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What legislation would be applicable in international commercial arbitration?

Written by Santamarina + Steta en . Published in Events and Webinars.

Roberto Fernández del Valle will be present at the event Human Rights in ESG Disputes, organized by the Arbitration Committee of the Barra Mexicana of Lawyers. Our partner will be a speaker at the talk “What legislation would be applicable in international commercial arbitration?”, where he will discuss the importance of arbitration legislation in international commercial relations and trends within the world of ESG. 

If you wish to participate, write to Carmen Guillén at the following email address: barramexicana@bma.org.mx or by calling 55 5208 3113, 55 5208 3117 or 55 5525 2485.

Monday, September 25 | 14:30 p.m.

WTC Mexico City | Uxmal-Tulum Hall

Recovery fee: 
Barristers: $600 MXN
No Barristers: $1,200 MXN

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QUERETARO STARTS FORUMS FOR THE PREPARATION OF PLAN 2 5 1

Our partner José Ramón Ayala is invited as Founding Proprietor Advisor of the Querétaro Council for Strategic Planning

Written by Santamarina + Steta en . Published in Announcements.

On August 8, 2023, the governor of Querétaro, Mauricio Kuri González, led the creation of the Querétaro Council for Strategic Planning, after which he formally launched the forums for the Elaboration of the Querétaro 2050 Plan. 

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Jose Ramon Ayala, Partner and founder of the Querétaro and Bajío office of Santamarina + Steta, is part of the Council, which aims to be a space for meeting, reflection and analysis of various strategic issues in order to ensure comprehensive, sustainable and long-term growth for the state of Querétaro.

During the meeting, the Secretary of Planning and Citizen Participation, Antonio Rangel, highlighted the importance of developing strategies aligned with the State Development Plan 2021-2027. Eduardo Sojo Aldape, director of the National Laboratory of Public Policies, emphasized that this process seeks to create a long-term plan focused on collaboration to transcend future government administrations.

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Likewise, the president of the Council, Ricardo Pereda López, expressed his gratitude for the boost that has been given to citizen participation and promised not only to maintain it, but to increase it. For his part, the local deputy Luis Gerardo Ángeles Herrera promised to promote legislative reforms with the aim of always ensuring the well-being of Queretaro families.

In addition to our partner José Ramón Ayala, the Council is made up of various members of society with complementary profiles, including former councilors of the Electoral Institute of the State of Querétaro, directors of renowned universities, communicators, journalists, businessmen, engineers, among others. 

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Waze Ads, data in the digital economy

Written by Santamarina + Steta en . Published in Events and Webinars.

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New technologies are transforming our present and paving the way to a future full of possibilities. Aware of the potential at the intersection of technology and law, Santamarina + Steta presents Tech Talks, a series of talks with invited experts to explore every corner of technology. 

En Tech Talks We will talk about the development of new products and services, the regulation and ethical challenges of these innovations and how to transform disruptive ideas into successful businesses.

To kick off this series of talks, we are excited to announce our first guest: Anasofía Sánchez, General Manager of Latin America at Waze, a visionary leader seeking to revolutionize the way we navigate and move in the digital world.

Be part of Tech Talks and don't miss the opportunity to hear their experiences, ideas and knowledge on how to make the most of technological advances and turn innovation into concrete results. 

Furthermore, along with Daniel Legaspi, partner and intellectual property expert, and Paola Morales, partner and expert in TMT and personal data, we will delve into the local context to explore the exciting panorama of technological development in Mexico and how it drives the growth of companies in the region.

We invite you to be part of the launch of this space that unites technology, innovation and law. 

The first session will be held next 22th September 2023 in Mexico City. Save the date on your calendar and register to secure your spot at this unmissable event. 

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Wednesday, September 20 | 08:00 am
Colab Social Promoter Mexico
Alps 220, Lomas de Chapultepec, Mexico City

We look forward to seeing you soon!

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More Mexican companies consider investments in the US

Written by Santamarina + Steta en . Published in Updates.

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Political uncertainty at home and the lure of the world's largest economy are two factors that have led Mexican companies to consider investing in the United States more seriously than ever. But many companies are unsure how to proceed or where to start.

These are some of the takeaways from international business trips we conducted over the past year in conjunction with the South Carolina Department of Commerce and the U.S. Embassy in Mexico and our recent conversations in Mexico with more than a dozen companies, from publicly traded to family-owned, in sectors including pharmaceuticals, petrochemicals, textiles, housewares and appliances.

What is causing Mexican companies to consider looking north?

