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New laws on Transparency, Access to Public Information, and Protection of Personal Data have come into force in Mexico.

Written by Santamarina + Steta en March 24th 2025. Published in Updates.

On December 20, 2024, it was published in the Official Gazette of the Federation (“DOF”) the initiative for constitutional reform in the area of organic simplification, which aimed to eliminate seven autonomous constitutional bodies, including the National Institute of Transparency, Access to Information and Protection of Personal Data ( "INAI,”), with the purpose, according to the explanatory statement of the initiative itself, of rationalizing the public resources that were destined for the operation and functioning of the autonomous constitutional bodies, in order to allow greater investment in social policies and programs.

The transitional articles of the constitutional reform established that the Congress of the Union had a period of ninety calendar days from its entry into force to make the necessary adjustments to the corresponding laws in order to comply with its content. It also stipulated that, once the legislative changes came into force, the INAI would be deemed to be dissolved.

In order to comply with the constitutional mandate, on February 25 of this year, the Executive Branch presented a Initiative to issue the General Law on Transparency and Access to Public Information, the General Law on the Protection of Personal Data Held by Obligated Subjects and the Federal Law on the Protection of Personal Data Held by Private Parties and to reform Section XV of Article 37 of the Organic Law of the Federal Public Administration (the "Initiative

After following the applicable legislative process in the Congress of the Union, the Initiative was approved on March 20, 2025, and the three laws contained in the Initiative were published in the evening version of the DOF (Official Gazette of the Federal Republic of Argentina). Consequently, the INAI was officially dissolved, and the laws entered into force on March 21, 2025.
The day after the publication of the three new laws, on March 21, 2025, also in the evening edition of the DOF, the Internal Regulations for Transparency for the People and the Internal Regulations of the Ministry of the Interior were published, as well as reforms, additions, and repeals of various provisions of the Internal Regulations of the Anti-Corruption and Good Government Secretariat.
On December 20, 2024, it was published in the Official Gazette of the Federation (“DOF”) the initiative for constitutional reform in the area of organic simplification, which aimed to eliminate seven autonomous constitutional bodies, including the National Institute of Transparency, Access to Information and Protection of Personal Data ( "INAI,”), with the purpose, according to the explanatory statement of the initiative itself, of rationalizing the public resources that were destined for the operation and functioning of the autonomous constitutional bodies, in order to allow greater investment in social policies and programs.
The transitional articles of the constitutional reform established that the Congress of the Union had a period of ninety calendar days from its entry into force to make the necessary adjustments to the corresponding laws in order to comply with its content. It also stipulated that, once the legislative changes came into force, the INAI would be deemed to be dissolved.
In order to comply with the constitutional mandate, on February 25 of this year, the Executive Branch presented a Initiative to issue the General Law on Transparency and Access to Public Information, the General Law on the Protection of Personal Data Held by Obligated Subjects and the Federal Law on the Protection of Personal Data Held by Private Parties and to reform Section XV of Article 37 of the Organic Law of the Federal Public Administration (the "Initiative
After following the applicable legislative process in the Congress of the Union, the Initiative was approved on March 20, 2025, and the three laws contained in the Initiative were published in the evening version of the DOF (Official Gazette of the Federal Republic of Argentina). Consequently, the INAI was officially dissolved, and the laws entered into force on March 21, 2025.
The day after the publication of the three new laws, on March 21, 2025, also in the evening edition of the DOF, the Internal Regulations for Transparency for the People and the Internal Regulations of the Ministry of the Interior were published, as well as reforms, additions, and repeals of various provisions of the Internal Regulations of the Anti-Corruption and Good Government Secretariat.
The regulations repealed by the Initiative and those issued to replace it are summarized below:

REPEALED LEGISLATION

NEW LEGISLATION ISSUED

Federal Law on the Protection of Personal Data Held by Individuals, published in the DOF on July 5, 2010.

General Law on Protection of Personal Data in Possession of Obligated Subjects, published in the DOF on January 26, 2017.

General Law on Transparency and Access to Public Information, published in the DOF on May 4, 2015 and its subsequent modifications.

Federal Law of Transparency and Access to Public Information, published in the DOF on May 9, 2016 and its subsequent modifications.

Agreement approving the Annual Program for Verification and Institutional Support for compliance with obligations regarding access to information and transparency by federally obligated subjects, corresponding to the 2025 fiscal year., published in the DOF on January 21, 2025.

Federal Law on the Protection of Personal Data Held by Individuals, published in the DOF on March 20, 2025.

General Law on Protection of Personal Data in Possession of Obligated Subjects, published in the DOF on March 20, 2025.

General Law on Transparency and Access to Public Information, published in the DOF on March 20, 2025.

Internal Regulations on Transparency for the People, published in the DOF on March 21, 2025.

Internal Regulations of the Ministry of the Interior, published in the DOF on March 21, 2025.

