- Diego Sierra, Katarina Lundahl, Pablo Fautsch- Anti- Corruption Trends and Developments Mexico Chapter
- Marco Tulio Venegas- Corporate Disputes (Jan- Mar 2018)- Global Arbitration in the Energy Sector (Roundtable)
- Adrián Magallanes- Getting the Deal Through- Class Actions 2018: México Chapter
- On February 10, 2014, section A of article 102 of the Mexican Constitution was amended in order to transform the Procuraduría General de la República (Attorney General's Office) into an independent public organization called Fiscalía General de la República ("FGR"). Unfortunately, almost four years later, it hasn't yet come into force.
On January 31, 2018, more than 300 civic organizations, through the group called #Reforma102, submitted a citizens' amendment initiative to modify the same section A of article 102 of the Mexican Constitution. Such amendment aims to promote the creation of an FGR that effectively addresses Mexican challenges in terms of impunity, autonomy, competence, and impartiality of the executors of justice.
Specifically, the proposals of the citizen initiative that we consider of special interest to our clients are as follows:
i) That the Attorney General in charge of the FGR has real independence and autonomy, so that he or she can i) responsibly exercise the FGR's legal power, ii) resist political pressure, and iii) be guided by truth and legality;
ii) That the current Attorney General of the Procuraduría General de la República does not automatically become the Attorney General of the FGR, but that such position be filled as established in the Mexican Constitution. This is in order to ensure that the new FGR is not just a change of name that does not change Mexico's legal system;
iii) That the Public Prosecutor has an operational efficiency that ensures an effective investigation and prosecution of crimes that can meet the challenges of Mexico's criminal reality; and
iv) That the Attorney General of the FGR can be removed for criminal liability or serious administrative misconduct, in accord with the National Anticorruption System ("NAS").
In this regard, with the new control systems proposed to ensure that Mexican authorities and executors of justice are independent, competent, objective, impartial and protectors of access to justice and due process of law, it would be wise for companies to have in mind that they could be subject to criminal liability under to the new Mexican adversarial criminal justice system.
Article 27 bis of Federal District Criminal Code provides that companies will be liable for crimes committed on their behalf or for their benefit by their legal representatives or administrators (de facto or de jure); or when people under the authority of the companies engage in an act considered a crime by the law when the company did not exercise due control over them.
Due control is the principal defense of companies against criminal liability. It is understood that companies do not have due control when they: i) do not have mechanisms to prevent and detect crimes; ii) in spite of having such mechanisms, there is a structural defect in them because they are not optimal; and iii) do not adopt effective and appropriate control mechanisms that aim to prevent the committing of crimes.
Therefore, a company can now be liable for, among other things, crimes against health, influence peddling, bribery, fraud, concealment, operations involving resources derived from illicit sources, environmental crimes, copyright crimes, kidnapping, human trafficking, and tax fraud.
Hence, in order for companies to mitigate risks, we highly recommend that our clients update and strengthen their compliance programs to ensure due control inside their companies, and to avoid the occurrence of any conduct sanctioned by the criminal law. This prevention is also closely related to risk mitigation regarding corruption matters.
To obtain additional information contact our experts:
Diego Sierra, Partner:
+ 52 (55) 5258-1039, firstname.lastname@example.org
Pablo Fautsch, Associate:
+ 52 (55) 5258-1027, email@example.com
Von Wobeser & Sierra, S.C.
México City, February 14th, 2018.
- Dear clients and friends,
Today the Manual for the interconnection of Power Plants and the Connection of Load Centers (the “Manual”) issued by the Ministry of Energy (“SENER”), was published in the Official Federal Gazette. It provides the requirements, describes the process and procedures, and defines the obligations and rights to be observed regarding the requests for interconnection of power plants or the connection of consumer load centers to the National Transmission Grid and General Distribution Grids that are filed with the National Center of Energy Control (the “CENACE”).
In general terms, the Manual provides the following:
1.- It revokes the prior Rules that provided the specific characteristics of infrastructure required by the Interconnection of Power Plants and the Connection of Load Centers (the “Rules”). The requests initiated before today will still be governed by the Rules; however, the applicant has the unilateral right to request the CENACE to apply the dispositions set forth in the Manual.
2.- It incorporates three methods to request the interconnection of power plants or the connection of load centers, which are classified according to the specific needs of the applicants.
3.- The incorporation of different studies into the process of interconnection or connection such as the “Estudio Rápido” with the purpose of determining whether the increase of the installed capacity of power plants or the load contracted by load centers requires initiating the interconnection or connection process with the indicated impact or installation studies, or only one of them, or determining that those increases do not need studies and only require executing a new Interconnection or Connection Contract.
Additionally, it incorporates a study called “Estudio para Infraestructura a la Red Nacional de Transmisión” that will make it possible to estimate costs, the characteristics of the metering systems, the physical spaces within substations, adjustments and modernization in the substations and the specific characteristics of the infrastructure required to achieve the interconnection of the power plant or the connection of the load center. It also includes the “Estudio Clúster” which will determine simultaneously the specific characteristics of the infrastructure required for the interconnection of a group of power plants, load centers or a combination of both, with an individual capacity of 20 MW or more and with an aggregated capacity of 300 MW or more, subject to some location conditions.
4.- It provides a mechanism to obtain a “priority in the execution of an interconnection or connection contract” from the moment the Installation Study is request, provided the financial guarantee has been delivered to the CENACE.
5.- It sets forth a mechanism to deliver financial guarantees based on the method and classification of the interconnection or connection request, which will be delivered partially when the interconnection or connection studies are being done. The foregoing will allow the applicant not to submit 100% of the amount of the financial guarantee in one lump sum, but that amount will be guaranteed as long as the studies are carried out.
For more information, please contact our experts:
Edmond Grieger, Partner:
+ 52 (55) 5258-1048, firstname.lastname@example.org
- Dear friends and clients,
We are pleased to announce that Fernando Carreño, head of our antitrust practice has been nominated as “Lawyer of the year – under 40” by Global Competition Review (GCR), being the only Mexican lawyer that has been nominated to receive this award since it was launched.
Fernando share this recognition with the following lawyers: Margaret Segall D’Amico (Cravath Swaine & Moore), Creighton Macy (Baker McKenzie), Thomas Elkins (Linklaters), Jesse Solomon (Davis Polk), Yizhe Zhang (Jones Day), Meegan Hollywood (Robins Kaplan) and Elaine Ewing (Cleary Gottlieb Steen & Hamilton).
This worldwide nomination is granted by GCR to “a competition lawyer under the age of 40 whose superior technical skill, practical judgement and excellence in client service in 2017 demonstrate that he or she is among the very best in the field.”
We express our gratitude to our clients and friend for entrusting us with their most relevant and sophisticated matters. It is an honor and a privilege to work with you.
- Reference Book. Legal Guide to doing business un Mexico.