The vast majority of business leaders we spoke to cited growth opportunities and geopolitical uncertainty as reasons for considering investments abroad, especially after certain unilateral actions the Mexican government has taken recently, such as:

  • The expropriation of 120 kilometers of railway tracks owned by the Grupo México conglomerate using the figure of expropriation for a public utility project.
  • The purchase of 13 power generation operations owned by a Spanish company to allow the state-owned electricity company CFE to control 54% of the electricity market.

In addition, additional concerns arise because the current administration has control of the House and Senate with the ability to pass laws with very little opportunity for the business community to weigh in.

Overall, the perception is that business in the U.S. is more stable and predictable than in Mexico. Many companies we spoke to were particularly interested in the Southeast U.S. (which is the newest trend, with Mexican companies commonly choosing states like California, Texas, and Florida in the past), as the area offers access to over 70% of the U.S. population within a day’s drive, as well as easy access to key ports and cities on the East Coast. Companies were also attracted by the Southeast’s cost of doing business and the availability of labor.

Key Considerations for U.S. Investments

As companies explore their first investment in the U.S., legal issues to consider include:

• Choosing the most appropriate corporate structure for US operations, as a legal entity in the US is formed at the state level, and there are several types of US entities (they do not have federal or national entities). Corporations and limited liability companies (LLCs) are two common options, and each has its own advantages and disadvantages.

• Selecting a site and obtaining government incentivesThere is variability in state and local tax rates, the availability and cost of real estate, access to skilled labor and the likelihood of dealing with unions, as well as the richness of government incentive packages.

• US RegulationsU.S. immigration laws are complex and can cause problems and delays for companies that do not plan ahead for their travel and staffing needs. Companies that locate in the U.S. must also understand their obligations under applicable federal, state, and local tax and environmental laws, as regulations there tend to be just as complex as in Mexico.

Given the myriad considerations at play, it can be especially valuable to partner with legal and site selection professionals who can provide data-driven answers to each company’s key questions.

What happens to companies that decide to stay and invest in Mexico?

Despite the adverse situation in Mexico, foreign direct investment continues to occur. Mexico has been a natural place to access the United States market, which can be enhanced by the effect of the nearshoring, due to the US economic disputes with China and also because the Mexican government wants to encourage foreign investment in the south of the country. Additional factors are the recent strengthening of the Mexican peso against the US dollar and the attractive interest rates in Mexico, in some cases above 11%.

Article in collaboration with Parker & PoeFor more information, please contact the authors or your usual contact at Santamarina + Steta.

WEBINAR INFLUENCERS IN MEXICO SITE 2

Influencers and the Law in Mexico: Keys to Comply and Stand Out

Written by Santamarina + Steta en . Published in Events and Webinars.

In the United States, the actions of influencers are regulated by the Federal Trade Commission (FTC). Recently, the FTC published the document "Disclosures 101 for Influencers", in which he gives specific advice to influencers in order to correctly publicize the commercial relationships between them and brands.

In Mexico, advertising and information provided by influencers is governed by various regulations, one of the main ones being the Federal Consumer Protection Law. This law considers all information about goods, products or services that is disseminated by any means, including digital platforms and social networks, to be advertising.

Therefore, if you provide information or publish the recommendation of a good, product or service through digital platforms or social networks, you are generating advertising and must follow the rules established in said law.

SS INSIGHTS Taylor Swift Let The Player Play SITE

Taylor Swift: Let The Player Play

Written by Santamarina + Steta en . Published in Updates.

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It is no secret that among lawyers there is a significant population of “swifties”, some very influential, like Minister Zaldívar, and others not so much. In this short article we celebrate the career of Taylor Swift, who by creating for us a soundtrack contemporary for love, heartbreak and other experiences for which the millennials We could only find solace in songs from the 80s and 90s. Swift has generated one of the most profitable catalogs in the music industry, with almost 54 billion streams on Spotify and a tour that, in just 22 dates, generated 300 million dollars and is estimated to generate up to a billion dollars.

Taylor Swift cannot be separated from her big ideas and power plays; therefore, this post demands to now go into the most boring part for some – but probably the reason why some continue reading this – that is, the legal support that allows the protection of her music: copyright.

I Knew You Were Trouble: Exploitation of copyright

This is a legislation that generates, in favor of the authors and other people involved, a significant number of privileges of use and exploitation that are not always easy to understand, because on the same work we see rights that operate in parallel in favor of different people who seem to have nothing to do with the author. In this way, not only those who write the lyrics or musical notes have rights, but also, for example, those who sing or even those who record have other rights.

It is important to know that the purpose of the rights referred to is none other than to constitute an incentive that stimulates cultural development to eventually allow the free use of works by the general population and thus make possible the creation of more and more culture. In this system of incentives, the bargaining chip is precisely the exclusive right of exploitation for a certain time, known as copyright. 