Reforms, additions and repeals of various provisions of the Internal Regulations of the Anti-Corruption and Good Government Secretariat, published in the DOF on March 21, 2025.

GENERAL CONTENT

The three laws issued present specific modifications to the previously applicable legislation; however, one change was implemented in the text of all of them: the replacement of the powers conferred on the INAI with new authorities dependent on the federal executive branch that will assume those powers.

As for the two laws in personal data protection matters (Federal Law on the Protection of Personal Data Held by Private Parties and General Law on the Protection of Personal Data Held by Obligated Subjects) The authority that will replace the INAI is the Anti-Corruption and Good Government Secretariat. On the other hand, regarding the law in matters of transparency and access to public information (General Law on Transparency and Access to Public Information) The authority that will replace the INAI is the entity called Transparency for the People, which is a decentralized administrative body of the Anti-Corruption and Good Government Secretariat.

Similarly, the language of all three texts was modified, incorporating inclusive (neutral) language into their provisions. For example, "owner" was changed to "owner," "person in charge" to "person in charge," among others.

IMPORTANT CHANGES

Federal Law on the Protection of Personal Data Held by Individuals:

The requirements for privacy notices are modified.

It is mandatory to make a simplified privacy notice available to data subjects when personal data is obtained by any electronic, optical, audio, visual, or other technological means by the data controller/regulated subjects.

Key terms are modified, including:
- Headline: person to whom the personal data correspond and no longer specifies that they must concern a natural person.
- Responsible and adaptable: was defined as the private individual or legal entity that decides on the processing of personal data; and is now defined as the Regulated Subjects referred to in Section XVI.
- In turn, said fraction XVI adds in terms of “Regulated Subjects” which are the private individuals or legal entities that carry out the processing of personal data.
- Notice of Privacy: It is no longer established that personal data must be made available to the owners prior to processing, but rather at the time when they are collected.
- Sensitive personal data: It was removed from the list of personal data sensitive to union membership, which was included in the previous definition.
The request to exercise ARCO rights must also contain a description of the ARCO right being exercised, or the request made by the holder. Furthermore, to exercise the right to object, one of two conditions for eligibility established in the text of the new law, which were not previously included, must now be met.
Previously, the INAI was required to submit an annual report on its activities to the Congress of the Union; now, the Secretariat for Anti-Corruption and Good Government is not required to do so.
The possibility of filing a nullity suit before the Federal Court of Fiscal and Administrative Justice against resolutions issued by the INAI has been eliminated. Now, the only means of defense against the Secretariat's resolutions is an amparo suit, which must be brought before District Courts and Circuit Courts specializing in matters of access to public information and personal data protection.

General Law on Protection of Personal Data in Possession of Obligated Subjects

Key terms are modified, including:
- Headline: subject to whom the personal data correspond and no longer specifies that they must concern a natural person.
- Notice of Privacy: It is no longer established that personal data must be made available to the owners prior to processing, but rather at the time when they are collected.
- Guarantor organizations: Previously, it referred to bodies with constitutional autonomy specialized in matters of access to information and protection of personal data. Now it is defined as Guarantor authorities, which are the oversight and discipline body of the Judiciary; the internal oversight bodies of the autonomous constitutional bodies; the internal comptroller's offices of the Congress of the Union; the National Electoral Institute, with regard to access to personal data protection by political parties; and the bodies responsible for internal oversight or their counterparts in the Executive, Legislative, and Judicial branches, as well as the autonomous constitutional bodies of the Federal Entities.
The National System for Transparency, Access to Information, and Protection of Personal Data was eliminated from this law, as well as its respective chapter, including its obligation to design, implement, and evaluate a National Personal Data Protection Program that defines public policy to meet certain national objectives in this area.
Previously, the holder had the right to file a review appeal or a non-compliance appeal before the INAI or the guarantor agencies; now, they may only file the review appeal before the Anti-Corruption and Good Governance Secretariat or the guarantor authorities.

General Law on Transparency and Access to Public Information:

The new name of the National System for Transparency, Access to Information and Protection of Personal Data will be "National System for Access to Public Information," which will be headed by Transparency for the People. Its powers include issuing the rules for the operation and functioning of said system, as well as issuing agreements authorizing Transparency for the People to resolve appeals filed by individuals against resolutions issued by local guarantor authorities.

It is noted that the National System will have Transparency Subsystems corresponding to each federal entity, which will have specific powers and whose Committees will be made up of a representative of the Legislative Branch, the Judicial Branch, each of the autonomous constitutional bodies, the municipalities of the federal entity or territorial demarcations of Mexico City, as appropriate, and the Executive Branch, who will preside over it.

