Traditionally, in matters of civil liability, the primary purpose of compensation has been to repair the damage caused. However, in certain cases, financial compensation can serve an additional function: discouraging particularly serious and socially reprehensible conduct. This dimension of reparation is known as punitive damages.

This figure is especially relevant, since, for example, a bad cost decision can be much more expensive than expected, particularly when reducing expenses on safety, maintenance or regulatory compliance results in serious damage.

In Mexico, punitive damages are not expressly regulated by law. Their development has been primarily jurisprudential, based on rulings issued by the Supreme Court of Justice of the Nation (“SCJN”). The best-known precedent is the so-called Mayan Palace case, in which the First Chamber of the SCJN analyzed the civil liability arising from the death of a guest as a result of serious deficiencies in security measures and a delayed reaction to a relevant risk.

In that case, the Supreme Court of Justice of the Nation (SCJN) held that compensation need not be limited to compensating for the harm suffered, but may include an exemplary element when the responsible party's conduct reveals a serious breach of their duty of care. Based on that precedent, the concept of punitive damages has been progressively defined and applied within the Mexican civil liability system.[1]

Other relevant matters -such as Direct Amparo number 36/2017 (Buenavista del Cobre and Grupo México) and Direct Amparo in Review number 992/2014 (CMR, SAB de CV)- These factors have contributed to the development of punitive damages in Mexico. Furthermore, the existence of pending proceedings has also played a role. -such as the cases against Google Mexico or Cabify- They show that the deterrent function of compensation, even without being expressly provided for in the law, is in full application and evolution.

From this perspective, the Supreme Court of Justice of the Nation (SCJN) has indicated that the right to “just compensation” is not limited to the mere reparation of damages, but may include an additional component when the seriousness of the conduct so warrants. This component serves as a form of social censure and prevention, sending a clear message that certain behaviors cannot be treated as mere errors without significant consequences.

Thus, punitive damages serve a dual purpose. On the one hand, they allow the victim to see their expectation of justice satisfied, by demonstrating that the harm suffered has real consequences for the perpetrator. On the other hand, they play a preventive and deterrent role, sending a clear message of social disapproval and discouraging the repetition of similar conduct in the future. [2]

In some cases, limiting compensation to strictly compensatory damages may be insufficient, for example, when reducing costs in security, maintenance, or regulatory compliance is more economically advantageous than assuming the risk of eventual repairs. In this scenario, punitive damages aim to prevent non-compliance from becoming a profitable decision.

For example, if a company decides to cut costs on machine maintenance and, as a result, an employee is injured due to a failure caused by this omission, punitive damages aim to penalize this negligent conduct. The logic is simple: to prevent paying compensation from becoming more advantageous than complying with minimum safety standards. By increasing the total amount payable, punitive damages can exceed the savings achieved by not performing maintenance, creating a real incentive for the company not to repeat such negligent decisions.

However, the Supreme Court of Justice of the Nation (SCJN) has been clear in stating that punitive damages are not automatic or applicable in all cases. Their imposition requires a careful analysis of the specific circumstances, the degree of responsibility of the person causing the damage, and the severity of their conduct. In this sense, compensation can be entirely just even without including a punitive component. [3]

Furthermore, punitive damages do not constitute an independent sanction, but an increase within the total amount of compensation, closely linked to the proven civil liability and applicable only to the person who actually caused the damage.[4] Nor are they appropriate when the defendant is the State, since an exemplary economic penalty would ultimately fall on the taxpayers.[5]

In conclusion, punitive damages in Mexico constitute an exceptional and carefully defined tool within the civil liability system. Their purpose is not to impose excessive punishments, but rather to reinforce a culture of responsibility, prevent noncompliance or negligence from becoming economically advantageous options, and ensure that compensation is truly just in the most serious cases. Applied prudently and with due justification, punitive damages contribute to a more robust balance between reparation of harm, social censure, and prevention of future misconduct.

Therefore, a poor cost-cutting decision can end up being far more expensive than anticipated. Reducing expenses in security, maintenance, or regulatory compliance may generate immediate savings, but it can also expose companies to significantly greater liabilities when such decisions result in serious harm.

