportunity for Investors

2010-03-24T16:14:00.001-04:00

The Airport in the Mayan Rivera is a clear example how Mexico has been taking concrete actions to improve its infrastructure and at the same time, is generating business opportunities for private investors.

According to SCT, Mexican Ministry of Transportation and Communications, this new international airport located in Tulum, south of the Yucatán peninsula, would cost more than 250 million US dollars, with technical capacity to receive Boing 747 planes and over than 3 million passengers per year.

Private investors are playing a major role in this project because it is under the integral concession structure, in other words, planning, developing and operating will be done by private entities under official supervision. Before the international tender is launched its bidding term must be authorized by Federal Competition Commission which is the Mexican Antimonopoly Agency. According to official sources by December 2010 this concession will be awarded.

This is a remarkable business opportunity for those companies who want to participate as key player in one of the most important, visited and profitable tourism destinations worldwide.

Mexico as Strategic Partner for Automakers

2010-03-23T15:57:00.001-04:00

Mexico has a long tradition in the auto-industry; its proximity to the US, capable labour force and world-class infrastructure are some of the main reason why automakers have chosen Mexico as strategic partner.

As example, it is the announcement made by Chrysler and Fiat that Mexico is the place where their next clean energy vehicle will be produced, the Fiat 500, a brand new electric car presented in the Auto Show in Detroit which is planned to be assembled by Chrysler to serve the American market as soon as 2012.

This well-planned decision is result of several variables, such as Mexico has a robust automotive industry; an improving regulatory framework and attractive incentives designed by the Mexican government to increase foreign investment.

Labour Law Reform In Mexico

2010-03-19T12:11:00.000-04:00

Mexico is preparing a reform to improve its laubor law and encourage private investment. New payment regime, clear rules regarding severance packages and better regulation of unions are some of the main goals of this initiative. If the Mexican Congress is agreed with Mr. President Calderon’s administration and passes this reform it could be a positive signal that Mexico is taking concrete steps for legal certainty for investors and employees.

Today payment is based on a daily-salary; with this propose payment would be based on hourly rate, which is a standard in North America because it is more convenient for employer and employees in terms of efficiency and proper retribution.

Long process to resolve labour disputes, severance packages and right of strike have become inhibiting factors for foreign investment. With this new set of rules, the Mexican government is proposing to expedite dispute resolutions, set a limit of six moths in severance packages and establish a time line to resolve strikes, after 60 work-days, the laubor authority could intervene to find a proper solution.

Some commentators say that the actual labour law has allowed union leaders to take advantage of employer and of members of their organizations; therefore, this initiative proposes to prohibit automatic discounts to pay union fees and unfair clauses on collective contracts.

With this initiative the Mexican government is working to improve labour structure and encourage private investment. Now, it is up to the Congress to decide which route Mexico should follow in the near future.

Wind Energy as Promising Sector in Mexico

2010-03-16T17:31:00.001-04:00

Mexico has been changing its energy policy towards renewable projects in order to encourage business opportunities for private investors. Challenging times for oil and gas industry and improvement in the legal frame has resulted in creative ways to generate electricity in Mexico and engage private participation; therefore, winds farms, solar panels, hydro and biomass technologies are real options for public entities to cover an increasing demand and at the same time allow profitable participation for private companies and, wind generated energy is becoming the most promising sector. In 2007, 85 MW were generated using this technology; today, it is generated about 300 MW and by 2012 is expected to be generated 2,500 MW.

Private investment is playing an important role in this role. For instance, in Oaxaca is located one of the largest windfarms in the world, a joint venture between the Mexican company Cemex and the Spanish Acciona Energía; also, on March 9, 2010 the Mexican government inaugurated the public project called La Rumorosa, in Tecate, Baja California. This facility has an initial capacity of 10 MW to be used to cover energy requirements in the Municipality of Mexicali.

This alliance between public and private sectors is result of an improved legal frame which provides interesting formulas. On one hand, it allows private parties to participate as suppliers for the Federal Electricity Commission, the state-owned entity, in other words, private parties could invest in energy infrastructure and becoming power provider for the Mexican government in a pre-set price. On the other hand, generation of energy is permitted to cover self-demand in order to reduce long-term costs.

Formulas for Foreign Investment in Mexico

2010-03-15T12:24:00.000-04:00

Mexico has been improving its legal frame to encourage foreign investors to set-up operations and do business within Mexican soil. As general rule, foreign investment is freely allowed up to 100% of a Mexican entity’s equity; however, some activities are reserved either to the Mexican government, for example oil and gas, nuclear energy and postal service; or to Mexican companies with not foreign investment, such as broadcasting, credit unions and development banking. Nevertheless, the Mexican government has provided some formulas to allow foreign participation in key sectors.