The new name of the Council of the National System of Transparency, Access to Information and Protection of Personal Data will be "Council of the National System of Access to Public Information", whose members will be the heads of the Agency for Digital Transformation and Telecommunications, the General Archive of the Nation, the Federal Center for Conciliation and Labor Registry, the Federal Court of Conciliation and Arbitration, and the National Electoral Institute, as well as the president of each Committee of the Transparency Subsystems and the head of the Anti-Corruption and Good Government Secretariat, who will preside over it.

The principles of consistency, documentation, exceptionality and exhaustiveness were added to the guiding principles of the Guarantor Authorities, by virtue of which there must be concordance between the requests of individuals and the responses of the obliged subjects, who must provide access to the information they keep or are obliged to document, which may only be classified as reserved or confidential when it meets the assumptions expressly provided for by law, and the response must expressly refer to each of the points requested, with the limitations of the documentation principle.

The powers of the guarantor authorities have been extended to impose sanctions, and the power to bring unconstitutionality actions against laws passed that violate the right of access to public information and the protection of personal data has been eliminated.

Specifically, it is indicated that among the powers of Transparency for the People will be to hear and resolve appeals filed by individuals against resolutions issued by local guarantor authorities, provided they are linked to federal public funds.

TRANSITORY

Modifications to the regulations and other applicable provisions: As previously noted, the Internal Regulations for Transparency for the People and the Internal Regulations of the Ministry of the Interior were published on March 21, 2025, as well as reforms, additions, and repeals of various provisions of the Internal Regulations of the Ministry of Anti-Corruption and Good Government. However, the Federal Executive Branch must also issue the corresponding adjustments to the other applicable regulations and provisions, including the Regulations of the Federal Law on the Protection of Personal Data Held by Private Parties, in order to harmonize their provisions with the changes made to the respective laws they regulate, within ninety calendar days following the entry into force of the Initiative.
District Courts and Circuit Collegiate Courts specializing in matters of access to public information and protection of personal data: The Federal Judicial Branch must authorize them within a period of no more than 120 calendar days from the entry into force of the Initiative, to which the amparo proceedings in these matters that are pending will be forwarded for resolution. Likewise, the procedural deadlines and time limits for amparo proceedings in matters of access to public information and protection of personal data that are pending before District Courts and Circuit Collegiate Courts are suspended for a period of 180 calendar days from the entry into force of the Initiative.

Council of the National System of Access to Public Information: It must be installed no later than sixty calendar days from the entry into force of the Initiative, following a call issued for this purpose by the Anti-Corruption and Good Government Secretariat.

Procedures initiated before the INAI prior to the entry into force of the Initiative: Regarding access to public information, proceedings will be conducted before Transparency for the People in accordance with the applicable provisions in force at the time of their initiation. Regarding personal data or any other matter other than access to public information, proceedings will be conducted in accordance with the provisions in force at the time of their initiation before the Anti-Corruption and Good Government Secretariat.

Legal defense before administrative, jurisdictional, and judicial authorities of administrative and legal acts issued by the INAI: Regarding access to public information, this will be carried out by Transparency for the People. Meanwhile, regarding personal data or any other matters other than access to public information, as well as the monitoring of those currently underway, including criminal and labor proceedings, this will be carried out by the Anti-Corruption and Good Government Secretariat.

We are available for any information related to the impact of these three laws on transparency, access to public information, and personal data protection.

PUBLICATION LINKS

More about Judicial Reform

Written by Santamarina + Steta en March 24th 2025. Published in Podcast.

In this episode of Legal Evolution, we continue our discussion on Judicial Reform with a conversation between Alexa Zuani, an associate at our firm and an expert in administrative and tax law, and Juan Carlos Machorro, a partner at the firm. Together, they explore diverse perspectives on the selection of the Judiciary and the constitutionality of several key aspects of the reform. With Alexa's experience in consulting and litigation and Juan Carlos's insights into the reform's impact, this episode offers an in-depth analysis of the legal challenges and opportunities presented by the new judicial landscape.

Reform to the INFONAVIT Law

Written by Santamarina + Steta en March 18th 2025. Published in Updates.

On February 21, 2025, the Official Gazette of the Federation published the “Decree amending, adding to, and repealing various provisions of the Law of the National Workers' Housing Fund Institute (“LINFONAVIT”) and the Federal Labor Law, regarding social housing,” These modifications came into force on February 22, 2025. (https://www.dof.gob.mx/nota_detalle.php?codigo=5749909&fecha=21/02/2025#gsc.tab=0)

Among the key aspects, the reform modifies INFONAVIT's powers, strengthening the oversight and supervision of the resource management and control bodies, allowing it to provide social housing and construct housing through a subsidiary construction company.

In addition, the employer's obligation to deduct employee benefits from INFONAVIT credits in the event of absences or disabilities has been modified.

Prior to the publication of the decree, employers' obligations to pay contributions to INFONAVIT, as well as to deduct salaries to repay loans granted to workers, were suspended due to absences or incapacity.

