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offices in homes

Legal News: Guidelines for the Conversion of Offices to Housing in Mexico City and the Granting of Tax Benefits

Written by Santamarina + Steta en . Published in Updates.

printable version | August 2021

On August 4, 2021, the Agreement establishing the guidelines for the conversion of offices into housing in Mexico City and the general resolution granting tax benefits was published in the Official Gazette of Mexico City, valid until December 31, 2024.

These guidelines will only apply to properties located in urban corridors or residential areas of the municipalities of Azcapotzalco, Benito Juárez, Coyoacán, Cuauhtémoc, Gustavo A. Madero, Iztacalco, Miguel Hidalgo and Venustiano Carranza that have any of the following types of zoning: Residential (H), Residential with Commerce (HC), Residential with Offices (HO), Mixed Residential (HM), Residential with Commerce and Services (HCS), Residential with Entertainment (HE) in the Historic Center, Residential, Services and Offices (HSO) or Neighborhood Centers (CB).

In addition to the above, only properties used as offices and/or commerce with occupation with functional obsolescence or in disuse or abandonment or properties with a low-impact industrial activity with occupation and with functional obsolescence or in disuse or abandonment will participate in the conversion of offices to housing.

People whose properties meet the above requirements and wish to begin a process of reconversion of their property must register and enroll at the window enabled by the Secretariat of Urban Development and Housing (SEDUVI). Interested persons will present the documentation on the electronic portal and the Responsible Unit will decide on its suitability. Subsequently, the Responsible Unit will review the project and determine whether it incorporates elements of sustainability and compliance with the applicable regulations. If the Responsible Unit decides favorably, it will issue an Approval Opinion with which the interested person will be able to process the corresponding construction declaration and will have access to tax benefits.

Tax benefits include exemption from payment of contributions contemplated in the Tax Code of Mexico City related to the procedure, that is, exemption from payment of fees for the installation of intakes to supply drinking or waste water or to expand water intakes, fees for the construction declaration types "B" and "C", demolition license, subdivision, re-lotting or merger of properties, fees for registration in the Public Registry of Property and Commerce of Mexico City, certificate of freedom from liens and opinion of urban impact study.

To apply these tax benefits, the applicant must not have tax credits disputed through administrative or jurisdictional appeal.

If you require additional information, please contact the partner responsible for your matters or one of the lawyers mentioned below:

CURRENTLEGAL TRASH DUMP IMAGE 2

Legal News: Comprehensive Waste Management Program for Mexico City 2021-2025

Written by Santamarina + Steta en . Published in Updates.

printable version | September 2021

On August 4, 2021, the Secretariat of the Environment of the Government of Mexico City (“SEDEMA”) published, in the Official Gazette number 654 Bis of Mexico City, the “Agreement approving and issuing the Comprehensive Waste Management Program for Mexico City 2021-2025 (“PGIR 2021-2025”)”, in the context of the United Nations Sustainable Development Goals (“SDG”) and compliance with the 2030 Agenda in a call to protect the planet.

With this, Mexico City (“CDMX”) seeks to transition to a “Zero Waste” model, encouraging citizens to adopt more sustainable consumption practices and strategies aimed at a circular economy, involving all sectors of society with capacities and responsibilities in waste management.

In this sense, the PGIR 2021-2025 seeks to reconcile socioeconomic development with sustainable care for the environment and move towards a circular economy by giving value not only to products, but also to materials and resources, in such a way that they remain in use for as long as possible, minimizing the generation and disposal of waste and increasing their use.

The strategic planning of the PIGR 2021-2025 comprised five stages:

  • Preparing the 2021-2025 PIGR through the recognition and identification of the responsibilities of the relevant parties, based on the current legal framework and policy;
  • Analysis of the evolution of comprehensive waste management in Mexico City and the causal identification of its current conditions, through a quantitative and qualitative diagnosis based on expert criteria and documentary information;
  • Planning the goals and strategies to be implemented during the period, defining groups and working groups according to their responsibilities;
  • Management of technical-operational-administrative actions, from the entry into force of the PGIR 2021-2025; and,
  • Monitoring through a database of specific management indicators and results.

Finally, the PIGR 2021-2025 came into force on August 5, 2021.

If you require additional information, please contact the partner responsible for your matters or one of the lawyers mentioned below:

drought

Legal News: General Agreement on the start of an emergency due to the occurrence of severe, extreme or exceptional drought in basins for the year 2021

Written by Santamarina + Steta en . Published in Updates.

printable version | August 2021

On August 11, 2021, the Ministry of Environment and Natural Resources (“SEMARNAT”) published in the Official Gazette of the Federation (“DOF”), the “General Agreement on the initiation of an emergency due to the occurrence of severe, extreme or exceptional drought in basins for the year 2021 (the “Agreement")".

As part of the implications arising from the determination by the National Water Commission (“CONAGUA”) regarding the occurrence of drought in various basins of the country, in its severe, extreme or exceptional modalities, the following measures are established that may be adopted by the holders of concessions for the exploitation, use or use of national waters, in addition to implementing preventive and mitigation measures for drought, provided for in the Program of the Basin Council that corresponds to them:

  • Notify the Water Authority[1], in order to provide third parties with provisional full or partial use of the concessioned waters.
  • Temporarily transfer or assign its rights to the Water Authority and request that the expiration of the volumes of water granted and not used be interrupted, in order to avoid the termination of the concession granted, in accordance with the provisions of the National Water Law ("LAN”) in its article 29 Bis 3, said temporary transmission being applicable to address extraordinary droughts, serious overexploitation of aquifers or similar states of need or urgency.

Likewise, as part of the temporary measures to address the drought, a temporary limitation of existing water rights is planned, reducing the volumes of water to users who are experiencing severe, extreme or exceptional drought, prioritizing the supply of water for domestic and urban public use to populations that are without this natural resource due to the effect of said phenomenon, in terms of the provisions of the LAN.

