Over the past three decades, alternative dispute resolution (ADR) has increased in popularity to the point that most parties appear to prefer it to having the courts resolve their conflicts. The benefits of ADR are flexibility, reduced costs and the opportunity to actively participate in the resolution of the dispute. However, these benefits depend on the parties voluntarily honouring the commitments adopted during the ADR proceedings.
Precautionary measures are an essential way in which to preserve assets that are subject to dispute or ensure that a final award is enforceable. Arbitration offers many advantages over judicial proceedings. However, in practice, such measures need to be issued more quickly in order to achieve the objectives for which they are designed. Notably, under Mexican law, such measures are issued much faster and more effectively than those issued under the International Chamber of Commerce arbitration rules.
The Mexican courts have issued several precedents to eradicate the existence of usury, allowing judges to discretionally reduce interest rates agreed by the parties. However, some of these precedents contradict each other as to whether the usury prohibition applies to default interest. As such, the First Chamber of the Supreme Court recently issued a decision to clarify these inconsistencies.
Digital collection (CoDi) is the latest electronic payment method developed by the Mexican Central Bank, designed to reduce the use of cash and promote competition, while incorporating larger sections of the population into the formal financial sector. It seems that Mexico is moving forward in financial technologies, such as CoDi, and using these developments to promote larger inclusion, competition and transparency for every sector in the country.
Under Mexican commercial regulations, contracting parties have traditionally been free to determine in their corresponding agreement the jurisdiction in which disputes must be resolved. However, a new binding precedent from the Supreme Court challenges this traditional approach with regard to banking adhesion contracts and is a good example of how Mexico is advancing its consumer protection regulations.
In March 2018 the Fintech Law, which aims to mitigate the risk of money laundering and terrorist financing, was published in the Federal Official Gazette. Subsequently, in January 2019 the National Commission for Regulatory Improvement published draft amendments to the anti-money laundering rules which apply to the traditional banking industry in order to incorporate the new concepts created by the Fintech Law.
The Ministry of Finance and Public Credit recently published a resolution in the Official Gazette modifying the general regulations that apply to banks. The resolution responds to the need to strengthen the regulatory framework applicable to banks, particularly with regard to cybersecurity and technological infrastructure. It also aims to guarantee the confidentiality, integrity and availability of customer information.
The Federal Telecommunications Institute (IFT) has exclusive jurisdiction over cases, procurement and advocacy in competition matters relating to the broadcasting and telecoms sectors, while the Federal Economic Competition Commission (COFECE) has jurisdiction in competition matters regarding all other sectors. While this allocation of jurisdiction between the IFT and the COFECE may appear straightforward, in reality, there is no clear-cut division of powers with regard to digital markets.
In Mexico, some public institutions consolidate the procurement requirements of their entities into one public tender to save costs and increase efficiency. As such, joint propositions among competitors may be the solution for companies that wish to participate in such processes where they involve substantial volumes of goods. However, there are no official guidelines or criteria on how joint propositions between competitors should be negotiated or implemented so that they do not pose a risk to competition.
The Federal Economic Competition Commission (COFECE) recently issued a press release announcing that it had rejected Walmart's proposal to acquire Cornershop in light of the potential risks that it posed to competition and free market access. This case is significant as it is the first merger review case in which the COFECE has analysed vertical concentrations involving digital platforms.
All violations of attorney-client privilege are illegal, but the specific consequences will depend on the nature of the privileged information and the violation's potential effect on the plaintiff's defence strategy. In certain circumstances, a violation of attorney-client privilege can lead to a prohibition on prosecution due to procedural corruption. This article provides a number of practical tips for dealing with a violation of attorney-client privilege by the competition authorities.
In January 2019 the new government implemented several measures to counter and reduce gasoline and diesel theft, which generated fuel shortages in some of Mexico's main cities. To address these issues, the Federal Economic Competition Commission recently issued a follow-up to its 2016 recommendations which aimed to foster competition in the gasoline and diesel markets in order to address the new administration's concerns.
The Energy Regulatory Commission has received clearance from the Federal Commission for Regulatory Improvement to publish the general administrative provisions (GAPs) that set out the Guidelines for the Statistic Registry of Commercial Transactions Arising from Regulated Activities Performed with Natural Gas and Oil. The GAPs establish the natural gas and oil registry system and provide new reporting obligations for permit holders.
The Energy Regulatory Commission (CRE) recently issued a resolution which has clarified the scope of the general administrative provisions on metering that apply to holders of permits to store petroleum, petroleum products and petrochemicals. In issuing the resolution, the CRE has further relieved applicable permit holders from their obligations to comply with specific requirements.
The 2013 energy reform ordered the legal separation of the Federal Electricity Commission (CFE) in order to guarantee equal competition for all industry players. Accordingly, in 2016 the Ministry of Energy issued the CFE separation rules to foster open access, efficient operation and competition within the industry. As these rules resulted in several inefficiencies within CFE generation companies, the ministry recently relaxed them in order to maximise resources and reduce power prices for end users.
The Energy Regulatory Commission recently confirmed that certain business models used by retailers of refined products (eg, diesel and gasoline) are valid and stimulate competition in the market to the benefit of customers. As such, retailers can develop loyalty programmes based on bonuses, credits, subscriptions, memberships or exclusive offers, among other things, to be offered by various petrol stations. However, these programmes must be made available to all customers and cannot be discriminatory.
In his inaugural address, President Andrés Manuel López Obrador confirmed that fracking will be prohibited in Mexico. As Mexico is highly dependent on the natural gas potential of basins located in the northern part of the country, this prohibition will deny it access to resources which it needs to achieve energy sufficiency. Thus, both the executive and legislative branches should instead consider appropriate regulation (rather than a simple ban) that allows for the rational use of oil and gas resources.
In October 2019 the General Circular Economy Law initiative was presented to the Senate for discussion and approval. The initiative was prepared in response to Mexico's increasing waste generation and aims to coordinate the attempts of the municipal, state and federal authorities to address this problem. As such, the initiative proposes granting several new powers to each level of government in order to foster the creation of a circular economy in Mexico.
The preliminary bases for Mexico's emissions trading system (ETS) pilot programme were recently published in the Federal Official Gazette. The ETS is one strategy adopted by Mexico to meet its goals under the Paris Agreement. The pilot programme will determine whether the ETS is a viable scheme for reducing Mexico's greenhouse gas emissions. Companies should follow the results closely, as these will be paramount in determining the characteristics of the operational phase.
The production of single-use plastics has increased exponentially in recent decades and in Mexico the volume of single-use plastic waste now exceeds the country's recycling capabilities. In response to growing concern over the effects that plastic waste may have on the environment, a series of legislative changes have recently been implemented. Companies should keep track of any waste-related initiatives introduced at the state and federal levels and prepare for upcoming changes to their obligations.
The National Agency for Industrial Safety and the Protection of the Environment in the Hydrocarbons Sector recently published NOM-001-ASEA-2019 (NOM-001) in the Federal Official Gazette. NOM-001's main aims are to establish criteria to classify the special types of waste produced in the hydrocarbons sector and establish which of these must be subject to a management plan, as well as determine the contents of special management and hazardous waste management plans.
In view of recent policy changes relating to hydrocarbons and gasoline distribution via pipelines, liability for the remediation of soil and water contamination derived from hydrocarbon spills and leaks at storage terminals and pipelines has become a hot topic. These policy changes have largely been aimed at tackling criminal activities that have contributed to soil and water contamination, such as fuel and hydrocarbon theft.