The aforementioned reform modified the penultimate paragraph of Article 29 of the LINFONAVIT (National Institute of Social Security), establishing that the employer's obligation to deduct salaries to cover loans granted by INFONAVIT, as contemplated in Section III of the aforementioned article, will not be suspended due to employee absences or incapacity, in accordance with the Social Security Law.

Initially, there was a debate about whether this employer obligation translated into an obligation for employers to pay or finance their employees' INFONAVIT loans during periods of absence or disability.

However, we believe that the amendment to the aforementioned article should not be interpreted as requiring employers to pay, from their own resources, workers' claims during absences or disabilities. Although the employer's obligation to make deductions will not be suspended, this requirement consists of withholding and entering the deductions into the salary, and compliance with this requirement is therefore subject to the workers actually earning a salary.

Therefore, regardless of whether an employee has any absences or disabilities during the reported two-month period, if they earned a salary for some days of the same, the employer must deduct the entire fee or fixed amount notified by INFONAVIT, through the deduction withholding notice, without making any proportional adjustment based on the days they worked and those they did not work during that period.

In this sense, if during the two-month period the employee did not generate any salary, the employer must report, through the employer clarifications provided in the INFONAVIT business portal under cause 360 ("“Worker with a high discount factor, does not earn minimum wage and does not cover the amount of amortization”), the impossibility of making discounts.

This interpretation is confirmed by the criteria published by the INFONAVIT Large Contributor Assistance Management, and available through the INFONAVIT business portal, which states that the employer will have no obligation to cover amounts that could not be deducted.

INFONAVIT is in the process of determining the deadline it will give employers to comply with this new obligation. Therefore, we suggest continually reviewing the Institute's statements in order to make changes to payroll systems and comply with this new guideline.

Of course, if INFONAVIT changes its position to the detriment of employers, they may file an indirect amparo lawsuit against the amendment to the aforementioned article, when the new provision materializes in an impact on the employer.

The trade war and the reconfiguration of the Mexican real estate market

Written by Santamarina + Steta en March 17th 2025. Published in Podcast.

In this episode of Legal Evolution, we continue our series exploring how the emerging US trade war with the rest of the world could affect the Mexican economy. Beyond the imposition of tariffs in North America, we convened a panel of our firm members, moderated by Juan Carlos Machorro, and members of our Monterrey office, Heriberto Garza and Luis Carlos Gómez. We discussed how the trade war could impact the Mexican real estate sector, particularly industrial parks and manufacturing zones where foreign investment from both China and the US is concentrated.

Reform to the Amparo Law

Written by Santamarina + Steta en March 13th 2025. Published in Updates.

On March 13, 2025, the reform to the Amparo Law was published in the Official Gazette of the Federation, in order to continue the so-called constitutional reform of the Federal Judicial Branch.

The reforms to the Amparo Law do not modify, alter, or substantially change the amparo trial, its admissibility requirements, its procedure, or the matters that may be challenged.

Although the reform encompassed multiple articles, it focused on changing the law's language to give it a broader gender perspective; this constitutes the majority of the changes made by Congress.

Additionally, to continue the constitutional reform, all references to the Chambers of the Supreme Court of Justice of the Nation were removed, having been eliminated in the constitutional reform, and the majority voting power on matters in the Supreme Court Plenary was adjusted to reflect the fact that it will be composed of nine justices. Likewise, the provision that amparos against general norms cannot have general effects was incorporated into the text of the Amparo Law, a provision that had already been incorporated into the Constitution.

On the other hand, the amounts of fines that can be imposed by judges have been increased.

It should be noted that the reforms to the Amparo Law did not modify the conditions for filing amparo claims or for obtaining the suspension of the effects of the contested act; nor did they change the time limits and terms applicable to amparo trials. Therefore, the reform maintained the trial process intact and focused solely on making adjustments to bring the Amparo Law into line with the reform of the Federal Constitution.

The relevance of women in management and decision-making positions

Written by Santamarina + Steta en March 10th 2025. Published in Podcast.

On Evolución Legal, we continue this week with a new episode commemorating International Women's Day. Our partner Juan Carlos Machorro is joined today by Claudia Rodríguez, a partner at the firm, Mariana Alcalá, an associate at Santamarina y Steta, and Antonia Rodríguez from Abogadas MX, to discuss a topic frequently addressed on these airwaves given its importance: the relevance of women occupying leadership positions. We focus particularly on the experiences of Claudia and Antonia, and what they reveal about their journeys to decision-making roles.

Law and women: Generational changes

Written by Santamarina + Steta en March 3th 2025. Published in Podcast.

In this episode, we are joined by three outstanding lawyers: María Elena Abraham, counsel; Darinka Martínez, associate; and Pamela Balderas, intern. With their experience, they provide a detailed view of how the legal profession has evolved for women over the years. Through their stories, we delve into the obstacles they have overcome, the changes they have witnessed in the profession, and the realities that still persist in a legal world historically dominated by men.