According to the Foreign Investment Law, foreign investment in mining, construction of pipelines and drilling of oil and gas wells is allowed up to the 49% in Mexican companies; although, this percentage may be increased up to the 100% with previous authorization of the Foreign Investment Commission.

Therefore, foreign investors are entitled to invest in Mexico and they have several options to do it, such as through a joint venture with Mexican partners, organizing and new company under Mexican law or acquiring up 100% equity of an existing entity.

Mining Industry in Mexico as Leader Destination for Foreign Investment

2010-03-11T15:54:00.000-05:00

According to the Mexican Ministry of Economy, Secretaría de Economía, Mexico is today the leader destination in Latin America for foreign investment in mining industry. An improved legal frame and better coordination between official agencies are some of the reasons of this success and Canadian companies are part of that.

Mining as sophisticated industry is highly regulated; for instance, a mining company must obtain authorization and complete proceedings before nine Ministries and agencies in order to operate; therefore, the Mexican government has improved its legal frame to facilitate and expedite proceedings; also, it has established a specialized office, a general coordination, to provide support to mining operations.

On the other hand, better organization between official agencies has helped to the mining industry; Ministry of Foreign Affairs, Ministry of Energy, Ministry of Economy and the Trade Commission have been working together to encourage foreign investors to participate in this exciting opportunity.

Therefore, today 260 Canadian mining companies are actively operating in over than 700 project and they represent 80% of direct investment in mining sector in Mexico; the most important in Latin America.

Mexico’s Oil Industry Reform

2009-11-18T13:44:00.001-05:00

The article Mexico’s Oil Industry Reform —- Opportunities for North American Companies co-authored by our director Guillermo “Memo” Cruz and Mr. Ralph Cuervo-Lorens of Blaney McMurtry was published in North American Free Trade & Investment Report’s October 15th issue.

According to this piece, the recent reforms in Mexico’s oil and gas sector “represent a vast business opportunity for foreign oilfield and other service companies” and the reform in that sector is not over, with the “next round of reforms expected to focus more on modernizing the industry”. (read article…)

For further information in this regards, please contact us

Amparo trial in Mexico Part III

2009-07-29T11:40:00.000-04:00

This provision also encompasses the principle of Strict Legal Right; in other words, federal courts must only decide on those violation concepts argued by the plaintiff and must not substitute them in its favour. Nevertheless, deficient claims can be corrected by the court in order to protect the interests of those who are in a disadvantaged position, such as in criminal matters when the plaintiff is the accused and he or she is under risk of any act against life or liberty; in labour law, when the plaintiff is the employee; in family issues in order to protect minor’s rights and in land claim matters when the plaintiff is a small rural community.

The special trial shall be used against definitive resolutions which put the trial to an end as long as against such resolutions no ordinary modifying appeal can be made. The special protective trial shall be used to appeal violations which affect individual defenses, produce effects beyond the contested trial’s result and which are committed either when the final resolution is made or during the contested trial’s development, taking into account that in the latter case and whenever the appealed trial is a civil one, the violation has to be contested by either making an ordinary legal appeal or by arguing that such an ordinary appeal is a violation itself. Such further requirements cannot be fulfilled either in those controversies involving an individual’s civil status or in those in which either public order or a family’s stability is at stake;

The special trial shall be used against violations which, after have been legally appealed, are committed during a trial, once it has been resolved or even within the trial’s context and are impossible to correct, and

The special trial shall be used against actions affecting individuals who are not parties in the trial.

These provisions are known under the name of Principle of Final decision. Ordinary judicial remedies must be exhausted except for those cases in which the law orders otherwise. In other words, ordinary and extraordinary procedures established by ordinary statutory provisions must to be exhausted before they are exercised and have access to the Constitutional control system. Nevertheless, some exceptions are considered such as claims regarding acts or procedures that put may cause real risk and endanger the life and personal freedom of the plaintiff.

Amparo trial in Mexico Part II

2008-12-23T14:43:00.002-05:00

The first two articles, 103 and 107, comprise the foundation for the constitutional procedure known as an Amparo trial, which means "protection". Its main goal is to restore personal rights or immunities violated by unconstitutional laws or by official agents. On the other hand, article 113 is divided into two parts: the first is in regards to the legal responsibility of public servants in the wrongful exercise of their duty; and the second part, is the recent ability of private parties to seek damages and compensation as a result of the wrongful administrative activity of the federal government.