In this regard, in accordance with the aforementioned law and its Regulations, when there are grounds for expropriation, temporary, total or partial occupation of privately owned property or limitation of ownership, the provisions of the Expropriation Law and other applicable provisions must be observed, taking into account the general conditions established in the concession titles.

For this reason, CONAGUA urges users of national waters in municipalities experiencing drought conditions, according to the biweekly report of the Mexico Drought Monitor, to implement the preventative and mitigation measures contained in the Preventive and Mitigation Measures Program for drought that corresponds to the Basin Council in which they are located, as well as those suggested in Chapter IV of the "Guidelines establishing the criteria and mechanisms for issuing General Agreements in Emergency Situations due to the occurrence of drought, as well as the preventative and mitigation measures that users of national waters may implement to achieve efficient use of water during drought", published in the DOF on November 22, 2012, such as working tables, consultation, suggestion boxes, or reestablishing the reserve volume.

Finally, in accordance with the results of the analyses and opinions carried out by the Mexican Drought Monitor, in order to guarantee the supply of water for domestic and urban public use, CONAGUA may implement the temporary measures agreed upon with the representatives of the users in the River Basin Councils that present severe, extreme or exceptional drought conditions, contained in the corresponding Preventive and Mitigation Measures Programs.

[1] Water Authority is understood to be the River Basin Authority that issued the concession for the exploitation, use or utilization of national waters.

If you require additional information, please contact the partner responsible for your matters or one of the lawyers mentioned below:

Mexico Office

Reform to the regulations of the urban development law 1

Legal News: Reform to the Regulations of the Urban Development Law of the Federal District, regarding the Certificate of Land Use for recognition of activity

Written by Santamarina + Steta en . Published in Updates.

printable version | August 2021

On July 27, 2021, the Decree was published in the Official Gazette of Mexico City, by which Article 15 Bis is Added to the Regulations of the Urban Development Law of the Federal District (now Mexico City), regarding the Certificate of Land Use for recognition of activity (the "Decree”), which is already in force and aims to establish a new procedure aimed at micro and small businesses that are not duly regularized in accordance with the provisions relating to land use in Mexico City.

Thus, all those persons who carry out activities in micro or small businesses, services or low-impact industries, in properties of up to 200 square meters of constructed area and whose land use of the property where said economic activities are carried out is not regularized, may electronically request from the Secretariat of Urban Development and Housing ("SEDUVI") of Mexico City the issuance of a Certificate of Land Use for Recognition of Activity (the "Certificate

It is important to highlight that the purpose of the Certificate is to function as an alternative mechanism that allows the continuity of the economic activity of micro and small businesses, but it does not consist of a change in land use. In this sense, it will be valid until such change is made to the property in question, in accordance with the provisions of the Urban Development Law of the Federal District (now Mexico City) and its Regulations.

Likewise, it should be mentioned that there are other limitations once the Certificate has been granted, these consist of:

  • The Certificate will indicate the land use authorized for the property where the economic activities will be carried out, which is not considered inherent to it and, therefore, is not transferable with the property in question.
  • The ownership of the Certificate corresponds solely and exclusively to the person who processed it, and may only exercise it in the property indicated by the Certificate.

Finally, it is worth highlighting that SEDUVI published, in the Official Gazette on August 9, the list of low-impact activities, services or industries that may process the Certificate, based on the North American Industrial Classification System (SCIAN), which can be consulted at the following link: https://data.consejeria.cdmx.gob.mx/portal_old/uploads/gacetas/51ee3741ad858998164c34810ca5610e.pdf.   

If you require additional information, please contact the partner responsible for your matters or one of the lawyers mentioned below:

Indigenous peoples

Legal News: Consultation of the General Development Plan of Mexico City and the General Territorial Planning Program of Mexico City

Written by Santamarina + Steta en . Published in Updates.

printable version | August 2021

The right of indigenous peoples, neighborhoods and communities to participate in the formulation and implementation of national development programs is contained in different levels of Mexican legislation: at the international, constitutional and local levels.

Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries of the International Labour Organization (ILO), ratified by Mexico, establishes the right of indigenous peoples to participate in the formulation, implementation and evaluation of national and regional development plans and programs that may directly affect them.

Likewise, the Political Constitution of the United Mexican States establishes that indigenous peoples must be consulted in the development of plans for the federal entities and, where appropriate, incorporate their recommendations and proposals.

Similarly, the Political Constitution of Mexico City guarantees the right to the city through planning, legal, administrative, financial, fiscal and citizen participation instruments.

The Law on the Rights of Indigenous Peoples and Neighborhoods and Indigenous Communities Residing in Mexico City establishes that the inhabitants of towns and neighborhoods, as well as the members of the communities, have the right to participate in the design, execution and evaluation of development programs in their territorial areas and in the formulation, application, and evaluation of plans and programs and development policies for the city.

Both the General Development Plan for Mexico City and the General Territorial Planning Program are instruments that directly affect the population of Mexico City. On the one hand, the General Development Plan for Mexico City is the mandatory instrument for the public and regulatory sector to which public programs, policies and projects will be subject.

On the other hand, the General Territorial Planning Program is the instrument that aims to create and preserve an adequate habitat for all people and living beings that live or transit in the city. It is aimed at regulating the sustainable and rational occupation and use of the territory as a spatial basis for the strategies of socioeconomic development and environmental preservation in this entity.

Taking into account all of the above, on July 5, 2021, it was published in the Official Gazette of Mexico City (the “Mexico City Gazette”), the “Notice announcing the Call for Indigenous Consultation to indigenous peoples and neighborhoods and indigenous communities residing in Mexico City to present recommendations and proposals to the Draft General Development Plan of Mexico City and the Draft General Territorial Planning Program of Mexico City” (the “Call”). This Call establishes that the original consultation period is from August 5 to 12, 2021.

