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Since 2007, and as mentioned in the January 2010 edition of this publication, Mexico has been an active participant,along with Canada, the United States of America, Japan, the European Union, Switzerland and New Zealand, amongothers, in drafting and ratifying the Anti-Counterfeiting Trade Agreement (ACTA). Mexico’s reasoning is grounded inthe statement that "the illicit trade in counterfeit and pirated goods has negative effects on the national economy bydecreasing incentives that foster creativity and innovation and by threatening legitimate businesses”. Similarly,Mexico states that “such activities may also affect the health and safety of Mexican consumers and have been linked toorganized crime." It is well known that the problem of piracy and counterfeiting has grown to global proportions andrequires international solutions, which is why the involvement of many countries and governments from around theworld in entering trade agreements to help each other is of utmost importance. ACTA aims to set new standards for theenforcement of intellectual property rights to efficiently combat the prolific growth of trade in counterfeit and piratedgoods, particularly through the exchange of information between enforcement authorities, including customs and otheragencies of the different member countries. After many rounds of negotiations, in April 2010 the eighth round tookplace in Wellington, New Zealand. In this round, the treaty parties, which included Australia, Canada, the EuropeanUnion and its member states, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the UnitedStates, agreed that it was time to make a consolidated text available, as a result of these negotiation rounds. Thus, thereis now a final draft of the text ready for approval, which could possibly be signed by each party involved in thenegotiations by the end of the year. The treaty is expected to be extremely useful in combating piracy andcounterfeiting of goods on an international level.
In many cases, it is easy to question the role of the notary public in formalizing the sale of real estate in Mexico, whichleads us to analyze the scope of the notary’s services and the legal certainty provided by notaries public in transactionsof this nature. The notary public in Mexico is a lawyer who receives an additional license as a notary public, whichallows him/her to be a notary in different types of transactions and legal acts, including those relating to real estatesales transactions. The notary participates in the legal transaction, that is, he/she renders his/her signature to formalize acontract, drafts the contract or revises the legality of the contract provided by the parties. The notary’s primaryfunctions, include: (i) identifying the needs and intentions of each party; (ii) identifying the property’s chain of title andmaking the appropriate references in the public instrument; (iii) requesting and obtaining any certificate(s) of liens orno liens regarding the property from the Public Registry of Property (Registro Público de la Propiedad) and presentingit to each party; (iv) verifying that the property has no outstanding debts in regards to property tax or water supplyservices; (v) identifying the parties to the transaction and, when applicable, their legal representatives, as well as their legal capacity to enter into the contract; (vi) calculating and performing necessary acts for the return and payment oftaxes accruing to the parties as a result of the sale; and (vii) filing the deed of purchase with the Public Registry ofProperty that corresponds to the property’s location. At first glance, this may seem like a very extensive process forreal estate sales transactions; however, it is important to mention some of the relevant aspects of the responsibilities ofa notary public:1. The notary certifies the legality of the transaction and the legal capacity of the parties to enter into it, that is,that one party is the seller and the other the buyer. It is worth mentioning that the notary public may notindividually represent either party.2. The notary checks the seller’s legal title and obtains a certificate of no liens from the Public Registry ofProperty; though they have no obligation to review the property’s chain of title in addition to the seller’s title, itis recommended that this be checked for the period of at least the previous 20 years.3. Unless the transaction directly involves the sale of communal property (ejido), the notary does not check theprevious condition of the property or the fulfillment of all legal requirements.4. The notary does not verify the zoning/land use of the property and its compatibility with the buyer's specificproject.5. The notary does not check or verify the availability of public utilities on the property; he/she merely confirmsthat there is no balance owed for the water supply services and any property taxes, in accordance with the law.6. The notary checks neither the environmental condition of the property nor the requirements for thedevelopment and use of property.In conclusion, the involvement of a notary public in real estate purchases is a legal requirement in Mexico, and itsfunction is of great importance in the execution of the transaction. However, in some transactions it is an essential butcomplementary service to the role of various specialists, including outside counsel, engineers, environmentalconsultants, surveyors, etc.
