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Mexico’s Industrial Property Law (Ley de la Propiedad Industrial) recognizes and protects trade secrets, which include information of an industrial orcommercial application that is maintained confidential by an individual or corporation and which confers a competitive or economic advantage asagainst third parties. For such information to obtain legal protection, its owners must have adopted the means and systems necessary to preserve theconfidentiality of the information and restricted access to such information. This means that the trade secret information must be internally qualified asconfidential and anyone with access to such information must be advised of the confidential nature of the trade secret information. In such manner,only those with permission should be allowed access to the confidential information. Today, given current technological advances, it is very simple totransmit information that has been maintained on a confidential basis by an individual or corporation. Therefore, it is increasingly important tomaintain the legal protections necessary to keep confidential information secret, which should be done through the execution of detailed employmentagreements, confidentiality agreements with third-parties, and having adequate safeguards to protect the information, whether such trade secretinformation consists of documents, electronic media, optical discs, microfilm, etc., without allowing free access to the protected trade secretinformation.
On March 18, 2009 an unprecedented resolution was published in Mexico’s Official Journal of the Federation (Diario Oficial de la Federación). Forthe first time since the North American Free Trade Agreement (NAFTA) entered into force, Mexico cancelled preferential tariff rates and imposedhigher duties on the importation of 89 products, most of them of an agricultural or industrial nature, originating in the United States of America. Suchmeasures constitute a reprisal resulting from the United States’ cancellation of the Cross-Border Trucking Demonstration Program as part of the U.S.Omnibus budget legislation for 2009. The criteria used by Mexican authorities to choose the 89 products, which as of March 19 th will be subject toincreased duty rates ranging from 10% to 45% with a majority being taxed at 20%, was to select products representing high volumes of imports intoMexico from the United States, but which will not affect Mexican consumers with higher prices because of the availability of Mexican products orgoods imported from other countries. However, based on an analysis carried out by CCN on the economic value and volumes represented inimportations from the United States to Mexico during 2008, as published by the Banco de Mexico and Mexico’s Department of the Economy, one mayconclude that products such as Christmas trees, onions, seeds and lettuces, fruits, sunflower seeds and vegetable oils are products that during 2008 wereimported into Mexico only from the United States of America, and whose prices, if secondary suppliers are not found on the short-term, could increaseand affect consumers in Mexico. In addition, it appears that political and market protection criteria were also considered for certain industries, such asthat of paper and office products, and pens and pencils, since these Mexican domestic industries have clearly been affected by direct competition withthe United States over the last several years. It is important to note that with respect to paper, certain businesses such as independent newspapers thatdo not buy paper from the government paper company (PIPSA) will clearly be affected by the increase in prices. Among the 89 products worthmentioning are plated precious metals, battery waste, batteries and automotive batteries, prepared stock, soup and stews, which according to the datarepresent the highest monetary value of imports originating in the United States in 2008; as well as books and printed materials, dog and cat food,onions and pencils, which together with battery waste, batteries and automotive batteries, represent the highest volume of importations into Mexicofrom the U.S. in 2008.
Mexico’s Lower House of Congress (Cámara de Diputados) has approved a draft constitutional reform proposing to make the effects of judicialdecisions in Amparo tax lawsuits that are filed to attack the validity of a tax law that has broad general effect to all taxpayers; that is, decisions whichapply to all tax payers without the necessity of such individual taxpayers filing their own amparo tax lawsuits in order to be treated in accordance withthe results and effects of the decision of Mexico’s Supreme Court in such tax law cases. The amendment seeks to deal with the large accumulation oftax cases currently pending in federal courts given that, practically every year, taxpayers present amparo lawsuits against new tax laws and regulations.This practice has proliferated and caused high administrative costs to the Mexican federal judiciary. The constitutional reform initiative, which has notbeen approved by Mexico’s Senate or by the state legislatures throughout the Mexican Republic, also provides that amparo tax lawsuits will in all casesbe resolved by Mexico’s Supreme Court, and not by other federal courts, including federal district courts and Collegiate courts (TribunalesColegiados). Finally, the proposed reform provides that during the time the amparo tax lawsuit is being prosecuted, the taxpayer must pay the protestedtax, which will not be refunded unless the taxpayer wins the amparo tax lawsuit. The results of a decision would take effect as of the date the court’sdecision is issued.The proposed reform has, in our view, positive and a negative aspects. On the positive side, providing that decisions in amparo tax lawsuits will applygenerally to all taxpayers will achieve the goal of increasing the efficiency of the constitutional process, avoiding the extremely high cost to Mexicanfederal courts and the expense of attorneys and processing time of amparo cases. In other countries, providing for general application of judicialdecisions has proved to be a positive aspect. However, and unfortunately, the negative effects overshadow the positive points mentioned above, giventhat the concentration of these cases in Mexico’s Supreme Court will negatively affect and impact the independence and autonomy of the districtjudges and Collegiate court magistrates who traditionally have been the judges that have protected taxpayers against abuses by Mexican tax authoritiesand the Executive Branch officials seeking to apply unjust tax laws or rules that are contrary to principles of tax justice. In addition, the requirementthat taxpayers must pay the protested tax that may eventually be declared unconstitutional is highly unjust. This case could be considered as aconstitutional reform that in itself becomes unconstitutional. It is not known whether Mexico’s Senate will approve the proposed constitutional reform.In our estimation, it would be possible to preserve positive elements of the proposal and eliminate the negative effects mentioned herein, which wouldbenefit the fiscal equilibrium between Mexican tax authorities and Mexican taxpayers.