On July 28, 2021, the “Initiative with Draft Decree to Reform the Fifteenth Transitory Article of the Political Constitution of Mexico City and the Eighth Transitory Article of the Law of the Development Planning System of Mexico City with the objective of extending the term and consultation times of both the General Development Plan of Mexico City and the General Territorial Planning Program of Mexico City” (the “Initiative

Considering the original consultation period established above, the objective of the Initiative is to provide the members of the original peoples, neighborhoods and indigenous communities residing in the city with more time to analyze said projects. It is proposed that the General Development Plan of Mexico City enter into force on October 1, 2022, the Government Program and the Government Programs of the Mayors' Offices on April 1, 2023, the General Territorial Planning Program of Mexico City on October 1, 2022, and the Territorial Planning Programs of each of the territorial demarcations on April 1, 2023.

Finally, on August 3, 2021, the Notice announcing the Call for Proposals was published in the Official Gazette of Mexico City. This is considering that the Congress of Mexico City has already started the legislative process regarding the Initiative, and it seeks to respect the times and procedures developed by the local Legislative Branch. However, the dissemination of the projects will continue through electronic portals and digital social networks.

Both projects can be consulted in the following links:

If you require additional information, please contact the partner responsible for your matters or one of the lawyers mentioned below:

Santamarina mas steta publications and events right to use the emblem

Right to use the “Made in Mexico” emblem

Written by Santamarina + Steta en . Published in Updates.

The emblem “MADE IN MEXICO"It is a trademark registration that covers the advertising of products produced and manufactured in the Mexican Republic, which allows the Federal Government to establish mechanisms to promote national products.

This trademark registration is owned by the Ministry of Economy, which aims to encourage producers to use the emblem in order to provide them with a benefit and, at the same time, to ensure that consumers have the certainty and guarantee of the products they purchase.

On November 22, 2018, the Agreement establishing the conditions and requirements for granting authorization and use of the “MADE IN MEXICO” emblem was published in the Official Gazette of the Federation. This was due to the fact that, in order to boost the domestic market, strengthen the presence of Mexican products internationally, protect employment in Mexican territory and increase their level of competitiveness, it was necessary to establish a simple and agile process to determine that the products on the market meet the requirements to display the “MADE IN MEXICO” emblem.

Previously, to obtain the right to use the emblem, only an application was submitted to the Ministry of Economy, which issued an authorization for use; however, since there was no process to determine that the products were actually produced and manufactured in Mexico, the right to use the emblem was granted left and right.

For the above, the Ministry of Economy, through the General Directorate of Standards, issued an approval granting the License of Use of the trademark registration “HECHO EN MÉXICO” and Design to accredited Certification Bodies.

These Certification Bodies will carry out an analysis of the specifications and technical information indicated in the Agreement and in the General Certification Criteria in order to determine whether a Certificate of Conformity will be issued to the applicant for the right to use the Emblem, a document that certifies and authorizes that the applicant's product complies with all the requirements established in said Agreement.

Once the corresponding Certificate of Conformity has been issued, the applicant may enter into a Sublicense agreement or contract with the Certification Body and thus obtain the right to use and display the “MADE IN MEXICO” emblem on its products.

ASSUMPTIONS

Within the analysis carried out by the Certification Bodies, they will have to ensure that the products of the interested parties are produced and manufactured in the Mexican Republic under one of the following assumptions:

  1. That the good is obtained entirely or produced entirely in Mexico.
  2. That the good is produced exclusively from materials that qualify as originating in accordance with the Treaties or Trade Agreements to which Mexico is a party and must be subjected to operations that imply their substantial transformation.
  3. That the good is made with non-originating goods, but that it results from a production process in Mexico, such that the good is classified in a subheading different from that of non-originating goods according to the Harmonized Commodity Description and Coding System.
  4. That the transaction value of non-originating materials does not exceed the percentage established for each sector with respect to the transaction value of the merchandise.

VALIDITY

The validity of the sublicenses for the use of the emblem will be two years, extendable for the same period, the application for which must be made to the corresponding Certification Body, at least two months in advance of the expiration date of the same.

GRAPHIC IDENTITY OF THE EMBLEM

In order for the emblem to be an element that identifies us as a nation, the graphic identity incorporates key elements that are part of our country's cultural heritage. The eagle, which is a symbol of our nation, accompanies the word Mexico, which appears on a black background to highlight the strength of our country.

The Ministry of Economy issued the Graphic Identity Manual, which specifies the structure, color, typography, incorrect uses and applications in different types of products.

USE AND APPLICATIONS

The emblem must be integrated into the products in such a way that it does not interfere with the provisions of the Labelling and Commercial Information Standards applicable to each product, provided that the graphic identity of the emblem is not altered in any way.

Improper use of the emblem will result in financial penalties, which is why sublicensees must comply with the following rules of use:

  1. Marking, printing or reproduction may only be made on the packaging of products that have been expressly recognized as being produced or manufactured domestically in accordance with this Agreement and in accordance with the requirements established in the Criteria. Marking, printing or reproduction may also be made on the product or its label when, according to its characteristics, it does not have a packaging.
  2. It must be marked clearly, legibly and indelibly on the corresponding products.
  3. In no case shall the proportions or the composition and distribution of the elements that make up the graphic identity of the “HECHO EN MÉXICO” emblem on products made in Mexico or any of its elements be altered or modified.
  4. The use of any of the elements of the identity separately or in isolation is prohibited, as well as any type of modification to the dimensions or arrangement of the graphic identity of the emblem.