What assets can be separated from bankruptcy in Mexico?

Written by Santamarina + Steta en February 28th 2025. Published in S+S Litigation Newsletter.

When a company you do business with is declared bankrupt, it is crucial to analyze whether there are assets that can be separated from the bankruptcy estate. This prevents certain assets from being used to pay creditors when they are not actually part of the assets of the company that is declared bankrupt.

The separation action is a legal mechanism that allows third parties and recognized creditors to recover assets that, although they are in the possession of the merchant in Commercial Bankruptcy, are not the property of the latter. This procedure is especially relevant in cases such as leases, consignments and contracts with retention of title, among others.

Throughout this article, I will explain the Commercial Bankruptcy, the figure of the incidents within the procedure, the incident of separation of assets and the recent criteria that have defined with greater precision which assets can be separated.

Commercial Bankruptcy in Mexico

The Commercial Competition is a legal procedure of public interest, regulated by the Commercial Competition Law (the “Law on Commercial Competitions”).LCM”), whose purpose is to preserve the operation of companies and prevent the widespread non-compliance of their payment obligations from affecting their viability and that of those with which they maintain commercial relations[1].

To achieve this balance between business continuity and the protection of creditors' rights, bankruptcy proceedings are conducted under the principles of transcendence, procedural economy, speed, publicity and good faith. These principles seek to ensure that the procedure is efficient, transparent and allows for a fair resolution for all parties involved.

This process consists of two main phases, which are consecutive.[2]:

Conciliation: Once a company has been declared in Commercial Bankruptcy, the Federal Institute of Commercial Bankruptcy Specialists (the “IFECOM")[3], will appoint a Conciliator, who will be in charge of seeking to ensure that the company and its creditors reach an agreement (the “Bankruptcy Agreement”) that allows the restructuring and payment of the credits recognized in favor of its creditors.

During this stage, the company continues to operate on its own, under the supervision of the Conciliator, who acts as an intermediary in the negotiations.[4]The purpose of the Conciliation is to preserve the Merchant's business through the Bankruptcy Agreement signed with its recognized creditors.

Bankruptcy: In the event that the Bankruptcy Agreement cannot be signed during the period of the Conciliation stage[5], the company enters a liquidation phase, in which its assets are sold to pay recognized creditors according to the order of priority established by law.[6].

Incidents in the Commercial Competition

In the context of Commercial Bankruptcy, it is common for various issues to arise that require specific attention during the main process. To address these situations, the LCM provides for the figure of the incidents, which are auxiliary procedures intended to resolve particular matters without stopping the course of the main procedure.

According to Article 267 of the LCM, incidents refer to all those issues that arise during the processing of the commercial bankruptcy and that do not have a specific established procedure.

Incidents play a crucial role in bankruptcy proceedings, as they allow:

Resolving Specific Disputes: Addresses specific issues that, if not addressed in a timely manner, could hinder or complicate the main proceedings.
Guarantee Rights: They provide parties with a way to assert their rights and obtain judicial decisions on specific matters.
Maintaining Procedural Efficiency: By not suspending the main procedure, they ensure that the bankruptcy proceeding progresses without unnecessary delays.

In short, incidents are essential procedural tools within commercial bankruptcy, designed to effectively address and resolve the various issues that may arise during the development of the process, thus ensuring a prompt and expeditious administration of justice.

The Separation of Assets Incident

The Incident of Separation of Assets is a legal mechanism in Commercial Bankruptcy that allows third parties and Recognized Creditors in the procedure to recover assets that, although they are in the possession of the merchant declared bankrupt, are not part of his assets, since their ownership has not been transferred definitively and irrevocably.[7].

The main objective of this incident is to exclude these assets from the bankruptcy estate intended for the payment of creditors, thus protecting the rights of their legitimate owners.

Common cases for separation action

One of the most representative cases in which a separation action is requested is leasing. In situations where a creditor has leased goods to a merchant and the latter has defaulted on payments, the creditor has the right to recover his goods, since the ownership of these was never transferred to the lessee. This assumption is contemplated in article 71, section VI, subsection a) of the LCM, which allows the separation of goods in cases of deposit, lease, usufruct, administration or consignment.

In addition to leasing, other common cases include[8]:

Goods in deposit or consignment: Those that the merchant possesses as depositary or consignee.
Comodato: Goods loaned to the merchant for his use, without transfer of ownership.
Goods purchased on credit with reservation of title: Those in which ownership is transferred until full payment of the price and said condition is duly registered.
Securities issued in favor of the merchant as payment for sales on behalf of others: Provided that it is proven that the obligations fulfilled come from them and have not been settled in a current account between the merchant and his client.

