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Jurisdiction to resolve controversies arising under adhesion contracts used for providing banking services

Almost all the legal relationships between banking services providers and its clients, are governed by adhesion contracts, which the Federal Consumer Protection Law defines as the formats where the provider establishes in a unilateral manner, the terms and conditions applicable to the provision of the service, meaning that the users of such service, when entering into agreements with credit institutions, acquire certain rights and contract obligations, without being able to negotiate the terms and conditions applicable, since the clients simply adhere to the ones previously established by the bank services provider.

In the adhesion contracts used for providing banking services, the credit institutions include a clause with the appointment of the courts that shall have jurisdiction over the controversies arising under or in relation to such adhesion contracts. Usually, such adhesion contracts provides that the courts with jurisdiction will be the ones at the same place where the head office of the bank is located, provision that complies with the requirements foreseen in the Commerce Code for one of the parties to be expressly submitted to the jurisdiction of a court: (i) domicile of any of the parties of the contract, (ii) place where the contract obligations must be fulfilled, and/or (iii) the location of the object of the contract.

Notwithstanding the above, the Supreme Court has decided that in cases of adhesion contracts, the express submission of a bank services user or client, to a jurisdiction of certain courts, may not be enforceable, for ensuring bank clients an effective access to justice, in accordance with Article 17 of the Political Constitution of the United Mexican States, since such submission may imply unfair or inequitable treatment, as it forces users of bank services to travel to places distant from them –where a credit institution may have branches or representation offices– and thus, to incur in additional expenses in an unjustified manner.

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The National Infrastructure Information System is created.

On October 28, 2019 were published in the Official Gazette of the Federation the Guidelines for the delivery, registration and consultation of information for the formation of the National Infrastructure Information System (the “SNII“, by its initials in Spanish), which were previously approved by the Plenary of the Federal Institute of Telecommunications (the “Guidelines”).

The Federal Institute of Telecommunications, in addition to being in charge of regulating, promoting and controlling the use and exploitation of the radioelectric spectrum, orbital resources, satellite services, networks and the provision of broadcasting and telecommunications services, also has responsibility for access to active and passive infrastructure and other essential machinery. By virtue of the foregoing, since the issuance of the Federal Law of Telecommunications and Broadcasting the SNII was already provided for in Article 181, as a national geo-referenced database that would contain information from the registers of active infrastructure and means of transmission, passive infrastructure and rights of way and public and private sites.

The SNII was conceived in view of the fact that there are economic, administrative and operational barriers on the part of the concessionaires or authorized in their intentions for the deployment of telecommunications or broadcasting infrastructure; the costs of infrastructure installation, availability of spaces, processing of permits and rights of way, among other causes, hinders the deployment and efficient progress of telecommunications and broadcasting services.

As a result, the SNII is created as a tool containing a national geo-referenced database that allows the visualization of records of active infrastructure and means of transmission, passive infrastructure and rights of way and public places, as well as their identification and information, location, characteristics, use and capacity. With a correct implementation and management of the SNII, it will create circumstances for a greater promotion of infrastructure sharing, which allows industry operators to reduce costs for the deployment and development of their networks through the sharing of infrastructure, resulting in the efficient use of them and unleashing better conditions for competition. This type of tools have been developed and implemented by regulatory bodies in other countries such as Portugal, Sweden and Germany, each with its own particularities but in reality with the same objective.

The Guidelines define the information that will make up the SNII, as well as the formalities in which it must be delivered, the terms and deadlines for its delivery, registration and consultation, which must be observed by concessionaires, authorized, security and justice authorities, public institutions, universities, public and private research centers.  The Guidelines came into force on October 29, 2019 and from the notice by the Federal Institute of Telecommunications regarding the commencement of operations of the SNII, which will be published in the Official Gazette of the Federation, will have a period of no more than 120 calendar days for the delivery of information.

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Deadline for Financial Technology Institutions (the “FTIs”) to file their application with the National Banking and Securities Commission (“CNBV” by its initials in Spanish) is over.

In 2013, the Mexican authorities were questioned about the domestic regulatory process of the FTIs, which prompted them, hand in hand with the industry itself, to study, explore and work on the creation of regulations that would take into account the national and international context in this matter. In 2018, the Law To Regulate Financial Technology Institutions, better known as the “Fintech Law”, finally came into force, and later, different regulations applicable to the subject matter that complemented said law.

Based on data provided by the CNBV, there are currently approximately 500 platforms in the country offering different financial services provided by the FTIs. Of these, 201 carry out crowdfunding and electronic payment funds.

In accordance with the third transitory of the Fintech Law, as well as with the Resolution that modifies the general provisions applicable to the FTIs, a deadline was established that expired last Wednesday, September 25th for such platforms to request an authorization to operate in the country. If they did not do so, they would have to cease their operations, since administrative and criminal penalties are provided for those who act in contravention of those provisions.

At the expiration of the term, the CNBV head announced that 85 platforms that were within the regulatory framework had submitted their request for authorization, and the remaining 116 must conclude their existing operations.

The CNBV has a term of 180 days to provide resolution to the authorization requests that during the established term, were presented by the different platforms that currently operate in Mexico.

The regulation and authorization of these platforms envisages increasing financial inclusion, modernizing the financial system, improving the competitive environment, providing certainty and professionalism to users of financial services, as well as a more attractive horizon for investors.