The Amparo trail finds its constitutional status in the Federal Constitution of 1857 as it was encompassed in articles 101 and 102. The original nature of this procedure was as a constitutional control exercised by the judiciary branch in order to prevent possible abuses of power committed by the executive or legislative branches. In the Amparo process, violations to individual rights are ventilated and it may bring about modification or revocation of the act causing a legal damage.

The trial’s main objective is to solve the existent controversies from: (a) laws or acts of authorities violating individual rights; (b) laws or acts of federal authorities which restrain the States’ sovereignty, and (c) laws or acts of the States which invade Federal authority. Nevertheless, this constitutional control has become a concrete base of remedies in favour of those whose particular rights have been affected by unconstitutional provisions or unlawful acts. Its regulation and statutory provisions are contemplated in article 107, under the following principles: “All special trials directed to protect privileges and immunities shall start by an affected individual lawsuit”.

This is the principle of Affected Ex–Parte Action. Only a party affected by an unconstitutional law or unlawful act is entitled to exercise the constitutional action. The plaintiff must prove that the unlawful act or provision has produced a direct and personal grievance in his or her personal rights or immunities. In others words, any claim of this nature may not be started ex-oficio.

Amparo trial in Mexico

2008-12-23T12:02:00.001-05:00

Provision in regards to remedial actions in the Mexican constitutional system were established in 1857 and the idea of limitation of privileges and immunities can be executed only in extraordinary cases when the Mexican Nation would face: “invasions, serious disturbance of public peace or any situation which puts society in a great danger or conflict.” (Article 29 General Constitution).

This exceptional situation has to be ordered just by the President of Mexico with the consent of all his legal cabinet and the National Congress and this measure can be executed in a whole Mexican territory or in a specific location; however, its implementation has to be general and with temporal effects. For that reason, a restriction or limitation of privileges and immunities against an individual without the legal requirements mentioned above, means that the affected is entitled to exercise his rights and claim remedial measure by the government. These explicit provisions of remedies are found in Articles 103 , 107 and 113 of the Mexico's General Constitution.

Doing Business In Mexico

2008-03-04T16:09:00.003-05:00

According to Doing Business Project these are the Top 10 cities to do business in Mexico:

1. Aguascalientes, Aguascalientes (Easiest)

2. Guanajuato, Celaya

3. Nuevo León, Monterrey

4. Sonora, Hermosillo

5. Campeche, Campeche

6. Zacatecas, Zacatecas

7. Querétaro, Querétaro

8. Michoacán, Morelia

9. Sinaloa, Culiacán

10. Mexico City

Aguascalientes was the easiest state in which to do business last year. State and city officials have successfully used the benchmark as a promotional tool to compete for business at home and abroad. Simultaneously, they have continued to press ahead with reforms. As a result, Aguascalientes earned the top rank again this year.

Querétaro, the lowest ranked overall performer last year, created a public-private task force dedicated to improving its benchmarks. The task force systematically studied bottlenecks, proposed reforms, and measured progress throughout the year. The reforms helped Querétaro climb nine ranks on the ease of doing business to number seven out of 31 states and Mexico City.

Real Estate Busines to Canadians is growing in Mexico

2007-11-22T11:36:00.000-05:00

According to the US-based National Law Center, a research institute in Tucson, Arizona, US and Canadian property ownership in Mexico, which accounts for 90 per cent of foreign ownership, has more than doubled in the past decade in the most popular areas, and is growing more than 10 per cent a year. Some estimates suggest that up to 100,000 US citizens are retiring to Mexico every year.

An element to the housing boom is macroeconomic stability. The government now runs a balanced budget, compared with the beginning of this century when it ran a deficit equivalent to 1.1 per cent of gross domestic product (GDP). The country's debt profile has also improved remarkably, particularly in the shift from dollar-denominated to peso-denominated debt.

The result today is that external public-sector debt accounts for only 7 per cent of GDP compared with more than three times that figure in 1995

*Source: Financial Times

Mexico and Canada in the Top 10 Foreign Markets

2007-11-22T11:22:00.000-05:00

According to the National Business Travel Association the top 10 fastest growing international markets for 2008 business travel spending are China, Britain, India, Mexico, France, Germany, Latin America (excluding Brazil and Mexico), Canada, Japan and Brazil.