Requirements and deadlines for filing an incident

For the process to proceed Incident of Separation of Assets, it is necessary to meet the following requirements:

Identifiability of the goods: The goods must be clearly identifiable and be in the possession of the merchant from the time of the declaration of bankruptcy.
Absence of transfer of ownership: Ownership of the goods must not have been transferred to the merchant by a definitive and irrevocable legal title.

The procedure for filing this incident is as follows:

Filing the separation claim: The legitimate owner must file a claim before the bankruptcy judge, complying with the requirements established in article 267 of the LCM.
Lack of opposition: If the merchant, the conciliator or the intervenors do not oppose the claim, the judge will order the separation of the assets outright in favor of the plaintiff.
Existence of opposition: If there is opposition, the separation action will be processed in the incidental manner, following the procedure provided for in the law.

It is important to note that the law does not establish a specific deadline for filing a separation claim; however, it is advisable to do so as soon as possible once the Commercial Bankruptcy has been declared, to prevent these assets from being used to pay creditors or being disposed of improperly.

In summary, the Incident of Separation of Assets It is an essential tool for third parties and recognised creditors to protect their rights over assets that, although in the possession of the bankrupt merchant, do not form part of his assets. Prompt action and compliance with the legal requirements are essential to ensure the exclusion of such assets from the bankruptcy estate.

New criteria regarding the incident of separation of property

Recently, relevant criteria have been issued regarding the separation action in Commercial Bankruptcy, specifying in which cases it is appropriate to recover assets from the bankruptcy estate.

Money in regular deposits can be claimed through a separate action[9]

The criterion establishes that money deposited in deposit notes can be subject to a separatory action. In a recent case, it was discussed whether a sum of money, kept in a deposit note, could be claimed through this mechanism. Initially, the request was denied on the grounds that money is a fungible good and could not be individualized.

However, the court determined that it is possible to recover this type of money through a separate action, provided that it comes from a regular deposit, that is, when the depositor has not transferred ownership of the money to the merchant in bankruptcy. In contrast, if it is an irregular deposit, where the merchant does acquire ownership of the money, the separate action is not admissible, and the depositor could only claim it as another creditor within the bankruptcy.

This criterion is relevant because it clarifies that not all fungible assets automatically fall within the bankruptcy estate. If a third party can prove that the money or assets given to the merchant never ceased to be his property, he has the right to separate them from the proceedings and recover them.

Judges cannot reject outright a separation action because they question the validity of the rights claimed[10]

The criterion establishes that the validity of the rights claimed in a separation action is a question of substance and cannot be a reason for the judge to reject the claim outright. In a recent case, a judge dismissed a request for separation of assets arguing that the rights that the plaintiff sought to separate were no longer valid.

However, the court clarified that this type of analysis must be done during the incidental procedure and not at the initial stage. The reason is that the validity of the rights is part of the substance of the case and must be analyzed with evidence during the trial, not in advance by the judge when deciding whether or not to admit the claim.

This criterion is important because it guarantees the right of the parties to have their arguments duly analyzed in the process. If a judge rejects a severance action outright based on a premature analysis of the merits, fundamental principles of due process are violated, such as the right to a hearing and the obligation to resolve based on evidence.

Conclusion

The separation action is a fundamental tool within the commercial bankruptcy to protect assets that are not part of the assets of the merchant in bankruptcy. Its correct application can make the difference between the recovery of assets and the loss of rights over assets that should not legitimately be integrated into the bankruptcy estate.

For companies, suppliers and creditors, it is crucial to know the circumstances in which a separation action is appropriate, to adequately document their operations and to act quickly when a company with which they have a business relationship enters into Commercial Insolvency.

Recent court rulings reinforce the importance of this action, clarifying which assets can be separated and establishing limits on the judge's powers when analyzing the admissibility of the separation action. In this sense, having specialized advice and a well-defined strategy can make a big difference in protecting the interests of companies and their creditors.

[1] Article 1 of the Bankruptcy Law.

[2] Article 2 of the Bankruptcy Law.

[3] The IFECOM is an auxiliary body of the Federal Judiciary Council, with technical and operational autonomy, responsible for regulating and supervising the work of the specialists (Visitors, Conciliators and Trustees) who intervene in the Commercial Bankruptcy proceedings in Mexico. Its main function is to authorize, register and appoint the specialists who participate in these processes, ensuring that they meet the necessary requirements to perform their functions efficiently and professionally.

[4] Article 3 of the Bankruptcy Law.

[5] In terms of article 145 of the Bankruptcy Law, the Conciliation stage in a Bankruptcy has an initial duration of 185 calendar days. This period may be extended up to two times for additional periods of 90 calendar days each, if certain requirements established in the Bankruptcy Law are met. In no case may the Conciliation last more than 365 calendar days (one year).

[6] Article 3 of the Bankruptcy Law.

[7] Article 70 of the Bankruptcy Law.