CONDITIONS FOR MAINTAINING CERTIFICATION

Once the certification has been granted, it can be kept valid as long as the following are met:

  1. Surveillance inspections, whether physical or virtual, are carried out on the dates designated by the Certification Bodies, within the validity period of the certificate to be reviewed, which is valid for 2 years in accordance with the above.
  2. It is demonstrated, through specifications and technical information presented, that the product covered by the certificate continues to comply with the provisions of the agreement or sublicense contract, the Certification Criteria, the Agreement, and other requirements based on which the certification was granted.
  3. Based on the corresponding monitoring, it is determined that the obligation to use the “MADE IN MEXICO” emblem is fulfilled in accordance with the terms of the Agreement, the specifications of the Graphic Identity Manual and what is indicated in the service provision contract and in the sub-licensing agreement or contract.
  4. In any case, the “MADE IN MEXICO” emblem must be integrated in such a way that it does not interfere with the labeling, marking and commercial information standards applicable to the products, but without altering in any way the graphic identity of the product.

In addition to the above, various applications may be submitted to the corresponding Certification Body to: expand the scope of the certification; reduce the scope of the certification; correct the certification; suspend the certification; or cancel the certification.

Consequently, the process specified above allows for better control over the products that are granted the right to use the MADE IN MEXICO emblem, boosting the domestic market and strengthening the presence of Mexican products internationally.

Santamarina more steta publications and events that are the xaas

What are XaaS and what are their legal implications?

Written by Santamarina + Steta en . Published in Updates.

“Everything as a Service,” or XaaS (Anything as a Service), is a description of a general category of products and services that are closely related to cloud services and remote access.

Cloud services are programs that are hosted on a server and accessible from any device connected to the Internet. Their greatest benefit is that they all offer the end user the functionalities and capabilities appropriate to their specific needs.

What is XaaS?

The term emerged after certain technologies and innovations were connected through networks and together oriented to become products and services.

When these technologies are accessed through the Internet, the term immediately arises Cloud computing, which is closely related to the XaaS.

XaaS uses the cloud instead of installing local software to offer various products and services. Although not everything in the cloud comes in the form of a XaaS, most definitely make use of it in order to provide the product or service to the customer.

How Does It Work?

The products and services of the XaaS They are usually online platforms that are available at all times so that users who connect can have an easy-to-use workspace that is often located directly in their browser.

When making changes or downloading data from that workspace, the browser will send the request to the platform XaaS, which will run either on local servers, at a cloud provider, or on a web-based network.

Since all types of XaaS They have in common the “on-demand” model, these provide important advantages for their users given that they do not have to make significant disbursements in the implementation of infrastructure, hardware, software or in their maintenance, on a constant basis.

This “on-demand” model was widely accepted in the market because it works according to the use of the platform since, for example, if the company uses the service for a certain time, it will only pay for the time of use.

What types of XaaS exist?

As mentioned above, any technological function can be transformed into a XaaS, so the list of examples is very extensive.

However, there are several categories of cloud computing models, such as:

  • Software as a Service (SaaS). It is the type of platform XaaS most common; in it, companies integrate products into their technology stack and use the software to streamline business operations without developing the software from scratch.
  • Platform as a Service (PaaS). This type of XaaS offers users a cloud-based solution that allows them to build applications, software, and other engineering projects on the platform (rather than building their own platform), and where they offer their clients all kinds of services, from servers to storage, database functionality, etc.
  • Infrastructure as a Service (IaaS) - Provides infrastructure in the form of network and storage-based solutions, typically offering computing power to develop, run and scale products.
  • Analytics as a Service (AaaS). Businesses are turning data into information and using that information to make business decisions. With a shift towards digital solutions, businesses are using such products to track their key business metrics.
  • Desktop as a Service (DaaS). Companies that offer this service allow users to manage their entire workforce through a secure web browser. Employees individually log into a browser when they report to work, which makes it easy for them to access necessary files, programs, and software, even when they are out of the office.
  • Functions as a Service (FaaS) – These types of businesses allow companies to leverage specific features or outcomes without requiring them to develop or run the application.
  • Storage as a Service (STaaS). Companies turn to STaaS providers for their storage solutions. Offloading some data to a storage partner STaaS reliable can free up internal resources and reduce costs.
  • Containers as a Service (CaaS). All software code is packaged together in “containers” to be read and executed anywhere. Code, library, and dependencies are packaged together in a container on this platform to be read and executed when needed.
  • Database as a Service (DBaaS). DBaaS solutions allow businesses to organize, filter, and store customer data in software that is easily accessible and retrievable by the right employee. Businesses that use DBaaS software won't have to build their database from scratch. Instead, they can customize and create a custom database in the cloud using a trusted DBaaS solution.
  • Authentication as a Service (AaaS). AaaS companies offer users the ability to deploy access control solutions on their platform. It gives them the flexibility to control who can use the product across all devices and networks.

Apart from these categories, there are other examples such as disaster recovery as a service (DRaaS), network as a service (NaaS) and monitoring as a service (MaaS), among many others.

General legal implications for all types of XaaS

Intellectual Property

Intellectual Property is an intangible right that aims to offer protection to the authors of creations that are generally known as "works", in this case, the platforms XaaS which will function as software through the cloud. The law empowers the owner of these rights to authorize others to use their creations and ideas and, thus, allow us to make use of the different platforms XaaS.

Since a company that provides services of XaaS may or may not be the sole owner of the exploitation rights of the complete service, it will be important to ensure that the set of elements being used to provide the service has the rights to be able to exploit it and license it to third parties.

There is still a long way to go in terms of legislation on new technologies that emerge every day, especially those that are in transit within the cloud, such as XaaS.

It should be noted that when companies install illegal computer programs, they are reproducing software without the owner's authorization, incurring in software "piracy." Does using a XaaS within the cloud could fall under this legal assumption?

Software piracy is a term colloquially used to describe the unauthorized reproduction, distribution, marketing, and use of software in any way. This includes downloading, sharing, selling, or installing multiple copies of software.

In Mexico, the Federal Copyright Law establishes penalties of up to $1,792,400.00 pesos for each infringement; in addition, the Federal Penal Code establishes a catalogue of criminal conduct related to Copyright.