*Source: The New York Times

Business in Mexico

2007-11-22T10:53:00.000-05:00

Mexico is among the world's leading producers of many minerals, including silver, fluorite, zinc, and mercury, and its petroleum reserves are one of its most valuable assets.

Next to oil, the most important source of exports are the industrial assembly plants (maquiladoras) that dot Mexico's border towns. which take advantage of a large, low-cost labor force to produce finished goods for export to the United States.

The economic importance of the maquiladoras, however, is exceeded by tourism. Favorite tourist centers include Acapulco, Mayan Riviera, Puerto Vallarta, Mazatlán, Cabo San Lucas, and Tijuana, as well as Mexico City itself and such highland centers as Guadalajara and Puebla.

The principal industrial centers in Mexico are Mexico City, Guadalajara, Monterrey, Juárez, Tijuana, Veracruz, Durango, León, Querétaro, Tampico, Mérida, and Puebla.

*Source: Columbia Encyclopedia and The New York Times

Two of the top North American cities of the future are in Mexico

2007-11-21T15:37:00.000-05:00

According to The Financial Times Foreign Direct Investment, Guadalajara, in the Mexican state of Jalisco, was the highest ranking major Mexican city. It had the second strongest economic potential of any major North American city and only Chicago scored more highly for sheer economic potential. Guadalajara’s youthful population, low unemployment and large number of recent foreign investment deals are good indicators that Mexico’s second largest city has a bright future.

On the other hand, Ciudad Juarez, in the Mexican state of Chihuahua, was identified as the top large City of the Future. Although Juarez is only the eighth largest city in Mexico, the judges noted its growing importance as a regional industrial and logistics centre on.

Windsor, in the Canadian province of Ontario, ranks as North America’s leading small City of the Future, scoring well for business-friendly policies and a strong development programme that includes several large-scale projects involving public and private investment. The 2013 date given for completion of a proposed $1bn international border crossing between Windsor and the US city of Detroit, Michigan, would further brighten Windsor’s economic outlook.

*Source: fdimagazine

Law and Order In Mexico

2007-11-21T10:13:00.000-05:00

Using gamma ray scanners, police and port authorities made the largest seizure of cocaine ever, 26 tons, in the port city of Manzanillo. The cocaine was found hidden in 21,116 individual packets in crates aboard a Hong Kong-flagged ship that sailed out of Buenaventura, Colombia. The haul has a reported street value of US$455 million, and is said to be enough for 145 million doses. Federal Attorney General Eduardo Medina Mora said that the shipment was destined for the Sinaloa cartel.

The seizure at Manzanillo on the Pacific Coast follows the Oct. 5 confiscation of just over 12 tons of cocaine at Tampico on the Gulf of Mexico and three tons seized from a downed plane on the Yucatán peninsula in September. In all cocaine seizures during President Calderón’s first 11 months in office totaled over 53½ tons, with a combined value of US$1.45 billion.

U.S. Ambassador to Mexico Tony Garza lauded the cocaine seizure, and said that it points to Calderon’s “commitment to cripple drug lords and bring them to justice.” He also said that it further demonstrates the urgent need to pass the Merida Initiative, the proposed US$1.4 billion aid package to help Mexico fight organized crime, which is currently being debated in the U.S. Congress.

*Source: JUSTICE IN MEXICO TRANS-BORDER INSTITUTE, USD, News Report, November 2007

New alternatives to Canadians in the Aerospace and Automotive Industries

2007-11-15T12:27:00.000-05:00

The Advanced Manufacturing Seminar 2007 organized by PROMÉXICO was yesterday in the Toronto Congress Centre to provide fresh and better alternatives to Canadians Companies in order to help them to expand their market in the aerospace and automotive industries.

The Mexican Trade and Investment office leaded by José Luis Ceballos and based in Toronto Canada brought from Mexico a fist-class delegation integrated by Federal officials, delegates of the States of Sonora, Baja California, Nuevo León and Guanajuato and members of the private sector who are specialist in offer services and solutions to international companies in these fields with intention to set-up and start operations in Mexico.

According to the presentation, Mexico has a strategic location, world-class infrastructure and all ideal conditions to help Canadians companies to reduce costs and get access to the most important markets in the world; for example, Mexico have signed 12 Free Trade Agreements, such as NAFTA and EU, 6 Economic Complementary Agreements and 23 Reciprocal Investment Agreements. Also, Mexico offers young and well-educated population, macroeconomic stability and high level of international reserves which mean lower risk and highest productivity for international companies

Therefore, Canadian companies should consider to start business in Mexico because it would be their bridge to get easy access to a 1 billion costumer market world-wide.