Thus, this variety of privileges facilitates the recognition and remuneration of the participation of different individuals in the various cultural industries, such as literature, audiovisual or music, to mention a few.

Without this text having to get too technical, based on some cases related to Taylor Swift's music we can understand some aspects of the music industry in a very specific way and, at the same time, notice the transformation of an industry by an author with sufficient influence and lyrical creativity, but also legal.  

In particular, his experience gives us the opportunity to comment on issues such as the distinction between music, lyrics and performance, as well as the question of originality and the protection of ideas or concepts such as copyright. 

Shake it off: Protection of originality     

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A first aspect that Taylor Swift can help us understand is the question of originality in literary creation. To do so, I suggest that you accompany this reading with the masterpiece that is “Shake It Off” from her album 1989. A song that suggests that we have as a hymn of life an attitude that allows what others do and say about us to slip past us. 

And it is here that a first controversy arises that allows us to study what is original in a work and to what extent an expression can or cannot be protected. A central part of this song is the following phrase, which I ask you to read while singing: 

“Players gonna play play, play, play
And the haters gonna hate, hate, hate, hate, hate
Baby, I'm just gonna shake, shake, shake, shake
I shake it off, I shake it off
Heartbreakers gonna break
Fakers gonna fake
I'm just gonna shake
“I shake it off, I shake it off”

Before we get into the study, first a little legal context. Both copyright in the United States (copyright), such as that of our country, protect the originality of a work that has been fixed in a material medium, which is not just an idea, but has come from the human being in whom it found its origin to be fixed in an object, such as paper or a word processor on a computer. The above means that copyright legislation protects the right of a person over what he or she expresses and fixes, provided that it has originated in that person and not in another. 

Continue reading here

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New York State Bar Association | International Section 2023 Mexico Global Conference

Written by Santamarina + Steta en . Published in Events and Webinars.

Each year, the International Section of the New York State Bar Association (NYSBA) organizes a conference to provide its members with programs and panels with leading professors who are experts in various topics of interest in international law. In addition, over three days it offers networking spaces to meet and strengthen connections with key players in international firms and businesses, as well as a series of social and cultural events to learn more about the host city.

This year, the conference will be held in Mexico City and Santamarina + Steta is one of its proud sponsors.

To learn more details about the event, we invite you to visit: https://nysba.org/international-section-2023-mexico-global-conference/

October 11-13, 2023
JW Marriott Hotel | Mexico City

Educational
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UPDATE DISTRICT COURT DECLARES LIMIT ON PROFIT SHARING AS UNCONSTITUTIONAL

District Court qualifies the limit on profit sharing as unconstitutional

Written by Santamarina + Steta en . Published in Updates.

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Executive Summary:

  • On August 3, 2023, the Eighth District Judge for Labor Matters in Mexico City granted an injunction to a group of workers in relation to the Decree to establish a maximum limit on workers' participation in profits (“PTU”).
  • The protection granted to workers was granted exclusively to those complainants who signed the Amparo and accredited the payment of PTU with the aforementioned limit.
  • This ruling is only applicable to the group of workers covered, and is, so far, merely an isolated precedent.

On August 3, 2023, the Eighth District Judge for Labor Matters in Mexico City granted an injunction to a group of workers from Section 120 of La Ciénega, in Santiago Papasquiaro, Durango, belonging to the National Mining and Metallurgical Union "Frente", in relation to the "Decree by which various provisions regarding labor subcontracting were amended, added and repealed", published on April 23, 2021, in the Official Gazette of the Federation (the "Decree") that added section VIII to article 127 of the Federal Labor Law, to establish a maximum limit on the participation of workers in company profits ("PTU") of 3 months of the worker's salary or the average of the last 3 years, whichever is more beneficial to the worker. 

According to the ruling, the workers who challenged the Decree (considering the first act of application on the payment of the PTU for the 2021 fiscal year, which was limited to the average of previous years and was covered in April 2022) did demonstrate the impact derived from the aforementioned rule, since "... the Constitution orders that the profits of a company must be distributed to its workers in an integral manner ...", in addition to the fact that "... the right to the distribution of profits is a right recognized in article 123 of the Magna Carta, regarding which, the law should not establish any limit, since the Political Constitution of the United Mexican States itself does not provide for any limitation". To reach this determination, the Judge also took into account the statement of reasons for the 2021 subcontracting reform. 

In this sense, the protection granted to workers with respect to the Decree was granted exclusively to those complainants who signed the Amparo and accredited the payment of PTU with the aforementioned limit, so that: 

"Remove the aforementioned complainants from the legal sphere and do not apply to them Section VIII of Article 127 of the Federal Labor Law, added in the "Decree", insofar as it limits the payment of profit sharing."

