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Hidden defects are those which affect the use and enjoyment of an item sold and if known to the buyer wouldhave caused him or her to pay a lower price for such item or not to purchase it at all. This concept is recognizedby the Federal Civil Code and by the other civil codes of the Mexican Republic, which generally give the buyerthe right to demand indemnity against hidden defects for a period six months as of the date of delivery of thegoods that are the subject matter of the agreement. This time period tends to be shorter in commercial purchase orsale agreements in which the buyer, unless otherwise agreed, has only 30 days to make a demand based on thisreason. On January 18, 2012, the Official Journal of the Federation published an amendment to article 73 Quarter(sic) of the Federal Consumer Protection Law (LGPC, for its acronym in Spanish) imposing upon developers ofhousing and time shares the obligation to provide an indemnity against hidden defects of real property as of thedate of delivery for a period of (i) five years with respect to structural issues; (ii) three years for waterproofing;and (iii) one year for all other elements. While the one year rule established in the LGPC in the 2009 amendmentlengthened the term of the obligation in comparison to the general law, this obligation is now extended withrespect to structural matters and waterproofing (to five and three years respectively). It is clear that this obligationwill apply only to developers of housing and time shares, pursuant to which those purchases of real propertydestined for other uses, such as for commercial or industrial use, shall continue to be governed by the general lawand, specifically, by any agreements between the parties.
Internal Labor Regulations are the collection of regulations created by and between the employer and employeerepresentatives for the purpose of regulating the internal labor matters of the company. The Federal Labor Lawestablishes that all Internal Labor Regulations shall contain at least the following: (i) time of arrival and departurefor employees; (ii) time set aside for lunch and breaks during the work shift; (iii) where and when to begin andend the work day; (iv) fixed days set aside to perform maintenance of the premises, machinery, equipment andtools used for work; (v) paydays and place of payment; (vi) regulations for the use of seats or chairs (it should benoted that the Federal Labor Law requires employers to maintain the necessary number of seats or chairsavailable for employees in the workplace); (vii) regulations to prevent labor risks; (viii) instructions for providingfirst aid; (ix) unsafe and hazardous work that should not be performed by minors, if applicable, and protectionthat must be provided to pregnant women; (x) the time and manner in which employees must submit to prior orperiodic medical exams; (xi) the permits and licenses that employees may come to have; (xii) disciplinaryregulations and procedures for their application; and (xiii) any other regulations necessary in accordance with thenature of the each company to ensure maximum safety and order in the performance of work. It is important tonote that the Federal Labor Law provides that a “suspension” as a form of disciplinary action may not exceedeight days, and that the employee shall have the right to be heard prior to the application of any correspondingsanction. Furthermore, such law provides that a Mixed Commission shall be formed, comprised of employee andemployer representatives for the creation of the Internal Labor Regulations, and such shall be submitted to thecompetent Conciliation and Arbitration Board for approval. It is highly recommended that employees sign someform of document acknowledging receipt of the Internal Labor Regulations so that such Regulations may beapplicable to them. Without this acknowledgment, employers may not impose sanction greater than thoseestablished by the Federal Labor Law. In conclusion, it should be noted that the Federal Labor Law does notrequire companies to have Internal Labor Regulations and does not provide a sanction for failure to have such.However, companies may not sanction their employees if they have not properly recorded their regulations withthe corresponding Conciliation and Arbitration Board, or if they do not have a written policy signed by eachemployee establishing the rights and obligations that will regulate the relationship between the company and itsemployees.
On January 16, 2012, the Official Journal of the Federation published a Decree promulgating the Public PrivatePartnership Law (LAPP, for its acronym in Spanish) and amending the Public Works and Related Services Lawwith such, among other provisions. In accordance with LAPP, its purpose is to regulate the framework for thedevelopment of projects by public private partnerships, subject to articles 25 and 134 of the Constitution of theUnited Mexican States. Furthermore, under the LAPP, public private partnership projects are defined as thosecreated under any framework to establish a contractual long term relationship between entities in the public andprivate sectors for the provision of services to the public sector or the end user using infrastructure completely orpartially provided by the private sector for the purpose of increasing social well-being and investment in thecountry. In addition, it is established that these projects should be justified accordingly, specify the intendedbenefit to society and demonstrate their financial benefit as compared to other forms of financing. It should benoted that in accordance with the LAPP, the Procurement, Leasing and Public Sector Services Law and the Public Works and Related Services Law, their regulations and provisions will not be applied to this type of project unless expressly indicated by the LAPP. The LAPP expressly excludes substantive productive activitiesreferred to by articles 3 and 4 of the Regulatory Law of Constitutional Article 27 of the Petroleum Sector, as wellas those cases in which the applicable provisions establish that the private sector may not intervene. The LAPPcame into effect on the day following its publication, January 17, 2012, and is expected to have an importantimpact on the structuring of projects with a social impact for the benefit of Mexico’s national infrastructure.
On January 11, 2012, the Second Chamber of the Supreme Court of Justice of the Nation (SCJN, for its acronymin Spanish) approved court decision number 2a./J.6/2012, titled “Suspension of importer’s registration; It doesnot constitute a definitive act but rather a nuisance and therefore the right to a prior hearing does not apply.”The Second Chamber of the SCJN determined that the sanction consisting of the suspension of the importer’sregistration in accordance with article 51 of the Customs Law, including the General Rules on ForeignCommerce, does not constitute a resolution of a definitive character but rather a provisional suspension whichallows the competent government authority to verify that import proceedings are carried out in accordance withthat established by applicable regulation. The Second Chamber established that since this is a temporary measure,issuing an immediate suspension without allowing the importer an opportunity to present evidence and defend itsinterests does not amount to a violation of the right to a prior hearing, especially since “the rules themselvesprovide for the possibility that the entity may remedy or clarify the irregularity detected by making thecorresponding request, the same which would render the temporary measure without effect and repair the injury.”Consequently, since the suspension is a temporary measure, it does not constitute a definitive act and, therefore, itis not feasible to comply with the right to a prior hearing. This court precedent is pending publication in theJudicial Weekly of the Federation.