Criminal Procedure in Mexico (Part V)

2007-11-07T12:27:00.000-05:00

Subsequently, if one or both parties decides to start an Appeal procedure, the District Court has to send the entire file with all the evidence to the Appeal Court, in this case, a Unitary Circuit Tribunal, which will decide to accept the appeal not. In the scenario that it the appeal is accepted, the Appeal Court has to give to both parties a 3-day term in order to offer exhibits which must be different from those that were used in trial. Then, the Tribunal will be appointed and within the next 30 days, a hearing will be scheduled for the prosecutor and defendant to give their final arguments about why the definitive resolution is illegal or caused grievance. Following the debate, the hearing will be over and the tribunal will have to provide a final decision within 5 days. This resolution could confirm, revoke or modify the definitive determination dictated by the District Court.

Finally, when a defendant is found guilty and sentenced to imprisonment, this becomes the responsibility of the federal government, or the Ministry of Federal and Public Safety Ministry, which is part of the Executive Power.

Consequently, in the resolution and treatment of Criminal Matters in Mexico all three levels of power are involved. The Legislative Power establishes procedure rules, criminal offence definitions and several regulations pertaining to this discipline. The Judicial Power is the legal body, which allows the prosecutor and defendant to pursue a fair trial, which is watched and presided over by a Judge who must guarantee that the law is observed and respected by both parties. The Executive Power influences several stages of the process. Firstly, the Public Ministry is the Chief investigator in the Investigation Stage and the Public Prosecutor in the Criminal Trail. Secondly, because in the Executive Power oversees the penitentiary system, which includes jail management, observation and evaluation of inmates.

This document provides a brief overview and reference to how Federal Criminal Matters are handled by the Mexican system; however it is not an exhaustive analysis of Mexican Institutions. Furthermore, given that each State has it own definitions of criminal offences; procedures and institutions, regional differences throughout Mexico are reflected in each specific criminal case. Clearly, the Mexican system differs from that of Canada on several levels, but it is through an understanding of these contrasts that criminal matters involving each party can be investigated and ultimately resolved in a cooperative and collaborative manner.

Criminal Procedure in Mexico (Part IV)

2007-11-07T12:22:00.000-05:00

Pre-instruction is the formal stage when a District Judge is notified of a Criminal Matter and when the Criminal action, initiated by the Public Ministry, all the evidence and the accused are presented before him or her. Also, the suspect is informed about which charges have been set against him, all the facts that support the accusation and which person(s) gave a statement against him or her. This is also the moment when he or she is given the choice to provide preliminary statements or remain silent before the tribunal, appointed by his or her counsel and is given the opportunity to offer probes for his or her defence in order to avoid the Criminal Trial.

Upon being notified of the case, the Judge will be given 70 hours to decide if the evidence offered by the Public Ministry is sufficient in order to start a trial. If, however, the accused asks for a duplicated term in order to offer evidence disprove his or her criminal responsibility, his or her legal situation has to be decided in a term no longer than 144 hours.

This type of resolution is called Auto de Término Constitucional or Constitutional Term Determination and three are the possible outcomes: a) Auto de Formal Prisión or Formal Imprisonment Determination, which means that the accused has to follow his or her trial while in custody; b) Auto de Sujeción a Proceso or Holding Process Determination, which means that the accused has to follow a Criminal trial but he or she will not be in custody until a decision is made regarding his or her case; and c) Auto de Libertad por falta de elementos para procesar or Release Determination, which means that the suspect has to be released because the Public Ministry could not support his or her Criminal action; however this determination is not definitive because the prosecutor is permitted to obtain additional evidence and present his or her case again. In a case where the Tribunal finds sufficient grounds to start a Criminal trial, it has to announce its decision as a Constitutional Term Determination.

The instruction stage begins when the Formal Imprisonment Determination is communicated to the accused. The goal of this Stage is to investigate and prove if a criminal offence was committed, its circumstances and if the accused is criminally responsible or not. There are two different kinds of trials: Summary and Ordinary Trials. In the first case, Instruction cannot be longer than 3 months; and in the second case, no longer than 10 months. A Summary trial will take place under at least one of these circumstances: a) When the imprisonment term is not longer than 2 years or the criminal offence is awarded an alternate penalty; b) If the accused was caught in a flagrant action; c) If the accused gave his or her confession before a Public Ministry agent or Court; or d) if the minimum and maximum penalty of a criminal offence divided by 2 is less than 5 years.