By collaborating with a XaaS, the use of the software will be granted without obtaining legal ownership of it. However, it is possible that within the service offering new versions or functionalities may be created together, creating a need to clearly define who will enjoy the property rights of these new versions or creations.

Service Level Agreements

Service level agreements (SLAs) are a fundamental part of information technology (IT) service management. They are formal, structured contracts between two parties, where one of them, in this case the IT service provider, is responsible for the performance of the service. XaaS, undertakes to provide one or more services at a mutually agreed level. These agreements define what users and customers can expect from IT services and provide regular feedback to suppliers, customers and stakeholders on how well they are meeting expectations for these services.

Because companies XaaS As providers often offer an integrated set of services, service levels for each aspect of these services should be set out in understandable and measurable terms through a Service Level Agreement. This can range from the availability, capacity and support provided for a specific electronic solution, to the delivery times for specific hardware.

Likewise, it is of utmost importance to include the remedies and sanctions that will take place in the event that the company XaaS fail to meet agreed service levels. Unfortunately, as this is a new service, the provider can skew the contract in its favour by claiming that its service is constantly evolving. The way to mitigate this risk is to add clauses that terminate the contract if the provider at any time lowers the level of protection or provides poor quality service to the initially contracted party.

Within this scope, it is essential to consider the provisions for expiration, termination and exit from the contract. Due to the outsourcing of a specific function as a service, the client becomes more dependent on the XaaS, as it has not invested the relevant tools in the company to maintain or control the specific outsourced function. Therefore, it is important for the client to understand the ways in which the business relationship with the service provider XaaS may come to an end and what the implications of this are.

Subcontractors and integration

Although XaaS offer a single package of services to the client, the service provider may work with subcontractors to provide all services that are part of the subscription package, so the identity of all subcontractors must be verified, as well as the contractual relationship with and between all subcontractors to ensure that there are no legal loopholes of any kind.

Privacy and protection of personal data

It is important to ensure that appropriate security and data protection solutions, such as encryption, authentication and authorization requirements, data duplication, data backup, data retention, data restoration and security incident management, are part of the package offered to the customer by the XaaS.

It is also important for the customer to understand where and how this data is stored, as well as the laws that may apply to data stored overseas. Data stored overseas may present practical difficulties, as other state laws may impose additional compliance requirements.

Ownership and handling of data should also be regulated in the agreement, as the client must remain the sole owner of its own data, and obligations regarding data confidentiality should be included.

Private Network Security

Cloud computing eliminates the private network layer traditionally used by businesses, which raises concerns especially when working outside the office and not accessing the cloud through a VPN.

One of the solutions that have emerged are managed private clouds, which are services customized to each company where, in addition to the advantages offered by the cloud, improved security is integrated: isolated storage, web application firewalls, intrusion detection systems, among others.

Conclusions

The scope and nature of service XaaS It is reflected differently for each type of service and its parties. The conclusion of an agreement of this type constitutes a major commitment by both parties that should not be taken lightly, and even more so if the intention is to establish an efficient long-term business relationship that benefits both the provider and the user of the services. XaaS.

This leads us to conclude that the contracts to be concluded must be customized and adjusted to the different needs that are sought to be satisfied. Therefore, it is imperative that clients and service providers take care and devote sufficient time to drafting, discussing and negotiating a service agreement. XaaS among them before their celebration, through a team highly specialized in this type of contracts.

Sources:

Real Estate Operations scaled 1

Legal News: How will the Reform to the Civil Code of the Federal District and the Notarial Law for Mexico City impact real estate transactions in Mexico City?

Written by Santamarina + Steta en . Published in Updates.

printable version | August 2021

On August 4, 2021, the Decree adding and amending articles of the Civil Code for the Federal District (the “Civil Code”) and the Notarial Law for Mexico City (the “Notary Law”) was published in the Official Gazette of Mexico City.

These reforms introduce various figures to the Civil Code that will help to provide greater certainty to acts carried out through electronic means. To this end, the following modifications were made, among others:

  1. Offers. When an offer is made by electronic, optical or any other technological means that allows the expression of the offer and its acceptance, and when there is no deadline for acceptance, if the offer is not accepted immediately, the offeror will be released from it.
  2. FormalityWhen the written form is required for the contract, the relevant documents must be signed by all persons to whom this obligation is imposed, and this may be done using the Advanced Electronic Signature or the Electronic Signature of Mexico City.

In cases where the law establishes as a requirement that a legal act must be granted before a notary, said granting may also be done in the digital protocol that the notary is in charge of within the scope of Digital Notarial Action in the terms established in the Notarial Law.

Along with the reform of the Civil Code, the Notarial Law was reformed to incorporate figures that will allow notarial action remotely by digital means.

Thus, the figure of Digital Notarial Action was incorporated into the Notarial Law, which should be understood as the exercise of the notarial function through electronic, optical or any other technological means.

In addition, Electronic Certificates, Notarial Electronic Signature and Electronic Instruments were introduced, meaning electronically signed deeds or documents issued by Notaries Public in the exercise of their functions.

This reform revolutionizes and updates the notarial function, allowing the use of said means for the formalization of contracts that require a Notary, such as real estate purchase and sale contracts and some real estate lease contracts, among others.

One of the main benefits will be a probable reduction in response times for locating information thanks to the implementation of electronic indexes and computer systems for storing Electronic Instruments. Consequently, response times for the registration of notarial instruments in the Public Registry of Property and Commerce could be expedited.

The reforms came into force on August 5, 2021, except for matters related to Digital Notarial Performance and related concepts such as Digital Protocol, Electronic Instrument, Appendix of the Electronic Instrument, Book of Extracts, Electronic Signature for Digital Notarial Performance and any other analogous or related to said performance, which will come into force two years from the date of their publication in the Official Gazette of Mexico City.