[1] See the criterion issued by the First Chamber of the SCJN, with digital registration number: 2006959.

[2] See the criterion issued by the First Chamber of the SCJN, with digital registration number: 2006958.

[3] See the jurisprudence issued by the First Chamber of the SCJN, with digital registration number: 2025569

[4] See the criterion issued by the Third Collegiate Court in Civil and Labor Matters of the Fifth Circuit with digital registration number: 2029049.

[5] See the criterion issued by the First Chamber of the SCJN, with digital registration number: 2018607.

Executive Summary

• In connection with the fiscal package for fiscal year 2026, the federal legislator introduced an amendment to Article 113 Bis of the Federal Tax Code (“CFF”) which, although formally aimed at combating simulated invoicing schemes, significantly redefines the criminal liability regime applicable to digital platforms.

• The reform broadens the scope of the criminal offense by expressly providing for the possible liability of digital service platforms that allow the publication of advertisements related to the acquisition or sale of tax receipts that cover non-existent, false or simulated transactions.

• This modification raises relevant questions from a threefold perspective: (i) fiscal-criminal, regarding the standard of imputation and duties of control; (ii) constitutional, with respect to the principles of legality in criminal law, presumption of innocence, and legal certainty; and (iii) conventional, in relation to the commitments assumed by Mexico in international treaties, particularly in the area of ​​digital trade.

• Beyond its immediate impact on the tax field, the reform introduces a structural change in the way the Mexican legal system conceives the responsibility of digital intermediaries, with relevant practical implications for platforms, economic operators and corporate legal areas.

Prior to the amendment, Article 113 Bis of the Federal Tax Code (CFF) criminally penalized those who issued, acquired, or sold false tax receipts, as well as anyone who knowingly permitted or published advertisements related to such conduct through any medium. The requirement of actual knowledge served as a defining element of the criminal offense and limited its application to cases of conscious participation in illicit schemes.

The published reform eliminates, for certain individuals, this subjective element and expressly adds digital service platforms as potential targets of the criminal law, introducing a standard focused on the act of "allowing the publication" of the aforementioned advertisements. With this, the focus of criminal liability shifts from knowledge of or direct participation in the content to the mere existence of the content within a digital environment managed by the platform.

This seemingly technical adjustment substantially transforms the design of the criminal offense and significantly expands the universe of potentially responsible subjects.

From a fiscal perspective, the reform strengthens the State's strategy to combat fraudulent invoicing networks, extending the scope of liability beyond the direct issuers and purchasers of false tax receipts. However, this strengthening relies on a model of imputation that may create friction with basic principles of administrative and criminal law.

In particular, the notion of “allowing publication” raises questions about the existence—or not—of a general duty of prior supervision by platforms, as well as about the reasonable limits of diligence required in environments characterized by a high volume of content generated by third parties.

Furthermore, the reform could influence how tax and administrative authorities design their research and inter-institutional coordination strategies, by incorporating digital intermediaries as relevant actors within the tax compliance ecosystem.

From a constitutional perspective, the amendment to Article 113 Bis of the Federal Tax Code requires careful analysis in light of the principles of legality, specificity, and culpability. Expanding the scope of the criminal offense through open or indeterminate concepts can create scenarios of legal uncertainty, particularly when dealing with individuals whose primary activity does not involve generating the sanctioned content.

Additionally, the absence of a clear subjective element for certain cases of responsibility could strain the principle of presumption of innocence and the requirement that all criminal sanctions be based on personally reprehensible conduct, and not exclusively on the position one occupies within an economic or technological chain.

These aspects foreseeably anticipate relevant constitutional debates in the jurisdictional arena, both in the area of ​​diffuse control and the amparo trial.

The reform must also be analyzed in relation to Mexico's international commitments, particularly those related to digital trade and the liability of intermediaries. The introduction of criminal liability schemes based on content generated by third parties could be subject to scrutiny from the perspective of trade agreements that seek to limit general surveillance duties and protect digital intermediation.

In this context, it cannot be ruled out that the application of the new Article 113 Bis may give rise to questions in international forums or to controversies related to the interpretation and fulfillment of conventional obligations.