According to Article 20 of the Political Constitution, the accused is allowed to offer as many exhibits as he or she wants, as long as they are not against law, irrelevant or inconvenient, according to the judgment of Court. The most common and important are listed by the Federal Criminal Procedures Code: a) Confession before Public Ministry or Judge; b) Inspection (Crime Scene and people or evidence related with a Criminal Act); c) Witness statements; d) Experts’ opinions; e) Documents, Photographs, etc.

Once all the exhibits offered by the prosecutor and defendant are presented, the Court then must provide a 10 day period during which both parties have a chance to offer new evidence to support their affirmations. If either party takes this opportunity, a public hearing must be scheduled within fifteen days. The Instruction Stage will not terminate until all exhibits have been presented and the terms to offer them are concluded.

After the Instruction Stage, the Court must provide a 10-day term to the prosecutor in order for him or her to write his or her conclusions. This is the formal act when the Public Ministry defines the accusation and asks for the appropriate punishment. The defendant will be granted an equal term to respond to the prosecutor’s accusation and give arguments about his or her particular position. Once both parties have given their conclusions, the Court will schedule a final hearing within the next 5 days, when both parties will be allowed to give their final allegations. Following that, the trail will be declared concluded by the Judge.

The decision stage is when the Court dictates a definitive resolutionand the defendant and the prosecutor are notified. This final resolution has to be on paper and must include: a) the place where it was dictated; b) the Court that dictated it; c) Defendant’s full name, place of birth, nationality, age, marital status, ethnic group, language, place of residency or address, education and occupation; c) a brief summary of all the facts revealed in the file; d) legal considerations and motivations; and e) the final decision whether to convict or release the defendant. If any party, prosecutor or defendant, are not in agreement with the definitive decision, both have the right to start an Appeal procedure. In this case, they must notify the Court about their decision within five days.

Criminal Procedure in Mexico (Part III)

2007-11-07T12:18:00.000-05:00

Under federal jurisdiction are those criminal offences described by approximately 47 federal laws, International Treaties and the Federal Criminal Code. Though, several acts, for example, homicide, are described as criminal offences by both Federal and State regulations, rules have been established to determine whether a specific case falls under Federal Jurisdiction and which authority will be legally responsible for a Criminal matter.

Federal authorities are allowed to process and punish a criminal act if it falls under at least one of these circumstances: a) is done in a foreign nation by a Mexican diplomatic, consul or member of a Mexican diplomatic delegation; b) is done in Foreign Embassies or Foreign delegations on Mexican soil; c) if Mexico is the victim, or in other words, if a criminal act is performed against the patrimony of Mexico as a Federation; d) is done by a public or federal agent as result of his or her activity; e) if the victim is a public or federal agent on duty, f) if it is against or is affects any federal public service or its facilities; g) if it is done against a political party agent or member or electoral agent; or h) in the case of a kidnapping if the intention was to take a child out of Mexico.

According to the Mexican Constitution, the Public Ministry or public prosecutor is the only institution that shall be in charge of investigating and prosecuting criminal activities and command the law enforcement agencies in charge of criminal investigations. The Public Ministry is led by an Attorney General, who is designated by the President and authorized by the Senate. This means that criminal investigations are under the Executive power, which is a civilian authority.

The Public Ministry, as Social Representative, has a double function in Criminal Matters; first, when a case is in the investigation stage or Averiguación Previa, this institution is who leads each activity in order to obtain all the facts, evidences and statements related to the criminal situation. Secondly, it has the capacity to release suspects or keep them in custody (no more than 48 hours in regular cases and 96 hours in cases related to organized crime) until they are sent before a Judge. It is during this stage when the public prosecutor must obtain as much information as possible in order to determinate if a Criminal Action should be taken or not.

On the other hand, in Canada investigation duties and prosecution attributions are not under the same agency or institution. Also, prosecution could be carried out by a Public or Private Prosecutor.

According to Article 20 of the General Constitution, the defendant has the privilege to be released provisionally on bail by the Public Ministry during the investigation stage or by the Judge during trial stage; however, such a benefit shall not be granted when the offence is a grievous or serious act. According to Article 194 of the Federal Criminal Procedures Code, a grievous offence is one which seriously affects the fundamental values of society, such as: a) homicide in some cases; b) high treason; c) espionage; d) terrorism; e) sabotage or piracy; f) genocide; h) and offences related to illegal trafficking or production of prohibited substances or drugs; etc

When the investigation reveals that a criminal offence was committed and probable wrongdoing by the accused is proven, the case shall appear before a Criminal Court. There, the role of Public Ministry is changes and is acknowledged only as a prosecutor in order to prove the charges against the suspect.