[8] Article 71 of the Bankruptcy Law.

[9] Collegiate Court, Digital Registry 2029863, Eleventh Period, Subject(s): Civil, Thesis: I.4o.C.39 C (11a.), Isolated Thesis, Judicial Weekly of the Federation, Publication: Friday, February 7, 2025, “SEPARATORY ACTION. IN COMMERCIAL BANKRUPTCY, THE MONEY FROM REGULAR DEPOSITS CONTAINED IN DEPOSIT NOTES MAY BE CLAIMABLE IN IT (article 71, section VII, of the Commercial Bankruptcy Law)." Detail – Thesis – 2029863

[10] Collegiate Court, Digital Registry 2029864, Eleventh Period, Subject(s): Civil, Thesis: I.4o.C.40 C (11a.), Isolated Thesis, Judicial Weekly of the Federation, Publication: Friday, February 7, 2025, “ SEPARATORY ACTION. THE VALIDITY OF THE RIGHTS CLAIMED IS A SUBSTANTIVE ISSUE THAT SHOULD NOT GIVE RISE TO THE OUTRIGHT DISMISSAL OF THE CLAIM (LEGISLATION APPLICABLE TO MEXICO CITY)." Detail – Thesis – 2029864

Precautionary Measure in Amparo Trial: possibility of binding authorities not designated as responsible

Written by Santamarina + Steta en February 28th 2025. Published in S+S Litigation Newsletter.

On February 14, 2025, the Supreme Court of Justice of the Nation (“SCJN”) published jurisprudence 1a./J. 2/2025 (11a.) in the Judicial Weekly of the Federation, establishing that it is possible to link an authority not designated as responsible for compliance with the definitive suspension in an indirect amparo trial.

According to the SCJN, as long as the linked authority is empowered to comply with the precautionary measure, this link may be applied in terms of articles 158 and 197 of the Amparo Law, the latter in an analogous manner.

The First Chamber of the SCJN resolved the contradiction of criteria 203/024 originating from divergent positions on the possibility of linking authorities other than those indicated as responsible to comply with the definitive suspension in an indirect amparo trial. While the Second Collegiate Court in Criminal and Administrative Matters of the Seventeenth Circuit (Central-North Region), when resolving complaint 9/2023, held that such linking was possible based on articles 147 and 158 of the Amparo Law, the Seventh Collegiate Court in Civil Matters of the First Circuit (Central-South Region), when resolving complaint 281/2022, considered the opposite, arguing that it is only viable for compliance with the protective ruling in accordance with articles 192 and 197 of the same law.[1]

The criterion adopted by the SCJN allows that, in cases where the precautionary measure requires it, any authority that has the competence to comply with the suspension can be bound, even if it was not indicated as responsible in the amparo trial. This interpretation seeks to guarantee the effectiveness of the precautionary measures and avoid affecting the legal sphere of individuals while the merits of the matter are resolved.

The justification lies in the power granted to the courts of amparo by article 158 of the Amparo Law, which allows them to take the necessary measures to comply with the suspension. In addition, article 197 was applied in an analogous manner, since it shares the objective of ensuring the full execution of judicial resolutions, both in the judgment granting amparo and in the one granting the suspension of the challenged act.

In its resolution, the SCJN also highlighted that Article 17, paragraph XNUMX, of the Political Constitution of the United Mexican States, establishes that federal and local laws must guarantee the full execution of court decisions, which justifies the involvement of any authority related to compliance with the precautionary measure.

In practice, this will allow those who file indirect amparo proceedings to have greater procedural flexibility to achieve effective compliance with definitive suspensions, even when the authority directly responsible cannot or does not want to comply with the measure. In addition, we consider that this criterion can be used to argue in favor of the connection of related authorities, expanding the possibilities of success in defense strategies. This publication is of special interest to those involved in complex litigation or where there are multiple authorities involved, since it facilitates the effective protection of human rights and guarantees more effective judicial protection.

In other words, this new jurisprudential criterion will have a significant and very positive impact on the practice of indirect protection, reinforcing the procedural tools to ensure compliance with definitive suspensions and effectively protecting the rights recognized by our Political Constitution.

[1] https://sjfsemanal.scjn.gob.mx/detalle/tesis/2029940

Claims for Damages Caused by an Amusement Ride Fall Under Strict Liability, as Such Rides May Be Classified as “Inherently Dangerous Mechanisms”

Written by Santamarina + Steta en February 28th 2025. Published in S+S Litigation Newsletter.

A Collegiate Court in Civil Matters recently issued a ruling in which it determined that amusement rides, by themselves, are considered “dangerous mechanisms”, giving rise to any claim for damages generated by mechanical games being admissible to claim Objective Civil Liability.

In order to understand the general panorama of the damages trial and the figure of Objective Civil Liability, it is worth making a few brief clarifications: the Federal Civil Code and the civil codes of the respective federative entities regulate this figure.