The Mexican Supreme Court (Suprema Corte de Justicia de la Nación) recently approved case decision number2a./J.48/2011, which reads: “Seniority Bonus. The amount must be determined based on the salary earned by theemployee at the termination of the labor relationship.” In the case decision, the Mexican Supreme Court asserts thatconsidering the Seniority Bonus is a benefit that presumes termination of the labor relationship and is payable upon thetermination of such, the amount of the bonus must be determined based on the exact salary earned at the time oftermination, whether due to resignation, death, disability or retirement, and must not exceed two times the general orprofessional salary in effect at that time. This case decision was upheld among contradictory case decisions.
After many years, in which different individuals have discussed the need to substantially amend the constitutional writof amparo, Mexico’s President has finally signed the Decree amending and adding articles 94, 103, 104 and 107 of theMexican Constitution. A significant step was taken as the amendment was published in the Official Journal of theFederation (Diario Oficial de la Federación) on June 6 and scheduled to take effect 120 days after publication. Withthe constitutional framework resolved, the process initiated years ago to amend different laws, particularly the AmparoLaw, will continue. These amendments were begun in 1999, when the Supreme Court (Suprema Corte de Justicia dela Nación) assembled a work group to prepare a draft bill amending the Amparo Law. Two years later, this draft bill,which was submitted for the approval of the Supreme Court, was discussed at a national conference in the city ofMérida. Years later, several legislators reintroduced the issue and submitted a draft for consideration by the Senate.Such new draft distorted the main purpose of adequately changing the Amparo Law, and the effort was discarded.According to a statement by Justice José Ramón Cossío in a newspaper article, as a result of influence by federallegislators and the Supreme Court itself, efforts for the promulgation of a new Amparo Law were reintroduced threeyears ago. Considering that the Supreme Court does not, as part of its federal judicial power, have the legal capacity todraft legislation, as do other supreme courts, such as in Spain, the scope and prestige of its judicial influence weredefinitive factors in keeping the idea of an amendment to the Amparo Law alive. The uncertainty that still remainsamong the legislature, the judiciary, and Mexican academia is whether amendments to the Amparo Law are enough, orwhether a completely new Amparo Law, and everything else that this would imply, must be promulgated. The questionthat legislators will have to answer is whether the amparo will serve as a means of protecting individual constitutionalguaranties. This would mean that nothing would change: an amparo may only be filed by a person who has beenaffected by an authority and the amparo’s effects will be limited only to that person who files for and obtains theprotection of an amparo, as is presently the case. According to others, the amparo is a process and a way by which tosecure the protection of fundamental rights. Consequently, the Amparo Law should be substantially amended to ensurethat its implications are general (erga omnes). The legislative branch is currently at that crossroads as its members mustnow discuss and approve new laws deriving from the constitutional amendments that have been promulgated. Thepurpose of this amendment, among others, is to stop the abuse resulting from the suspension of the act claimed by theamparo. The amendment is intended to prevent someone from using the amparo as a way to evade justice or to serveas a means to make the process difficult for authorities. Suspensions via an amparo may be granted or denied onlywhen it is clear that the amparo is not being used to evade the law. Amparos shall be considered as properly filed onlywhen rights guaranteed by law have been violated. It is mentioned that the rights arising from Mexican law are not theonly ones subject to protection. Those rights deriving from international treaties that have been ratified and consideredto be law in the country are also included. The new capacity of the Supreme Court to issue declarations regarding theunconstitutionality of laws and general standards is of great significance. A declaration of unconstitutionality withgeneral or collective validity may be issued when such jurisprudence is affirmed, 90 days have transpired, and noauthority has corrected any omissions. In addition, the constitutional amendment that gives the Supreme Court thecapacity to establish panels considering the number and specialization of the constitutional amparo circuits by generalagreement is also relevant. These panels, comparable to panels used in appellate courts in the United States to resolvematters in a collegiate manner, will allow the presidents from each circuit panel to resolve contradictory case decisionsthat may arise. This will allow the Supreme Court to resolve and have more time to attend to amparo proceedings,constitutional controversies and unconstitutional acts, which will be a top priority when one of the houses in Congressor the executive branch indicates that an urgent matter is in the best interests of the public pursuant to the constitutionalamendment promulgated.