As is mentioned above, In Canada, each province is in charge of the administration of criminal matters; hence, there are different territorial jurisdictions, but one unit of criteria and procedures. For example, in Ontario, criminal procedures could occur before the Ontario Court of Justice which is presided over by a judge sitting alone, or before the Superior Court of Justice headed by a judge by himself or sitting with a jury.

In general, a criminal process in Canada is divided into seven stages: 1) Pre-Arrest Investigation, which includes police investigation; 2) Initiation of Criminal Procedures by swearing of information or execution of a warrant to arrest by police; 3) Judicial Interim Release; 4) Proceedings before Trial, such as initial court attendances; 5) Trial, when the accused is arraigned and will enter a plea at his trial. After a plea of not guilty, the trail will proceed to a verdict of guilty or not guilty; 6) Sentencing; and 7) Appeal.
In Mexico, federal trials for criminal offences appear before a District Court, which is presided by a Judge and is comprised of four stages: 1) Pre-instruction; 2) Instruction, 3) Final arguments and Conclusions; and 4) Judgment or Decision. Also, according to the first paragraph of Article 4 of the Federal Criminal Procedures Code, procedures before an Appeal Court are considered as part of the Criminal Process, but these are before a Unitarian Circuit Tribunal. All trial acts have to be in public audiences and in the presence of the Judge, prosecutor and defendant with his or her consul.

Criminal Procedure in Mexico (Part II)

2007-11-07T12:15:00.000-05:00

Mexico has 31 States and a Federal District and each one has its owns Highest Powers, in other words, the local Executive Power is represented by a Governor and in the case of the Federal District, by a Chief of Government or Major, a local legislature and a local High Tribunal. Also, all States, except the Federal District, have their own Constitutions and their own local regulations in specific areas; nonetheless, those shall never be against the federal foundation.

Criminal matters, as outlined by the Treaty of Mutual Assistance between Canada and Mexico, for example, have a different meaning in each country. In Canada, “investigations or proceedings relate to any offence created by a law of Parliament or by the legislature of a province, while in the Mexican United States, all investigations or proceedings relate to any offence under federal o state law.”

Section 91 (27) of The Constitution Act or Canadian Constitution, establishes criminal law as under sole jurisdiction of the federal Parliament, which means that the enactment of criminal law is under the exclusive jurisdiction of the federal government; therefore Canada has one Criminal Code or An Act respecting the Criminal Law. However, the provinces separately promulgate "quasi-criminal" or regulatory offences in a variety of administrative and other areas. The administration of justice and penal matters are under the jurisdiction of the provinces, so each province administers most of the criminal and penal law via provincial and municipal police forces.

On the other hand, as a general rule in Mexico, criminal regulation operates at a local level, which means that it is under the States jurisdictions, except in those cases that are regulated by Federal Laws. Therefore, each State has it own Criminal Code, Criminal Procedures Code and several Criminal regulations in order to prevent and combat criminal acts, although, the fundamental basis of Criminal procedures and rules are established by Mexican Constitution, such as: a) No one shall be put on trial by using either under exclusive laws or special court; b) Any law shall be applied retroactively against any person; c) No one shall be deprived of his or her life, freedom estate, possessions or rights by a pre-existing judicial ruling issued by a court to the respective trial and which due process of law has been enforced; d) Analogical reasoning and the majority of reason standard of review shall both be forbidden in resolving criminal trials and therefore, punishments ruled shall always be established by law; e)Disturbances against any person, his or her family, residence documents or possessions shall be made by warrant issued by an authorized official; the warrant shall clarify the statutory law which the decision was based on, as well as shall explains the legal procedure to be undertaken; etc.

Criminal Procedure in Mexico (Part I)

2007-11-07T12:06:00.000-05:00

A tradition of mutual assistance between Canada and Mexico began when the two countries started their diplomatic relationship on January 30, 1944. For example, since the first day of January, 1994, they were members of the largest free-trade region in the world and more than 135 million people are affected by the decision of their governments. Therefore, several bilateral agreements have been signed in different disciplines such as Migration, Economics, Education, etc; hence, mutual support in criminal matters has been no exception. For this reason, in 1990, Mexico and Canada signed the Treaty on Mutual Legal Assistance in Criminal Matters, which continues to be recognized today. The legal structures, procedures and institutions in each party, however, are totally different. Therefore, this document provides a brief overview of the Mexican system in federal criminal matters, its composition, rules and the authorities involved in the pursuit of justice. The objective of this paper is to use my personal experiences and background as a Mexican lawyer to highlight these differences and promote understanding in light of recent criminal events affecting both countries.