If you require additional information, please contact the partner responsible for your matters or one of the lawyers mentioned below:

Subject of successions scaled 1

Legal News: Reforms to the Civil Code for the Federal District and the Notarial Law of Mexico City in matters of succession

Written by Santamarina + Steta en . Published in Updates.

printable version | August 2021

On August 4, 2021, the Decree adding and amending various articles of the Civil Code for the Federal District (the “Civil Code”) and the Notarial Law for Mexico City (the “Notary Law”), some of them regarding inheritance matters (the “Decree”), was published in the Official Gazette of Mexico City.

The Decree introduced certain modifications to the subject of succession to bring the regulation of the same into the digital reality in which we currently live. Among these, the following stand out:

  • The legacy may also consist of the ownership of digital assets or rights stored on a computer, server or platform, and these may consist of, among others, email accounts, internet addresses, photographs, images, bank accounts, keys, passwords, etc.
  • It establishes a storage system for said digital rights, which may be managed by the same notary or through a permanent storage system.[1].
  • It includes mechanisms for the destruction of these electronic rights, in the event that this was the will of the testator or if nothing had been done in line with the human right to be forgotten.
  • Once it comes into force, the open public will may be granted electronically, also regulated through the reform of the Notarial Law, and may be signed using the Advanced Electronic Signature.
  • Likewise, once it comes into force, open public wills may be granted by electronic means that allow simultaneous and real-time communication for emergency or extraordinary cases. A list of requirements that must be met for such granting to be valid is also included.

Regarding the reforms to the Notarial Law, and for the application of the reforms to the Civil Code, the figure of Digital Notarial Action is established, that is, one carried out by electronic means within the environment of a digital protocol.

The reforms came into force on August 5, 2021, except for what is related to the Digital Notarial Performance and related concepts such as Digital Protocol, Electronic Instrument, Appendix of the Electronic Instrument, Book of Extracts, Electronic Signature for the Digital Notarial Performance and any other analogous or related to said performance, which will come into force two years after the date of their publication in the Official Gazette of Mexico City.

[1] Digital notarial performance referred to in the Notarial Law for Mexico City.

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LP gas scaled 1

Legal News: Regulation of maximum prices for LP gas

Written by Santamarina + Steta en . Published in Updates.

printable version | August 2021

On July 29, 2021, the evening edition of the Official Gazette of the Federation published (“DOF"), he "Agreement No. A/024/2021 of the Energy Regulatory Commission that establishes the regulation of maximum prices for liquefied petroleum gas for sale to the end user, in compliance with the Emergency Directive for the well-being of the consumer of liquefied petroleum gas, issued by the Ministry of Energy, in order to protect the interests of end users" (he "Agreement

Said Agreement was issued in response to the exhortation made by the Secretary of Energy through the Emergency Directive for the welfare of the consumer of liquefied petroleum gas, published on July 28, 2021 in the DOF (the "Directive”), and indicates that its purpose is to protect end users, promote the efficient supply of Liquefied Petroleum Gas prices (“LP gas”), promote the acquisition of said fuel at prices accessible to citizens, avoid discrimination, ensure that market conditions are reflected in prices and that a margin is generated that allows the recovery of costs by marketers, distributors and sellers of LP gas for the development of the industry.

Contents of the Agreement

The Agreement presents various considerations on the characteristics of the national and international LP gas market, as well as an analysis of the behavior of international reference prices and consumer prices in Mexico during the last few years. Statistics are also presented on the permits that have been granted by the Energy Regulatory Commission (“CRE”) to carry out the activities of Distribution and Sale to the Public of LP Gas in Mexico, and on the characteristics and uses of said fuel in the country, which focus significantly on the residential sector.

Based on the above, the Agreement mentions that, since LP gas is a product with significant consumption in lower-income sectors, it is of special interest to the Mexican State to promote the conditions of access to said fuel "at prices that guarantee the preservation of democracy founded on the economic and social development of its inhabitants, where the development of the industry is ensured."[1]. Therefore, the Agreement states that setting maximum prices is “necessary to correct unjustified price increases, as this is a matter of protecting Users.”

The Agreement establishes that 145 different price regions will be used, which were used until December 31, 2016, in setting maximum prices for end users. Likewise, the Agreement establishes the methodology that will be applied to determine maximum prices, through various criteria such as the region where the transactions are carried out, logistics costs, costs and sales method, and type of plant, among others. It also establishes that the CRE may make adjustments to the methodology for setting prices.

The Agreement provides that the maximum prices will be published every Saturday by the CRE through electronic means and that the permit holders who do not comply with what is established therein will be sanctioned in accordance with article 56, section III of the Hydrocarbons Law.[2] ( "LH”). In addition, various obligations are established for the provision of information to the permit holders responsible for applying the maximum prices set in the Agreement.

Finally, it is established that, pursuant to article 71 of the General Law on Regulatory Improvement, the validity of the maximum price methodology has an emergency nature and, therefore, will be temporary for a period of six months from when it comes into force.

Procedural considerations

The Agreement cites various regulatory provisions, both of a constitutional and legal nature, as well as programmatic, such as articles 25 and 26 of the Constitution; articles 1, 2, section III, 41 and 42 of the Law of the Coordinated Regulatory Bodies in Energy Matters; and 7 of the Regulation of the Activities referred to in Title Three of the Hydrocarbons Law, as well as in Section I. Policy and Government of the National Development Plan 2019-2024 (“PND

Through the provisions cited, the Agreement states that the CRE has the authority to encourage and promote the efficient development of the LP gas industry, promote competition in the sector, protect the interests of users, provide adequate national coverage and ensure reliability, stability and security in the supply and provision of services. It also addresses the objective set out in the PND of not increasing fuel prices above inflation.