The reform requires digital platforms, companies operating in digital environments, and corporate legal departments to review their internal policies for controlling, moderating, and responding to potentially illegal content, as well as their cooperation mechanisms with tax authorities.

From the perspective of fiscal, administrative, and constitutional defense, it will be crucial to evaluate, case by case, the real scope of the new provisions, as well as the available avenues of appeal against acts of application that may violate fundamental rights or exceed the limits of the principle of criminal legality.

The amendment to Article 113 Bis of the Federal Tax Code (CFF) transcends the strictly tax-related sphere and silently but significantly redefines the liability regime applicable to digital intermediaries in Mexico. Its proper implementation will require a careful balance between the legitimate objectives of combating illicit tax practices and the preservation of constitutional and conventional principles that underpin legal certainty and due process.

Monitoring its practical application and the jurisdictional criteria issued in this regard will be crucial to assessing its real impact on the tax system and the digital ecosystem.

Abstract: This article argues that contracts concluded using blockchain technology –including “smart contracts"- can satisfy the 'written agreement' requirement of Article II of the New York Convention, provided that they allow the arbitration clause to be clearly identified, the parties' consent to be attributed and traced, and the information to be preserved for later verification."

Based on a functional and evolutionary interpretation, supported by UNCITRAL Recommendation 2006, Article 7 of the 2006 Model Law, and the principles of functional equivalence in commerce and electronic signatures, it is argued that the “written form” serves a probative function rather than a physical one. The immutability, traceability, and verifiability of blockchain strengthen this function, although it presents challenges related to identification, consistency between on-chain and off-chain, and decentralized structures. These challenges can be mitigated through good technical practices, the selection of pro-arbitration venues, and the strategic use of the “most favorable port” principle under Article VII. 

Executive Summary:

The starting point is the traditional requirement of the 1958 New York Convention: to be internationally enforceable and enforceable, the arbitration agreement must be in writing. 

This standard was created to provide certainty in a world of paper and correspondence, but the digitization of international contracts has fostered a less formalistic and more functional approach. Thus, today, the written document is prioritized as proof of the agreement's content and consent, rather than the specific medium used. In this context, the key question is whether contracts executed wholly or partially on blockchain, including "smart contracts," meet this evidentiary standard of the "written document."

The article's central thesis is that arbitration clauses are valid, provided they can be readily identified, the parties can be attributed with consent, and evidence can be preserved for later review. This approach rests on three normative pillars: UNCITRAL Recommendation 2006 on the interpretation of Articles II(2) and VII(1) of the Convention; Article 7 of the 2006 Model Arbitration Law, which validates agreements concluded electronically provided the information is accessible; and the principles of functional equivalence of the Model Laws on Electronic Commerce (1996) and Electronic Signatures (2001).

What does blockchain bring to this evidentiary function?

It offers immutability of the record, temporal traceability and independent verifiability of the content and time of the agreement, all of which strengthens the proof of the arbitration agreement.

In practice, consent is usually expressed through transactions signed with private keys and voluntary interaction with the code. Its attribution is more robust if these keys are linked to the signing entity through KYC processes or electronic signature certificates, and if a verifiable technical bridge exists between the on-chain code and the off-chain text of the clause (for example, a hash of the document). With these elements, the combination of on-chain records and off-chain documentation fulfills the function of "writing" and "signature" for the purposes of Article II. The arbitration clause can be encoded directly in the smart contract or incorporated by reference to an external document; the determining factor is that its content is identifiable, accessible, and maintainable. The most robust technique involves anchoring the document containing the clause using cryptographic evidence and implementing storage and version control policies; a mutable URL alone may be insufficient.

Furthermore, it is essential that the party has had a reasonable opportunity to become aware of the clause before being bound, and that the text remains available in its original form during the arbitration and enforcement.

From a comparative law perspective, there is a convergence towards a substantive standard of formal adequacy for electronic agreements: access to the text, clear consent, and archiving and reproduction capabilities, with favorable frameworks in the US, UK, France, Switzerland, Mexico, and other countries that have adopted or are inspired by the 2006 Model Law. This convergence is compatible with blockchain as long as the verifiable connection between the on-chain artifact and the clause text is guaranteed.