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Acedo Santamarina collaborates with “Sociedad de Activa” to approach education to the agricultural fields of Sonora.

As part of our firm’s social responsibility program, Acedo Santamarina signed a collaboration agreement with Appleeseed Mexico, under which probono legal services will be provided to nonprofit organizations pursuing a positive impact in our community.

One of the organizations with which Acedo Santamarina currently collaborates is Sociedad Activa, a non-profit collective whose work consists essentially in approaching basic education to agricultural laborers in the Sonora region.

Sociedad Activa also brings plays, films and training for producers and fields workers in one of the regions with the highest agricultural production in the country, in order to contribute to the empowerment of one of the most marginalized sectors of Mexico.

The education and training that Sociedad Activa brings to the agricultural fields contributes to the generation of better expectations in the quality of life not only for the workers, but also for their families, which in many cases live at the fields during the harvest season.

Proudly, a team of lawyers from Acedo Santamarina advises on the design of the corporate structure of Sociedad Activa, in order to legally incorporate its operation, ensure its permanence and access to government incentives that will allow the expansion of the programs in favor of the community.

At Acedo Santamarina, we are convinced that probono work is an essential tool for the transformation of Mexican society with which we are fully committed.

For more information about Sociedad Activa and its work please visit the site: http://www.sociedadactiva.mx/

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Higher excise tax in Mexico

According to Article 74 (4) of the Political Constitution of the United Mexican States, the President of Mexico will submit before the Chamber of Deputies the Federal Income law initiative and the General Budget Project for Income and Expenditure no later than September 8th. The Secretary of State in charge must appear before them and explain its content.

It is expected that in the so-called “Economic Package” for fiscal year 2020, the tax rate for the special tax on products and services (the excise tax) will be increased.

The Chairman of the Budget and Public Account Commission of this House, Mr. Alfonso Ramírez Cuéllar, has said that it is necessary to increase this excise tax on cigarettes, alcohol and sugary drinks. The latter in order to reduce pressure on the government´s healthcare budget and, in this way, place a strategy to reduce consumption that causes harm to public finances, health and families´ finances.

They would only increase the tax rate for the special tax on products and services (the excise tax). This means they will not create new taxes. Doing so the Mexican President would honor his word.

Currently they are analyzing and discussing this proposal in the Budget and Public Account Commission. In the next few weeks we will finally know if it is part of the “Economic Package” for fiscal year 2020.

If so, we will need to review in detail the final wording and its tax implications, as well as analyze possible legal means of defense. We will follow-up and let you know any relevant news.

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Possibility of not paying fines derived from the declaration of absolute nullity or revocation of the administrative act

The Tax Administration Service published on April 30, 2019, Annex 7 of the Miscellaneous Fiscal Resolution, which contains the normative criterion 17 / CFF / N of item: “Declaration of absolute nullity or the revocation of the corresponding resolution does not invalidate spontaneous compliance. “

Furthermore, Article 73, section II of the Federal Fiscal Code provides that compliance of tax obligations shall not be considered as spontaneous compliance when the omission has been corrected by the taxpayer after being notified by the tax authorities with an inspection visit order, or any other a action notified by such authorities, tending to verify the compliance of the fiscal provisions.

Under this order of ideas, the criterion provides that if the taxpayer chooses to self-correct his fiscal situation, derived from the revocation or declaration of absolute nullity of the collection requirement, this act will be considered spontaneous and thus, the imposition of fines shall not be considered appropriate.

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Freedom of speech vs. Right to honor and privacy

This document will explain the deliberation between journalist’s or media’s right to freedom of speech in relation to the publication of articles, news or stories, and a public person’s right to honor and privacy. This subject will be mainly addressed as of the ruling made by the Mexican Supreme Court of Justice when solving disputes in relation to this topic.

The main point of this work is whether a person of public interest can sue for damage reparation, for having suffered an impairment of their rights to honor and image, derived from the spread of a newsworthy event.

The Mexican Supreme Court of Justice has established that it is not possible to sue, arguing the following: (i) if journalists were declared responsible for publishing newsworthy events of public persons, freedom of speech which is a “pillar of a constitutional and democratic State” would be hampered, in other words, if public persons could sue for tort liability to journalists just by publishing neutral stories, it would generate a dissuasive effect that would hamper the contribution of the press to discussions of public relevance; and (ii) public persons have a higher resistance threshold to the opinion and criticism of third parties, which means that the limits of criticism are wider because they are exposed to public scrutiny.

At the beginning of 2019, the Mexican Supreme Court of Justice solved two cases on the subject of this note, the first in February, the amparo directo en revisión 6175/2018, in which the First Chamber of the Supreme Court held that a resolution of a Collegiate Tribunal, which required a journalist to prove the assertions regarding to “owners of a radio and television concessionaire and its relationship with the political power of Mexico”, does not harmonize with the freedom of speech, and established that in opinions of public interest characters, freedom of speech prevails over personal rights of these public figures, even going so far as to argue that these expressions may include attacks and criticism with “a certain dose of exaggeration, even triggering.”. The second controversy, is the amparo directo en revisión 172/2019, resolved in April, which was a lawsuit filed by a public person who alleged that a newspaper article affected its rights to honor and to his own image, again, the First Chamber of the Mexican Supreme Court of Justice established that even though third parties rights to honor and privacy must be respected, freedom of speech’s limits are wider when referring to public persons because they are exposed to a rigorous review of its activities.

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