In general terms, to unravel the nature of this legal figure, it is noted that the Federal Civil Code[1] It establishes that Civil Liability can be of a contractual or non-contractual nature. On the one hand, Contractual Civil Liability consists of all those obligations that arise from a contractual link (breach of a contract, inaccurate performance, etc.), and on the other, Non-Contractual Civil Liability arises from damage caused to a person without any legal relationship between the author of the damage and the injured party.[2]

In this regard, Extracontractual Civil Liability has two aspects: Subjective Civil Liability and Objective Civil Liability. The judicial opinion issued by the Collegiate Court addresses a scenario of Objective Civil Liability. To briefly understand their differences:

Subjective Responsibility arises from an illicit act in general and translates into a duty of reparation;
Objective Civil Liability does not necessarily imply an unlawful act, but the production of damage is sufficient for the obligation to repair it to arise.

In this sense, the doctrine has defined Objective Civil Liability as the “Theory of Created Risk”,[3] in which any activity that generates a risk is subject to the agent who manages it being held responsible for any damages that may be generated.

In this regard, Article 1913 of the Federal Civil Code establishes the following:

Article 1913: When a person makes use of mechanisms, instruments, devices, motor vehicles or substances that are dangerous in themselves, due to the speed they develop, due to their explosive or flammable nature, due to the energy of the electric current they conduct or for other similar causes, he or she is obliged to answer for the damage he or she causes, even if he or she does not act illegally, unless he or she proves that said damage was caused by the fault or inexcusable negligence of the victim.

In all cases, the owner of the mechanisms, instruments, devices, motor vehicles or dangerous substances will be jointly liable for any damages caused.

The article regulates a catalogue of “dangerous things” (mechanisms, instruments, devices, substances, etc.) that can, by themselves, generate a risk and, in the event of causing damage, the Objective Civil Liability would be updated. However, it is not clear from the article itself what type of activities and objects are subject to this scrutiny.

Faced with this dilemma, a Collegiate Court published a criterion (which, for the moment, is not mandatory, since it consists exclusively of an isolated thesis and is only of a guiding nature) in which it is determined that mechanical games are dangerous mechanisms in themselves.

The above is based on the premise that mechanical games are built with heavy metals, with electrical charges and exposed to meteorological factors (due to their location in amusement parks), which leads to progressive wear of the mechanical game, making it more susceptible to damage.

This criterion is derived from a judgment of objective liability, in which the defendant was the owner of a mechanical game in which damage had been caused. The defendant argued that the use of the mechanical game did not constitute a “dangerous mechanism”, since it had suitable safety measures.

We consider it positive that there are more and more specific interpretations, since the generality of "dangerous things" can include countless alternatives that must be limited on a case-by-case basis with the passage of time and the issuance of new judicial criteria.

[1] The Federal Civil Code will be used for illustrative purposes.

[2] CONTRACTUAL AND EXTRACONTRACTUAL LIABILITY. THEIR DISTINCTION. Digital Registry number 2004315 available at: https://sjf2.scjn.gob.mx/detalle/tesis/2004315

[3]Campos Díaz, M. (2000). Objective Liability or the Created Risk. UNAM Institute of Legal Research. Available at: https://archivos.juridicas.unam.mx/www/bjv/libros/7/3496/8.pdf

Dividends in Mexico: Private Companies

Written by Santamarina + Steta en February 24th 2025. Published in Updates.

Do you know how to distribute dividends in your company?

If you have a Corporation (SA) or a Limited Liability Company (S. de RL) in Mexico, understanding the dividend distribution process is essential. In this article, our partner Alberto Saavedra, the counselor Karina Robledo, and the associates Inigo Garcia, Esteban Soto y Arturo Yamil Alvarado D., in collaboration with Thomson Reuters® Practical Law, guide you through the process.

The article covers key issues such as the approval of profits at the annual shareholders' meeting, tax requirements for paying dividends, equitable distribution among shareholders, and the responsibilities of the board of directors. The tax treatment of dividends and other financial benefits, such as share repurchases, is also discussed.

Thomson Reuters® Practical Law is a source of practical guidance for a better understanding of international legal systems, cultural and market practices in more than 100 countries and 14 practice areas.

Read the full article here or download the PDF:

Distributing Dividends from a Private Company (Mexico)

Reproduced with the permission of Thomson Reuters, this article was first published in Practical Law Globa. For further information, visit p Raticallaw.com

More about tariffs

Written by Santamarina + Steta en February 24th 2025. Published in Podcast.

For this new episode, we are joined by Juan Carlos Machorro and Alejandro Luna, partners at our firm, to discuss President Donald Trump's proposals, analyzing the mechanisms available to him to impose and enforce tariffs, the logic behind these measures, their economic impact, and what retaliatory or deterrent measures might be considered in Mexico.

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