It should be noted that this ruling is only applicable to the group of workers covered, and is, until the time this note is published, a mere isolated precedent.

It should also be noted that this resolution can still be challenged by means of an appeal for review, which, if applicable, will be resolved by the Supreme Court of Justice of the Nation, as it is a question of constitutionality.

Given the importance of this criterion, we recommend following up on the procedural consequences related to it, as it could eventually give rise to a definitive and generally binding precedent on the constitutionality of the cap on PTU. 

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Santamarina + Steta announces the departure of Carlos Argüelles to take up the position of Legal Director at ALFA

Written by Santamarina + Steta en . Published in Announcements.

Mexico City, August 8, 2023. Santamarina + Steta, the leading legal services firm in Mexico, is pleased to announce that partner Carlos Argüelles has been selected to assume the position of General Counsel at ALFA, SAB de CV, one of the most important companies in Mexico.

Carlos Argüelles, Graduate in Law from the Universidad de Monterrey and with a Master of Laws in Corporate Law (LL.M.) from New York University, he has an outstanding track record of more than 20 years advising national and international clients in mergers and acquisitions, divestitures, joint ventures, financings, public offerings and public and private debt restructuring processes. During his time at Santamarina + Steta, Carlos has been a valuable leader, contributing to the firm’s continued success and growth, and has been recognized by Chambers and Partners and Legal 500 for his professional excellence.

“Carlos has been a key part of our team and has demonstrated great business acumen, always providing exceptional service to our clients,” said Jorge León Orantes, Chairman of Santamarina + Steta. “We are very proud of his new appointment as Legal Director at ALFA, which demonstrates the excellence and talent that characterize the lawyers at Santamarina + Steta.”

At Santamarina + Steta, we wish Carlos Argüelles every success in this new stage and we are confident that his experience, knowledge and leadership will continue to leave a significant mark in the corporate legal field.

UPDATE CNH SITE

CNH publishes various Agreements on Hydrocarbon Exploration and Extraction

Written by Santamarina + Steta en . Published in Updates.

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Executive Summary:

  • On August 2, 2023, the National Hydrocarbons Commission published various Agreements on exploration and extraction (E&E) of hydrocarbons. 
  • The purpose of these Agreements is to manage and supervise the allocations and contracts for hydrocarbon E&E, as well as to promote the development of these activities for the benefit of Mexico.

On August 2, 2023, the National Hydrocarbons Commission (“CNH”) published, in the Official Gazette of the Federation, the following Agreements on exploration and extraction (E&E) of hydrocarbons:

  1. Agreement CNH.E.09.07/2023 establishing the General Criteria for the extension of the exploration and evaluation periods provided for in the contracts for the exploration and extraction of hydrocarbons that are applicable.
  2. Agreement CNH.E.09.06/2023 by which the National Hydrocarbons Commission interprets, for administrative purposes, articles 27, 29 and 35 of the Guidelines that regulate the Exploration and Development Plans for the Extraction of Hydrocarbons (the “Guidelines”).
  3. Agreement CNH.18.03/2023 by which the National Hydrocarbons Commission interprets, for administrative purposes, articles 65 and 65 Bis of the Guidelines that regulate the Exploration and Development Plans for the Extraction of Hydrocarbons.

The purpose of the Agreements is to manage and supervise the allocations and contracts for hydrocarbon E&E, as well as to promote the development of these activities for the benefit of the country.

RELEVANT ASPECTS

Agreement CNH.E.09.07/2023

In the context of the applicable contracts and the Guidelines, the CNH approved various extensions to the E&E periods of hydrocarbons due to causes that could not be attributed to the contractors. These causes include safety problems, delays in government permits and lack of drilling equipment, among others.

In this regard, to be considered for the extension, contractors must submit the application to the CNH 30 days before the expiration of the corresponding period. In cases where the expiration is less than 30 days away, the application may be submitted up to 5 business days after the publication of the Agreement.

The CNH will take into account three main criteria to grant the extension:

  1. Timely submission of the application.
  2. The persistence of the causes that motivated the initial extension or that continue to affect oil activities today.
  3. The technical justification for the requested extension period.

These criteria will be essential in determining whether or not the extension requested by the contractors is granted.

Agreement CNH.E.09.06/2023

Agreement CNH.E.09.06/2023 interprets articles 27, 29 and 35 of the Guidelines and its relevance lies in the establishment of deadlines and procedures for the approval and modification of work programs and budgets for hydrocarbon E&E contracts. These programs are essential for the proper planning and execution of activities related to hydrocarbon E&E in the country and for the benefit of the nation. 