Mexico or Mexican United States, its official name, is a representative, democratic and Federal Republic integrated by States, which are free and sovereign in order to organize their internal regimes, but which are under a General Constitution.

In Mexico, the Supreme Power is divided into a Legislative Power which, is the Congress that is composed of the Chamber of Representatives or Cámara de Diputados with 500 members and the Senate or Cámara de Senadores that consists of 128 members; an Executive Power, represented by a President and a Judicial Power which consists of the Supreme Court divided into two Chambers composed of 11 Ministers (nine men and two women), an Electoral Tribunal, Collegiate and Unitary Tribunals and District Courts. Nevertheless, powers not explicitly vested in the federal officers by the General Constitution shall be implicitly vested in the States.

Buying a Real Estate in Mexico

2007-11-07T09:54:00.000-05:00

Today could be the best time to Canadians in order to buy a real estate in Mexico. The Canadian Dollar is stronger than American Dollars (1.08); a piece of front- beach land is almost ten times cheaper than in Florida, and land taxes and maintain costs are very cheap. In addition, Mexico has an exceptional location and a world-class infrastructure, which means that in less than five-hour flight from any of the most important cities in Canada you could escape of the cold winter and enjoy of one of the best clime conditions in occidental hemisphere.

In case that you are thinking about to buy a property in Mexico, please keep in mind that the legal tradition is different than Canada; therefore, you have to be aware that any agreementl has to be on paper, following specific rules and, before close any deal, you have to check several documents such as the property land title, seller’s address and ID, free litigation and mortgage certificate, executive project authorized by the municipality, construction license certificate and final agreement draft.

In the future I will talk about some requirements that have to fill Canadians to buy a real estate in Mexico and which steeps you have to follow if you want to get a piece of land on the beach.

Please feel free to write me if you have any question or specific interest and I would be delightful to talk about that topic in the future.

Join me and enjoy Mexico!

Why is Mexico one of the most important destinations for Canadians?

2007-11-06T10:50:00.000-05:00

Mexico is today one of the most important destinations for Canadians; almost a million people visited this country last year and until September, 2006, there were registered 1,727 companies with Canadian participation which represent around 3,866.5 millions USD. But, why is Mexico so attractive for Canadians? First, its geographical location; second, both countries have signed international trade agreements and third, Canadian dollars have more value there; therefore, Mexico is, after The United Stated, the best options for Canadians.

However, Mexico has a legal tradition completely different than Canada; hence regulation about agreements, real estate deals and personal and business transactions have different rules and formalities. That’s why it is necessary to get the most accurate information before you start any project there.

Please feel free to write me if you have any question or specific interest and I would be delightful to talk about that topic in the future.

Join me and enjoy Mexico!

What is a Foreign Legal Consultant (FLC)?

2007-11-05T15:59:00.000-05:00

A Foreign Legal Consultant (FLC) is an attorney, counselor at law (or equivalent) licensed in another country, who has received a Certificate of Registration.

In the province of Ontario The Law Society of Upper Canada (http://rc.lsuc.on.ca/) is the body that provides this certification according to By-Law 14.

The FLC by-law-14, states that no person shall give legal advice in Ontario respecting the law of a foreign jurisdiction except in accordance with the provisions of the by-law. It requires lawyer licensed outside of Canada to apply to the Law Society for a permit to practice the law of their home jurisdiction in Ontario.

In order to become a FLC in Ontario is necessary to meet the following conditions:
1. The person is resident in Ontario.
2. The person is authorized to practise law in the foreign jurisdiction.
3. The person is not the subject of any order made against him or her by a tribunal of any governing body of the legal profession in the foreign jurisdiction in which the person is authorized to practise law.
4. The person has no terms, conditions, limitations or restrictions imposed on the person's authorization to practise law in the foreign jurisdiction.
5. The person is of good character.
6. For a period totalling at least three years within the five-year period immediately before the person applies for a permit authorizing the person to give legal advice in Ontario respecting the law of a foreign jurisdiction, the person was lawfully engaged in the practice of law in the foreign jurisdiction.

In other words, the FLC is the only professional authorized in order to provide legal advice in rules and procedures of a foreign jurisdiction.