Thus, although the Agreement invokes various general powers that the CRE has to issue regulations on the markets that are within its area of ​​competence, said instrument does not refer to the content of articles 82 of the LH, nor 77 of the Regulation of the Activities referred to in Title Three of the Hydrocarbons Law, which indicate that the regulation of compensation, prices and rates established by the CRE will not be, in principle, applicable to the activities of Distribution not linked to pipelines and Public Sale of LP Gas, unless otherwise determined by the Federal Economic Competition Commission ("COFECE

Therefore, the regulations applicable to the activities of Non-pipeline Distribution and Public Sale of LP gas indicate that for the CRE to be able to impose a regulation of maximum prices, such as that issued through the Agreement, it is necessary for the COFECE to determine, in accordance with its powers, that there are no conditions of competition in said markets.

In relation to the above, COFECE issued a statement on July 28, 2021 urging the various authorities involved to respect the process established in the current regulations to set maximum prices for LP gas. This is because the SENER Directive forced the CRE to establish a methodology to set maximum prices for the final consumer of LP gas within a period of 3 days without taking into account the necessary and prior condition of having a declaration of absence of competition conditions in the LP gas market by COFECE.

Likewise, COFECE clarified that the logic behind the mechanism established in the LH and the Regulation of Activities referred to in Title Three of the LH is that a regulation of maximum prices can only be established when there is no competitive condition in the market, since otherwise the implementation of this type of regulation could have consequences contrary to those desired, such as a potential shortage or scarcity of LP gas.

It should be remembered that before the price of LP gas was liberalized in 2017, the Federal Government assigned a maximum price to LP gas without taking into account international reference prices and that the market has been analyzed and investigated by COFECE on several occasions:

  • COFECE issued two declarations in 2001 and 2008, studying the conditions of effective competition in the LP gas distribution market to the final consumer. The first in 2001 indicated, among other things, that there were no conditions of effective competition in 22 relevant markets. In the second in 2008, COFECE resolved on conditions of effective competition throughout the LP gas value chain.
  • COFECE has initiated investigations in 2017 and 2019, which are accumulated and pending resolution, for possible absolute monopolistic practices in the LP gas distribution and marketing market in the national territory and for possible absolute monopolistic practices in different LP gas sales markets.
  • In 2018, COFECE published the study “Transition towards competitive energy markets: LP gas”, in which it warned about market concentration by a small group of companies, with the aim of having the authorities responsible for improving regulation for the proper functioning of the market undertake efforts in that direction.
  • Likewise, on May 31, 2021, COFECE announced the start of an investigation to determine whether or not there are conditions of effective competition in the LP gas market.

COFECE requested that due process of law be respected and that it be allowed to conclude the investigation, through which it will determine whether or not there are conditions of effective competition in the LP gas market, so that, based on the results obtained by COFECE, CRE can determine the type of regulation that needs to be implemented, if necessary, and the correct methodology to determine prices.

As COFECE points out in its statement, prices do not depend on a single authority or regulatory body, but on a series of comprehensive actions that together are aimed at generating market conditions that push prices downwards. Only with the joint responsibility of all the institutions involved can this important common goal be achieved.

Closing remarks

The Agreement has various implications for both the industry and consumers and end users, since, as COFECE rightly points out, by not respecting the due process established in the legislation on the matter, as well as by not having the support of a robust investigation in the area of ​​economic competition that allows determining the characteristics of the markets for Distribution and Public Sale of LP Gas, there is a risk that the actions implemented by SENER and CRE generate, among other situations, i) a negative economic impact for the regulated subjects and for the users, ii) operational losses for Petróleos Mexicanos and for private companies for Distribution and Public Sale of LP Gas; and iii) the possibility of generating a shortage or scarcity of the product, which, in turn, could impact an increase in the price of other associated products or services to cover the additional expense generated by the distortion in the market, among others.

From the perspective of economic competition, it is clear that setting maximum prices for LP gas without the support and coordination of comprehensive analysis and actions can lead to serious consequences for the market, damaging competition, with the possibility of shortages and scarcity of LP gas for regions where it is not profitable to market, and may also lead to illegal trade in LP gas.

Finally, we consider that the Agreement, like the Guideline, presents constitutional flaws in relation to the exercise of the powers of the authorities that issued them, in matters of economic competition, legality, legal certainty, due process, among others, so those permit holders, users and/or any person who considers that an injury to their sphere of rights is caused, may challenge said documents through the available means of defense, in accordance with the pronouncements of the Supreme Court of Justice of the Nation in this regard.

Our lawyers have extensive experience in the legal, regulatory and contractual analysis of projects, and through the joint analysis of our energy, economic competition, administrative, civil, commercial litigation and arbitration teams, we offer a comprehensive service that of course includes defense strategies. and a full knowledge of the available means of defense.

[1] Recital Twelfth, last paragraph of the Agreement.

[2] SENER and CRE may, within the scope of their powers, revoke permits issued when the regulations on prices and tariffs, as well as the terms and conditions set by the competent authority, are not respected.

If you require additional information, please contact the partner responsible for your matters or one of the lawyers mentioned below:

shutterstock 1799684557 scaled 1

Legal News: Modification of the measures established to reduce the spread of COVID-19, as well as the days considered non-working days for the purposes of administrative acts and procedures of the Ministry of Environment and Natural Resources

Written by Santamarina + Steta en . Published in Updates.

printable version | August 2021

Due to the change of the Epidemiological Traffic Light of Mexico City to green, published in the Official Gazette of Mexico City (“GOCM”) on June 4, 2021, on July 30, 2021, the “Agreement that modifies for the second time the various one by which the general public is made aware of the measures established to assist in reducing the spread of the COVID-19 coronavirus, as well as the days that will be considered non-working days for the purposes of administrative acts and procedures carried out by the Ministry of Environment and Natural Resources (“SEMARNAT”) and its decentralized administrative bodies, with the exceptions indicated therein, published on January 25, 2021” was published in the Official Gazette of the Federation. Consequently, the following measures were established:

On the business day following the publication in the GOCM of the Epidemiological Traffic Light color in green, SEMARNAT will provide attention to the public as follows:

I.- The Citizen Contact Space office, located at 223 Ejército Nacional Avenue, Anáhuac Colony, Miguel Hidalgo Territorial Demarcation, Postal Code 11320, in Mexico City (entrance through Lake Xochimilco), will provide the corresponding attention from 09:30 hours to 15:00 hours, for the purpose of all procedures in charge of:

  • the General Management Directorate, on Tuesdays, Thursdays and Fridays.
  • the General Directorate of Air Quality Management and Registration of Emissions and Transfer of Pollutants, on Tuesdays, Thursdays and Fridays.
  • the General Directorate of Environmental Impact and Risk, on Mondays and Wednesdays.
  • the General Directorate of the Federal Maritime-Terrestrial Zone and Coastal Environments, on Mondays and Wednesdays.
  • the General Directorate of Wildlife, on Mondays, Tuesdays and Wednesdays.