Thus, the CNH has decided to standardize the time periods provided for in articles 27, 29 and 35 for the case in which applications for modification of a plan or program and approval of the second and subsequent work and budget programs or their modifications are submitted simultaneously. In these cases, the work and budget programs must be subject to the procedure and time periods established for the approval of the main modification. 

This standardization of deadlines seeks to ensure consistency and efficiency in the CNH administrative processes related to hydrocarbon E&E activities, in compliance with the principles established in the Law of Coordinated Regulatory Bodies in Energy Matters.

CNH Agreement.18.03/2023

Finally, through Agreement CNH.18.03/2023, the CNH makes an interpretation of articles 65 and 65 bis of the Guidelines. Article 65 seeks to allow oil operators that have a transition program to carry out preparatory activities for extraction, regardless of whether this program is based on an evaluation report or an initial evaluation report. The scope of the aforementioned Agreement is to promote the development of Hydrocarbon E&E activities in the country, allowing oil operators to carry out early production and preparatory extraction activities as part of their transition program, in accordance with the Guidelines. 

Article 65 bis of the Guidelines seeks to standardize the content of the initial evaluation report with the assessment report, in order to establish the same conditions and equal treatment for oil operators. This is so that they can carry out early production activities or preparatory activities for extraction, regardless of whether these are derived from an assessment report or an initial assessment report.

In summary, the Agreements as a whole seek to improve the operating environment, maximize the potential of hydrocarbon resources and promote appropriate and beneficial development for the country in the hydrocarbon E&E sector.

Relevant Leagues:

UPDATE CRE CANCELS COVID SITE AGREEMENT

CRE publishes Agreement that annuls previous agreements related to the suspension of legal deadlines and terms due to COVID-19

Written by Santamarina + Steta en . Published in Updates.

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Executive Summary:

  • On July 20, 2023, the Energy Regulatory Commission published the Agreement of the Energy Regulatory Commission by which Agreements A/001/2021 and A/004/2023 are revoked.
  • This Agreement supersedes previous agreements relating to the suspension of legal deadlines and terms at the CRE due to the COVID-19 pandemic.
  • With the end of the health emergency, the CRE will now observe the legal deadlines and terms in accordance with the laws and regulations and will void the staggered reactivation of deadlines, as well as the procedures subject to obtaining folios.

On July 20, 2023, the Energy Regulatory Commission (“CRE”) published in the Official Gazette of the Federation (“DOF”), the Agreement of the Energy Regulatory Commission by which the Agreements “A/001/2021 by which the suspension of legal deadlines and terms is established in the Energy Regulatory Commission, as a measure to prevent and combat the spread of the Coronavirus COVID-19” and “A/004/2023 of the Energy Regulatory Commission by which the legal deadlines and terms are resumed in an orderly and staggered manner, which modifies the various A/001/2021 by which the suspension of legal deadlines and terms is established, as a measure to prevent and combat the spread of the Coronavirus COVID-19” (the “Agreement”).

This Agreement supersedes previous agreements relating to the suspension of legal deadlines and terms at the CRE due to the COVID-19 pandemic.

With the end of the health emergency, the CRE will now observe the legal deadlines and terms in accordance with the laws and regulations and will void the staggered reactivation of deadlines, as well as the procedures subject to obtaining folios.

Relevant Aspects

This Agreement supersedes the two previous agreements implemented by the CRE in response to the COVID-19 pandemic. The first agreement to be superseded is “A/001/2021,” which established the suspension of original legal deadlines and terms within the CRE. The second agreement to be superseded is “A/004/2023,” which modified the first agreement and provided for the orderly and staggered resumption of deadlines and terms with procedures subject to obtaining folios.

The World Health Organization declared the end of the international health emergency caused by COVID-19. Subsequently, the Federal Government published a decree declaring the end of the extraordinary action in general health matters. With the decrease in extraordinary activity worldwide and the situation under control in Mexico, the causes that required priority attention have disappeared.

As a result, the CRE has determined that the emergency situation that gave rise to the issuance of the aforementioned agreements has concluded. Accordingly, these agreements and all actions taken to comply with them are deemed unnecessary. 

The CRE will now observe the legal deadlines and terms in accordance with the provisions established by law. This will prioritize the order of priority, serve the public interest and be implemented to the extent humanly possible.

This Agreement provides clarity and guidance for the future operations of the CRE in line with the new circumstances arising from the conclusion of the COVID-19 emergency situation.

Consultation Links:

  • https://cofemersimir.gob.mx/portales/resumen/55498