II.- The General Directorate of Forest and Soil Management, located at Av. Progreso number 3, Colonia del Carmen, Coyoacán Territorial Demarcation, Postal Code 04100, in Mexico City, will be open from 09:30 a.m. to 15:00 p.m., on Tuesdays, Thursdays and Fridays.

III.- The official parts office of the National Commission of Protected Natural Areas, located at Av. Ejército Nacional number 223, Colonia Anáhuac, Miguel Hidalgo Territorial Demarcation, and the office for receiving the procedures in charge of the National Water Commission, located at the central level in Mexico City and at the regional Hydrological Administrative Level in the Basin Agencies and Local Directorates, will be attended from 09:00 hours to 15:00 hours from Monday to Friday, by appointment scheduled through the electronic address https://citas.conagua.gob.mx/citas/. Procedures can also be carried out online, through the Water Mailbox.

Additionally, the Agreement establishes a new way to schedule appointments for those interested in going to the Citizen Contact Space, given that email contacto.ciudadano@semarnat.gob.mx It was enabled until July 15, 2021. Starting July 16, 2021, you will be able to use the SEMARNAT Appointment Service for Procedures, available at the electronic address https://citas.semarnat.gob.mx/

The measures referred to in this Agreement will be subject to the evolution of the epidemiological traffic light in Mexico City. This agreement will enter into force on July 31, 2021.

If you require additional information, please contact the partner responsible for your matters or one of the lawyers mentioned below:

Mexico Office

National Customs Agency Mexico

Legal News: National Customs Agency of Mexico

Written by Santamarina + Steta en . Published in Updates.

printable version | July 2021 |

On July 14, 2022, the creation of the National Customs Agency of Mexico was published in the evening version of the Official Gazette of the Federation, a decentralized administrative body of the Ministry of Finance and Public Credit endowed with technical, operational, administrative and management autonomy, which will have the following powers:

  1. Collect the contributions and fees applicable to foreign trade operations and their accessories, in accordance with the applicable legislation and in accordance with the international treaties to which Mexico is a party, when these powers must be exercised by the customs authorities;
  2. To direct customs and inspection services, in accordance with the terms provided for in the applicable provisions; as well as to carry out corresponding operations in accordance with the legal provisions applicable to the verification of the legal presence of goods in the national territory and of goods in transport, including their verification of origin; to seize or insure goods whose legal presence in the country is not proven and to safeguard them as a depositary;
  3. Manage the registers of importers, importers of specific sectors and sectoral exporters;
  4. Represent the interests of the Federation in tax and customs disputes related to the entry, transit or exit of goods from or within the national territory;
  5. Determine and settle the contributions and benefits applicable to foreign trade operations and their accessories;
  6. Coordinate with the armed forces and national security and public security institutions to maintain security at access points to the country;
  7. Request and provide other public bodies and institutions, national or foreign, access to the information necessary to prevent tax evasion or avoidance in customs matters and other illegal acts or infractions, in accordance with international laws and treaties on customs matters;
  8. Monitor and ensure due compliance with tax and customs provisions related to the entry, transit or exit of goods from or within the national territory and, where appropriate, exercise the verification powers provided for in said provisions;
  9. Participate in the negotiation of international treaties carried out by the Federal Executive in customs matters, as well as enter into inter-institutional agreements within the scope of its competence;
  10. Provide, under the principle of reciprocity, the assistance requested by supervisory and regulatory bodies of other countries with which agreements have been signed or which are part of international conventions on customs matters to which Mexico is a party, for which, in the exercise of its inspection powers, it may collect from taxpayers and third parties related to them, the information and documentation that is the subject of the request;
  11. Act as a consultative body to the Federal Government on customs matters;
  12. Propose customs administration policy for higher approval and implement actions for its application;
  13. Design, manage and operate sufficient statistical data to fully prepare reports on federal revenue collection and inspection that the Federal Executive must submit to the Congress of the Union, in the areas of its competence;
  14. Issue general provisions and administrative agreements necessary for the effective exercise of its powers, as well as for the application of laws, treaties and provisions issued based on them, related to the entry and exit of merchandise from the national territory;
  15. Maintain coordination with the Tax Administration Service on the information necessary for the correct administration, collection and accounting of federal contributions and benefits and their accessories;
  16. Contribute with timely, accurate and verifiable data to the design of customs administration policy;
  17. Represent the Ministry of Finance and Public Credit before administrative and jurisdictional authorities, within the criminal proceedings related to crimes under the jurisdiction of the National Customs Agency of Mexico, in its capacity as victim or offended party, as co-plaintiff or legal advisor of the same, by itself or through the lawyers assigned to it, and
  18. Any others that may be necessary to carry out those provided for in this Decree, its internal regulations and other applicable legal provisions.

The Decree, in its First Transitory Article, establishes that it will come into force on the date on which the legal reforms that grant the jurisdiction that the Tax Administration Service currently has in fiscal and customs matters to the National Customs Agency of Mexico come into effect.

It is worth mentioning that this decree can be found here.

If you require additional information, please contact the partner responsible for your matters or one of the lawyers mentioned below:

Mexico Office